Houston Printing Co. v. Tennant

• Decision Date: 10 June 1931
• Docket Number: No. 1456-5691.,1456-5691.
• Citation: 39 S.W.2d 1089
• Parties: HOUSTON PRINTING CO. v. TENNANT.
• Court: Texas Supreme Court

39 S.W.2d 1089

HOUSTON PRINTING CO. v. TENNANT.

No. 1456-5691.

Commission of Appeals of Texas, Section A.

June 10, 1931.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Action by Roy Tennant against the Houston Printing Company. From an order overruling a plea of privilege, defendant appealed to the Court of Civil Appeals, which certifies a question to the Supreme Court.

Question answered.

Ross, Wood, Lawler & Wood and W. M. Cleaves, all of Houston, and Winbourn Pearce, of Temple, for appellant.

Tyler & Hubbard, James B. Hubbard, and A. L. Curtis, all of Belton, and De Witt Bowmer, of Temple, for appellee.

SHARP, J.

The Honorable Court of Civil Appeals for the Third Supreme Judicial District has certified to the Supreme Court the following question:

"The appeal is from an interlocutory order overruling a plea of privilege in which appellant (defendant below) sought to have the venue changed to Harris County, the county of its domicile.

"The suit is one for libel only, and appellee sought to maintain venue in Bell County, on the ground that within the meaning of R. S., art. 1995, subd. 29, he resided in that county `at the time of the accrual of the cause of action.' Briefly, the record showed the following upon this issue: The libelous publication sued upon was with reference to official acts of appellee while he was a member of the State Board of Control, and the cause of action accrued subsequently to January 1, 1926. Prior to said date plaintiff had resided in Temple (Bell County) continuously for about 27 years. On January 1, 1926, he assumed office as a member of the State Board of Control, and from that time on he lived in Austin, where his principal duties upon the Board were performed. Upon leaving Temple he rented his house furnished and it has been rented ever since, with the understanding that he was to re-take possession when his term of office should expire. At Austin he and his wife boarded at a hotel. He maintained his domicile, paying his poll tax and voting in Bell County; and intended to return to Bell County as soon as his term of office expired. In other words, the evidence conclusively showed that his domicile continued to be in Bell County, although he was temporarily residing in Austin while performing his duties as a member of the Board of Control.

"Under a similar state of facts the Texarkana Court of Civil Appeals, in Belo v. Granberry, 9 S.W.(2d) 443, held that the venue statute in question had reference to the actual residence of plaintiff as distinguished from his legal residence or domicile. This holding was followed in O'Rourke v. Star Telegram, 19 S.W.(2d) 136, by the Galveston Court. The Dallas Court reached the contrary conclusion in Evans v. American Publishing Co., 8 S.W.(2d) 809, but on account of the Texarkana Court's holding certified the question to the Supreme Court; and the Commission of Appeals in an opinion adopted by the Supreme Court held that the statute authorized the suit to be brought in the county of plaintiff's domicile. 118 Tex. 433, 13 S.W.(2d) 358. Later the Supreme Court dismissed an application for writ of error in the O'Rourke Case. The only point of difference between the Evans Case on the one hand, and the Belo and O'Rourke Cases on the other, as we read the opinion, is the fact that in the former the plaintiff maintained his domicile in Texas and his actual residence outside the State, whereas in the two latter cases both the domicile and actual residence were within the State. We have declined to follow the Texarkana and Galveston Courts in the above decisions, because, first, we believe they are in conflict in principle with the decision in the Evans case; and, second, because we are not in accord with the decisions and conclusions reached in those cases; and we have affirmed the trial court's order denying a change of venue.

"Because of the conflict between our decision and that of the Texarkana and Galveston Courts, the public importance of the controversy thus raised, and the manifest urgent necessity of having a judicial determination thereof by the Supreme Court (the decision of the Courts of Civil Appeals being final in this character of cases), we deem it advisable and our duty to certify for your decision the following question:

"Were we in error in holding, under the facts above outlined, that the venue in this case was properly laid in Bell County?"

It appears from the foregoing certificate that appellee is a member of the Board of Control. That on January 1, 1926, he assumed office as a member of that board and from that time on he has lived in Austin, where his principal duties upon the board were performed. Upon leaving Temple he rented his house furnished with the understanding that he was to retake possession when his term of office expired. He maintained his domicile, paying his poll tax and voting in Bell county, and intended to return to Bell county as soon as his term of office expired. In other words, the evidence conclusively showed that his domicile continued to be in Bell county, although he was temporarily residing in Austin while performing his duties as a member of the Board of Control. That the libelous publication sued upon with reference to his official acts while a member of the State Board of Control and the cause of action accrued subsequent to January 1, 1926. Prior to that date appellee had resided in Temple, Bell county, Texas, for about twenty-seven years.

Article 5430, R. S. 1925, reads: "A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty,...