On Rehearing In the original opinion in this case we have not held, as seems to be contended in appellant's motion for rehearing, that it is not necessary in all cases that a controverting plea to a plea of privilege set out "specifically the fact or facts relied upon to confer venue of such cause on the court where the suit is pending." If the opinion be susceptible to such construction, it is subject to criticism for lack of clearness.
In Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93, the apt term "venue facts" was coined and clearly defined. The court in the formal declaration of its conclusions said: "The venue facts which a plaintiff, desiring to sue a defendant outside the county of defendant's domicile, must allege and prove, if the defendant asserts his privilege, are those which are stated in the particular exception of article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff's petition." Venue facts when alleged in *Page 1021 a controverting plea to a plea of privilege constitute the issues to be determined by the court's judgment in sustaining or overruling the plea of privilege. We have held in deference to Compton v. Elliott, supra, that the factual elements of a cause of action are necessary to be shown by the evidence but only as part of the required proof that plaintiff was a resident of Taylor County "at the time of the accrual of the cause of action." It is further our holding, that the facts constituting the elements of the cause of action are not (considered singly) "venue facts." They are rather the evidence of a venue fact. In Compton v. Elliott, supra, it was held that two venue facts were essential to be pleaded and proved in order to show that the venue was maintainable under exception 9. Said the Court: "The venue facts, therefore, which plaintiff is required to plead and prove, are that [1] the crime or offense alleged was committed and that [2] it was committed in the county where the suit is pending." That only two venue facts were regarded by the court as being involved is placed beyond question by a sentence in the same connection, namely: "Proof of the fact [singular] of the commission of the crime, offense, or trespass is as essential as is proof of theplace where it was committed." (Italics ours) Undoubtedly, if the facts constituting the elements of the crime of malicious prosecution were each severally a venue fact, then there were not two, but considerably more than two venue facts involved. In Stockyards National Bank v. Maples,127 Tex. 633, 95 S.W.2d 1300, 1302, it was declared that by the purport of the language of exception 4 (more than two defendants residing in different counties) there were two venue facts, namely: "the residence of one of the defendants in the county where the suit is pending and a suit brought against two or more defendants." One other venue fact, making three in all, was recognized as having been added by judicial construction. It was said: "The decisions of the courts have added another venue fact to those prescribed by the language of exception 4." Are we justified in saying that the court held that there were just three venue facts, and that one of them was the fact of the existence of a cause of action? Witness this further language of the court: "* * * in our opinion adequate protection is afforded to the defendant's valuable right to make his defense on the merits in the county of his residence when the plaintiff who has filed suit in the county of the residence of one of the defendants is obliged, in order to overcome the prima facie proof made by the plea of privilege filed by the nonresident defendant, to establish by proof the three venue facts which have been discussed, including the fact [singular] that he has a cause of action, as alleged, against the resident defendant." (Italics ours)
Of course, it cannot be gainsaid that the factual elements comprising almost any cause of action that could be alleged would alone amount to more than three. Be that as it may, it is beyond the range of controversy, we think, that here the Supreme Court treats the fact of the existence of a cause of action as one of the three facts involved in that particular exception. If one, then it goes without saying that that one only need be alleged in addition to the other two. The proof under Compton v. Elliott, supra, will comprehend evidence to show the existence of each factual element in the cause of action.
It is evident, however, from the motion for rehearing that our conclusions are not in accord with a number of decisions cited, including among them Bramblett v. Roby State Bank, 67 S.W.2d 450, and Texas Acceptance Corp. v. Strickland, 91 S.W.2d 1179, following it, both by this court. In those cases we overlooked the rule discussed in the original opinion herein which recognizes that whether a particular allegation in a pleading is the averment of a fact or of a legal conclusion may depend upon the nature of the issues to be determined by the judgment, with the result that under some circumstances the same allegation may be a proper allegation of a fact while under others an improper allegation of a legal conclusion. We are now convinced that the proper deductions from the opinions in Compton v. Elliott and Stockyards National Bank v. Maples, supra, support the proposition that the several exceptions to the general rule of venue state the only facts necessary to be pleaded, and that when a controverting plea alleges the facts as stated in a particular exception relied on to sustain the venue, it is sufficient as a matter of pleading.
The particular exceptional provision under consideration authorizes the venue of the suit, as brought, in Taylor County, if the suit is for damages for libel, and the plaintiff "resided at the time of the *Page 1022 accrual of the cause of action" in said Taylor County. Every venue fact is comprehended in that statement. No amount of scrutiny can discern therein the fact of a defamation, of a publication, or of malice. To allege that a suit is a "suit for damages for libel" sounds like the allegation of a legal conclusion. If such allegation were intended to be established by the judgment of the court as a basis of the liability to pay damages, it would be. But it may certainly be regarded as settled that such allegation, as it relates to venue, is the allegation of a fact and not of a legal conclusion. Stockyards National Bank v. Maples, supra.
Perfectly analogous, the allegation that plaintiff resided in Taylor County at the time of the accrual of the cause of action, is an allegation of fact and not a legal conclusion. Moreover, it is the allegation of one fact, not two or more. It is to be noticed the pleader does not aver that he had a cause of action against the defendant. He does not even allege that a cause of action accrued. He simply alleged that he was a resident of Taylor County, and since under the law that is unimportant, unless he was such a resident at a particular time specified by the law, he meets that requirement of the law by specifying "at the time of the accrual of the cause of action."
Stockyards National Bank v. Maples, supra, is authority for the proposition that in the trial of the issues involved on the hearing of a controverted plea of privilege the only evidence necessary is such as is relevant to the venue facts, which latter, as we have said before, are the issues and only issues tendered by a good controverting plea to a plea of privilege. Upon this point the court said: "The statutory hearing upon the issues made by the plea of privilege and the controverting affidavit is intended to be a trial of the question of venue and not ofthe merits of the case. This hearing should not be extended into a consideration or trial of the merits of the case [further] than is madenecessary by the peculiar language of the particular exception of article1995 upon which the plaintiff relies." (Italics ours) This was said in connection with the following: "Proof by the plaintiff that he has a cause of action against the resident defendant is relevant to the issueof venue, in that the plaintiff in making such proof conclusively shows his good faith in the selection of the venue; but proof by the plaintiff that he has a cause of action against the nonresident defendant has norelevancy to the issue of venue." (Italics ours)
We believe that our original opinion correctly points out the only respect in which the facts which would show a cause of action for libel are relevant to the issues of venue, and logically demonstrates that such facts are only evidentiary of venue facts and do not constitute the venue facts themselves.
On the question of invited error, we are, after further consideration, aided by appellant's motion for rehearing, convinced that we were in error. In determining the question of the sufficiency of the controverting plea, we were bound to know from the record that under our interpretation of Compton v. Elliott, evidence necessary to establish the issues of venue was upon the objection of appellant excluded. As a necessary deduction from our conclusion on the question of pleading, the action of the court in excluding such evidence was erroneous, the error being committed against the appellee. But no assignment of error by appellant, or cross-assignment of error by the appellee presents the action of the court in excluding the evidence for review by this court. As said in the original opinion the error of the court in this respect was not a fundamental error. Our jurisdiction to review actions or rulings of a trial court, not involving fundamental error, is upon assignments of error distinctly specifying the grounds upon which a party to the appeal relies. Art. 1844, R.S. 1925, Vernon's Ann.Civ.St. art. 1844. The same statute declares that "All errors not distinctly specified are waived." Under the operation of this statute the error of the court in excluding the evidence in question has been waived. The question then arises, which seems not to have occurred to us in our prior consideration of the case: If such error against the appellee was waived, how can it be utilized in his favor as an estoppel to permit a judgment to be affirmed which concededly lacked necessary support in the evidence? This court has had occasion to approve a proposition as follows: "If it becomes necessary for an appellee or a defendant in error to invoke the authority of the appellate court to determine the existence of error, not fundamental, in any ruling, action *Page 1023 or other part of the proceedings of the trial court, whether to obtain further relief in a judgment awarding partial relief, or to sustain the judgment in his favor upon some other basis, or for some other reason than that upon which it was predicated by the trial court, then it is necessary to present such matters by cross-assignments of error." Miller v. Fenner, Beane Ungerleider, Tex. Civ. App. 89 S.W.2d 506, 509; Texas Co. v. Graham, Tex. Civ. App. 107 S.W.2d 403. The waiver declared by the statute has the effect of requiring us to regard the action of the court in excluding the evidence as not in itself subject to review; and in considering appellant's assignment of error challenging the want of necessary evidence to support the judgment we must determine that question, without reference to the reasons why the evidence was not introduced.
There is another and independent reason why we are now convinced we were in error in our original opinion. It is true, appellant objected to the evidence, but it is also true, as the record clearly reflects, that the objection was not the cause of the court's excluding the evidence. The evidence was objected to on the ground of the want of pleading to support it. The court announced precedently and independently of any objection that he was going to exclude the testimony upon an entirely different theory, in no manner dependent upon the question of pleading involved in the subsequent objection. The evidence was excluded because of the view of the learned trial judge that such evidence was unnecessary to establish the requisite venue facts. It was objected to under a directly opposite theory. Under such circumstances, we think, that we would not be warranted in holding that the error was invited, and thus applying the principle of estoppel under circumstances manifestly lacking in essential characteristics of a true estoppel.
It is our conclusion upon the rehearing that the motion should be granted, that our former judgment affirming the judgment of the trial court should be set aside, and that the said judgment should be reversed and the cause remanded.
It is accordingly so ordered.