The majority of this court concur in the foregoing disposition of the case on motion for rehearing. However, we have come to the conclusion that plaintiff's controverting affidavit does not set out "specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending", as required by Art. 2007.
Plaintiff's controverting affidavit, eliminating the formal parts and the oath, is as follows:
"* * * this is a civil libel suit brought by plaintiff against said defendant upon libelous publications defaming the plaintiff which the defendant published between the dates of July 5, 1936 and September 3, 1936, both dates inclusive, as set forth and pleaded in plaintiff's original petition, which for the purpose of showing that this is a civil libel suit is referred to and made a part of this controverting affidavit the same as if it were now set forth and pleaded herein in full.
"Plaintiff shows that he resided in the City of Abilene, County of Taylor and State of Texas where this suit is brought at the time of the accrual of said cause of action, and that for approximately five years immediately preceding said September 3, 1936, the plaintiff resided with his family at No. 3425 South Seventh Street in the City of Abilene, Taylor County, Texas, which was his legal home and place of residence and which during said time had in it their household furniture and family effects, and that for more than twenty-eight years continuously, immediately preceding said September 3, 1936, plaintiff with his family had resided in said City of Abilene, Taylor County, Texas, and that under paragraph No. 29, entitled Libel and Slander, of Article 1995, of the Revised Civil Statutes of Texas, the plaintiff exercised the option therein given him by law to file, and did file, this suit in the County where he resided when the grievances complained of in his Original Petition were by defendant committed, and that as provided in the aforesaid statute, this court has jurisdiction of this case and that venue is properly laid in Taylor County, Texas."
It will be observed that plaintiff alleges in quoted paragraph one "this is a civil libel suit brought by plaintiff against said defendant" and in paragraph two that plaintiff resided in the county where the suit was filed "at the time of the accrual of said cause of action." The reference to plaintiff's petition is restricted by him to the sole purpose of "showing that this *Page 1024 is a civil libel suit." No fact alleged in the petition is made a part of the controverting affidavit nor sworn to in the verification of the controverting affidavit. It is obvious that no facts are alleged in the controverting affidavit showing that plaintiff was libeled. If Subd. 29 of Art. 1995, and Art. 2007, as interpreted by our courts, require such facts to be alleged, as showing the "venue fact" of libel, the controverting affidavit is manifestly insufficient. We think the law with reference thereto is correctly announced in Thompson v. Duncan, Tex. Civ. App. 44 S.W.2d 508, 509, as follows: "* * * the burden rested upon plaintiff to allege and prove * * * a cause of action * * * in other words, that he had been libeled * * * and at the time resided in the county where he filed the suit. To bring the instant case within the exception to exclusive venue provided in subdivision 29, plaintiff should have alleged in his contesting plea these essential facts, and made proof of same * * *"
Our conclusion, we think, finds support in the decision of our Supreme Court in Jefferies v. Dunklin, 115 S.W.2d 391, 393, wherein Justice Critz said: "Under the plain terms of the above statute [Art. 2007], the controverting plea of the plaintiffs is, and must be, a sworn pleading. Also, under the plain terms of such statutes, such controverting plea must set out specifically the fact, or facts, relied on by the plaintiff to establish venue in the court where the case is pending. In this connection, the statute unquestionably contemplates that the controverting plea constitutes the pleadings of the plaintiff on the issue of venue, and such plea must allege all the facts that are necessary to be proved to sustain the venue in the court where the suit is filed. The statute puts the burden on the plaintiff to plead in his controverting plea, and to prove, the facts which will sustain the venue in the court where the suit was filed. Compton v. Elliott, 126 Tex. 232,88 S.W.2d 91. An examination of the controverting plea filed by the plaintiffs in this case will disclose that it neither directly nor indirectly makes the petition in such case a part thereof. Such controverting plea must therefore be tested by its own allegations, unaided in any way by the petition. Henderson Grain Co. v. Russ,122 Tex. 620, 64 S.W.2d 347. When we test this controverting plea by its own terms or allegations, unaided by the petition, we find that it amounts to nothing, because it fails utterly to allege a cause of action against defendant in Tarrant county."
Our decision that it is necessary in a civil libel suit for plaintiff in a controverting affidavit to allege and on a hearing prove facts showing he was libeled by defendant and that at the time he was so libeled he was a resident of the county wherein he filed his suit, also, finds support in the following authorities: Independent Life Ins. Co. v. Hogue, Tex. Civ. App. 70 S.W.2d 629, 631; American Pub. Co. v. Rogers, Tex. Civ. App. 65 S.W.2d 801, 804; 27 Tex.Jur. 718; World Co. v. Dow,116 Tex. 146, 287 S.W. 241, 242; Jones v. Hickman, 121 Tex. 405,48 S.W.2d 982; Jones v. Womack-Henning Rollins, Tex. Civ. App.53 S.W.2d 635, 636; Highway Motor Freight Lines v. Slaughter, Tex. Civ. App. 84 S.W.2d 533, 538; American Fruit Growers v. Sutherland, Tex. Civ. App. 50 S.W.2d 898, 900; Commercial Standard Ins. Co. v. Lowrie, Tex. Civ. App. 49 S.W.2d 933, 937, writ refused; James v. Lavere, Tex. Civ. App. 95 S.W.2d 1371, 1372; Gulf Ref. Co. v. Lipscomb, Tex. Civ. App. 41 S.W.2d 248, 249; Jacobson v. Berwick, Tex. Civ. App.289 S.W. 1035; Gholson v. Thompson, Tex. Civ. App. 298 S.W. 318; Bender v. Kowalski, Tex. Civ. App. 13 S.W.2d 201; Fidelity Deposit Co. v. Locke, Tex. Civ. App. 12 S.W.2d 646; Bledsoe v. Lindsey, Tex. Civ. App. 104 S.W.2d 71; 43 Tex.Jur. 856; Texas Law Review, vol. 13, p. 217.
It has been determined, under subd. 9 of Art. 1995, that when a plaintiff in a suit for damages based on a crime or trespass seeks to avoid a transfer of the case upon defendant's plea of privilege, he must allege in his controverting affidavit and prove facts showing the actual commission of the crime or trespass and that it was committed in the county where the suit was filed. Compton v. Elliott, 126 Tex. 232,88 S.W.2d 91; Id., Tex. Civ. App. 55 S.W.2d 247; Waco Cotton Oil Mill v. Walker, Tex. Civ. App. 103 S.W.2d 1071, 1072. Likewise, it has been determined, under subd. 23, of Art. 1995, that plaintiff must allege and prove facts showing a cause of action against the defendant private corporation and that such cause of action, or part thereof, arose in the county where the suit was instituted. Stone Fort National Bank v. Forbess, 126 Tex. 568, 571, 91 S.W.2d 674; Texas Coca-Cola Bottling Co. v. Kubena, Tex. Civ. App. 90 S.W.2d 605. There is *Page 1025 no real ground for distinction in the necessity, way and manner of alleging and proving that a cause of action "arose" in the county where the suit was instituted (subd. 23, Art. 1995), and that a cause of action "accrued" at a time when plaintiff resided in the county in which the suit was filed, (subd. 29, Art. 1995). In both instances the essential elements of the cause of action must be both alleged and proved. Nor is there ground for distinction in holding, under subdivision 9, Art. 1995, that the actual commission of a crime and that it was committed in the county of the suit is necessary to be alleged and proved, and a holding, under subd. 29, that it is necessary to allege and prove facts showing defendant was libeled and that when libeled he resided in the county of suit.
It has been determined in a suit to recover a penalty for usury, under Art. 5073, which provides that such suit may be brought "in the county of the defendant's residence, or in the county where such usurious interest shall have been received or collected, or where said contract has been entered into, or where the parties who paid the usurious interest resided when such contract was made" that, upon the filing of defendant's plea of privilege, "the burden was on the plaintiff both to allege and to prove as venue facts one of the following: (1) That the defendant's domicile was in Young county; (2) that usurious interest was received or collected in Young county; (3) that the usurious contract was entered into in Young county; (4) that the party who paid the usurious interest resided in Young county when the contract was made." Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867, 868.
In other words, if the defendant did not reside in the county where the suit was filed, notwithstanding that the nature of the suit was one for penalty for collection of usurious interest (which fact is shown conclusively and exclusively by the petition), the fact of the receipt or collection of usurious interest in the county of suit, or the fact that a usurious contract was there entered into, or the fact that usurious interest was actually paid by plaintiff and that he resided in the county of suit when the usurious contract was made, must be alleged and proved. Ballard v. Shock, Tex. Civ. App. 91 S.W.2d 385; Art. 5073. The same reasoning that required the allegation of such facts and proof thereof in the above cases, we think, required allegation of facts showing plaintiff was libeled (as a "venue fact") and at the time he was so libeled plaintiff resided in Taylor County, where he filed and desired to maintain the suit. If he were required to prove the fact of defamation he was required to allege facts showing defamation. Allegation and proof of venue facts are made in the ordinary way. Compton v. Elliott, supra.
Plaintiff's allegation that a cause of action accrued is not an allegation of a specific fact required by Art. 2007. It is but a general conclusion of law not based on any specific allegation of facts contained in the controverting affidavit, or made a part thereof by adoption of such allegations in plaintiffs petition. Duffy v. Cole Pet. Co.,117 Tex. 387, 5 S.W.2d 495; Hudgins v. Hansbro, Tex. Civ. App.11 S.W.2d 607; Bender v. Kowalski, Tex. Civ. App. 13 S.W.2d 201; Fidelity Deposit Co. v. Locke, Tex. Civ. App. 12 S.W.2d 646; 43 Tex.Jur. 814; Bramblett v. Roby State Bank, Tex. Civ. App.67 S.W.2d 450; Texas Acceptance Corp. v. Strickland, Tex. Civ. App.91 S.W.2d 1179.
We do not agree that the two last cited cases should be overruled.
It appears from the record that the court and plaintiff were of the opinion that to show venue in Taylor County it was only necessary for plaintiff to show, by his petition, that the suit was for libel and that at the time plaintiff alleged he was libeled he resided in Taylor County. Notwithstanding this view, plaintiff attempted to prove that he was libeled. Such proof was excluded. The trial court and plaintiff apparently find support for such opinion in Houston Printing Co. v. Tennant, Tex. Civ. App. 76 S.W.2d 762, and possibly other opinions of the same great court. The writer thinks said opinion is susceptible of such interpretation, (which, of course, would exclude the necessity of allegation and proof of facts showing defendant was actually libeled at a time when he resided in Taylor County). If said decision should be so interpreted we are not in accord therewith. We think the contrary rule announced by the Dallas and other courts is correct. Except as herein stated, we are in accord with the conclusions expressed in the opinion by Judge FUNDERBURK on motion for rehearing. The foregoing conclusions are in accord with our decision in Thomas L. Blanton v. Clyde L. Garrett et al., 124 S.W.2d 451, decided November *Page 1026 11, 1938, in which case, however, there was no question of the sufficiency of the allegations in the controverting affidavit.
There being neither allegation nor proof of facts showing plaintiff was libeled while he resided in Taylor County, the judgment must be reversed and the cause remanded.