Houston Printing Company v. Tennant , 120 Tex. 539 ( 1931 )

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, sub. 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. Graham, 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 advisible 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 re-take 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 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, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury."

The general rule for determining the venue of a suit of this character in this state is prescribed by subdivision 29 of article 1995, R. S., 1925. Subdivision 29 reads:

"A suit for damages for libel or slander shall be brought, and can only be maintained, in the county in which the plaintiff resided at the time of the accrual of the cause of action, or in the county where the defendant resided at the time of filing suit, or in the county of the residence of defendants, or any of them, or the domicile of any corporate defendant, at the elecation of the plaintiff."

Webster's New International Dictionary defines the word "reside" as follows:

"To dwell permanently or for a considerable time; to have a settled abode for a time; to have one's residence or domicile."

It has never been the policy of the courts of this state to give a strict technical construction to the words "inhabitant," "resident," "domicile" and "residence." It is well settled by the decisions of this state that the words 'inhabitant" and "resident" and "domicile" and "residence" are interchangeable terms as used in the venue statutes of this state. Taylor v. Wilson, 99 Tex. 651,93 S.W. 109; Evans v. American Publishing Co. et al., 118 Tex. 433,13 S.W. 358; Pearson v. West, 97 Tex. 238,77 S.W. 944; Pittsburg Heater Co. v. Sullivan, 115 Tex. 417,282 S.W. 576; Brown v. Boulden, 18 Tex. 432; Funk v. Walker (Texas Civ. App.), 241 S.W. 720; Bolton v. Allen (Texas Civ. App.), 25 S.W.2d 638; Burns v. Napier (Texas Civ. App.),19 S.W.2d 578.

Subdivision 25 of article 1995 provides that suits against railroad corporations for damages arising from personal injuries "shall be brought either in the county in which the injuries occurred or in the county in which the plaintiff resided at the time of the injury."

In construing the language contained in subdivision 25 of the venue statute, the courts have held that an action may be brought in the county of plaintiff's permanent residence, although temporarily residing elsewhere. G. C. S. F. Ry. Co. v. Overton (Texas Civ. App.), 107 S.W. 71; I. G. N. Ry. Co. v. Elder, 44 Texas Civ. App. 605[44 Tex. Civ. App. 605], 99 S.W. 856.

The Supreme Court in the Overton case, supra, granted a writ of error and reversed the opinion of the Court of Civil Appeals upon other issues, but did not disturb the holding of the Court of Civil Appeals with reference to the venue of the suit.101 Tex. 583, 110 S.W. 736.

It is undisputed that the appellee is holding office for a limited term on the Board of Control which calls for his principal duties to be performed at Austin. He and his wife boarded at a hotel in Austin, but retained his home furnished at Temple in Bell county and claimed it as his home ever since he left that county and intended to return and take possession of his home just as soon as the term of his office expires.

The publication of a libelous matter is a direct thrust at a person's reputation for honesty, integrity or virtue. The law has provided a remedy for such an offense, if committed. Naturally, a person against whom such a libelous matter is published, should be permitted to file and maintain his suit in a forum in the county where he resides and is known best. We do not think it was the intention of the Legislature in defining venue in a case of this character to compel a citizen, who might be temporarily serving the state by holding some office at Washington, D.C., or at Austin, to litigate his rights in a county where he is a stranger or unknown. Nor do we think the fact that in the discharge of his duties he is called away from his domicile can affect the question. On the contrary, we think it the policy of this state, in a case of this kind, to permit citizens to litigate their rights in the county where they vote, pay taxes, and have their residence among the people who know them best, who know their character and standing for honesty, integrity, virtue and fair dealing. We do not believe that it was the purpose or intention of the Legislature to destroy this right and a construction of subdivision 29 does not sustain that contention.

That the conclusions stated above reflect the public policy of this state, is fully shown in the language used in section 9, article 16, of the Constitution of Texas, which reads as follows:

"Absence on business of the State, or of the United States, shall not forfeit a residence once obtained, so as to deprive any one of the right of suffrage, or of being elected or appointed to any office under the exceptions contained in this Constitution."

We therefore recommend that the foregoing question be answered "No."

The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.

C. M. CURETON, Chief Justice.