Western Union Tel. Co. v. Hearne

• Decision Date: 25 April 1894
• Parties: WESTERN UNION TEL. CO. v. HEARNE.
• Court: Texas Court of Appeals

26 S.W. 478

WESTERN UNION TEL. CO. v. HEARNE.

Court of Civil Appeals of Texas.

April 25, 1894.

Appeal from district court, Callahan county; T. H. Conner, Judge.

Action by L. Hearne against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

Field & Homan and Walton & Hill, for appellant. John Bowyer, for appellee.

HEAD, J.

Appellee instituted this suit in the court below to recover of appellant damages alleged to have resulted to him from an error in the transmission of a telegraphic message. The message, as delivered to appellant, was as follows: "Baird, Texas, January 28, 1887. To E. E. Chase, Fort Worth, Texas: Return note left by Hearne. Draw for five hundred dollars. A. G. Wills, Cashier." The message, as transmitted and delivered to the addressee, was as follows: "Baird, Texas, January 28, 1887. To E. E. Chase, Fort Worth, Texas: Return note left by Hearne. Order for five hundred dollars. A. G. Wills, Cashier." Appellee claims in his petition that, at the time he delivered this message to appellant for transmission, he was indebted to the Dundee Mortgage & Trust Investment Company of Dundee, Scotland, in the sum of $25,000; that the interest upon this loan was evidenced by certain coupons, which were payable semiannually, and that, by the terms of the contract, default in the payment of any of these interest installments rendered the principal sum due; that this debt was secured by a deed in trust upon something over 13,000 acres of land, which authorized the trustee to sell the same upon default on the part of appellee in the payment of any of the interest coupons as above set forth; that, at the time of the delivery of said message to appellant, one of said interest coupons had matured, but said mortgage company, through its agent, E. E. Chase, to whom the message was directed, had agreed that if appellee would on or before January 28, 1887, deposit in the bank at Baird the sum of $500 to pay the same, and notify him (the said Chase) of said deposit, and that he was authorized to draw therefor, the said mortgage company would waive its right to declare the principal debt due for the nonpayment of said interest installment, and that this was the purpose intended to be accomplished by the sending of said message; that appellee was the owner of the land upon which said mortgage was so given; that appellant was notified of the purpose of the message, and of the damage that would likely result from its nondelivery, at the time it was delivered to it; that, by the error in the transmission of said message, appellee failed to secure the waiver contracted for with said mortgage company, and the said mortgage was foreclosed, and the land covered thereby was sold thereunder for something over $28,000 less than its value, by reason of which he sustained damage in said sum. For said last-named amount, appellee was given a verdict and judgment in the court below, from which this appeal is prosecuted.

The question is not presented by the record, for our consideration, as to whether or not the message, as transmitted and delivered to Chase, was in substance the same, for the purpose intended to be accomplished thereby, as the one delivered by appellee to appellant; nor is there an assignment challenging the sufficiency of the evidence to sustain the verdict rendered, by reason of the failure on the part of appellee to allege and prove inability on his part to prevent the sacrifice of his land by obtaining the money to discharge the debt from some other source. It will be observed, from what we have already said, that the gist of plaintiff's cause of action was the allegation that he was the owner of the land described in his petition, the title to which he claims to have lost through the negligence of appellant. To prove this allegation, appellee was permitted by the court below to testify as follows: "I owned and was in possession of the lands at time mortgage was executed, and at time same was sold, on February 23, 1887." This is all the evidence of title in appellee to this land, disclosed by the record. That part of the testimony of this witness to the effect that he owned this land was objected to by appellant, and bill of exceptions duly saved. We are of opinion that this evidence should have been excluded. In Gilbert v. Odum, 69 Tex. 673, 7 S. W. 510, it is said: "There was error in permitting the witness King, in answer to a question, to state that he did not, and never did, own any interest in the property in controversy, for the reason that title, or the want of title, in real estate, is a conclusion that the law draws from a given state of facts." The reasoning of our supreme court in numerous cases upon the question of the inadmissibility of declarations on the part of claimants to land to prove their title, we think, also leads to the same conclusion. Mooring v. McBride, 62 Tex. 309; Herndon v. Davenport, 75 Tex. 462, 12 S. W. 1111; McDow v. Rabb, 56 Tex. 154; Hickman v. Gillum, 66 Tex. 314, 1 S. W. 339. In this last case, while the declarations were admitted for the purpose therein indicated, it is said: "Whilst the fact that a party asserted that land belonged to her would be no evidence of title, yet it would be the best possible evidence that she claimed it." In this case, it was necessary for appellee to prove, not only that he claimed the land, but that he owned it, and lost the title thereto through the acts of appellant. We do not by this, however, mean to be understood as holding that it would be incumbent upon appellee to show a good paper title to each particular tract, if he can prove his allegation of ownership by other competent evidence. Actual possession of land is generally held to furnish prima facie proof of ownership in the possessor. Express Co. v. Dunn, 81 Tex. 85, 16 S. W. 792; Lewis, Em. Dom. § 440 et seq.; 2 Greenl. Ev. § 613; Winchester v. Stevens Point, 58 Wis. 350, 17 N. W. 3, 547. This character of evidence has been very generally held sufficient to authorize the recovery of the value of land taken for public uses, as will be seen from the above authorities, and we see no reason why it should not be sufficient in this case. The possession referred to, however, is an actual possession; and it is apparent that only this kind of possession will answer the purpose, because constructive possession accompanies the real title, and, in the nature of things, could not be shown without first proving in whom the title was by other evidence. It has therefore been held that in cases of this kind, where the one suing for the damage was out of possession, it was incumbent upon him to trace his title to the sovereignty of the soil. City of Lafayette v. Wortman, 107 Ind. 404, 8 N. E. 277. In the case at bar, it will be observed that the witness not only stated that he owned the land, but also stated that he was in possession of it; but he does not disclose the nature of this possession, and we have had considerable difficulty in deciding as to whether or not this general statement should be held sufficient to render the improper admission of the statement of ownership...