ly returned. We are of opinion that, when the plaintiff showed a valid title emanating from the common source, it made out a prima facie case. If the plaintiff in an action of trespass to try title, in order to maintain his action, prove that both he and defendant claim from a common grantor, and if, in doing this, he should exhibit the defendant's title, and it should appear upon its face to be superior to his own, he cannot succeed unless he go further, and show that, notwithstanding its apparent soundness, it is for some reason invalid. This is what was meant when it is said in Keys v. Mason, 44 Tex. 140, that a plaintiff shows a prima facie right "by proof that the defendant and himself claim the land under a common source of title, and that his is the better right or superior title under the common source." It is not meant that the plaintiff in every case shall prove, not only that both claim from the common source, but that he shall also show specifically the nature of the defendant's claim, and then attack its validity. Such a rule would lead to the unreasonable result that it would devolve the duty upon the plaintiff of proving facts not presumed to be within his knowledge, but which are presumed to be known to his adversary. That is to say he would have to make out the defendant's case. The theory of the doctrine of the common source is that proof of a claim of title by one under another is prima facie evidence, as against the claimant, that the title was at one time in that other; so that when the plaintiff shows that he has a valid chain of title from a certain grantor, and that the defendant claims under the same grantor, without proving what the defendant's title is, he shows prima facie that he is owner of the land, and it then devolves upon the defendant to show the authority of his own title.

In Sebastian v. Martin Brown Co., 75 Tex. 291, 12 S. W. 986, the plaintiff claimed the land under an execution sale and a sheriff's deed, as in this case; and, after showing that he had acquired the title of the defendant in execution, he proved that the defendant claimed also under an execution sale, without showing which was the older title. The view of the court was that, since he had shown that the defendant had a title of the same nature as his own which might be superior in point of time, he ought to have gone further, and proved that it was in fact inferior. In the present case there was an agreement as to the common source, and we think the plaintiff could not reasonably be required to show what the defendant's title was. The defendant may have had no title whatever, and the plaintiff may have found it impossible to prove the negative. Our conclusion is supported by the following cases: Tapp v. Corey, 64 Tex. 594; McNamara v. Muensch, 66 Tex. 68, 17 S. W. 397; Montgomery v. Carlton, 56 Tex. 361; and Stephens v. Hix, 38 Tex. 656. We are asked

to reverse and render the judgment, but there are expressions in the opinion in Sebastian v. Martin Brown Co., supra, which are calculated to mislead, and which have probably misled, counsel and the courts. We therefore deem it just to reverse the judg ments, and remand the cause; and it is so ordered.

WESTERN UNION TEL. CO. v. HENRY. (Supreme Court of Texas. June 18, 1894.) TELEGRAPH COMPANIES ACTION FOR DELAY MENTAL ANGUISH-SufficIENCY OF PETITION. A petition alleging that plaintiff received a message to come to his grandfather, who was ill, to which he answered that he could not come; that another message, announcing the death of his grandfather, was delayed so long that he did not get it in time to attend the funeral; and that the messages were "delivered" and "sent," but averring no contract to send them,-will not support a judgment by default for mental suffering resulting from his deprivation, through defendant telegraph company's negligence, of the privilege of being present at his grandfather's last sickness and funeral.

Error from court of civil appeals of first supreme judicial district.

Action by J. B. Henry against the Western Union Telegraph Company for damages for delay in sending messages. From a judgment of the court of civil appeals (25 S. W. 1097) affirming a judgment of the county court, defendant brings error. Reversed.

M. R. Geer, for plaintiff in error. W. C. Buford and John R. Arnold, for defendant in error.

GAINES, J. This suit was brought by defendant in error to recover of plaintiff in error damages for failure to deliver certain telegraphic messages. There was a judgment by default, from which the defendant company sued out a writ of error to the court of civil appeals, assigning as error the insufficiency both of the petition and of the citation to support the judgment. The court of civil appeals affirmed the judgment. The petition, after alleging that Evan Thompson, the grandfather of the plaintiff, was lying at the point of death at his residence in Rusk county, and that the plaintiff resided at Athens, in Henderson county, proceeded as follows: "That W. H. Frizzell delivered to defendant the following message, at Henderson, Rusk Co., Texas: 'Oct. 15th, 1890. To Ben Henry, Athens, Texas: Grandfather is very low. Come at once. W. H. Frizzell.' Said message was delivered by W. H. Frizzell to defendant's agent at Henderson, at 4:40 p. m., and received at Athens 8:30 p. m., but not delivered to petitioner until 10 o'clock p. m., making a delay of six hours. That petitioner answered said message as follows: 'Can't come. Have wrote. Answer,'-which was sent from Athens at 10 p. m., on the 15th day of October, 1890, and received at Henderson at 1 p. m., on the 16th

day of October,-a delay of about 15 hours, -and not delivered to W. H. Frizzell, the person to whom it was addressed, until 4 p. m., 16th day of October, 1890. That plaintiff could have no reply to his message last above set out, and on the 17th of October, at 10 o'clock a. m., he sent the following message to W. H. Frizzell, Henderson, Texas: 'How is grandfather? Where is he? Answer immediately.' That the same was received at Henderson at 1:12 p. m., and not delivered to W. H. Frizzell until 3 o'clock p. m. of same day,-a delay of five hours. That said W. H. Frizzell, at 3:06 p. m. of the same day, replied to said message to petitioner: 'Very low at his house. Lizzie, Bob with him,'-which was not delivered until 5 o'clock p. m. of same day. That said Evan Thompson died on the 17th, at 3 o'clock p. m., and was buried on the 18th October, 1891, at hour of 6 o'clock. That said W. H. Frizzell sent petitioner the following message: 'Grandfather died at three p. m. Will bury here at 5 this evening.' Was sent from him at 10:30 a. m., October 18, 1891, and delivered to them at 4:30 p. m., October 18, 1891,-a delay of six hours. That plaintiff was by said messages endeavoring to ascertain the condition of said Evan Thompson for himself and others of his children and grandchildren, who resided at Athens, In Henderson, as above set out, and that defendant was fully informed of said fact; that petitioner and W. H. Frizzell were acting for them, as well as in their own interest. That said Evan Thompson's residence was about 20 miles from Henderson, Rusk Co., Texas, and about 10 miles from Timpson, Shelby county, Texas, a railroad station; and that Athens, Henderson county, Texas, is a railroad station about 80 miles from Henderson. That, although he did reply to the first message that he could not come, he did intend to come later on when he learned of the fatal sickness of his grandfather, and that all of the family of the said Evan Thompson intended to come, and would have come and been present to minister to said Evan Thompson and attend his burial, except for the inexcusable and culpable neglect and delay in the delivery of the said messages as above set out; and that petitioner and the other children and grandchildren who reside at Athens, in Henderson county, would have come if they had received said death message in time to come. That they were in railroad connection with Henderson, and, if said message had been promptly delivered with reasonable dispatch, they could have been so present. That, by reason of the premises aforesaid, petitioner has suffered mental anguish, sorrow, and grief, and has been damaged in the sum of five thousand six hundred and forty-five dollars and sixty-two cents. That on December 3, 1890, plaintiff made claim in writing to defendant for said injury, which said claim in writing is now in possession of defendant. That all of said original

messages are in possession of defendants, and they are here notified to produce all papers and messages relating to this matter, on the trial of this cause, or secondary evidence of their contents will be offered. That petitioner has complied with all the terms and conditions of his contract with defendants. Premises considered, petitioner prays your honor for citation, general and special, legal and equitable relief."

We are of opinion that the averments in the petition are insufficient to support the judgment. The damages claimed by the plaintiff are for his mental suffering, resulting from his being deprived by the negligence of the defendant of attending his grandfather in his last illness, and being present at his burial. It is well settled that in such a case only such damages as may reasonably be presumed to be in contemplation of the parties at the time the contract for transmitting the message was entered into can be recovered. By the second message in the series of the correspondence, the defendant's agents were advised by the plaintiff himself that he could not go to his grandfather. He does not aver that he ever notified the company of his change of purpose, though he alleges such change. How, then, could the company have contemplated, when the subsequent messages were delivered for transmission, that the plaintiff intended to do a thing which he had said he could not do? Besides, the cause of action which is attempted to be set out in the petition is for the breach of a contract, or, at least, for the failure to perform a duty growing out of a contract. Does the petition anywhere allege a contract between either of the senders and the defendant, by which the latter undertook to transmit the messages, or either of them? As to the first message, only. is it alleged that it was delivered to the defendant, and it is not even there alleged that it was delivered and accepted for transmission. As

to the other messages, it is simply averred that they were "sent" and were "delivered," but how they were sent and by whom delivered is not alleged. Now, the rule of this court requires that we should extend to the averments in a petition every reasonable intendment as against a general demurrer; and, if the petition be good upon general demurrer, it is good upon error. But it was certainly not intended by the rule to dispense with a statement in logical and legal form of the substantive issuable facts which constitute the cause of action, as required by the statute. This court is empowered to adopt rules governing the practice in the district and superior courts, but is without power to change the statutes. We may say in this case, as was said in Moody v. Benge, 28 Tex. 545, in speaking of a petition upon a promissory note: "It is true we may infer from the statements of the petition that he gave it to Benge & Jewell, and that they are the owners of it; but in doing so we would be dis

pensing with a well-established rule of pleading which requires that the facts constituting the right of a party to recover, and fixing the liability of his adversary, shall be averred directly and distinctly in his pleading, and not kept to be supplied by inference." In that case there was a judgment by default, and the judgment was reversed for the insufficiency of the petition, although the allegations were more specific and direct than those in the petition before us. See, also, Parr v. Nolen, 28 Tex. 798; Gray v. Osborne, 24 Tex. 157; Sneed v. Moodie, Id. 159; Malone v. Craig, 22 Tex. 609; Jennings v. Moss, 4 Tex. 452. No express promise to transmit either message is alleged in the petition, nor are there averments of fact from which such a promise can be implied. It is unnecessary to decide whether or not the citation is sufficient. The judgments of the court of civil appeals and of the district court are reversed, and the cause remanded.

HINER v. HAWKINS.

(Supreme Court of Arkansas. June 16, 1894.) FRAUDULENT CONVEYANCES-EVIDENCE-INSTRUC

TIONS.

1. In replevin for goods seized by the sheriff as the property of one L., and which plaintiff claims he had bought from L.. evidence as to what L. had said before the sale about selling it to plaintiff, with the intention of paying his home creditors all he owed them, and settling with foreign creditors at 50 cents on the dollar, and testimony of a witness that he did not think that L. tried to get one of his employes to make an inventory, and that witness advised him to take stock, as it might cause him trouble if he sold in bulk, and that it was his understanding that L. had sold in bulk, is competent to show the intention with which the sale was made.

2. Instructions that it was plaintiff's duty to see to the application by L., of any purchase money paid by plaintiff, to the payment of L.'s creditors, was erroneous.

Appeal from circuit court, Franklin county; Hugh F. Thomason, Judge.

Replevin by Isaac G. Hiner against James D. Hawkins. From a judgment for defendant, plaintiff appeals. Reversed.

J. E. London and T. Marien Seawel, for appellant. Jos. M. Hill, for appellee.

HUGHES, J. The appellant brought this action to recover a stock of goods, or its value, which had been seized by the appellee, as sheriff of Crawford county, by virtue of writs of attachment against the property of R. C. Lytal. The appellant claimed title to the goods by virtue of a purchase of and bill of sale for the same, executed by Lytal to him on the 21st of November, 1888. The appellee denied the title of the appellant and alleged that the title to the goods was in Lytal; and that the alleged sale of them to the appellant was fraudulent and void as to creditors, etc. There was some conflict in the testimony, and, as the judgment must be reversed for misdirection as to the law, v.27s.w.no.2-5

we refrain from comment upon the evidence. It is proper to say, however, that the testimony tending to show the financial condition of the appellant from 1885 to 1888, and the testimony as to what Lytal had said previ cus to the sale about selling out to plaintiff, with the intention of paying his home creditors all he owed them, and settling with foreign creditors at 50 cents on the dollar, and the testimony of L. C. Locke that he did not think Lytal tried to get one of his em ployes to help him make an inventory, and that he (Locke) advised Lytal to take stock, as it might cause him trouble if he sold in bulk, and that it was his understanding from Lytal that he sold in bulk (all of which was objected to by the appellant was not error, as all of it except the testimony of L. C. Locke tended to show circumstances that might throw light upon the intention with which the sale was made; and the testimony of Locke was competent to contradict Hiner, who had testified and had denied making the statement testified to hy Locke.

The court gave to the jury 11 instructions, and we find no substantial error in any of them, save the tenth and eleventh, which are erroneous, and we think prejudicial to the appellant, as there is conflict in the testimony, and we cannot say what the verdict of the jury might have been but for these instructions. It was the right of the appellant to have the law properly declared. These instructions are as follows: "(10) The payment of a full consideration of all the proceeds of the assets of the sale to the payment of debts repels the presumption of fraudulent intent upon the part of the debt

or.

If, however, the circumstances are sufficient to put the purchaser upon inquiry, he must see to it, and know how the money is applied in payment of the grantor's debts, and cannot rely upon a declaration of the grantor to so apply it. (11) The court fur ther instructs you that if you believe that Lytal owned more than his personal exemp. tions, and appropriated any material portion of the proceeds of this sale over and above his personal exemptions, and left unpaid any of the debts of his creditors, that this is a fraud upon his creditors." These instruc tions are both to the effect that it was the duty of the appellant to see to the application by Lytal, of any purchase money paid him by Hiner, to the payment of Lytal's creditors. This was erroneous, and is not the law. In case of a trust, "a purchaser from a trustee is not bound to see to the application of the purchase money, except where the sale is a breach of trust on the part of the trustee, and the purchaser has, either from the face of the transaction or otherwise, notice or knowledge of the trustee's violation of duty." Elliot v. Merryman, 1 White & T. Lead. Cas. Eq. 109. The doctrine that it is the duty of a purchaser from a fraudulent vendor to see to the application of the purchase money has

1. Complaint cannot for the first time be made on appeal that plaintiff should have sued as administrator instead of simply denominating himself administrator, or that he should have shown his official character by profert of letters of administration.

2. Where plaintiff designated himself administrator, and alleges that deceased came to his death by defendant's negligence, to the damage of deceased's estate, and the case is tried as one for injury to deceased in his lifetime, -that is, for pain and suffering between the time he came in contact with an electric wire and his death therefrom,-the case will, on appeal, be regarded as for the benefit of the estate, under Mansf. Dig. § 5223, and not for the widow and next of kin, under sections 5225, 5226, and the complaint will be considered amended to correspond with the proof.

3. Evidence that it was known at the power house of an electric light company, at 2 o'clock a. m., that its wires were grounded somewhere; that the superintendent was informed of this; that he gave instructions that the power be kept up; and that after daylight, about 6 a. m., when many people were on the street, a live wire still lay on a street crossing, contact with which caused the death of a passer-by, warrants the giving of punitive dam

ages.

4. Where a youth was killed by picking up the end of an electric-light wire, lying on a street crossing, which showed no signs of being alive, the question of contributory negligence is for the jury, though, when touching a dead wire, a few minutes before, he was warned to be careful, and though, while he was standing there, and in a position to see, a hog on the other side of the road had come in contact with a live wire, and given evidence of receiving a shock.

Appeal from circuit court, Miller county; Rufus D. Hearn, Judge.

Action by Thomas Orr, administrator of Edward Wallace, deceased, against the Texarkana Gas & Electric Light Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This suit was instituted by appellee, administrator of the estate of Ed. Wallace, deceased, against the appellant company, in the Miller circuit court, at its November term, 1891, and the cause was tried at the November term, 1892, resulting in a verdict and judgment for plaintiff in the sum of $20 actual damages and $200 punitive damages against the defendant.

Abstract.

The cause of action is fully set forth in the complaint, which is as follows, to wit: "Comes the plaintiff, Thos. Orr, administra

tor of the estate of Edward Wallace, deceased, and complaining of the defendant, the Texarkana Gas & Electric Light Company, a corporation existing under and by virtue of the laws of the state of Arkansas, states that on the 23d day of August, 1891, defendant owned, maintained, and operated in the city of Texarkana, Arkansas, a system of electric lights, and that by means of wires the electric current was carried over, upon, and along the streets of Texarkana, Arkansas, from the power house to the various points of service in said city; that during the night of the 22d of August, 1891, or early on the morning of the 23d of August, 1891, said company's wires became disabled and out of repair, and, being either broken, or disengaged from their fastenings, fell to the ground, upon the sidewalk and crossing in the city of Texarkana, at the intersection of Broad street and Pine street in said city, and said defendant negligently permitted said wire to remain so grounded and lying upon said street crossing from about 12:30 o'clock a. m. until after daylight in the morning. when said street was thronged with passersby; that the deceased, Edward Wallace, while passing along said street about or a little after daylight, had his attention called to said obstruction lying upon said crossing, and being ignorant of the character of said wire, and presuming, and having a right to presume, that defendant would not permit a live wire to remain under the feet of passersby upon so crowded a thoroughfare, took hold of same, to cast it aside, out of the way of pedestrians, and was killed by the powerful current with which said wire was at the time charged. And plaintiff alleges that deceased came to his death by the gross negligence and wanton misconduct of defendant, its agents and employés, and that deceased came to his death without fault on his part, and to the damage of his estate in the sum of twenty thousand dollars. Wherefore, plaintiff prays damages in the sum of twenty thousand dollars, and his costs in and about this cause expended." The answer is substantially a denial of all the material allegations in the complaint. The evidence in the case is to the effect that during the night of the 22d day of August, 1891, there was an electrical storm in Texarkana, such as was never known in that locality before that time; that at that time the appellant corporation was operating its lamps and wires in that city for the purpose of furnishing lights to its inhabitants; that there was more or less of inexperience in the persons immediately in charge of the operation of the machinery at the power house; that there was an apparent want of that extra care and watchfulness on the part of those in control which the peculiar circumstances seem to have demanded; and that by reason of the terrific character of the storm, and its effect upon the machinery and wires, there was considerable demoralization among the em

ployés then on duty. The testimony goes to show that some of the wires were broken and down between 12 o'clock and 2:30 o'clock a. m. of the night in question, while some of the testimony would seem to point to a later hour. At all events, no discovery of a "ground" seems to have been made at the power house earlier than about 2 o'clock a. m. "By 'ground' is meant any connection between the line and the earth. This connection may be made by the line, or any of its connections, being broken, and the ends coming in contact with a tree or its limbs, or with the pole or roof of a house, or by another wire or rope or string being thrown over the line, and resting on the earth. To cause ground by the wire coming in contact with the pole or a tree or the roof of a house, there must be damp." It was shown by the testimony of experts that it is scarcely possible to ascertain the locality of a ground by the application of the most efficient tests, but that these tests are available to ascertain the fact there is a ground, and, to some extent, the nature of the ground. There is no complaint that proper tests were not applied on the occasion of the storm in question. In fact, the object of the application seems to have been attained by the person in charge of the machinery at the power house, for we find one witness, who seems to have been in a position to testify directly on the subject, testifying as follows: John Thurston testified: "I was at the electric plant, at work,-carrying in strips to fire with,-when Ed. Wallace was killed. Mr. Gafney, the engineer, that night sent me to the hotel to notify the superintendent that the alternating incandescent machine was badly grounded. I went and told him,-Mr. Randall. The superintendent told me to go ahead. He asked me what the trouble was, and I told him as stated, and he asked what time it was, and I replied, I did not know; and then he told me go back, and tell them to go ahead. I went back, and told Mr. Gafney." Cross-examination: "I went to work for the electric light company on the 14th of June, I believe, and this thing happened in August, I think. That was a very bad night. We were all badly scared up." The evidence discloses to us the fact that while the locality of a ground cannot be ascertained by the application of tests at the power house, and also that the storm was raging so furiously and the night was so unfavorable that it may have been asking too much of the employés of the company to hunt up those broken wires until daylight, yet we are informed by the testimony in the case that the accident resulting in the death of plaintiff's intestate occurred some hours after daylight, and at a time when people had begun to appear upon the streets of the city. Concerning events immediately connected with the accident, it is said in testimony that it was during the thunderstorm about 5 o'clock in the morning. Ed Wal

lace came into the saloon where witness was working, the Triangle Saloon, just across the street from Smith's drug store. This was about 10 minutes before he was killed. And the witness, Jesse Cole, spoke to him about catching hold of the wires that were connected with the main wire, and that ran into the saloon. He then had hold of a dead wire, and witness then told him to be careful of those wires. While deceased was at this point, a short time afterwards, a hog had come in contact with live wires on the opposite side of the street, and made demonstrations of having received a shock from them; but whether deceased saw this or not witness could not say, further than that he was in a position to have seen it, and witness believed he did, as they were standing together on the sidewalk, in full view. From this point, deceased went across the street to Smith's drug store, and when about midway the street, near the street-car line, he picked up a broken wire that ran into the saloon he had just left, and dragged it along towards Smith's corner, when he was ordered by a policeman to put down the wire. In apparent obedience to this order, he threw the wire,-"flipping" it, as one said, "flopping," as another said; and, as it went over his head, he "hollered" out, and took hold of the wire with both hands, and fell dead almost immediately. It would appear that, in throwing the wire from him, it had crossed, forming a current, and thus the current was created. He was then near the Smith sidewalk. From the following language of the witness, it would seem that the crossing of the wire, spoken of, was the crossing of the Idead wire with a live wire that chanced to be at that point, to wit: "Deceased was not injured by taking hold of the wire in the street, and he was throwing this wire off the street. I knew at the time the other wire was alive, as it had shocked a hog that got tangled up in it. No life was noticeable in these wires before they were crossed." The evidence shows that the struggles of deceased were of the briefest character. cried out twice, and his hands were burned and drawn by the wires. He died almost instantaneously.

He

The evidence does not give

the age of the deceased, but we infer from the language used with reference to him that he was a boy,-not yet arrived at the age of manhood; and from his actions, as detailed by the witnesses, he appears to have been of that indiscreet age which is between the irresponsibility and the full responsibility of manhood. He appears to have been at an age when it might fairly be left to the jury to say how far he should be held responsible, in any given state of case.

Scott & Jones, for appellant. J. D. Cook, for appellee.

BUNN, C. J. (after stating the facts). The objections that plaintiff should have sued as administrator, instead of merely de