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ly returned. We are of opinion that, when to reverse and render the judgment, but the plaintiff showed a valid title emanating there are expressions in the opinion in Sefrom the common source, it made out a prima bastian v. Martin Brown Co., supra, which facie case. If the plaintiff in an action of are calculated to mislead, and which have trespass to try title, in order to maintain his probably misled, counsel and the courts. We action, prove that both he and defendant therefore deem it just to reverse the judgclaim from a common grantor, and if, in do- ments, and remand the cause; and it is so ing this, he should exhibit the defendant's ordered. 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

WESTERN UNION TEL. CO. V. HENRY. some reason invalid. This is what was

(Supreme Court of Texas. June 18, 1894.) meant when it is said in Keys v. Mason, 44

TELEGRAPH COMPANIES ACTION FOR Delay Tex. 140, that a plaintiff shows a prima fa

MENTAL ASQUISI-SUFFICIENCY OF Petition. cie right "by proof that the defendant and

A petition alleging that plaintiff received

a message to come to his grandfather, who was himself claim the land under a common ill, to which he answered that he could not source of title, and that his is the better come; that another message, announcing the right or superior title under the common

death of his grandfather, was delayed so long

that he did not get it in time to attend the source." It is not meant that the plaintiff funeral; and that the messages were "deliverin every case shall prove, not only that both ed" and "sent," but averring no contract to claim from the common source, but that he

send them,-will not support a judgment by deshall also show specifically the nature of the

fault for 'mental suffering resulting from his

deprivation, through defendant telegraph comdefendant's claim, and then attack its va- pany's negligence, of the privilege of being preslidity. Such a rule would lead to the un- ent at his grandfather's last sickness and fureasonable result that it would devolve the

neral. duty upon the plaintiff of proving facts not Error from court of civil appeals of first presumed to be within his knowledge, but supreme judicial district. which are presumed to be known to his ad- Action by J. B. Henry against the Western 'versary. That is to say he would have to Union Telegraph Company for damages for make out the defendant's case. The theory delay in sending messages. From a judgof the doctrine of the common source is that ment of the court of civil appeals (25 S. W. proof of a claim of title by one under an. 1097) affirming a judgment of the county other is prima facie evidence, as against the court, defendant brings error. Reversed. claimant, that the title was at one time in M. R. Geer, for plaintiff in error. W. C. that other; so that when the plaintiff shows Buford and John R, Arnold, for defendant in that he has a valid chain of title from a certain grantor, and that the defendant claims under the same grantor, without proving

GAINES, J. This suit was brought by dewhat the defendant's title is, he shows prima fendant in error to recover of plaintiff in erfacie that he is owner of the land, and it

ror damages for failure to deliver certain then devolves upon the defendant to show

telegraphic messages. There was a judgthe authority of his own title.

ment by default, from which the defendant In Sebastian v. Martin Brown Co., 75 Tex.

company sued out a writ of error to the 291, 12 S. W. 986, the plaintiff claimed the court of civil appeals, assigning as error the land under an execution sale and a sheriff's insufficiency both of the petition and of the deed, as in this case; and, after showing citation to support the judgment. The court that he had acquired the title of the defend- of civil appeals affirmed the judgment. The ant in execution, he proved that the defend- petition, after alleging that Evan Thompson, ant claimed also under an execution sale, the grandfather of the plaintiff, was lying at without showing which was the older title. the point of death at his residence in Rusk The view of the court was that, since he

county, and that the plaintiff resided at Athhad shown that the defendant had a title of ens, in Henderson county, proceeded as folthe same nature as his own which might be lows: "That

W. H. Frizzell desuperior in point of time, he ought to have livered to defendant the following message, gone further, and proved that it was in fact at Henderson, Rusk Co., Texas: 'Oct. 15th, inferior. In the present case there was an 1890. To Ben Henry, Athens, Texas: Grandagreement as to the common source, and father is very low. Come at once. W. H. we think the plaintiff could not reasonably Frizzell.' Said message was delivered by W. be required to show what the defendant's H. Frizzell to defendant's agent at Hendertitle was. The defendant may have had no son, at 4:40 p. m., and received at Athens title whatever, and the plaintiff may have 8:30 p. m., but not delivered to petitioner unfound it impossible to prove the negative. til 10 o'clock p. m., making a delay of six Our conclusion is supported by the following hours. That petitioner answered said mescases: Tapp v. Corey, 64 Tex. 594; McNa- sage as follows: "Can't come. Have wrote. mara v. Muensch, 66 Tex. 68, 17 S. W. 397; Answer,'-which was sent from Athens at 10 Montgomery v. Carlton, 56 Tex. 361; and p. m., on the 15th day of October, 1890, and Stepbens v. Hix, 38 Tex. 656. We are asked received at Henderson at 1 p. m., on the 16th

error.

day of October,-a delay of about 15 hours, messages are in possession of defendants, -and not delivered to W. H. Frizzell, the and they are here notified to produce all paperson to whom it was addressed, until 4 p. pers and messages relating to this matter, on m., 16th day of October, 1890. That plain- the trial of this cause, or secondary evidence tiff could have no reply to his message last of their contents will be offered. That petiabove set out, and on the 17th of October, at tioner has complied with all the terms and 10 o'clock a. m., he sent the following mes- conditions of his contract with defendants. sage to W. H. Frizzell, Henderson, Texas: Premises considered, petitioner prays your ‘How is grandfather? Where is he? An- honor for citation, general and special, legal swer immediately.' That the same was re- and equitable relief.” ceived at Henderson at 1:12 p. m., and not We are of opinion that the averments in delivered to W. H. Frizzell until 3 o'clock p. the petition are insufficient to support the m. of same day,-a delay of five hours. That judgment. The damages claimed by the said W. H. Frizzell, at 3:06 p. m. of the same plaintiff are for his mental suffering, resultday, replied to said message to petitioner: ing from his being deprived by the negli“Very low at his house. Lizzie, Bob with gence of the defendant of attending his him,'—which was not delivered until 5 o'clock grandfather in his last illness, and being presp. m. of same day. That said Evan Thomp- ent at his burial. It is well settled that in son died on the 17th, at 3 o'clock p. m., and such a case only such damages as may reawas buried on the 18th October, 1891, at hour sonably be presumed to be in contemplation of 6 o'clock. That said W. H. Frizzell sent of the parties at the time the contract for petitioner the following message: 'Grand- transmitting the message was entered into father died at three p. m. Will bury here can be recovered. By the second message at 5 this evening. Was sent from him at in the series of the correspondence, the de10:30 a. m., October 18, 1891, and delivered fendant's agents were advised by the plainto them at 4:30 p. m., October 18, 1891,-a de- tiff himself that he could not go to his grandlay of six hours. That plaintiff was by said father. He does not aver that he ever noti. messages endeavoring to ascertain the con- fied the company of his change of purpose, dition of said Evan Thompson for himself though he alleges such change. How, then, and others of his children and grandchildren, could the company have contemplated, when who resided at Athens, in Henderson, as the subsequent messages were delivered for above set out, and that defendant was fully transmission, that the plaintiff intended to informed of said fact; that petitioner and W. do a thing which he had said he could not do? H. Frizzell were acting for them, as well as Besides, the cause of action which is atin their own interest. That said Evan tempted to be set out in the petition is for Thompson's residence was about 20 miles the breach of a contract, or, at least, for the from Henderson, Rusk Co., Texas, and about failure to perform a duty growing out of a 10 miles from Timpson, Shelby county, contract. Does the petition anywhere allege Texas, a railroad station; and that Athens, a contract between either of the senders and Henderson county, Texas, is a railroad sta- the defendant, by which the latter undertook tion about 80 miles from Henderson. That, to transmit the messages, or either of them? although he did reply to the first message As to the first message, only, is it alleged that he could not come, he did intend to come that it was delivered to the defendant, and later on when he learned of the fatal sick- it is not even there alleged that it was de ness of his grandfather, and that all of the livered and accepted for transmission. As family of the said Evan Thompson intended to the other messages, it is simply averred to come, and would have come and been that they were "sent" and were "delivered," present to minister to said Evan Thompson but how they were sent and by whom deliv. and attend his burial, except for the inex- ered is not alleged. Now, the rule of this cusable and culpable neglect and delay in the court requires that we should extend to the delivery of the said messages as above set averments in a petition every reasonable inout; and that petitioner and the other chil- tendment as against a general demurrer; and, dren and grandchildren who reside at Ath- if the petition be good upon general demur. ens, in Henderson county, would have come rer, it is good upon error. But it was cerif they had received said death message in tainly not intended by the rule to dispense time to come. That they were in railroad with a statement in logical and legal form of connection with Henderson, and, if said mes- the substantive issuable facts which constisage had been promptly delivered with rea- tute the cause of action, as required by the sonable dispatch, they could have been so statute. This court is empowered to adopt present. That, by reason of the premises rules governing the practice in the district aforesaid, petitioner has suffered mental an- and superior courts, but is without power to guish, sorrow, and grief, and has been dam- change the statutes. We may say in this aged in the sum of five thousand six hundred case, as was said in Moody v. Benge, 28 Tex. and forty-five dollars and sixty-two cents. 545, in speaking of a petition upon a promisThat on December 3, 1890, plaintiff made sory note: "It is true we may infer from claim in writing to defendant for said injury, the statements of the petition that he gave it which said claim in writing is now in posses- | to Benge & Jewell, and that they are the ownsion of defendant. That all of said original ers of it; but in doing so we would be dis

TIONS.

pensing with a well-established rule of plead- we refrain from comment upon the evidence. ing which requires that the facts constituting It is proper to say, however, that the testithe right of a party to recover, and fixing the mony tending to show the financial condition liability of his adversary, shall be averred of the appellant from 1885 to 1888, and the directly and distinctly in his pleading, and testimony as to what Lytal had said previnot kept to be supplied by jnference.” In cus to the sale about selling out to plaintiff, that case there was a judgment by default, with the intention of paying his home credand the judgment was reversed for the incitors all he owed them, and settling with sufficiency of the petition, although the alle- foreign creditors at 50 cents on the dollar, gations were more specific and direct than and the testimony of L. C. Locke that he did those in the petition before us. See, also, not think Lytal tried to get one of his em Parr v. Nolen, 28 Tex. 798; Gray v. Osborne, ployes to help him make an inventory, and 24 Tex. 157; Sneed v. Moodie, Id. 159; Malone that he (Locke) advised Lytal to take stock, 5. Craig, 22 Tex. 609; Jennings v. Moss, 4 as it might cause him trouble if he sold in Tex. 452. No express promise to transmit bulk, and that it was his understanding from either message is alleged in the petition, nor Lytal that he sold in bulk (all of which was are there averments of fact from which such objected to by the appellant was not era promise can be implied. It is unnecessary ror, as all of it except the testimony of L. to decide whether or not the citation is suffi- C. Locke tended to show circumstances that cient. The judgments of the court of civil might throw light upon the intention with appeals and of the district court are reversed, which the sale was made; and the testiand the cause remanded.

mony of Locke was competent to contradict Hiner, who had testified and bad denied making the statement testified to hy Locke.

The court gave to the jury 11 instructions, HINER V. HAWKINS.

and we find no substantial error in any of (Supreme Court of Arkansas. June 16, 1894.) them, save the tenth and eleventh, which are FRAUDULENT CONVEYANCES-EVIDENCE-INSTRUC- erroneous, and we think prejudicial to the

appellant, as there is conflict in the testi1. In replevin for goods seized by the sheriff as the property of one L., and which plain

mony, and we cannot say what the verdict tiff claims he had bought from L., evidence as

of the jury might have been but for these in. to what L. had said before the sale about sell- structions. It was the right of the appeling it to plaintiff, with the intention of paying lant to have the law properly declared. his home creditors all he owed them, and settling with foreign creditors at 50 cents on the

These instructions are as follows: "(10) The dollar, and testimony of a witness that he did payment of a full consideration of all the not think that L. tried to get one of his em- proceeds of the assets of the sale to the pay. ployes to make an inventory, and that witness

ment of debts repels the presumption of advised him to take stock, as it might cause him trouble if he sold in bulk, and that it was

fraudulent intent upon the part of the debthis understanding that L. had sold in bulk, is or. If, however, the circumstances are sufcompetent to show the intention with which

ficient to put the purchaser upon inquiry, he the sale was made. 2. Instructions that it was plaintiff's duty

must see to it, and know how the money to see to the application by L., of any purchase

is applied in payment of the grantor's debts, money paid by plaintiff, to the payment of Li's and cannot rely upon a declaration of the creditors, was erroneous.

grantor to so apply it. (11) The court fur. Appeal from circuit court, Franklin county; ther instructs you that if you believe that Hugh F. Thomason, Judge.

Lytal owned' more than his personal exemp. Replevin by Isaac G. Hiner against James tions, and appropriated any material portion D. Hawkins. From a judgment for defend- of the proceeds of this sale over and above ant, plaintiff appeals. Reversed.

his personal exemptions, and left unpaid any J. E. London and T. Marien Seawel, for ap

of the debts of his creditors, that this is a pellant. Jos. M. Hill, for appellee.

fraud upon his creditors." These instrue

tions are both to the effect that it was the HUGHES, J. The appellant brought this duty of the appellant to see to the applicaaction to recover a stock of goods, or its tion by Lytal, of any purchase money paid value, which had been seized by the appel- him by Hiner, to the payment of Lytal's lee, as sheriff of Crawford county, by virtue creditors. This was erroneous, and is not of writs of attachment against the property the law. In case of a trust, "a purchaser of R. C. Lytal. The appellant claimed title from a trustee is not bound to see to the apto the goods by virtue of a purchase of and plication of the purchase money, except bill of sale for the same, executed by Lytal where the sale is a breach of trust on the to him on the 21st of November, 1888. The part of the trustee, and the purchaser has, appellee denied the title of the appellant and either from the face of the transaction or alleged that the title to the goods was in otherwise, notice or knowledge of the trusLytal; and that the alleged sale of them tee's violation of duty.” Elliot v. Merryto the appellant was fraudulent and void as man, 1 White & T. Lead. Cas. Eq. 109. to creditors, etc. There was some conflict The doctrine that it is the duty of a purin the testimony, and, as the judgment must chaser from a fraudulent vendor to see to be reversed for misdirection as to the law, the application of the purchase money bas

v.273.w.no.245

no application in a case like this. There was no error in refusing to give the instructions that were refused. For the error in giving the tenth and eleventh instructions, the judgment is reversed, and the cause remanded for a new trial.

TEXARKANA GAS & ELECTRIC LIGHT

CO. v. ORR. (Supreme Court of Arkansas. June 9, 1894.) DEATH BY WRONGFUL ACT-ACTION BY ADMINIS

TRATOR PunitiVE DAMAGES CONTRIBUTORY NEGLIGENCE-OBJECTIONS not Raised BELOW.

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. 8 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 damages.

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 Novem. ber 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 230 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 de ceased 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 bave demanded; and that by reason of the terrific character of the storm, and its effect upon the machinery and wires, there was considerable demoralization arpong the em

ployés then on duty. The testimony goes to lace came into the saloon where witness was show that some of the wires were broken working,-the Triangle Saloon, just across and down between 12 o'clock and 2:30 o'clock the street from Smith's drug store. This a. m. of the night in question, while some of was about 10 minutes before he was killed. the testimony would seem to point to a later And the witness, Jesse Cole, spoke to him hour. At all events, no discovery of a about catching hold of the wires that were "ground" seems to have been made at the connected with the main wire, and that ran power bouse earlier than about 2 o'clock a. into the saloon. He then had hold of a dead m. "By 'ground' is meant any connection wire, and witness then told him to be careful between the line and the earth. This con- of those wires. While deceased was at this nection may be made by the line, or any of point, a short time afterwards, a bog had its connections, being broken, and the ends come in contact with live wires on the oppocoming in contact with a tree or its limbs, or site side of the street, and made demonstrawith the pole or roof of a house, or by anoth- tions of having received a shock from them; er wire or rope or string being thrown over but whether deceased saw this or not witthe line, and resting on the earth. To cause ness could not say, further than that he was ground by the wire coming in contact with in a position to have seen it, and witness bethe pole or a tree or the roof of a house, lieved he did, as they were standing together there must be damp.” It was shown by the on the sidewalk, in full view. From this testimony of experts that it is scarcely pos-point, deceased went across the street to sible to ascertain the locality of a ground by Smith's drug store, and when about midway the application of the most efficient tests, but the street, near the street-car line, be picked that these tests are available to ascertain the up a broken wire that ran into the saloon he fact there is a ground, and, to some extent, had just left, and dragged it along towards the nature of the ground. There is no com- Smith's corner, when he was ordered by a plaint that proper tests were not applied on policeman to put down the wire. In appathe occasion of the storm in question. In rent obedience to this order, he threw the fact, the object of the application seems to wire,—“flipping' it, as one said, “flopping," have been attained by the person in charge as another said; and, as it went over his of the machinery at the power house, for head, he “hollered” out, and took hold of the we find one witness, who seems to have wire with both hands, and fell dead almost been in a position to testify directly on immediately. It would appear that, in the subject, testifying as follows: John throwing the wire from him, it had crossed, Thurston testified: "I was at the electric forming a current, and thus the current was plant, at work,-carrying in strips to fire created. He was then near the Smith sidewith,-when Ed. Wallace was killed. Mr.

walk. From the following language of the Gafney, the engineer, that night sent me to witness, it would seem that the crossing of the hotel to notify the superintendent that the wire, spoken of, was the crossing of the the alternating incandescent machine was

dead wire with a live wire that chanced to badly grounded. I went and told him,-Mr. be at that point, to wit: “Deceased was not Randall. The superintendent told me to go injured by taking hold of the wire in the ahead. He asked me what the trouble was,

street, and he was throwing this wire off the and I told him as stated, and he asked what street, I knew at the time the other wire time it was, and I replied, I did not know; was alive, as it had shocked a hog that got and then he told me go back, and tell them

tangled up in it. No life was noticeable in to go ahead. I went back, and told Mr. these wires before they were crossed.” The Gafney.” Cross-examination: "I went to

evidence shows that the struggles of dework for the electric light company on the

ceased were of the briefest character. He 14th of June, I believe, and this thing hap- cried out twice, and his hands were burned pened in August, I think. That was a very

and drawn by the wires. He died almost inbad night. We were all badly scared up." stantaneously. The evidence does not give The evidence discloses to us the fact that the age of the deceased, but we infer from while the locality of a ground cannot be as

the language used with reference to him that certained by the application of tests at the

he was a boy,-not yet arrived at the age of power house, and also that the storm was

manhood; and from his actions, as detailed raging so furiously and the night was so un

by the witnesses, he appears to have been of favorable that it may have been asking too that indiscreet age which is between the irmuch of the employés of the company to

responsibility and the full responsibility of hunt up those broken wires until daylight, manhood. He appears to have been at an yet we are informed by the testimony in the age when it might fairly be left to the jury case that the accident resulting in the death to say how far he should be held responsible, of plaintiff's intestate occurred some hours

in any given state of case. after daylight, and at a time when people Scott & Jones, for appellant. J. D. Cook, had begun to appear upon the streets of the for appellee. city. Concerning events immediately connected with the accident, it is said in testi- BUNN, C. J. (after stating the facts). mony that it was during the thunderstorm | The objections that plaintiff should have about 5% o'clock in the morning. Ed Wal- | sued as administrator, instead of merely de

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