*475Opinion. — The assignment of errors requires of us the consideration of but one single legal proposition, and that one is whether the court erred in a failing to charge the law as to exemplary damages.” The appellant’s first ground of error refers us to the motion for new trial to indicate the subject of her complaint against the charge of the court, and the second ground ofthat motion presents the question above suggested. The two other grounds for new trial, although they relate to supposed errors in the charge, do not, in even a general way, point them out; and the assignment of errors, so far as it relates to the first and third grounds of that motion, will not be noticed. Elliot v. Mitchell, 28 Tex., 105; 46 Tex., 331; 14 Tex., 382; 46 Tex., 31; id., 585.
The court did not err in failing to charge the law as to the application of the rules of law of exemplary damages. The charge of the court must correspond with both the allegata and the probata. Smith v. Montes, 11 Tex., 24; Hughes v. Lane, 25 Tex., 356.
There was not in the evidence the least intimation of any act of commission or omission .on the part of the agents of the defendant whereupon to charge the death of Campbell as having resulted from either its wilful commission, or that it was induced by a wilful omission of duty on their part, or from gross negligence or malice. The existence of some one of those, or of elements kindred to them, must have existed in order to warrant the recovery of exemplary damages. Indeed, the plaintiff’s petition made no allegations charging that the homicide was committed by the “wilful act or omission” of the defendant’s officers or agents. In actions of this character, at the time of the accrual of plaintiff’s right of action, if any existed, the constitution of 1869, section 30, General Provisions, provided that: “Every person, corporation or company that may commit a homicide through wilful act or omission shall be responsible in exemplary damages to the surviving husband, widow, . . . without regard to any criminal pro*476oeeding that may or may nob be had in relation to the homicide.” There existed at the same time in force the previous act of the legislature. P. D., arts. 15, 18.
The'act referred to provided for actions in cases of homi- , cide, giving compensatory damages only. The constitutional provision above quoted was cumulative of the remedy afforded by the act of the legislature (see Railroad Co. v. Le Gierse, 51 Tex., 203), and it introduced into its terms the distinct and essential ingredients which shall entitle the injured party to.the benefit of its provisions; the homicide must have been effected by a “ wilful act or omission.”
The common law gave no action whatever for damages in such case to the surviving relatives; and a party setting up a cause of action under either or (in the same suit) both kinds of damages must do so by alleging such facts as will entitle him to the one or the other respectively, or to both, if he sues to recover both. Neither the one kind nor the other being given by the common law, the plaintiff acquires his right of action for the damages he claims, by the terms of that law which sanctions its recovery. In order to recover in actions of this character, the plaintiff must frame his petition for exemplary damages with reference' to the distinguishing elements which characterize it; he must set up by proper averments facts which, if true, entitle him to such damages. Railroad Co. v. Le Gierse, 51 Tex., 203; and see Wallace v. Finberg, 46 Tex., 35.
The plaintiff’s action, tested by the foregoing rule, was brought for the recovery of actual damages only, and not for exemplary damages. The court, therefore, properly confined its charge to actual damages, and correctly abstained from charging the law applicable to exemplary damages. The charge must conform to the pleadings. Watts v. Johnson, 4 Tex., 311; Smith v. Sherwood, 2 Tex., 460.
It must agree, too, with the evidence in the case. Austin v. Talk, 20 Tex., 164; Andrews v. Southwick, 30 Tex., 111; Corzine v. Morrison, 37 Tex., 511. It is error to charge *477upon an issue not made by the pleadings. Markham v. Carutchers, 47 Tex., 22.
There is nothing in the record to suggest the existence of any such error committed on the trial as to require a further examination of it.
The verdict of the jury was warranted by the evidence, and no error of law going to the right and substantial justice of the case is apparent to us.
Affirmed.