Appeal from Circuit Court, Clark County; Joel D. Conway, Judge.
BATTLE, J.
S. H. Posey sued the Arkadelphia Lumber Company on a contract entered into by them, and alleged in his complaint that plaintiff agreed to labor for the defendant, and it was stipulated that the Arkadelphia Lumber Company would pay him therefor at the rate of $1.65 per day, and deduct from his wages and hold and retain for insurance 75 cents for each and every month he may be so employed, and, for such sum so deducted, agreed to insure him against accidents that might happen to him while in its employ, resulting in injury to his person, disabling him so as to render him unfit for labor either for a short time or permanently, and, if injured, to pay him one-half of the stipulated wages during the time he should be disabled by the injury; that he paid and defendant deducted each month from his wages 75 cents for such insurance; that on August 23, 1900, during his employment, plaintiff was accidentally injured by striking his leg against an iron railing, and was rendered unable to perform labor, and so continued for several months, and that by reason thereof he is entitled to recover $291.20.
The defendant answered, in substance, as follows:
"That it was a corporation organized under the laws of Arkansas, and authorized to carry on a sawmill and mercantile business, but that its charter granted it no authority to carry on an insurance business. Denied that it agreed to or that it did insure the plaintiff as alleged in the complaint. Denied that it was one of the stipulations in the contract of employment that plaintiff should pay and defendant should deduct from plaintiff's wages seventy-five cents per month, in consideration of which defendant agreed to insure plaintiff in any way.
"(2) It denied that on the 23d of August, 1900, or at any other time, plaintiff was injured and suffered as stated in the complaint, but alleged that whatever sickness and disability the plaintiff suffered was caused, not by any injury received in defendant's employ, but by reason of other and independent causes.
"(3) It alleged: That on the 28th of March, 1900, the Home Accident Insurance Company, of Fordyce, Ark., issued a policy of accident insurance to the defendant, as trustee, for the use and benefit of its employés. The said policy covered the time when it is alleged that plaintiff was injured. That the seventy-five cents referred to in the complaint as paid to defendant for insurance was paid or retained for the use and benefit of said Home Accident Insurance Company, which company, in consideration thereof, insured defendant's employés against bodily injuries sustained through external, violent and accidental means, while actually engaged in the performance of work for defendant."
In a trial before a jury, both parties adduced evidence tending to prove the allegations in their respective pleadings; and the court, at the request of the plaintiff, and over the objections of the defendant, instructed the jury as follows:
"(1) The court instructs the jury that if they find from the evidence that the plaintiff was in the employ of the defendant on the 23d day of August, 1900, and that he was accidentally injured, and from said injury he was disabled, that he could not work for twelve months, then you should find for the plaintiff in the sum of one-half of the wages he was receiving at the time of the injury, if any is proven, during the time he was disabled, not exceeding twenty-six weeks.
"(2) The court instructs the jury that a contract of insurance may be entered into by and between parties not engaged in the insurance business; and, if the jury find from the evidence in this case that defendant agreed to insure the plaintiff against accidents causing injury to person, it would be binding upon it, although the defendant was not in the insurance business."
The court gave the following instructions at the request of the defendant:
"(1) The burden of proof in this case is upon the plaintiff to show by a preponderance of the evidence that the defendant engaged, for a consideration paid to it, as an insurer, to insure the plaintiff against accidents as stated in the complaint; and in this case, if you believe from the evidence that the defendant was merely acting as trustee for its employés, among whom was the plaintiff, you will find your verdict for the defendant.
"(2) If the jury believe from the evidence that the defendant did insure the plaintiff as claimed, but that the plaintiff's hurt complained of was not the result of external, violent, and accidental means, while actually engaged in the employment of the defendant, they should find their verdict for the defendant.
"(3) If the jury believe from the evidence that the Arkadelphia Lumber Company did not itself insure the plaintiff, but simply acted under a policy of insurance issued by the Home Accident Insurance Company of Fordyce, Ark., as trustee for its employés, among whom was the plaintiff, they will find their verdict for the defendant."
The jury returned a verdict in favor of the plaintiff for $150.15.
The defendant moved for a new trial, in part, because of the newly discovered evidence of William A. Whitted and John Anderson, "to the effect that they had heard the plaintiff say prior to the alleged injury, and before he now claims to have been injured, that he had a boil on his leg, and exhibited the same to them." To support this demand for a new trial, it filed the affidavits of Whitted and Anderson.
The affidavit of Whitted is as follows:
