plaintiff's duty to make reasonable exertions to | R. A. 283; Simpson v. Grayson, 54 Ark. save himself from loss. 404. Warren v. Stoddart, 105 U. S. 224, 26 L. ed. 1117; Marsh v. McPherson, 105 U. S. 709, 26 L. ed. 1139; Cunningham Iron Co. v. Warren Mfg. Co. 80 Fed. Rep. 878; Daughtery v. American U. Teleg. Co. 75 Ala. 168; 2 Greenl. Ev. § 267, note 3; Walworth v. Pool. 9 Ark. 394; Miller v. Mariner's Church, 7 Me. 51. This is not a case of failure to deliver the message, or of delivering it in a changed form, which are technical breaches of contract for which nominal damages are recoverable. It is not a case where the law allows nominal damages for the breach of a contract. 3 Sutherland, Damages, p. 295. Mental anguish of itself has never been treated as an independent ground of damages so as to enable a person to maintain an action for that injury alone, neither has insult nor contumely. Wood's Mayne, Damages, p. 75; Cooley, Torts, 270, 271; 3 Sutherland, Damages, pp. 715, 716, and note; Pierce, Railroads, p. 302: Pollock, Torts, enlarged Am. ed. pp. 54-56; 2 Greenl. Ev. § 267. Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone. Lynch v. Knight, 9 H. L. Cas. 598; Allsop v. Allsop, 5 Hurlst. & N. 534; Flemmington v. Smithers, 2 Car. & P. 292; Hobbs v. London & S. W. R. Co. L. R. 10 Q. B. 111; Victorian R. Comrs. v. Coultas, L. R. 13 App. Cas. 222. The decisions of the American courts upon the question, generally, are to the same effect. Kennon v. Gilmer, 131 U. S. 22, 33 L. ed. 110; Wilcox v. Richmond & D. R. Co. 8 U. S. App. 118, 52 Fed. Rep. 264, 3 C. C. A. 73, 17 L. R. A. 804; Indianapolis & St. L. R. Co. v. Stables, 62 Ill. 320; Haile v. Texas & P. R. Co. 23 U. S. App. 80, 60 Fed. Rep. 551, 9 C. C. A. 134, 23 L. R. A. 77; Paine v. Chicago, R. I. & P. R. Co. 45 Iowa, 569; Salina v. Trosper, 27 Kan. 544; Black v. Carrollton R. Co. 10 La. Ann. 38, 63 Am. Dec. 586; Wyman v. Leavitt, 71 Me. 227; Covington Street R. Co. v. Packer, 9 Bush, 459, 15 Am. Rep. 725; Canning v. Williamstown, 1 Cush. 451. White v. Dresser, 135 Mass. 150, 46 Am, Rep. 454; Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Hawes v. Knowles, 114 Mass. 518, 19 Am. Rep. 383; Detroit Daily Post Co. v. McArthur, 16 Mich. 447; Welch v. Ware, 32 Mich. 84; Clinton v. Lanning, 61 Mich. 355; Johnson v. Wells, F. & Co. 6 Nev. 224, 3 Am. Rep. 245; Triggs v. St. Louis, K. C. & N. R. Co. 74 Mo. 147, 41 Am. Rep. 305; Lehman v. Brooklyn City R. Co. 47 Hun, 355; Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420; Ewing v. Pittsburgh, C. C. & St. L. R. Co. 147 Pa. 140, 14 L. R. A. 66; Bovee v. Danville, 53 Vt. 190; Stutz v. Chicago &N. W. R. Co. 73 Wis. 147; Gulf, C. & 8. F. R. Co. v. Levy, 59 Tex. 563, 46 Am. Rep. 278; Mitchell v. Rochester R. Co. 151 N. Y. 107, 34 L. R. A. 781; Joch v. Dankwardt, 85 Ill. 331. The "ground of recovery must be something beside an injury to the feelings and affections." Little Rock & Ft. 8. R. Co. v. Barker, 33 Ark. 350, 34 Am. Rep. 44; St. Louis, I. M. & S. R. Co. v. Freeman, 36 Ark. 41; Davis v. St. Louis, I. M. & S. R. Co. 53 Ark. 117, 7 L. Man had suffered all kinds of mental injury at the hands of his neighbors for centuries,— his hopes had been disappointed, his pride had been humbled, his anger had been aroused, he had been frightened, grieved, and subjected to every conceivable form of mental discomfort, --but such wrongs alone had never been made the subject of compensation in damages until 1881, when So Relle v. Western Union Teleg. Co. 55 Tex. 308, was determined by the commission of appeals in Texas. After the decision in that case, the principle was invoked in many other cases in the courts of Texas, with varying results. Gulf, C. & S. F. R. Co. v. Levy, 59 Tex. 563, 46 Am. Rep. 278; Western U. Teleg. Co. v. Brown, 71 Tex. 723, 2 L. R. A. 766; Western U. Teleg. Co. v. Kirkpatrick, 76 Tex. 217; Rowell v. Western U. Teleg. Co. 75 Tex. 26. The Texas rule has found no support in the Federal courts, except in a charge delivered by Judge Maxey to a jury in the circuit court for the western district of Texas in 1889. Beasley v. Western U. Teleg. Co. 39 Fed. Rep. 181. But it has been approved, partially or wholly, by the highest courts of six states as follows: Wadsworth v. Western U. Teleg. Co. 86 Tenn. 695; Reese v. Western U. Teleg. Co. 123 Ind. 294, 7 L. R. A. 583; Western U. Teleg. Co. v. Henderson, 89 Ala. 510; Chapman v. Western U. Teleg. Co. 90 Ky. 265; Young v. Western U. Teleg. Co. 107 N. Č. 370, 9 L. R. A. 669; Mentzer v. Western U. Teleg. Co. 93 Iowa, 752, 28 L. R. A. 72. The Texas rule has been considered and repudiated in the Federal courts as follows: Western U. Teleg. Co. v. Wood, 13 U. S. App. 317, 57 Fed. Rep. 471, 6 C. C. A. 432, 21 L. R. A.706; Chase v. Western U. Teleg. Co.44 Fed. Rep. 554, 10 L. R. A. 464; Crawson v. Western U. Teleg. Co. 47 Fed. Rep. 544; Tyler v. Western U. Teleg. Co. 54 Fed. Rep. 634; Kester v. Western U. Teleg. Co. 55 Fed. Rep. 603; Gahan v. Western U. Teleg. Co. 59 Fed. Rep. 433; Wilcox v. Richmond & D. R. Co. 8 U. S. App. 118, 52 Fed. Rep. 264, 3 C. C. A. 73, 17 L. R. A. 804; Gilmer v. Kennon, 131 U. S. 22, 33 L. ed. 110. It has been repudiated entirely by the decisions of the highest state courts as follows: West v. Western U. Teleg. Co. 39 Kan. 93; Russell v. Western U. Teleg. Co. 3 Dak. 315; Western U. Teleg. Co. v. Rogers, 68 Miss. 748; International Ocean Teleg. Co. v. Saunders, 32 Fla. 434, 21 L. R. A. 810; Chapman v. Western U. Teleg. Co. 88 Ga. 763, 17 L. R. A. 430; Butner v. Western U. Teleg. Co. 2 Okla. 234; Connell v. Western U. Teleg. Co. 116 Mo. 34, 20 L. R. A. 172; Francis v. Western U. Teleg. Co. 58 Minn. 252, 25 L. R. A. 406; Summerfield v. Western U. Teleg. Co. 87 Wis. 1; Curtin v. Western U. Teleg. Co. 13 App. Div. 253. The mature and better considered judgments of the courts are against the rule. Hughes, J., delivered the opinion of the court: Pretermitting discussion of other questions in the case, we proceed to consider the main and most important question involved. In which held that for mental pain and anguish alone, unaccompanied by physical injury, damages are not recoverable at law. We could not hope to add anything in support of this view to the able, full, and elaborate discussion of this question in the cases we have referred to. considering this question, the labor of the court | here to the doctrine announced in the cases has been minimized in the investigation of cases by the full and excellent briefs of counsel on both sides of the question. The question we propose to consider is whether or not injury to the feelings,—anguish and pain of mind, unattended by physical injury, occasioned by the breach of duty on the part of the telegraph company, in failing to deliver the telegram promptly, can be regarded as an element of damages, under the law. Are damages recoverable at law for mental anguish, caused by the negligent omission of duty upon the part of the telegraph company, when such mental anguish is independent of and unaccompanied by physical injury of any kind? Upon this question the decisions of the courts of last resort are not harmonious. It is not to be controverted that in cases of torts that produce physical injury, attended with mental suffering, the mental suffering is an element of damages, recoverable in an action at law, because they are so intimately connected as to make separation impracticable. So, also, damages may be recovered for torts that are wilful and calculated to injure the feelings, but only in aggravation of damages, on account of the wanton and wilful character While there is considerable conflict in the of the wrong done; but no action lies for inadjudged cases upon this question, we are of jury to the feelings merely, or for mental the opinion that the better considered cases anguish alone. It will be borne in mind that are against the right of recovery for mental the damages claimed in this case are alleged to pain and anguish, unaccompanied by physical have been caused by a breach of contract. In injury. The best cases we have read which a majority of instances the breach of a contract so hold are Chapman v. Western U. Teleg. Co. merely causes disappointment, annoyance, and 88 Ga. 763, 17 L. R. A. 430; Western U. Teleg. more or less mental trouble or distress. But Co. v. Rogers, 68 Miss. 748, 13 L. R. A. 859; it would be an unwarranted stretch of the law, Francis v. Western U. Teleg. Co. 58 Minn. 252, in our opinion, to hold that, for mental an25 L. R. A. 406; Connell v. Western U. Teleg.guish caused by violation of a contract merely, Co. 116 Mo. 34, 20 L. R. A. 172. See also damages could be recovered in an action at law. West v. Western U. Teleg. Co. 39 Kan. 93; Rus- We do not think that damages for mental pain sell v. Western U. Teleg. Co. 3 Dak. 315; But- and suffering alone can be measured by any ner v. Western U. Teleg. Co. 2 Okla. 234; Sum-practical or just rule. merfield v. Western U. Teleg. Co. 87 Wis. 1; It is asked, What difference can there be beCurtin v. Western U. Teleg. Co. 13 App. Div. tween allowing damages for mental pain and -253. The first case in this country of which anguish unattended with physical wrong and we have any knowledge that held damages re- allowing damages for pain and anguish resultcoverable for mental anguish, independent of ing from physical injury? There is the differphysical injury, is the case of So Relle v. West-ence with us that damages for mental pain and ern U. Teleg. Co. 55 Tex. 308, 40 Am. Rep. anguish caused by physical injury have always 805, decided in 1881. Judge Lumpkin, in his been allowed by law, while damages for menable discussion of this question in Chapman tal pain and anguish unattended with physical V. Western U. Teleq. Co., says that the injury have been allowed by law only since court in the So Relle Case "adopts as law a bare the decision of the So Relle Case, in 1881, when suggestion made by the text writers Shearman the decision of the Texas court departed from and Redfield, in their work on Negligence, vol. the doctrine of the common law, which we 2, § 756. The cases referred to in the opinion think sound, and announced a new doctrine,. were actions for physical injuries, of which unsupported by authority, as we believe, of the mental agony forms an inseparable compo- any well-considered case before it. While we nent." The decision in the So Relle Case is do not want to be understood as clinging to followed in Texas in quite a number of other ideas and doctrines that are ancient, because cases, and the doctrine seems to have involved they are ancient merely, if they are contrary that court in some inconsistencies commented to reason and right, yet we have great respect upon in Western U. Teleg. Co. v. Rogers, 68 for the conservatism of the law, and will not Miss. 748, 13 L. R. A. 859. This doctrine, depart from its long and well settled doctrines, which seems to have had its origin, in this supported by eminent authority, and founded country, in Texas, has been followed in Beas- in reason and justice. Even if the difference ley v. Western U. Teleg. Co. 39 Fed. Rep. 181; in principle between allowing damages for Chapman v. Western U. Teleg. Co. 90 Ky. 265; mental pain and anguish, the result of physiYoung v. Western U. 1eleg. Co. 107 N. C. 370, cal injury, and disallowing damages for such 9 L. R. A. 669; Wadsworth v. Western U. Teleg. pain and anguish unaccompanied by physical Co. 86 Tenn. 695; Western U. Teleg. Co. v. injury, be such as not to be defined,-merely Henderson, 89 Ala. 510; Reese v. Western U. chimerical,-this is no reason why we should Teleg. Co. 123 Ind. 294, 7 L. R. A. 583; Thomp- say that damages for mental anguish, indeson, Electricity, §§ 378 et seq.; and in Iowa, pendent of physical injury, should be allowed. in Mentzner v. Western U. Teleg. Co., 93 Iowa, No statute allows them in such case. 752, 28 L. R. A. 72. In case of Wadsworth v. common law does not allow them, and, in Western U. Teleg. Co. 86 Tenn. 695, Judge our opinion, the weight of adjudication is Caldwell delivered the opinion of the court, against the right of recovery in such cases. and maintained his position with much ability; In determining a principle in the law which but we are of the opinion that the very able in its application, at least, seems to be new dissenting opinion in that case by Judge Les- and but recently thought of, it is highly imter announces the correct doctrine. We ad- I portant to consider precedents, and is legiti The At mate, in our view, to look to consequences | delivery of messages relating to matters not that will follow as certainly as night follows connected with business, such as personal or the day from the recognition of a doctrine that domestic matters, we do not think that the comwill affect most seriously the welfare of the pany in fault ought to escape with mere nomipeople. The intolerable and interminable liti nal damages." This may be true, but, if so, it gation such a doctrine would foster is beyond presents a question for the action of the legislathe reach of an ordinary imagination. ture. The courts do not make law, but determine what it is, not what it ought to be. furthest, this is their legitimate province only.. After the fullest argument by the learned counsel in this cause, and the best consideration we have been able to give the question, we are all agreed that no recovery can be had at law for damages for mental suffering alleged to have been endured in this case, no physical injury having been alleged. The decisions of the state courts repudiating this doctrine find support in the decisions of the courts in England. In Lynch v. Knight, 9 H. L. Cas. 598, the court says: "Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone." In Allsop v. Allsop, 5 Hurlst. & N. 534, Pollock, C. B., said: "We ought to be careful not to introduce a new element of damage, recollecting to what a large class of actions it would apply, and what a dangerous use might be made of it." In Victorian R. Comrs. v. Coultas, L. R. 13 App. Cas. 22, the court holds that an action cannot be maintained for mental shock unaccompanied by physical injury. This seems to be the settled doctrine of the courts in England. In the case of Little Rock & Ft. S. R. Co. v. Barker, 33 Ark. 350, 34 Am. Rep. 44, Judge English, in delivering the opinion, said: "There must be a loss to the claimant that is capable of being measured by a pecuniary standard. .. and mere injury to feelings cannot be considered." Pages 359 and 360. He said this is the rule in England, under Lord Campbell's act, and in this country, under similar statutes. However, the precise question at bar has not been decided in this court before this. The Federal courts have also repudiated the doctrine that an action can be maintained for mental pain and anguish not accompanied with physical injury. Western U. Teleg. Co. v. Wood, 13 U. S. App. 317, 57 Fed. Rep. 471, 6 C. C. A. 432, 21 L. R. A. 706; Chase v. Western U. Teleg. Co. 44 Fed. Rep. 554, 10 L. R. A. 464; Crawson v. Western U. Teleg. Co. 47 Fed. Rep. 544; Tyler v. Western U. Teleq. Co. 54 Fed. Rep. 634; Kester v. Western Ú. Teleg. Co. 55 Fed. Rep. 603; Gahan v. Western U. Teleg. Co. 59 Fed. Rep. 433; Cobb v. Telegraph Co. (Kan.; not yet published). Only one Federal court in Texas has followed the Texas cases, as far as we know. In Wood's Mayne on Damages, at page 75, it is said: "Mental anguish of itself has never been treated as an independent ground of damages, so as to enable a person to maintain an action for that injury alone; neither has insult nor contumely.' Pierce on Railroads says (p. 302): "Mental is not readily distinguished from physical suffering. Pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity. See Pollock, Torts, enlarged Am. ed. pp. 54-56, and note by editor, p. 56; 2 Greenl. Ev. 267; Field, Damages, S$ 26, 73; 26 Am. & Eng. Enc. Law, p. 862. Several of the recent text-writers have approved the doctrine of the Texas courts, notably Thompson on Electricity and Sedgwick on Damages. To support the opinion in the So Relle Case, & 756 of Shearman & Redfield on Negligence is quoted in the opinion, which is as follows: "In case of delay or total failure of 1. If a provision in a contract for the employment of railroad engineers, by which the employer undertakes to reinstate any engineer discharged from service whenever, upon his complaint, specified persons shall on investigation decide that the discharge was unjust, is void as against public policy, such provision does not render invalid a further provision in the contract that the engineers shall not be discharged without just cause. 2. Want of mutuality in the contract will permit the discharge at any time of a railroad engineer employed under a contract by which the employer agrees to pay him according to specified rates for his services, not to discharge him without just cause, to promote him according to specified grades of service, and when discharges of engineers are made to discharge in the order of juniority in service, where there is no agreement on his part to serve for any specified time. (Bunn, Ch. J., dissents.) (November 6, 1897.) APPEAL by defendant from a judgment of favor of plaintiff in an action brought to rethe Circuit Court for Pulaski County in cover damages for breach of an employment contract. Reversed. The facts are stated in the opinion. Messrs. Dodge & Johnson, for appellant: fendant railway company, and prevents it from West Virginia Transp. Co. v. Ohio River Pipe Line Co. 22 W. Va. 600, 46 Am. Rep. 527; Hale v. Henderson, 4 Humph. 199; Roll v. Ragwet, 4 Ohio, 400, 22 Am. Dec. 759; Weld v. Lancaster, 56 Me. 455. Railway companies, as common carriers of NOTE. As to discharge from employment under a contract for permanent employment, see note to Carnig v. Carr (Mass.) 35 L. R. A. 512. passengers, are bound to the utmost diligence | Ill. 365, 8 Am. Rep. 690; Pueblo & A. Valley which human skill and foresight can effect; and if injury occurs by reason of the slightest omission, in regard to the highest perfection of all the appliances of transportation, in the mode of management at the time the injury occurs, whether caused by defective appliances, or incompetent or careless servants, the carrier is liable. George v. St. Louis, I. M. & S. R. Co. 34 Ark. 613; Little Rock & Ft. S. R. Co. v. Miles, 40 Ark. 298. 48 Am. Rep. 10; Missouri P. R. Co. v. Nevill, 60 Ark. 381, 28 L. R. A. 80. When a contract seeks to bind the maker to do something opposed to the public policy of the state or nation, or conflicts with the wants, interests, or prevailing sentiment of the people, or our obligations to the world, or is repugnant to the morals of the times, it is void, however solemnly the same may be made. Greenhood, Public Policy, Rule 2; Bishop, Non-Cont. L. p. 1074. If the tendency of contracts is towards a corrupt or illegal result, they will be unhesitatingly declared void. Bestor v. Wathen, 60 Ill. 138; Woodstock Iron Co. v. Richmond & D. Extension Co. 129 U. S. 663, 32 L. ed. 827; Fuller v. Dame, 18 Pick. 472; Oscanyan v. Winchester Repeating Arms Co. 103 U. S. 261-267, 273, 26 L. ed. 539-542, 544: Providence Tool Co. v. Norris, 69 U. S. 2 Wall. 45, 17 L. ed. 868; Hamilton v. Hamilton, 89 Ill. 351; Thomas v. Caulkett, 57 Mich. 394, 58 Am. Rep. 369; Cooley, Torts, p. 687; Johnson v. Richmond & D. R. Co. 86 Va. 975; Chicago, M. & St. P. R. Co. v. Wabash, St. L. & P. R. Co. 27 U. S. App. 1, 61 Fed. Rep. 993, 4 Inters. Com. Rep. 578, 9 C. C. A. 664; Pope Mfg. Co. v. Gormully, 144 U. S. 233, 36 L. ed. 418; Home Ins. Co. v. Morse, 87 U. S. 20 Wall. 451, 22 L. ed. 368; Grand Trunk R. Co. v. Stevens, 95 U. S. 660, 24 L. ed. 536; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. ("The Montana"), 129 U. S. 440, 441, 32 L. ed. 792; Thomas v. West Jersey R. Co. 101 U. S. 71, 25 L. ed. 950; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 51, 35 L. ed. 65. In making its contracts with its servants a railway company does not act strictly in its capacity as common carrier, and yet it cannot screen itself from liability for injuries inflicted upon such servants through its own negligence. Such contracts have been repeatedly held to be contrary to public policy and void. Kansas P. R. Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; Little Rock & Ft. S. R. Co. v. Eubanks, 48 Ark. 460; Lake Shore & M. S. R. Co.lv. Spangler, 44 Ohio St. 476. Every contract is declared void which contravenes any legal principle or enactment. Aubert v. Maze, 2 Bos. & P. 374; Cannan v. Bryce, 3 Barn. & Ald. 183; Greenough v. Balch, 7 Me. 461; White v. Buss, 3 Cush. 448. In our jurisprudence a contract may be illegal and void because it is contrary to a constitution or statute, or inconsistent with sound policy and good morals. Burke v. Child, 88 U. S. 21 Wall. 448, 22 L. ed. 624; Thomas v. West Jersey R. Co. 101 U. S. 77, 25 L. ed. 950; Central Transp. Co. v. Pullman's Palace Car Co. 139 U. S. 24, 35 L. ed. 55; Chicago & N. W. R. Co. v. People, 56 | R. Co. v. Taylor, 6 Colo. 1, 45 Am. Rep. 512; Pacific R. Co. v. Seely, 45 Mo. 212, 100 Am. Dec. 369; State v. Hartford & N. H. R. Co. 29 Conn. 538: Wiggins Ferry Co. v. Chicago & A. R. Co. 128 Mo. 224; Hartford_F._ Ins. Co. v. Chicago, M. & St. P. R. Co. 36 U. S. App. 152, 70 Fed. Rep. 201, 30 L. R. A. 103, 17 Ĉ. C. A. 66; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. ("The Montana"), 129 U. S. 440, 441, 32 L. ed. 791, 792. Railway companies are bound in selecting engineers and servants to the exercise of diligence and care that they employ and retain in their service, in their different departments, only such persons as are safe, capable, and trustworthy. Rorer, Railroads, p. 833; Beale v. Railway, 1 Dill. 568; Atcheson v. Mallon, 43 N. Y. 149, 3 Am. Rep. 678; White v. Middlesex R. Co. 135 Mass. 219. There is no mutuality and no privity of contract existing between plaintiff and defendant. Hamlin v. Wheelock, 42 Hun, 532; Pom. Contr. 165; Lees v. Whitcomb, 2 Moore & P. 86, 5 Bing. 34; Sykes v. Dixon, 9 Ad. & El. 693; Bates v. Cort, 3 Dowl. & R. 676; James v. Williams, 5 Barn. & Ad. 1109; Young v. Timmins, 1 Cromp. & J. 340; Hulse v. Hulse, 17 C. B. 725, 25 L. J. C. P. N. S. 177; Addison, Contr. § 18. Messrs. Rose, Hemingway, & Rose for appellees. Battle, J., delivered the opinion of the court: On or about the 18th day of May, 1894, W. J. Mathews instituted this action against the St. Louis, Iron Mountain, & Southern Railway Company. The complaint filed in the action is as follows: "The plaintiff is by profession a locomotive engineer, and has been such for many years, and for over four years past he has been in the employment of the St. Louis, Iron Mountain, & Southern Railway Co. as such locomotive engineer, working under a contract, a copy of which is herewith filed, and made part hereof. By article 1 of said contract it is provided: No engineer shall be discharged or suspended without just and sufficient cause, and, in case an engineer believes his discharge or suspension to have been unjust, he shall make a written statement of the facts in the premises, and submit it to his master mechanic, and at the same time designate any other engineer who may be in the employ of the company at the time, on the same division; and the master mechanic, together with the engineer last referred to, shall, in conjunction with the superintendent, investigate the case in question, without unnecessary delay, and give prompt decision, and, in case the aforesaid discharge or suspension is decided to have been unjust, he shall be reinstated, and paid half time for all the time he has lost on such account.' "By rules 13, 14, 16, and 17 of said contract it is provided that engineers shall be employed and discharged in the order of their seniority, the oldest engineer in service being entitled to be first employed, and the youngest engineer in the service being subject to be first dis charged in case the company should reduce its | vacant, the oldest freight engineer on the diviforce. "The plaintiff was one of the oldest engineers in the service of the company, and, there being no possibility of the requirements of the service being diminished to such an extent as ever to necessitate his discharge under the contract, his employment was for life, or during good behavior. The plaintiff was earning under that contract from $135 to $185 per month, and would have continued to earn that sum during the remainder of his natural life, but on the 2d day of January, 1894, in violation of said contract, and without cause, the plaintiff was, by the defendant, discharged from its service. "Plaintiff has pursued the steps required by said article 1 for reinstatement, but the master mechanic of the defendant, acting under its orders, and without cause, refuses to reinstate him in the service. "The plaintiff therefore prays judgment for the sum of $10,000." Rules 13, 14, 16, and 17, referred to in the complaint, are as follows: "(13) When, from temporary slackness of business, an engineer in road service is thrown out of employment, he will be reduced from passenger to freight service, from freight to pusher service, and from pusher to switchengine service, according to his seniority on the division. If it is necessary to lay off an engineer, the youngest engineer in switchengine service will be taken off. This not to apply to switch engineers who are not eligible to road or pusher service by reason of not having | fired on the road, or having waived their rights to same. sion where the vacancy occurs is entitled to the same. When a freight engine becomes vacant, the oldest freight engineer in regular service on the division where the vacancy occurs is entitled to the same. When any run becomes vacant, and the engineer entitled to said run refuses same, he loses his right to this run only, but will retain his rights, according to seniority, to next vacancy that may occur. When a passenger run extends over two or more freight divisions, each division is entitled to representation pro rata upon said run, each freight division selecting a representative in turn, as may be agreed upon by the divisions interested. In the absence of regular passenger engineer, when the extra passenger engineer is not available, the oldest freight engineer on the division shall be assigned to this service. Any freight engine becoming vacant for a period of fifteen days or more shall be given the oldest extra freight engineer. No engineer shall be allowed to run on territory other than that to which he is assigned, except in case engineers assigned to such territory are not available. This shall not apply to systems officers, specials." These rules, among others, were signed only by Frank Reardon, Superintendent of Locomotive and Car Department," and "Geo. C. Smith, Assistant General Manager." is set out in the complaint; but denied all the other allegations of the complaint, and averred that it discharged him from its service on the 2d of January, 1894, for gross negligence, and stated in what it consisted. The issues in the case were tried by a jury. In the trial it was shown that the plaintiff was employed by the defendant as a locomotive engineer. It was admitted in the answer that the following article was a part of the con. tract: The defendant answering, admitted that the plaintiff was a locomotive engineer, and was in its employ as such on the 2d day of January, 1894, and that it had entered into an agreement with the engineers in its employment, which became effective on the 1st of January, 1892, and was in force on Janu"(14) During slackness of business, employ-ary 1, 1894, and that article 1 of the agreement ment for surplus engineers will be found, if possible, on other parts of the system where needed, in preference to hiring new men, or promoting men already in service, with the understanding that whoever accepts such temporary transfer will be required to remain until business on his own territory justifies his recall by his own master mechanic. No man to be promoted, or engineer hired, during absence of such transferred engineer, and while subject to recall to his own division, unless to meet an emergency or pressing demand of business; in which case such newly hired or promoted engineer shall hold no rights over the absent engineer. Men so transferred will hold seniority rights on their own territory for a period of six months only, unless the master mechanic of the territory to which they are transferred finds it necessary for despatch of business to retain them for a longer period. Further, they have a preference, in accordance with seniority, to any engine becoming vacant on their own territory over extra men still remaining on said territory. If, after accepting such transfer, they return to their own territory, before they are recalled by their own master mechanic, they shall be considered new men on said territory. " "(16) Promotions of engineers will be made according to seniority from switch-engine service to pusher engine service, if any, on the division, and from pusher service to road service. "(17) When a passenger engine becomes "Article 1. No engineer shall be discharged or suspended without just and sufficient cause, and, in case an engineer believes his discharge or suspension to have been unjust, he shall make a written statement of the facts in the premises, and submit it to his master mechanic, and at the same time designate any other engineer who may be in the employ of the company at the time on the same division; and the master mechanic, together with the engineer last referred to, shall, in conjunction with the superintendent, investigate the case in question without unnecessary delay, and give a prompt decision; and, in case the aforesaid discharge or suspension is decided to have been unjust, he shall be reinstated, and paid half time for all the time lost on such account." On the 2d of January, 1894, while he was in the employment of the defendant, he was in control of one of its locomotives pulling a freight train going north. When near Higginson station, 50 miles north of Little Rock, |