safeguard. This, we think, was a peremptory instruction upon a disputed question of fact, and for that reason was erroneous. It is well settled that it is the duty of the master to exercise ordinary care to provide his servants with reasonably safe implements and instrumentalities with which to work, and also a reasonably safe place in which to perform their labor. But the master can not be charged with a breach of this duty simply on the ground that a safer method or a safer machine than that from which the injury resulted could have been obtained and might have been adopted. He is not required to furnish any particular kind of appliance or instrumentality for doing the work. He has performed the full measure of his legal duty when he has exercised ordinary care to furnish an implement or instrumentality that is reasonably safe and suitable for the use of the servant and the work to be done. The fact that some other kind of machine or implement would have been safer or better than the one which caused the injury is not the test of the failure on the part of the master to perform his duty, or of negligence from which to fix upon him a liability.

As is said in 1 Labatt on Master & Servant, § 35: "The test is not whether the master omitted to do something he could have done, but whether in selecting tools and machinery for their use he was reasonably prudent and careful; not whether better machinery might have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be applied."

In the case of Wilcox v. Hebert, 90 Ark. 145, an action very similar to the one at bar was brought, and a similar issue was involved therein. In that case an instruction in every essential similar to the above instruction was given, and was disapproved by this court. In holding such an instruction erroneous, the court said that it made the master an insurer of the safety of the machine. After stating the well-settled principle that a master is not an insurer of the safety of the appliance furnished, and is not bound to furnish any particular kind of appliance nor to use any particular character of safeguard thereon against danger, the court said: "The master is only held to the exercise of ordinary care, proportionate to the danger to be incurred, in the selection of reasonably safe

machinery and appliances, and in keeping them in proper condition." The court further said: "The question of his liability for damages on account of having furnished a piece of machinery which turns out to be unsafe, and which proves to be the proximate cause of the injury of the servant, must be tested by the question as to what care a man of ordinary prudence would have exercised under similar circumstances. A mere error of judgment in selecting a more dangerous kind of machine than could have been provided, or in altering a machine so as to render it less safe, does not necessarily convict the master of culpable conduct toward his servant, but it is a question for the jury to say whether or not it constituted negligence."

The above instruction given in this case was for the same reason erroneous, and necessitates a reversal of this judgment.

There are other errors assigned by counsel why the judgment should be reversed, but we do not deem it necessary to note them, for the reason that upon another trial of this case these alleged errors will not likely occur.

In view, however, of another trial, we deem it proper to note the action of the trial court in permitting the counsel for plaintiff to ask one of the attorneys who professed to represent the defendant whether he was employed by a casualty company which indemnified the defendant against loss occasioned by this injury, and in refusing to permit said attorney to appear in the case upon his declining to answer the question. After both parties had announced ready for trial, and while several members of the regular panel of the petit jury were in their box, the counsel for plaintiff asked one of the attorneys for defendant if he represented an insurance company in the case. The attorney answered that he represented the defendant in the case. The court then said that this was not an answer to the question propounded, and, the attorney declining to answer further, the court stated that he should not appear in the case; whereupon the attorney withdrew from the case.

An attorney is an officer of the court, and amenable to it for the proper performance of his duty. He should not represent a party in a case without authority. Whether or not he has such authority may be inquired into by the court,

after proper showing has been made challenging such authority, because the party whom such attorney professes to represent may be bound by his actions in the case. This inquiry may be made by the court upon proper application by the party he professes to represent, or by the opposing party; but in either event it is necessary that due cause should be shown in such application. The attorney's license is prima facie evidence of his authority to appear for and represent any person in a litigation whom he professes to represent. The statement of the attorney that he does represent such party is prima facie sufficient, and must stand until his authority is properly questioned. In order to properly question his authority, it is necessary for the applying party to state facts showing or tending to show want of authority. The attorney's authority can not be capriciously demanded. The rights of the parties in such matters, and the practice in such inquiry, is thus stated in the case of Cartwell v. Menifee, 2 Ark. 356.

"Every attorney regularly licensed and duly admitted to practice in the courts of this State possesses by virtue of his license and admission a general right to appear for any of the suitors in the courts where he is admitted to practice, who may retain him for that purpose; but his license is not of itself an authority to appear as the representative of any particular person until he is in fact employed or retained for such person. Yet his authority to represent any suitor on whose behalf he may appear can not be legally questioned until facts or circumstances are shown by affidavit, or otherwise, sufficient to raise a legal presumption that he is not legally authorized to appear for the party he assumes to represent." Tally v. Reynolds, 1 Ark. 99; Wyatt v. Burr, 25 Ark. 476; Bush v. Visant, 40 Ark. 125.

In the case at bar the attorney professing to represent the defendant, upon inquiry made by the court, stated that he did represent the defendant. It was not necessary for the attorney to make any further showing of his authority until some statement of facts made under oath tended to overcome this prima facie evidence of his authority to represent the defendant. Without such statement, the court erred in permitting the attorney to be interrogated further relative to his authority, and in denying him the right to appear in the case.

But it is urged by counsel for plaintiff that this question was asked the attorney in order that he might be advised as to who were the interested parties in the case, so that in questioning the members of the jury on their voir dire he might use this as a basis for challenging them. If counsel for plaintiff honestly and in good faith thinks that any of the veniremen is in any way connected with a casualty company insuring the defendant against loss for the injury complained of in the case, he can ask the jurors on their voir dire relative to this. If, however, his real purpose is to call unnecessarily the attention of the jury to the fact of the insurance, and thereby to prejudice them against the defendant's rights, then this would be clearly an abuse of this privilege, and should be promptly stopped by the trial judge. In case it appears that prejudice to the rights of the defendant does result therefrom, it would call for a new trial or a reversal of the judgment on appeal. In an action by a servant against his master for damages growing out of a personal injury, it is improper for the jury to take into consideration the fact that the defendant is indemnified against accident to his employees. Evidence of such fact could throw no light upon the issue involved in the case, and would be wholly incompetent. 2 Labatt, Master & Servant, § 826.

The endeavor, therefore, by any character of practice, to press unnecessarily upon the jury's attention the fact that a defendant is indemnified against loss for the injury which is the subject-matter of the suit could only have for its purpose the arousal of sympathy for the one party or prejudice against the other. Such action or practice is therefore improper, and, if successful in its desired effect, should call for a new trial.

For the error in giving the above instruction No. 2 on behalf of the plaintiff, the judgment is reversed, and the cause remanded for new trial.

WAIT v. STANTON.

Opinion delivered May 13, 1912.

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1. APPEAL AND ERROR-CONCLUSIVENESS OF CHANCELLOR'S FINDING.A chancellor's finding which is not against the clear preponderance of the evidence will be sustained on appeal. (Page 13.)

2.

3.

BUILDING CONTRACT CONSTRUCTION.-Where a builders' contract stipulates that if the contractors be delayed in the prosecution or completion of the work by the act, neglect or default of the owner or architect the time fixed for completion of the work shall be extended for a period equal to the time so lost, but that no such allowance should be made unless a claim therefor is presented in writing to the architect within forty-eight hours after the occurrence of such delay, the obligation to make claim for an extension of time is a condition precedent to the contractors' right thereto. (Page 13.)

DAMAGES-LIQUIDATED DAMAGES-PENALTY.-Where a contract for the erection of a two-story flat at a cost of $21,000 stipulated that the work should be completed on a certain date, and that in the event of failure to do so the contractors should pay the owner $25 per day for each day that the building remained unfinished after that date, the sum agreed should be construed as a penalty, and the owner is entitled to recover the fair rental value of the house during the delay in its completion. (Page 14.)

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor; reversed.

STATEMENT BY THE COURT.

On the 23d day of June, 1909, R. E. Wait, and the firm of Stanton & Collamore contractors and builders entered into an agreement in writing, whereby the contractors should provide all of the material and perform all of the work for the erection of a two-story brick flat building to be situated on the property of Wait on East Sixth Street, between Rock and Sherman, in the city of Little Rock for the consideration of $21,073. Among other provisions of the contract are the following:

Article 6 of the contract: "The contractors shall complete the several portions, and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, towit: work is to be begun at once and pushed as rapidly as practicable. All work is to be completed on or before November 1, 1909. In the event of the failure of the contractors to complete the work wholly and in all its parts on or before the 1st day of November, 1909, they shall pay the owner twenty-five ($25) dollars per day for each and every day that the building remains unfinished after the date above mentioned."

Article 7 of the contract: "Should the contractors be delayed in the prosecution and completion of the work by