(after stating the facts). The court erred in sustaining the motion requiring plaintiff to elect whether he would proceed for the recovery of the statutory penalties or damages as alleged in his complaint, there being but one cause of action alleged therein and that for damages for the unlawful operation of an unlicensed ferry by appellees for hire, within the prohibited distance from appellants.
The statute provides: “If any'person shall keep any ferry over any navigable stream, for which he shall charge any person any money or any other valuable thing, without complying with the provisions of law in relation to obtaining license; he shall forfeit and pay to every other person having a licensed ferry on the same stream or lake, in the same county, five dollars for every person so ferried, and the same sum for every wagon or other article so transported, which may be the subject of a separate charge, to be sued for and recovered by civil action, founded in this statute, with costs of prosecution.” Kirby’s Digest, Sec. 3582.
It has been held under this statute that the penalties provided are not recoverable against one who operates a free ferry or carries persons and property without compensation. Shinn v. Cotton, 52 Ark. 90.
It is not alleged in the complaint that appellees were operating a free ferry, but that they were operating a ferry for hire and that appellant was damaged in the sum of the amount of the penalties for persons and property carried and also in the sum of $40.00 per month for the. loss of tolls during the time appellees were operating their ferry for the years 1914 and 1915 and until the beginning of the suit. Of course appellant could not recover the statutory penalties for carrying persons and property for hire and also damages for loss of tolls upon being deprived of such traffic carried by the unlicensed ferry, but we see no reason why he should not recover the damages suffered by reason of such carriage of traffic by the unlicensed ferry, whether it was carried free or for hire, the damage resulting from the carriage thereof and depriving the operator of the licensed ferry of tolls that otherwise must have come to his ferry. He could waive the right to recover the statutory penalties and recover damages for the operation of a free ferry, but there being no allegation of the operation of a free ferry, the court erred in requiring appellant to elect whether he would proceed for the penalties or for damages for loss of tolls, since he had the right to recover the damages under the allegations of his complaint for the loss of tolls, if any was shown to have resulted from the operation of the unlicensed ferry, whether it was operated free or for hire.
The judgment is reversed *and the cause remanded with directions to overrule the motion to require plaintiff to elect and for further proceedings, according to law.