Opinion on Motion fob Rehearing.
MR. JUSTICE COOPERdelivered the opinion of the court.
The plaintiff has filed an exhaustive petition for a rehearing, in which it is insisted that, conceding that defendants were entitled to a jury trial as an abstract proposition of law, nevertheless such a trial would avail them nothing because: (1) Neither of the affirmative defenses or counterclaims states facts sufficient to constitute a defense to the plaintiff’s cause of action; and (2) the evidence discloses that, even if the defenses were properly pleaded, the allegations as to the gambling transactions were not proven upon the trial, and the *407court would have been obliged to direct the jury to return a verdict for the plaintiff at the conclusion of the evidence upon its motion.
We have carefully re-examined the pleadings of the respective defendants, and are of the opinion that the third affirmative- defense and the first and second counterclaims do state facts sufficient, if proven, to prima facie establish that the plaintiff and Franson were engaged in gambling transactions without the knowledge or consent of the board of directors of the Elevator Company. The motion for a rehearing is therefore denied.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.