Page images

the same; copies of which applications are and by-laws of 1.902, referred to in paragraph attached to the answer of defendant herein, 8 of this agreed statement of facts. (12) That marked 'Exhibit A' thereof, and are here re the premium rates therein provided for were ferred to as a part of this agreed statement never enforced or attempted to be enforced of facts. (1) That at the time of the issu as against him or his said deceased wife; ance of the said policy of insurance, and and that all payments of premiums made by prior thereto and thereafter, said plaintiff the plaintiff or said Helena Boman were at and his said wife complied with the consti the rates, and all transactions had with reftution and by-laws of said defendant in force erence to said beneticiary certificate, were at the time of the execution of the said poli in accordance with the constitution and bycy, and with the terms of said policy. A laws of the defendant of 1901, referred to in copy of which constitution and by-law's is at- paragraph 4 of this agreed statement of facts, tached to defendant's answer herein and and never at any time was any reference marked Exhibit B,' and which is here refer made to the amended and substituted constired to and made a part of this agreed state tution and by-laws of 1902; and that all payment of facts. (5) That on or about the 13th ments of premiums made by said plaintiff day of January, 1901, said Ilelena Boman and said Helena Boman were accepted by died intestate, leaving surviving her this said defendant without objection or question, plaintiff, who was and is the sole surviving concerning their sufficiency. (3) That combeneficiary under the said policy of insur- puting the amount due under said policy acance. (6) That thereafter on or about the cording to the constitution and by-laws of 1.5th day of March, 1904, said plaintiff sub 1901 or the terms of said policy, the amount mitted to said defendant due and proper would be $739.65, with interest at 6 per cent. proof of the death of the said Ilelena Boman per annum from November 16, 1904. (14) under said policy; and thereafter, on the That computing the amount due under said 16th day of August, 19904, the same were up policy according to the constitution and byprored by the board of directors of the de laws of 1902. the amount due would be the fendant anil tlie said policy ordered paid sum of $221.23, with interest at 6 per cent. within 30 days thereafter, and that the sim per annum since November 16. 1901." payable under the terms of said policy be The writer is inclined, under the terms of (ame due and payable to the said Alvin Bo the policy and the constitution and by-laws man at the expiration of the said 90 days of the association, to deny the right of the from said date. (7) The total amount paid corporation to diminish the indemnity by in to the mortuary fund of the defendant by the enactment of a by-law subsequent to the said plaintiff and Helena Boman, during issuance of the policy and without the contheir membership, under said policy was the sent of the assured. This association is an sum of $23.58. (8) That subsequently an insurance corporation under the decision in amended and substituted constitution and by National Council v. Shawnee Co., 63 Kan. laws of the defendant was adopted by the su 806, 66 Pac. 1011, 1011. It has been here preme lodge of said defendant association, held (Miller y. National Council, 69 Kan. 231. and duly filed with the auditor of public ac 76 Pac. 830), that, where a member in such counts of the state of Nebraska December 19, an association "agreed to be bound by sub1902; a copy of which is attached to defend sequently enacted by-laws, he is bound by a ant's answer, marked 'Exhibit C,' and is here new law which changes and increases his referred to as a part of this agreed state rate of monthly assessment, if reasonable of facts. (9) That by the laws of the state and necessary to the accomplishment of the of Nebraska, under and by virtue of which purposes of the association"; still, it would the defendant association was organized and seem repugnant to every idea of right that incorporated, it is provided that amendments one party to a contract could by a by-law to the constitution and by-laws of the de which increases the benefit thereof to itself fendant should take effect and be in force entirely wipe out, or in the least diminish, after the same have been filed with the au the benefits to the other party thereto. If ditor of public accounts of the state of Ne this association could, as it claims, by inbraska, who is the officer intrusted with the creasing the monthly assessments, increase supervision of such association. (10) That the deductions from the face of the policy, said Helena Boman was 27 years of age and and thus decrease the indemnity by over twosaid plaintiff was 33 years of age at the date thirds the value thereof, it could by only a of the issuance of the said policy of insur slight additional increase wipe out the enance; and that the expectancy of life of said tire indemnity. By the same act it would Helena Boman at her age, at the date of convey more money to its coffers than the her entry into said order, to wit, date of is assured contracted to pay for carrying the suance of said policy, according to the Ameri risk. As the assured grew older, by enacting can Experience Tables of Mortality, was 37.4 new by-laws, the corporation could increase years. (11) That said Helena Boman, while its demands and keep the indemnity at nil. living, and said plaintiff at no time until Without deciding as to whether the corporaafter the death of his said wife, Ilelena Bo tion has this power, we are agreed that it is man, had any notice or knowledge of the not entitled to enforce the new by-law against said amended and substituted constitutiou Boman. It appears by the agreed statement

of facts that neither Boman or his wife, 2. SAME. prior to her death, had any notice or knowl Where, after a trial, evidence is produced edge of the new by-law; that they paid all

which arouses well-grounded suspicion that the

prevailing party may have exercised an unlawthe assessments according to the rate pre ful and corrupt interference with the selection scribed by the by-laws in force at the time and drawing of the jury, it is the duty of the of issuance of their policy; and that the court promptly to set aside the verdict and or

der a new trial, without proof that the rights association neither enforced, or attempted to

of the other party have been materially affected enforce, the new rate as to them, but re by such misconduct. ceived all their payments without objection [Ed. Note.-For cases in point, see Cent. Dig. or question as to the sufficiency thereof. If vol. 37, New Trial, $ 47.) the association had demanded payment of 3. SAME-EVIDENCE. assessments under the new rate, it would

The evidence in support of the motion for a have been notice to the assured of the change

new trial in this case, upon the ground of mis

conduct of the prevailing party, examined, and in the by-laws, and they could at least have held sufficient to require the court to set the exercised their discretion to continue to pay | verdict aside and order another trial. at the new rate or to drop out by nonpay

(Syllabus by the Court.) ment. If there be ambiguity under the con

Error from District Court, Trego County ; tract, consisting of the certificate, the consti

J. H. Reeder, Judge. tution, and the by-laws, as to whether the new by-law applied to the Bomans, the ac

Action by Ciryll M. Krhut and others tion of the parties would amount to a mu

against John W. Phares. Judgment for de

fendant. From an order granting a tual construction thereof adversely to the claims of the association, and the court trial, he brings error. Afirmed. would adopt such construction, or at least Defendants in error brought this action give it great weight. If there be no such am against John W. Phares to recover $2,000 biguity or uncertainty, still it must be held | damages for fraud and misrepresentation, that the association, by keeping the assured claiming that he had acted as their agent in in ignorance of the existence of the new by the sale of a section of land and fraudulentlaw, and by accepting payments without ob- ly misrepresented to them that he had sold jection at the old rate, waived the new law it for the sum of $8,000, when in fact he as to them, and is now estopped from assert received the sum of $9,000, and had retained ing it against the beneficiary. Assurance Co. the difference as well as an agent's commisv. Bradford, 60 Kan, 82, 55 Pac. 335; Wyatt sion.

sion. Upon issues joined, the case was tried V. Larimer & Weld I. Co., 33 Pac. 144, 18 to a jury, and judgment rendered in favor of Colo. 298, 36 Am. St. Rep. 280; Williamson v. defendant. The trial court sustained a moEastern Bldg. Ass'n, 32 S. E. 765, 54 S. C. tion for a new trial and set aside the ver582, 71 Am. St. Rep. 822; Modern Woodmen dict, and it is to reverse that ruling of the of America v. Breckenridge (Kan.) 89 Pac. court that plaintiff in error brings this pro661,

ceeding. The case is remanded, with instructions to At the time the case was tried, John W. modify the judgment by increasing the same Phares was the county clerk of Trego county, in favor of the plaintiff below to the aggre and had filled that position for a number of gate amount of $739.65, with interest at 6 years. The motion for a new trial included per cent. thereon from November 16, 1904, all the statutory grounds, but the ground and costs. The costs of this court will be relied upon was "misconduct of the prevailtaxed to the defendant in error.

ing party.” Defendants in error charged

that plaintiff in error, while county clerk, GREENE, GRAVES, MASON, and POR- | corruptly placed, or caused to be placed, in TER, JJ., concur.

the jury box, six names not selected by the

township trustees for jury service, and corJOHNSTON, C. J. I concur in holding ruptly altered the jury lists in his official that there was a waiver of the right to en custody in order to conceal the unauthorized force the by-law and in the theory of estop- placing of the names in the jury box, and pel, but not in all that is said in the opinion. corruptly withdrew from the jury box prior

to the drawing of the jury in February, 1906, BURCH, J. I concur in the result.

19 names; that all of these acts were for the purpose of securing the drawing of a

jury favorable to himself in this and other (76 Kan. 238)

jury cases pending in the court in which he PHARES v. KRHUT et al.

was a party, In support of the motion, the (Supreme Court of Kansas. July 5, 1907.) testimony of a number of township trustees. 1. NEW TRIAL-MISCONDUCT OF PARTIES.

and also other oral testimony and affidavits, "Misconduct of the prevailing party" as

was introduced from which it appears that, ground for a new trial is not confined to some after the trustee of Collyer township had rething occurring at the trial. It may include acts

turned the 1905 jury list from that township amounting to misconduct, which, though occurring before, operate at the trial,

to plaintiff in error, who was then county [Ed. Note.--For cases in point, see Cent. Dig. | clerk, the list was changed by some personi vol. 37. New Trial, $ 42.]

without authority by the addition of eight

names. It also appears from the same kind for a new trial was pending, in which plainof testimony that the names of seven per tiff in error asked him if he had had any sons were added to the list of those eligible talk with the attorney for defendants in eras jurors from Ogallah township after the ror, and, when informed by the witness to trustee had made his return. Among these the contrary, said to him: "If he comes to added names was that of J. L. Arnold, who you for anything, don't tell him anything unhad not been selected for jury service by the til you come on the stand. I says 'what do trustee. The assessment roll of Riverside you want?

And he says:

'I don't know, township showed the same kind of manipula It is something about the jury.'” He also tion; 11 names having been added to the testified that he had a conversation with five names returned by the trustee. The plaintiff in error when the motion for a new October term of the district court was the trial was pending, as follows: "He asked first term after the names were returned by me if I had made an affidavit, and I told him the trustees. All the names were placed in I had not; and he asked me if I would make the jury box in September, 1905, in the pres an affidavit to the effect that I did not know ence of two justices and the sheriff, and 24 how many jurors I reported, and I told him names were drawn from the jury box for I would not-I could not.” E. B. Hobbick, service as jurors for the October term. The township assessor of Wakeeney township in next term of court was the March, 1906, 1905, also testified that he returned to the term, when the cause was tried. On Febru county clerk the names of six persons eligible ary 3, 1906, in the presence of the same jus as jurors from the city of Wakeeney, and tices and sheriff, 24 names were drawn from that the assessment roll of the township the jury box for service at the March term. showed nine names added without his auAmong the names drawn at this time were thority. Defendants in error were residents J. L. Arnold, Otto Colberg, J. Walberg, E. of Collyer township, which was one of the Pugh, T. W. Johnson, and S. Erickson, per most populous townships in the county, and sons whose names were among those added its trustee selected 16 persons for jury servto the list without the authority of the trus ice. It appears that no person from this tees. After this drawing, according to the township happened to be drawn or summoned testimony of the justices and sheriff, the jury on the jury for the March term. J. L. Arnold, box was found to be empty, although, by add whose name was added to the jury list from ing the total number of names drawn out for Ogallah township without the authority of the two terms of court, there were 19 names the trustee, was a tenant on the farm of unaccounted for, and which should have been plaintiff in error. Charles Ridgway, who left in the box when the drawing closed. The was drawn as a juror, and whose name was officers who were present also testified that one of those added to the list, but who did the slips containing the names drawn at this not serve, testified that before the trial took time were not the same slips which were place he had a conversation with plaintiff in placed in the box in their presence in Sep error, in which the latter said: "I think my tember, 1905, but were made upon a different land case will be tried, and if it is, and you kind of paper. Among those who served as sit on the jury, I wish you would do me all jurors on the trial, there were three from the good you can, because I am right.” Riverside township, who were not selected The motion for a new trial was also supby the trustee of that township, and whose ported by affidavits of defendants in error names were added to the jury list without and their attorneys showing that they had his authority or knowledge.

no knowledge or notice of the irregularities F. F. Zielman, who was the trustee of Coll and misconduct with reference to the drawyer township, testified that he returned in

ing of the jury at the time the case was tried, his own handwriting the names of 16 per nor until åbout the time the motion for a new sons as jurors, and that there had been eight trial was filed. There was further testimonames added which were not in his hand ny showing that plaintiff in error was a writing, and that he had not authorized any

party in two other causes pending at the one to add any names to the roll. He further same term of court, liable to be tried by jutestified that, while the motion for the new ries, and in which considerable amounts were trial was pending, plaintiff in error sent for involved. There was no evidence offered by him to come to the county clerk's office and plaintiff in error in rebuttal. showed him the assessment roll with the additional names and said that he wanted him

W. E. Saum and Jno. E. Hessin, for plainto "recognize this list." The witness inform

tiff in error. Herman Long, for defendants ed him that he could not do that. He

in error. [plaintiff in error] said if I could not recognize this as my list, he would make out a PORTER, J. (after stating the facts). It new book, if I would recognize it.” J. C. is claimed that the court erred in refusing to Buchanan, trustee of Ogallah township, tes strike from the files the affidavits, and in adtified that seven names had been added to mitting oral evidence in support of the mothe list after he had returned the names to tion. This claim of error is based upon the the county clerk; that he had a conversa contention that the "misconduct of the pretion with plaintiff in error while the motion vailing party,” which is one of the statutory

[ocr errors]

grounds for a new trial, has no application the manner in which the jury was drawn
to any acts of a party except such as occur amounts to a challenge to the array, and
at the trial, and especially that it has no ref comes too late. It is doubtless true that the
erence to something that may have occurred irregularities could have been shown in sup-
long prior to the trial. To this we cannot port of such a challenge, and the proof would
agree. The language of the statute contains hare warranted the court in quashing the
no such restrictions. Nor is there any sub panel; but that fact does not in any sense
stantial reason why the acts of a party which give character to a showing made, not for the
were designed to and did operate at the trial purpose of quashing the panel, but for the
to secure to him an undue advantage, by purpose of setting aside a verdict and ob-
means which the law regards as reprehen taining a new trial. If the charges set forth
sible, should not furnish grounds for setting in the motion were true, plaintiff in error
aside the verdict merely because they were might have been prosecuted criminally; but
set in motion before the trial. In May v. it would hardly be said that for that reason
Ham, 10 Kan. 598, the syllabus reads: the truth of the charges could not be shown
"Where it is shown, on a motion for a new for any other purpose, or could not be used
trial, that the prevailing party in the cause, to support a motion for a new trial.
prior to the commencement of the trial, at Another contention is that what plaintiff in
tempted to pack the jury, the verdict should error chooses to call "irregularities” and “in-
be set aside for such misconduct, unless it formalities" were waived because the objec-
should also appear clearly and beyond all tions were not taken sooner; that by ordinary
reasonable doubt that the other party was diligence the objections to the manner in which
not prejudiced by such conduct. And where the jury was drawn could have been made
such misconduct was discovered by the other before the trial. It is a sufficient answer that
party during the trial, it is sufficient for such defendants in error, according to the evi-
party to raise any question connected there dence, had no notice or knowledge of the
with, after verdict, on a motion for a new facts relied upon until after the trial. Be
trial.” The statute makes inisconduct of the sides, they were certainly not bound to as-
prevailing party a ground for a new trial, sume that a county officer, who happened to
provided the substantial rights of the com be a party to the action, might falsify the re-
plaining party have been materially affected. ords and tamper with the jury box. And it
This does not require an affirmative showing is a misuse of the English language to char-
that but for the misconduct the verdict would acterize the acts charged against plaintiff in
have been different, for it is obvious that error as mere "irregularities and informali-
such a showing would be ordinarily impos ties."
sible. Both parties have equally the right It is true, as contended, that there was no
to a fair and impartial trial, which includes direct evidence that plaintiff in error was re-
the right to have the jury drawn without one sponsible for the alterations in the lists of
party having exercised a choice or selection jurors or had tampered with the jury box;
of the men who shall serve thereon, except but we do not agree with the claim that there
as provided by law, when the jurors are ex was no evidence which tended to show a mo-
amined upon their voir dire. Where one of tive on his part to secure an unfair and un-
the parties unlawfully secures the selection lawful advantage. On the contrary, there
of certain men for the regular panel, and pre was direct evidence showing a disposition to
vents certain others from being drawn who obtain an unfair advantage with the jury,
were regularly chosen for jury service, it and showing an attempt to influence jurors
can hardly be seriously contended that the who might be called to serve on the case, and
rights of the other party have not been direct evidence of an attempt to conceal and
materially affected thereby. In May v. Ham, distort the facts with respect to the jury lists
supra, it is said, in the opinion: “It may also after an investigation had begun. The jury
be that the seeming misconduct of the plain box and the jury lists were in his official
tiffs did not affect the verdict of the jury; custody and were undoubtedly altered and
but it may be that it did, and we cannot say tampered with, and, while no witness testified
that we feel clear that it did not, and this to seeing him in the act of making the altera-
is all that is necessary to require a reversal tions or changes, the circumstances in evi-
of the judgment. When a party has com dence were very suspicious, and beyond any
mitted a flagitious act in order to obtain some question in our opinion sufficient to require
undue advantage over his adversary, as it the court to set aside the verdict and order
would seem one of the plaintiffs in this case a new trial. This is especially true in view of
did, such party should not ask that the other the failure of plaintiff in error to contradict
parties should show that they were in fact the direct testimony of the four trustees, the
prejudiced by his acts. On the contrary, he justices, or the sheriff as to what transpired
should be compelled to show clearly and be at the time the returns were made and the
yond all reasonable doubt, if not beyond all drawings took place, or to contradict the tes-
doubt, that such parties were not prejudiced timony of the trustees that he attempted to
by his unwarranted and reprehensible mis induce them to suppress the facts; and in

view also of his willingness to rely upon It is seriously urged that the objections to technical objections to the consideration of

the evidence, rather than to attempt to ex 2. SAYE. plain the suspicious circumstances.

A county is not liable in damages for the It is finally insisted that the reason ag

negligent or wrongful acts of its board of coun

ty commissioners, unless such liability is exsigned by the trial court for sustaining the pressly imposed by statute or necessarily immotion amounts to a finding that the charges plied therefrom. of misconduct were not established by the evi (Ed. Note.-For cases in point, see Cent. Dig. dence, and that a new trial was in fact grant

vol. 13, Counties, $ 212.) ed upon grounds not included either in the (Syllabus by the Court.) motion or provided for in the statute. The

Error to District Court, Clay County; Sam remarks of the court were as follows: "I have

Kimble, Judge. no criticism to make upon any one connected

Action by William Silver against the board with this case, nor am I going into the ques of county commissioners of Clay county. tion of the manner in which certain names

Judgment for defendants, and plaintiff brings got into the jury box; but I want to say this:

error. Afirmed. That there is a suspicion caused, by the manner of drawing that jury, which should not

The plaintiff filed his petition against the exist in any court on earth,

• It is

defendant board, in which he alleges, in subpossible that the instructions of the court

stance, that he is the owner of a large tract were not clear enough. It is barely possible

of land in Clay county on the western side that the jury did not weigh and consider

and within a horseshoe bend of the Repub

lican river. That for many years a regularly the evidence, as they should have done; but I have no criticism to make upon the jury.

laid out public road has extended east and They did as they thought was right, but, on

west along his premises and across the river.

That many years ago a bridge was built on account of the suspicion that is raised that the plaintiffs did not have a fair and impar

said public road across the river, at the toe tial trial, and the jury was not fairly drawn,

of the horseshoe bend, and had been main

tained and used as a part of the highway I am of the opinion that a new trial should be bad, and that the judgment should be set

until a short time prior to the filing of the aside, and a new trial is ordered." In the

petition. That in 1904, at a time of high walight of the uncontradicted evidence, we can

ter, the river cut a new channel across the not regard the language of the court as a

heel of the horseshoe bend and across said finding that the charges were not established,

public road, and the main stream has since but are rather inclined to view the language continued to flow therein, leaving the old used as showing a disposition on the part of

channel, a lagoon, filled with water and imthe trial jidge to avoid unnecessary barsh

passable except over said bridge; the highness in characterizing what appeared to be

way across the new channel being also imreprehensible conduct in one of the parties.

passable. That the defendant board instead Courts are created to secure the administra

of restoring said highway, by building a tion of justice between contending parties;

bridge thereon across the new channel, aban

doned the same and ordered and caused to be and where, after a trial, evidence is produced which arouses well-grounded suspicion that

removed therefrom the bridge across the old the prevailing party may have exercised an

channel, thus leaving plaintiff's premises upunlawful and corrupt interference with the

on an island and inacessible from either di

rection. That by reason of the facts stated selection and drawing of the jury, it is the duty of the court promptly to set aside the

the plaintiff has been damaged in the sum of verdict and order a new trial, without proof

$5,000, for the recovery of which amount he that the rights of the other party have been

prays. A general demurrer was filed to this materially affected by guch misconduct. Up

petition, and was sustained by the court. To

reverse this order the plaintiff comes here. on the showing made upon the motion in this case, we think it would have been error not Hy W. Stackpole and Coleman & Williams, to have ordered another trial.

for plaintiff in error. W. P. Anthony, for The judgment will be affirmed. All the Jus defendant in error. tices concurring.

SMITH, J. (after stating the facts). Ac

cording to the allegations of the petition, the (76 Kan. 228)

removal of the bridge by the county commisSILVER v. BOARD OF COM'RS OF CLAY sioners was illegal and imposed great hardCOUNTY.

ship upon the plaintiff, and he would, perhaps, (Supreme Court of Kansas. July 5, 1907.)

under the authority of Greeley Township v.

Board of County Commissioners, 26 Kan. 514. 1. COUNTIES - LIABILITIES - NEGLIGENCE OF

have been entitled to enjoin the act, or may OFFICERS.

Counties are involuntary quasi corpora even yet not be without a remedy. However, tions and are mere auxiliaries to the state gov before the decision of the court sustaining the ernment and partake of the state's immunity

demurrer can be reversed, we must be able from liability. They are in no sense business corporations,

to say that the county is responsible in danı[Ed. Note. For cases in point, see Cent. Dig. ages for the wrong alleged. It is well-estabvol. 13, Counties, $ 212.]

lished law that a county is an involuntary

« PreviousContinue »