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and by-laws of 1902, referred to in paragraph 8 of this agreed statement of facts. (12) That the premium rates therein provided for were never enforced or attempted to be enforced as against him or his said deceased wife; and that all payments of premiums made by the plaintiff or said Helena Boman were at the rates, and all transactions had with reference to said beneficiary certificate, were in accordance with the constitution and bylaws of the defendant of 1901, referred to in paragraph 4 of this agreed statement of facts, and never at any time was any reference made to the amended and substituted constitution and by-laws of 1902; and that all payments of premiums made by said plaintiff and said Helena Boman were accepted by said defendant without objection or question, concerning their sufficiency. (3) That computing the amount due under said policy according to the constitution and by-laws of 1901 or the terms of said policy, the amount would be $739.65, with interest at 6 per cent. per annum from November 16, 1904. (14) That computing the amount due under said policy according to the constitution and bylaws of 1902, the amount due would be the sum of $224.25, with interest at 6 per cent. per annum since November 16, 1904."

the same; copies of which applications are attached to the answer of defendant herein, marked 'Exhibit A' thereof, and are here referred to as a part of this agreed statement of facts. (4) That at the time of the issuance of the said policy of insurance, and prior thereto and thereafter, said plaintiff and his said wife complied with the constitution and by-laws of said defendant in force at the time of the execution of the said policy, and with the terms of said policy. A copy of which constitution and by-laws is attached to defendant's answer herein and marked Exhibit B,' and which is here referred to and made a part of this agreed statement of facts. (5) That on or about the 13th day of January, 1904, said Helena Boman died intestate, leaving surviving her this plaintiff, who was and is the sole surviving beneficiary under the said policy of insurance. (G) That thereafter on or about the 15th day of March, 1904, said plaintiff submitted to said defendant due and proper proof of the death of the said Helena Boman under said policy; and thereafter, on the 16th day of August, 1904, the same were approved by the board of directors of the defendant and the said policy ordered paid within 90 days thereafter, and that the sum payable under the terms of said policy became due and payable to the said Alvin Boman at the expiration of the said 90 days from said date. (7) The total amount paid in to the mortuary fund of the defendant by said plaintiff and Helena Boman, during their membership, under said policy was the sum of $25.58. (8) That subsequently an amended and substituted constitution and bylaws of the defendant was adopted by the supreme lodge of said defendant association, and duly filed with the auditor of public accounts of the state of Nebraska December 19, 1902; a copy of which is attached to defendant's answer, marked 'Exhibit C,' and is here referred to as a part of this agreed state of facts. (9) That by the laws of the state of Nebraska, under and by virtue of which the defendant association was organized and incorporated, it is provided that amendments to the constitution and by-laws of the defendant should take effect and be in force after the same have been filed with the auditor of public accounts of the state of Nebraska, who is the officer intrusted with the supervision of such association. (10) That said Helena Boman was 27 years of age and said plaintiff was 33 years of age at the date of the issuance of the said policy of insurance; and that the expectancy of life of said Helena Boman at her age, at the date of her entry into said order, to wit, date of issuance of said policy, according to the American Experience Tables of Mortality, was 37.4 years. (11) That said Helena Boman, while living, and said plaintiff at no time until after the death of his said wife, Helena Boman, had any notice or knowledge of the said amended and substituted constitution

The writer is inclined, under the terms of the policy and the constitution and by-laws of the association, to deny the right of the corporation to diminish the indemnity by the enactment of a by-law subsequent to the issuance of the policy and without the consent of the assured. This association is an insurance corporation under the decision in National Council v. Shawnee Co., 63 Kan. 806, 66 Pac. 1011, 1014. It has been here held (Miller v. National Council, 69 Kan. 234, 76 Pac. 830), that, where a member in such an association "agreed to be bound by subsequently enacted by-laws, he is bound by a new law which changes and increases his rate of monthly assessment, if reasonable and necessary to the accomplishment of the purposes of the association"; still, it would seem repugnant to every idea of right that one party to a contract could by a by-law which increases the benefit thereof to itself entirely wipe out, or in the least diminish, the benefits to the other party thereto. If this association could, as it claims, by increasing the monthly assessments, increase the deductions from the face of the policy, and thus decrease the indemnity by over twothirds the value thereof, it could by only a slight additional increase wipe out the entire indemnity. By the same act it would convey more money to its coffers than the assured contracted to pay for carrying the risk. As the assured grew older, by enacting new by-laws, the corporation could increase its demands and keep the indemnity at nil. Without deciding as to whether the corporation has this power, we are agreed that it is not entitled to enforce the new by-law against Boman. It appears by the agreed statement

of facts that neither Boman or his wife, prior to her death, had any notice or knowledge of the new by-law; that they paid all the assessments according to the rate prescribed by the by-laws in force at the time of issuance of their policy; and that the association neither enforced, or attempted to enforce, the new rate as to them, but received all their payments without objection or question as to the sufficiency thereof. If the association had demanded payment of assessments under the new rate, it would have been notice to the assured of the change in the by-laws, and they could at least have exercised their discretion to continue to pay at the new rate or to drop out by nonpayment. If there be ambiguity under the contract, consisting of the certificate, the constitution, and the by-laws, as to whether the new by-law applied to the Bomans, the action of the parties would amount to a mutual construction thereof adversely to the claims of the association, and the court would adopt such construction, or at least give it great weight. If there be no such ambiguity or uncertainty, still it must be held that the association, by keeping the assured in ignorance of the existence of the new bylaw, and by accepting payments without objection at the old rate, waived the new law as to them, and is now estopped from asserting it against the beneficiary. Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Wyatt V. Larimer & Weld I. Co., 33 Pac. 144, 18 Colo. 298, 36 Am. St. Rep. 280; Williamson v. Eastern Bldg. Ass'n, 32 S. E. 765, 54 S. C. 582, 71 Am. St. Rep. 822; Modern Woodmen of America v. Breckenridge (Kan.) 89 Pac. 661.

The case is remanded, with instructions to modify the judgment by increasing the same in favor of the plaintiff below to the aggregate amount of $739.65, with interest at 6 per cent. thereon from November 16, 1904, and costs. The costs of this court will be taxed to the defendant in error.

GREENE, GRAVES, MASON, and PORTER, JJ., concur.

JOHNSTON, C. J. I concur in holding that there was a waiver of the right to enforce the by-law and in the theory of estoppel, but not in all that is said in the opinion.

BURCH, J. I concur in the result.

(76 Kan. 238)

PHARES v. KRHUT et al. (Supreme Court of Kansas. July 5, 1907.) 1. NEW TRIAL-MISCONDUCT OF PARTIES.

"Misconduct of the prevailing party" as ground for a new trial is not confined to something occurring at the trial. It may include acts amounting to misconduct, which, though occurring before, operate at the trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37. New Trial, § 42.]

2. SAME.

Where, after a trial, evidence is produced which arouses well-grounded suspicion that the prevailing party may have exercised an unlawful and corrupt interference with the selection and drawing of the jury, it is the duty of the court promptly to set aside the verdict and order a new trial, without proof that the rights of the other party have been materially affected by such misconduct.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 47.] 3. SAME EVIDENCE.

The evidence in support of the motion for a new trial in this case, upon the ground of misconduct of the prevailing party, examineŭ, and held sufficient to require the court to set the verdict aside and order another trial.

(Syllabus by the Court.)

Error from District Court, Trego County; J. H. Reeder, Judge.

Action by Ciryll M. Krhut and others against John W. Phares. Judgment for defendant. From an order granting a new trial, he brings error. Affirmed.

Defendants in error brought this action against John W. Phares to recover $2,000 damages for fraud and misrepresentation, claiming that he had acted as their agent in the sale of a section of land and fraudulently misrepresented to them that he had sold it for the sum of $8,000, when in fact he received the sum of $9,600, and had retained the difference as well as an agent's commission. sion. Upon issues joined, the case was tried to a jury, and judgment rendered in favor of defendant. The trial court sustained a motion for a new trial and set aside the verdict, and it is to reverse that ruling of the court that plaintiff in error brings this proceeding.

At the time the case was tried, John W. Phares was the county clerk of Trego county, and had filled that position for a number of years. The motion for a new trial included all the statutory grounds, but the ground relied upon was "misconduct of the prevailing party." Defendants in error charged that plaintiff in error, while county clerk, corruptly placed, or caused to be placed, in the jury box, six names not selected by the township trustees for jury service, and corruptly altered the jury lists in his official custody in order to conceal the unauthorized placing of the names in the jury box, and corruptly withdrew from the jury box prior to the drawing of the jury in February, 1906, 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 jury cases pending in the court in which he was a party. In support of the motion, the testimony of a number of township trustees. and also other oral testimony and affidavits, was introduced from which it appears that, after the trustee of Collyer township had returned the 1905 jury list from that township to plaintiff in error, who was then county clerk, the list was changed by some person without authority by the addition of eight

names. It also appears from the same kind of testimony that the names of seven persons were added to the list of those eligible as jurors from Ogallah township after the trustee had made his return. Among these added names was that of J. L. Arnold, who had not been selected for jury service by the trustee. The assessment roll of Riverside township showed the same kind of manipulation; 11 names having been added to the five names returned by the trustee. The October term of the district court was the first term after the names were returned by the trustees. All the names were placed in the jury box in September, 1905, in the presence of two justices and the sheriff, and 24 names were drawn from the jury box for service as jurors for the October term. The next term of court was the March, 1906, term, when the cause was tried. On February 3, 1906, in the presence of the same justices and sheriff, 24 names were drawn from the jury box for service at the March term. Among the names drawn at this time were J. L. Arnold, Otto Colberg, J. Walberg, E. Pugh, T. W. Johnson, and S. Erickson, persons whose names were among those added to the list without the authority of the trustees. After this drawing, according to the testimony of the justices and sheriff, the jury box was found to be empty, although, by adding the total number of names drawn out for the two terms of court, there were 19 names unaccounted for, and which should have been left in the box when the drawing closed. The officers who were present also testified that the slips containing the names drawn at this time were not the same slips which were placed in the box in their presence in September, 1905, but were made upon a different kind of paper. Among those who served as jurors on the trial, there were three from Riverside township, who were not selected by the trustee of that township, and whose names were added to the jury list without his authority or knowledge.

F. F. Zielman, who was the trustee of Collyer township, testified that he returned in his own handwriting the names of 16 persons as jurors, and that there had been eight names added which were not in his handwriting, and that he had not authorized any one to add any names to the roll. He further testified that, while the motion for the new trial was pending, plaintiff in error sent for him to come to the county clerk's office and showed him the assessment roll with the additional names and said that he wanted him to "recognize this list." The witness informed him that he could not do that. "He [plaintiff in error] said if I could not recognize this as my list, he would make out a new book, if I would recognize it." J. C. Buchanan, trustee of Ogallah township, testified that seven names had been added to the list after he had returned the names to the county clerk; that he had a conversation with plaintiff in error while the motion

for a new trial was pending, in which plaintiff in error asked him if he had had any talk with the attorney for defendants in error, and, when informed by the witness to the contrary, said to him: "If he comes to you for anything, don't tell him anything until you come on the stand. I says 'what do you want?' And he says: 'I don't know.

It is something about the jury.'" He also testified that he had a conversation with plaintiff in error when the motion for a new trial was pending, as follows: "He asked me if I had made an affidavit, and I told him I had not; and he asked me if I would make an affidavit to the effect that I did not know how many jurors I reported, and I told him I would not-I could not." E. B. Hobbick, township assessor of Wakeeney township in 1905, also testified that he returned to the county clerk the names of six persons eligible as jurors from the city of Wakeeney, and that the assessment roll of the township showed nine names added without his authority. Defendants in error were residents of Collyer township, which was one of the most populous townships in the county, and its trustee selected 16 persons for jury service. It appears that no person from this township happened to be drawn or summoned on the jury for the March term. J. L. Arnold, whose name was added to the jury list from Ogallah township without the authority of the trustee, was a tenant on the farm of plaintiff in error. Charles Ridgway, who was drawn as a juror, and whose name was one of those added to the list, but who did not serve, testified that before the trial took place he had a conversation with plaintiff in error, in which the latter said: "I think my land case will be tried, and if it is, and you sit on the jury, I wish you would do me all the good you can, because I am right."

The motion for a new trial was also supported by affidavits of defendants in error and their attorneys showing that they had no knowledge or notice of the irregularities and misconduct with reference to the drawing of the jury at the time the case was tried, nor until about the time the motion for a new trial was filed. There was further testimony showing that plaintiff in error was a party in two other causes pending at the same term of court, liable to be tried by juries, and in which considerable amounts were involved. There was no evidence offered by plaintiff in error in rebuttal.

W. E. Saum and Jno. E. Hessin, for plaintiff in error. Herman Long, for defendants in error.

PORTER, J. (after stating the facts). It is claimed that the court erred in refusing to strike from the files the affidavits, and in admitting oral evidence in support of the motion. This claim of error is based upon the contention that the "misconduct of the prevailing party," which is one of the statutory

grounds for a new trial, has no application to any acts of a party except such as occur at the trial, and especially that it has no reference to something that may have occurred long prior to the trial. To this we cannot agree. The language of the statute contains no such restrictions. Nor is there any substantial reason why the acts of a party which were designed to and did operate at the trial to secure to him an undue advantage, by means which the law regards as reprehensible, should not furnish grounds for setting aside the verdict merely because they were set in motion before the trial. In May v. Ham, 10 Kan. 598, the syllabus reads: "Where it is shown, on a motion for a new trial, that the prevailing party in the cause, prior to the commencement of the trial, attempted to pack the jury, the verdict should be set aside for such misconduct, unless it should also appear clearly and beyond all reasonable doubt that the other party was not prejudiced by such conduct. And where such misconduct was discovered by the other party during the trial, it is sufficient for such party to raise any question connected therewith, after verdict, on a motion for a new trial." The statute makes misconduct of the prevailing party a ground for a new trial, provided the substantial rights of the complaining party have been materially affected. This does not require an affirmative showing that but for the misconduct the verdict would have been different, for it is obvious that such a showing would be ordinarily impossible. Both parties have equally the right to a fair and impartial trial, which includes the right to have the jury drawn without one party having exercised a choice or selection of the men who shall serve thereon, except as provided by law, when the jurors are examined upon their voir dire. Where one of the parties unlawfully secures the selection of certain men for the regular panel, and prevents certain others from being drawn who were regularly chosen for jury service, it can hardly be seriously contended that the rights of the other party have not been materially affected thereby. In May v. Ham, supra, it is said, in the opinion: "It may also be that the seeming misconduct of the plaintiffs did not affect the verdict of the jury; but it may be that it did, and we cannot say that we feel clear that it did not, and this is all that is necessary to require a reversal of the judgment. When a party has committed a flagitious act in order to obtain some undue advantage over his adversary, as it would seem one of the plaintiffs in this case did, such party should not ask that the other parties should show that they were in fact prejudiced by his acts. On the contrary, he should be compelled to show clearly and beyond all reasonable doubt, if not beyond all doubt, that such parties were not prejudiced by his unwarranted and reprehensible misconduct."

It is seriously urged that the objections to

the manner in which the jury was drawn amounts to a challenge to the array, and comes too late. It is doubtless true that the irregularities could have been shown in support of such a challenge, and the proof would have warranted the court in quashing the panel; but that fact does not in any sense give character to a showing made, not for the purpose of quashing the panel, but for the purpose of setting aside a verdict and obtaining a new trial. If the charges set forth in the motion were true, plaintiff in error might have been prosecuted criminally; but it would hardly be said that for that reason the truth of the charges could not be shown for any other purpose, or could not be used to support a motion for a new trial.

Another contention is that what plaintiff in error chooses to call "irregularities" and "informalities" were waived because the objections were not taken sooner; that by ordinary diligence the objections to the manner in which the jury was drawn could have been made before the trial. It is a sufficient answer that defendants in error, according to the evidence, had no notice or knowledge of the facts relied upon until after the trial. Besides, they were certainly not bound to assume that a county officer, who happened to be a party to the action, might falsify the records and tamper with the jury box. And it is a misuse of the English language to characterize the acts charged against plaintiff in error as mere "irregularities" and "informalities."

It is true, as contended, that there was no direct evidence that plaintiff in error was responsible for the alterations in the lists of jurors or had tampered with the jury box; but we do not agree with the claim that there was no evidence which tended to show a motive on his part to secure an unfair and unlawful advantage. On the contrary, there was direct evidence showing a disposition to obtain an unfair advantage with the jury, and showing an attempt to influence jurors who might be called to serve on the case, and direct evidence of an attempt to conceal and distort the facts with respect to the jury lists after an investigation had begun. The jury box and the jury lists were in his official custody and were undoubtedly altered and tampered with, and, while no witness testified to seeing him in the act of making the alterations or changes, the circumstances in evidence were very suspicious, and beyond any question in our opinion sufficient to require the court to set aside the verdict and order a new trial. This is especially true in view of the failure of plaintiff in error to contradict the direct testimony of the four trustees, the justices, or the sheriff as to what transpired at the time the returns were made and the drawings took place, or to contradict the testimony of the trustees that he attempted to Induce them to suppress the facts; and in view also of his willingness to rely upon technical objections to the consideration of

the evidence, rather than to attempt to explain the suspicious circumstances.

It is finally insisted that the reason assigned by the trial court for sustaining the motion amounts to a finding that the charges of misconduct were not established by the evidence, and that a new trial was in fact granted upon grounds not included either in the motion or provided for in the statute. The remarks of the court were as follows: "I have no criticism to make upon any one connected with this case, nor am I going into the question of the manner in which certain names got into the jury box; but I want to say this: That there is a suspicion caused, by the manner of drawing that jury, which should not exist in any court on earth. . It is

possible that the instructions of the court were not clear enough. It is barely possible that the jury did not weigh and consider the evidence, as they should have done; but I have no criticism to make upon the jury. They did as they thought was right, but, on account of the suspicion that is raised that the plaintiffs did not have a fair and impartial trial, and the jury was not fairly drawn, I am of the opinion that a new trial should be had, and that the judgment should be set aside, and a new trial is ordered." In the light of the uncontradicted evidence, we cannot regard the language of the court as a finding that the charges were not established, but are rather inclined to view the language used as showing a disposition on the part of the trial judge to avoid unnecessary harshness in characterizing what appeared to be reprehensible conduct in one of the parties. Courts are created to secure the administration of justice between contending parties; and where, after a trial, evidence is produced which arouses well-grounded suspicion that the prevailing party may have exercised an unlawful and corrupt interference with the selection and drawing of the jury, it is the duty of the court promptly to set aside the verdict and order a new trial, without proof that the rights of the other party have been materially affected by such misconduct. on the showing made upon the motion in this case, we think it would have been error not to have ordered another trial.

Up

The judgment will be affirmed. All the Justices concurring.

(76 Kan. 228)

SILVER v. BOARD OF COM'RS OF CLAY COUNTY.

(Supreme Court of Kansas. July 5, 1907.) 1. COUNTIES LIABILITIES - NEGLIGENCE OF OFFICERS.

Counties are involuntary quasi corporations and are mere auxiliaries to the state government and partake of the state's immunity from liability. They are in no sense business corporations.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Counties, § 212.]

2. SAME.

A county is not liable in damages for the negligent or wrongful acts of its board of county commissioners, unless such liability is expressly imposed by statute or necessarily implied therefrom.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Counties, § 212.]

(Syllabus by the Court.)

Error to District Court, Clay County; Sam Kimble, Judge.

Action by William Silver against the board of county commissioners of Clay county. Judgment for defendants, and plaintiff brings error. Affirmed.

The plaintiff filed his petition against the defendant board, in which he alleges, in substance, that he is the owner of a large tract of land in Clay county on the western side and within a horseshoe bend of the Republican river. That for many years a regularly laid out public road has extended east and west along his premises and across the river. That many years ago a bridge was built on said public road across the river, at the toe of the horseshoe bend, and had been maintained and used as a part of the highway until a short time prior to the filing of the petition. That in 1904, at a time of high water, the river cut a new channel across the heel of the horseshoe bend and across said public road, and the main stream has since continued to flow therein, leaving the old channel, a lagoon, filled with water and impassable except over said bridge; the highway across the new channel being also impassable. That the defendant board instead of restoring said highway, by building a bridge thereon across the new channel, abandoned the same and ordered and caused to be removed therefrom the bridge across the old channel, thus leaving plaintiff's premises upon an island and inacessible from either direction. That by reason of the facts stated the plaintiff has been damaged in the sum of $5,000, for the recovery of which amount he prays. A general demurrer was filed to this petition, and was sustained by the court. To reverse this order the plaintiff comes here.

Hy W. Stackpole and Coleman & Williams, for plaintiff in error. W. P. Anthony, for defendant in error.

SMITH, J. (after stating the facts). According to the allegations of the petition, the removal of the bridge by the county commissioners was illegal and imposed great hardship upon the plaintiff, and he would, perhaps, under the authority of Greeley Township v. Board of County Commissioners, 26 Kan. 514. have been entitled to enjoin the act, or may even yet not be without a remedy. However, before the decision of the court sustaining the demurrer can be reversed, we must be able to say that the county is responsible in damages for the wrong alleged. It is well-established law that a county is an involuntary

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