(230 P.) Judicated cases cited to the facts in this case, we hold that the defendant should have been accorded greater latitude in the examination of jurors. So holding, it will not be necessary to treat of the other errors urged. The cause is reversed and remanded. MATSON, P. J., and DOYLE, J., concur. [1] Nothing in the opinion was intended to indicate that an answer of the jury, "We don't think so," was not to be treated as a negative, although it may, in connection with other answers of "We don't know," suggest a disinclination to pass upon an issue positively, and has been referred to as evasive. Telegraph Co. v. Morris, 67 Kan. 410, 73 P. 108. The failure of the jury to return direct answers to the questions whether, on or before the date of the application for life in PRIEST v. KANSAS CITY LIFE INS. Co. surance, the insured had certain diseases or (No. 24358.) (Supreme Court of Kansas. (Syllabus by Editorial Staff.) 1. Trial 356(7)-Refusal to require more explicit answer than "we don't know" to questions submitted to jury, will not always require reversal. symptoms is important, notwithstanding they Nov. 8, 1924.) found that on that date he was not in bad health, and that he did not have chronic Bright's disease on or before that date, for these reasons: The finding that he was not in bad health was in the nature of a conclusion, or at least of a fact into which a number of elements entered, and the defendRefusal of trial court to require a more ex-ant was entitled to a definite answer as to plicit answer than "we don't know" to ques- each element concerning which an interrogations submitted to a jury, will not always reMoreover, it related quire reversal, but may be entitled to such tory was submitted. effect on the strength of evidence produced on only to the condition of the insured on the issues to which the questions related. date of the application, while the questions which were not directly answered referred, 2. Insurance 136 (4)-Refusal of instruction that no recovery could be had on life policy unless insured in good health when policy delivered held proper. Refusal of requested instruction that no recovery could be had on life insurance policy unless insured was in good health when the policy was delivered held not erroneous. 3. Judgment 223-Plaintiff entitled to have rate and time from which interest runs expressly recited in judgment. Under Rev. St. 41-104, plaintiff is entitled to have the rate of interest and the time from which it runs expressly recited in the judgment. Appeal from District Court, Cloud County; John C. Hogin, Judge. On plaintiff's motion for rehearing, and on defendant's motion for modification of judgment. Overruled. that. as well, to his condition at any time before The finding that he had not had chronic Bright's disease on that date or earlier does not answer the questions as to acute Bright's disease or other symptoms and diseases. The materiality of the question concerning the consultation of a physician by the insured was not affected by the findings as to his health at the time of the application. The refusal of the trial court to require a more explicit answer than "We don't know" to questions submitted to a jury will not always require a reversal. We think it entitled to that effect here, especially because of the strength of the evidence produced by the plaintiff upon the issues to which the questions related. The plaintiff places much stress upon Kalina v. Railroad Co., 69 Kan. For former opinion, see 116 Kan. 421, 227 172, 76 P. 438, and similar cases. There the P. 538. opinion, in announcing the rule that an an burden of proof upon the question submitted, as a finding against the party having the Robert Stone, George T. McDermott, Rob-swer, "We don't know," is to be interpreted ert L. Webb, and Beryl R. Johnson, all of Topeka, James C. Jones, of St. Louis, Mo., and Frank W. McAllister, of bansas City, Mo., for appellant. Park B. Pulsifer, Clyde L. Short, Charles L. Hunt, and C. J. Putt, all of Concordia, for appellee. MASON, J. The judgment in favor of the plaintiff having been reversed, and a new trial ordered, she has filed a motion for a rehearing, and the defendant a motion for a modification of this court's order, so as to direct a judgment in its favor. The motions are overruled, but some of the matters referred to therein will be briefly discussed. Swarts, 58 Kan. 235, 48 P. 953. That case, in turn, merely applies the rule declared in the leading case on the subject, Morrow et al. v. Com'rs of Saline County, 21 Kan. 484, which was quoted from in the original opinreference to the jury's answers of "We don't ion herein, and in which it was said, with merely cites and follows Railroad Co. v. know": "It is therefore a right of a party to have a direct response to the questions. Here, however, the parties were content to abide by these answers; and each party, when invited by the court, declined to ask for further or more specific answers." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-34 Of the other two citations in the Swarts, insured is in good health at its delivery. 25 Case, one (A., T. & S. F. R. Co. v. McCand- Cyc. 720, 810, 811; note, 17 L. R. A. (N. S.) liss, Adm'r, 33 Kan. 366, 6 P. 587) merely followed the Morrow Case, and the other (K. P. Ry. Co. v. Peavey, 34 Kan. 472, 8 P. 780), held an instruction erroneous which told the jury to answer "Don't know," if there was "not sufficient evidence in favor or against any question to warrant an intelligent answer," this court saying: "The trial court should not have given it; for, where such an instruction is given, the jury will generally answer many of the questions by simply saying 'Don't know,' when in fact they might and ought to give, under the evidence, intelligent answers to the questions." In the case now under consideration, as already indicated, we regard the questions to which the answer "We don't know" was returned as so related to those answered "We don't think so" that the granting of a new trial, because more definite answers to the former were not required, calls for the setting aside of all the findings, including those made by the giving of the latter an swer. [2] In the original opinion it was held that the purpose and effect of the provision that the policy should not take effect "unless the applicant is in good health at the time of its delivery" was to protect the company against a new element of risk through a change in the condition of the applicant, occurring after the company's investigation had been made; that it did not mean that no contract of insurance resulted, if the insured at the time he made his application suffered from an ailment of which he was not conscious, and which still existed when he received the policy. Mention was made of a line of North Carolina decisions, which go further, and hold that such a clause has entirely spent its force when the policy has been delivered; this court saying that the soundness of that view need not be passed upon. The plaintiff suggests that the ruling should be made more definite. The question passed upon was raised by the defendant's contention that the trial court erred in refusing to instruct that no recovery could be had, unless the insured was in good health when the policy was delivered to him. Our decision is, upon the ground indicated, that the instruction was properly refused. We do not regard it as necessary or desirable at this time to accept or reject the somewhat extreme view of the North Carolina court. The defendant urges a reconsideration of the ruling concerning the effect of the clause referred to, on the ground that it is against the better reasoning and the weight of authority. It is true, a number of cases, perhaps a majority of those which have passed upon the matter, favor a literal interpretation of the provision of a life insurance pol 1144. Their weight, to some extent, is impaired by these considerations: As a rule they rest upon a mere following of the bare words of the clause, without applying the rule of construing against the insurer language which is open to interpretation, and without an attempt to ascertain its real pur. pose in the light of the entire contract. In them the discussion is sometimes complicated with questions as to the effect of warranties and guaranties. If the clause is taken with absolute literalness, it would render futile provisions making the policy incontestable on account of health conditions after a specified time, for, if it never took effect, such provisions could not operate. And, if it is taken literally, a policy could be defeated by showing the existence of some disease antedating the application, although death resulted from accident, and this in spite of a statute making misrepresentations concerning an applicant's health immaterial, where they have no relation to the cause of death. The clause in question is often joined with one that the policy shall not take effect, unless delivered while the applicant is alive. The obvious purpose of the latter provision is to guard against the death of the insured between the application and delivery, and a like purpose is reasonably to be inferred with respect to the forIn addition to the cases cited in the mer. original opinion, these tend to support the view we there announced, and to which we adhere. Johnson v. Royal Neighbors, 253 Ill. 570, 576, 97 N. E. 1084; Webster v. Columbia Nat. Life Ins. Co., 131 App. Div. 837, 116 N. Y. S. 404, 408. The plaintiff asks to have the ruling embodied in the portion of the original opinion designated by the figure 5 made more explicit. Our holding was intended to cover the proposition that the testimony (by deposition) of the Chicago physician as to what the insured told him of his condition, and also as to what conclusion he drew from these statements and his own observation (a part of which is shown on pages 57, 58, 61, and 62 of the abstract), which was withheld from the jury, should have been admitted. [3] The jury, instead of returning a verdict for the aggregate amount of $10,000, with the interest added, assessed the recovery at "$10,000, with interest thereon from January 9, 1915, at 6 per cent. per annum," and the district court followed the same formula in rendering judgment. The plaintiff complains of the trial court's refusal to include the computed amount of the accrued interest in that for which judgment was rendered, so that the whole would bear interest from the date of the judgment. That may have been the effect of the statute as (230 P.) v. Snattinger, 91 Kan. 567, 138 P. 581; 33 C. J. 215), but we think the plaintiff was entitled to have it expressly recited. Further additions to the original opinion are thought to be unnecessary. The plaintiff's motion for a rehearing, and the defendant's for a modification of the order so as to direct judgment, are overruled. All the Justices concurring. STATE ex rel. BAIRD, Co. Atty., v. BOARD (Supreme Court of Kansas. Nov. 8, 1924.) (Syllabus by the Court.) 1. Courts—493 (2) — Quo warranto 6Court may grant or withhold relief whether action prosecuted in name of state or that of private person; binding declaration as to validity of county bonds refused. of Wyandotte county, to obtain a declaratory judgment that certain bonds of the county, in the sum of $472,450, are void, because issued without lawful authority. The bonds had been executed and registered, and were about to be delivered to a purchaser pursuant to a contract of sale. The petition was filed on the evening of September 29, 1924. It stated facts on which the relief prayed for was predicated, and was accompanied by a transcript of the proceedings upon which the bond issue was based. As an incident to declaration of invalidity of the bonds, ouster of the members of the board from office was sought. Pursuant to application of plaintiff, the board was immediately cited to answer on or before October 6, the first day of the October, 1924, session of the court. Plaintiff refrained from asking for an order prohibiting delivery of the bonds pending determination of the controversy. On the morning of October 1, the board appeared, and represented to the court that within a few hours the purchaser of the bonds would tender the price and demand delivery, and that the procedure adopted by plaintiff placed the board, as a state agency, and placed the members individually, in peril. Therefore the board requested instruction. The court lacked authority to grant the request. In order, however, to gain possession of the entire controversy and equip itself to act advisedly, the court, on its own motion, made the purchaser of the bonds a party to the suit, 3. Action 6-Court may make declaration required the purchaser to plead by October of right only because it could grant conse-6, and restrained action relating to consumquential relief if prayed for. Under circumstances stated in the opinion, the court exercises the discretion it possesses to grant or refuse relief in actions of quo warranto, and declines to make a binding declaration respecting validity of an issue of municipal bonds. (Additional Syllabus by Editorial Staff.) 2. Quo warranto 3-Will not lie when other adequate remedy exists. Quo warranto is still an extraordinary remedy, and will not lie when other adequate remedy exists. Under Rev. St. 60-3129, the court has jurisdiction to make a declaration of right only because it could grant consequential relief if such relief were prayed for. Original proceedings in quo warranto by the State on the relation of Justus N. Baird, as County Attorney of Wyandotte County, against the Board of County Commissioners of Wyandotte County and another. Dismissed. Justus N. Baird, Co. Atty., and C. W. Trickett, both of Kansas City, Kan., for plaintiff. J. H. Brady, of Kansas City, Kan., for Board of Com'rs of Wyandotte County. Chester I. Long, J. D. Houston, Austin M. Cowan, Claude I. Depew, James G. Norton, W. E. Stanley, and James G. Martin, all of Wichita, and Justin D. Bowersock, Robert B. Fizzell, and John F. Rhodes, all of Kansas City, Mo., for A. H. Gillis & Co. mation of the bond sale until further order. The board of county commissioners answered that they were proposing to issue the bonds pursuant to the proceedings disclosed in the transcript. The purchaser filed a motion to dismiss. The cause was heard on the petition, the answer, and the motion. At the hearing, the prayer of the petition that the members of the board be ousted from of fice was abandoned. A brief was filed for the state and, at the court's request, the purchaser filed a brief on the merits, which the board of county commissioners adopted. Two principal subjects of controversy were disclosed: First, was the bond issue valid under the laws of this state? Second, was the first subject res judicata, as against the state, because of adjudication sustaining the bonds by the United States District Court for the district of Kansas, and by the district court of Wyandotte county, in actions to which all the state agencies concerned, the Kaw Valley drainage board, the board of county commissioners, and the city of Kansas City, Kan., were parties? BURCH, J. The action was commenced by the state of Kansas on the relation of The bonds were issued to provide funds for the county attorney of Wyandotte county, the reconstruction of the bridge across the against the board of county commissioners | Kansas river at Twelfth street in the city of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Kansas City, in Wyandotte county. For-, bonds of such county without the same being merly, in time of flood, territory adjoining authorized by any election, and subject only to and adjacent to the river throughout its the limitations contained in this act. The course within the city, was subject to inunda- amount of bonds so authorized to be issued tion, and the flood of 1903 occasioned appall- shall not exceed the actual cost of such improvements." R. S. 68-1401. ing destruction of property. In 1905 the "It shall be the duty of the county commisLegislature passed an act relating to nat- sioners of any county of this state to which ural water courses, which provided for the this act applies now or hereafter having thereorganization of public corporations to take in any public bridge or bridges over any navcharge of and exercise control over such wa-igable river, which bridge or bridges have been ter courses, in order to prevent overflow, or ordered or shall hereafter be ordered or relessen the volume of overflow, and so pre- quired by the secretary of war of the United vent or minimize damage by flood. R. S. 24 States, or the board of directors of any drain401 et seq. Under this statute, the Kaw Val-age district organized under the laws of this state, in any county having an assessed valuley drainage district of Wyandotte county ation for taxation purposes of over ninety milwas organized, and was vested with exclu- lion dollars, to be removed, relocated, reconsive control over the bed, channel, and banks structed or improved, to take possession of of the stream, with authority to deepen, wid-such bridges and to forthwith remove, relocate, en, establish, regulate, and maintain the channel; build levees; prescribe, regulate, and fix the height of superstructures of bridges, the length of bridge spans, and the location of bridge piers; and to maintain suits to enforce its reasonable orders. The grant of power was without doubt intended to be plenary, to the end that hazard from the water course might be reduced or rendered nonexistent. reconstruct or improve the same, as may be necessary and proper, and the ownership and control of such bridges is hereby vested in such *" R. S. 68-1405. counties. In August, 1919, the drainage board adopted a resolution, the propriety of which is not disputed, relating to structural changes in the Twelfth street bridge, and directed the board of county commissioners to make the bridge conform to the resolution. It will be observed that, under the statutes quoted, two distinct questions may arise: First, what may the drainage board lawful In 1909 an act was passed applying to Wyandotte county, containing the following provisions: "Whenever in any county having an assessedly do; and second, after lawful action by valuation for taxation purposes of over ninety million dollars the board of directors of any drainage district organized under the laws of this state, under the powers vested in them, shall prescribe, regulate or fix the height of any public bridge located within said district or the length of spans and the location of piers or abutments of any such bridge, or shall locate harbor lines for or establish the channel of any stream within such district, and shall notify and request, in writing, the board of county commissioners to change, alter or reconstruct any such bridge or bridges to conform to such harbor lines, channel or requirements; or whenever in any county the secretary of war of the United States, or any other competent authority, shall request, order or direct, in writing, the reconstruction, raising or lengthening of any public bridge, or the spans thereof, over any navigable stream, or shall request, order or direct the reconstruction or relocation of the piers or abutments of any public bridge over a navigable stream, or shall establish harbor lines or otherwise designate the channel for any navigable stream, and shall request, order or direct the reconstruction of bridges to conform thereto; the board of county commissioners of the county wherein such public bridge is located is hereby authorized and empowered to reconstruct such bridges and approaches thereto, raise, lengthen and repair such bridges, and to reconstruct, remove and relocate the abutments and piers thereof, and to improve such bridges in any other respect required, and to do any and all acts necessary to conform to such requirements, in the manner hereinafter provided, and for the purpose the drainage board, and request upon the county board, what may the county board lawfully do? The bridge was built in 1889, and was reconstructed in 1903-04, under a special act of the Legislature of 1903, following the flood of that year. The county board was obliged to consider the bridge problem presented to it from three viewpoints: (1) Abatement of a public nuisance, or at least removal of a public menace, disclosed by resolution and order of the drainage board; (2) usefulness of the bridge as a public thoroughfare; (3) prudent management of the public business. The county board was advised by its engineers that nothing but reconstruction of the entire bridge would be practical, and indicated its willingness to comply with an order to that effect. On January 9, 1920, the drainage board adopted a resolution condemning the bridge, and requiring its removal and construction of another. Missouri corporation, had been concerned in The Kansas City Railways Company, a the reconstruction of the bridge in 1903, and was using the bridge for transportation of passengers and mail in interstate commerce, pursuant to contract with the county board, and under a franchise granted by the city of Kansas City. On January 9, 1920, the railways company commenced suit in the United States District Court for the district of Kansas, against the drainage board (230 P.) of the drainage board's order. On March 1, | bridge as you recommend in your report should 1920, the county board adopted a resolution be done, including the right to use any part or to reconstruct the bridge. Execution of the portion of said old structure used or to be used resolution was stopped by restraining order in the new or modified structure?" of the federal court. Answers were filed by all defendants, and amended and supplemental pleadings were subsequently filed by all parties, whereby all questions of law and fact pertaining to the entire Twelfth street bridge controversy were deposited in the lap of the federal court. The stipulation contained the following: "It is further stipulated and agreed, all parties hereto consent, agree, and pledge themselves, in all good and full faith, to make such orders, adopt such rules and resolutions, and take such steps as may be necessary to carry out and perform the work of changing, modifying anew said Twelfth street bridge as shall be ing, tearing down, constructing, or reconstructrecommended in the report of said commission herein provided for, and as said report by decree of this court shall stand approved and confirmed." a After thorough investigation and careful consideration, the commissioners made complete and detailed report. The bridge as it stood afforded a 20-foot roadway, but was defective, and it was necessary to replace the The federal court had taken jurisdiction on the grounds of diversity of citizenship and invasion of constitutional right of the railways company, both under its claimed interest in the bridge and as a taxpayer of the drainage district. Having taken jurisdiction, the court evidently deemed it a duty to dispose of the whole controversy according to the usage of courts of equity under such circumstances. In June, 1922, the court proposed a sensible, practical, and efficient substitute for the routine procedure in equity ed new spans 40 feet wide at the north and cases, which was adopted by all parties by south ends of the bridge, and reconstrucstipulation and amendment of pleadings. tion of the remainder of the bridge to afThe stipulation provided for the appoint- ford a 40-foot roadway, using the existing ment of three engineers and two business spans in the reconstruction. The recommen, each eminent in his calling, to investi- mendation took into consideration flood progate, determine, and report to the court mat-tection, present and future conditions inters submitted to them, with such further information as might be useful to the court. Commissioners of the character indicated were appointed, and the following specific matters were referred to them: "(a) In the interests of protection from damage by flood waters, economy in the expenditure of public money, having in mind both present and future conditions as they may arise, including the requirements of the traveling public, and the use which said structure is to be placed and designed to carry out, what change, modification, alteration, destruction, reconstruction, or repair should the Twelfth street bridge, in Kansas City, Kan., suffer or undergo or be done to afford proper safeguard and protection against flood waters, and for the proper and safe use of said bridge by the traveling public. In response to this question, state fully, accompanying same with plans, specifications, detailed drawings, blueprints, and all things and matters necessary to be done as a prerequisite to the letting of a contract for the furnishing materials, doing the work of reconstruction, repair, or alteration which you recommend to be done. "(b) What the probable estimated cost of the doing of the work, the furnishing the materials, and so forth, including the use of such materials derived from the present structure as you may recommend should be done to remove all or any part of the structure as it now stands, and the building, repairing, constructing, or reconstructing of such new or modified structure as you recommend. "(c) What, if anything, is the interest of the Kansas City Railways Company in the present bridge constructure, and what sum of money, if anything, would be awarded that company, or its receivers, on account of such destruction, change, reconstruction, or repair of said end spans. The commissioners recommend cluding needs of the traveling public, and the The court approved the report of the comeconomical expenditure of public money. missioners, and entered a decree for alteration and reconstruction of the bridge as recommended. The decree included findings of facts essential to jurisdiction of the drainage board to order such reconstruction, and of facts essential to jurisdiction of the county board to comply with the drainage board's order. It was specifically found and adjudicated that bonds of the county were authorized, and should be issued to pay for the work, without a bond election. The decree was entered on February 10, 1923, and on February 15 the county board adopted a resolution providing for reconstruction of the bridge according to the decree. On February 5, 1924, pursuant to an order of the drainage board, and pursuant to the decree, the county board adopted another resolution, providing for reconstruction of the bridge. On April 1, 1924, contracts for reconstructing the bridge were let. The bonds in controversy were then duly issued and sold. While the injunction suit was pending in the federal court, and before final decree, the drainage board prosecuted to judgment against the county board an action of mandamus to compel compliance with the drainage board's order, made in 1920, to build a new bridge. This court reversed the judgment in February, 1922. Drainage District 723. In the opinion the court said: v. Wyandotte County, 110 Kan. 566, 204 P. "The only basis for the power of the drainage district board to maintain this action is to |