part of the general knowledge and experience of persons of average intelligence and experience, for the reason that jurors may act upon matters of common observation within their general knowledge without any testimony on these matters.37

§ 1188. Discharge of jury

"The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears to the court that there is no probability of their agreeing."

"38

Where a jury is called and impaneled in a case where either party is entitled to trial by a jury as a matter of right, it cannot be discharged by the trial court except as prescribed by the statute.39

The discovery and disclosure by the juror after trial was begun that he entertained a prejudice growing out of an incident that occurred in his father's family, revived in his mind by the testimony, which unfitted him to sit as an impartial juror, something which could not have been foreseen by the court, the parties, or the counsel, is an accident within the meaning of that term as used in the statute.40

The fact that one of the jurors upon his examination testified that he was not acquainted with the plaintiff, but after the jury were impaneled the plaintiff came into the court room, and the juror then stated that he was acquainted with him, under a slightly different pronunciation of his name, is not sufficient to require the impaneling of a new jury.*1

37 Waters-Pierce Oil Co. v. Deselms, 89 P. 212, 18 Okl. 107, judgment affirmed 29 S. Ct. 270, 212 U. S. 159, 53 L. Ed. 453.

38 Rev. Laws 1910, $ 500S.

39 Wichita Falls & N. W. Ry. Co. v. Overstreet & Dockter, 75 Okl. 173, 174, 182 P. 674, 675.

Civ. Code, § 281, provides that the jury may be discharged by the court on account of the sickness of a juror. Cr. Code, § 208, provides that the proceedings prescribed by law, in civil cases, in regard to impaneling jurors and keeping them together, shall be had in criminal cases. Held that the sickness of a juror, in a criminal case, occurring out of court during a separation of the jury, must be determined like any other fact in a court of justice, subject to the rules of evidence. State v. Smith, 24 P. 84, 44 Kan. 75, 21 Am. St. Rep. 266, 8 L. R. A. 774.

40 State v. Hansford, 92 P. 551, 76 Kan. 678, 14 L. R. A. (N. S.) 548. 41 City of Lawrence v. Littell, 58 P. 495, 9 Kan. App. 130.

Where a juror is excused because of sickness after part of the evidence is in, a request to excuse the other jurors, because of having heard part of the evidence, is addressed to the discretion of the court.42

On motion to withdraw a case from the jury for improper action of an officer summoning the same, and the matters in the affidavit are not denied under oath, they will be taken as confessed.48

§ 1189. Objections and exceptions

Where a party failed to object until after verdict, though he knew the jurors had not been admonished before being permitted to mingle with other persons, he waived the irregularity.**

An exception to an instruction, "You will receive with these instructions the pleadings," is a sufficient exception to the act of sending the pleadings to the jury.45

Where a party to a suit, formerly cognizable only in equity, voluntarily accepts a trial by jury, he cannot thereafter insist on having the facts passed on by the court.40

42 Turner v. Territory, 82 P. 650, 15 Okl. 557.

43 Harjo v. United States, 98 P. 1021, 1 Okl. Cr. 590, 20 L. R. A. (N. S.) 1013. 44 Hopkins v. Settles, 46 Okl. 801, 149 P. 890.

45 Kansas City, Ft. S. & M. R. Co. v. Eagan, 67 P. SS7, 64 Kan. 421,

46 Nowlin v. Melvin, 47 Okl, 57, 147 P. 307.

(1128)

§ 1190. Definition, form, and reception

"The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the court but to draw from them conclusions of law." 47

"When the jury have agreed upon their verdict they must be conducted into court, their names called by the clerk, and their verdict rendered by their foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the clerk or the court asking each juror if it is his verdict. If any one (concurring in the verdict) 48 answers in the negative, the jury must again be sent out for further deliberation." 49

"The verdict shall be written, signed by the foreman and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but

47 Rev. Laws 1910, § 5012.

A "verdict" is a general finding of all facts. Atchison, T. & S. F. Ry. Co. v. Osburn, 100 P. 473, 79 Kan. 348.

48 Const. Okl. art. 2, § 19, authorizes a three-fourths verdict.

49 Rev. Laws 1910, § 5010.

if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If, however, the verdict be defective in form only. the same may, with the assent of the jury, before they are discharg ed, be corrected by the court.50

The trial judge is not required to prepare forms of verdict.1

The action of the jury in striking from the form of verdict submitted to them the letter "s" from the word "defendants," and the name of one defendant was in substantial compliance with the court's instructions authorizing a verdict against either or both defendants.52

In a civil action, it is not error for a trial court to receive the verdict of the jury in the voluntary absence of the parties and their attorneys, while the court is in regular session.53

Where the court, after a case had been submitted to the jury, announced a recess until the next morning, but that, if a verdict was agreed on that evening, he would receive it, there was no error in receiving the verdict that night, and discharging the jury, without giving notice to one of the parties.54

By agreement of the litigants and with approval of the trial judge in open court, a verdict may be received by a designated attorney in the judge's absence.55

Where a sealed verdict is left with the sheriff at night, and in the morning, when it should be returned into court, all the jury cannot

50 Rev. Laws 1910, § 5011.

51 Brown v. Tull (Okl.) 164 P. 785.

52 St. Louis & S. F. R. Co. v. Williams, 55 Okl. 682, 155 P. 249.

53 Strowger v. Sample, 24 P. 425, 44 Kan. 298.

It is the duty of counsel who are representing one of the litigants in a civil action to take notice of all the sessions of the court and all the proceedings, and it is not error for the court to receive the verdict in the absence of counsel. Kuhl v. Supreme Lodge Select Knights and Ladies, 89 P. 1126, 18 Okl. 383.

Where the jury have retired, and, by permission of the court, counsel for defendant leaves the courtroom with the understanding that he is to be sent for when the jury returns, but the judge fails to send for him, and receives the verdict in the absence of defendant and his counsel, such failure is not reversible error when the verdict is read aloud to the jury, and none of them dissent when asked if it is their verdict, though they are not polled. Seaton v. Smith, 25 P. 222, 45 Kan. 43.

54 McCormick Harvesting Mach. Co. v. Lauber, 52 P. 577, 7 Kan. App. 730. 55 Wetmore State Bank v. Courter, 155 P. 27, 97 Kan. 178.

be found, the reception of the verdict would be illegal, and cannot be compelled by mandamus.50

The statute expressly authorizes the court to direct the jury to return a sealed verdict, and also provides that the jury may separate after they have found their verdict until such time as it is received in open court.57

§ 1191. Number of jurors assenting

"In civil cases, and in criminal cases less than felonies, threefourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein." 58

Under this provision, five of the six jurors concurring may render a valid verdict in a civil case in the county court.59 It is with the jury to say whether they will render a three-fourths verdict, and not for the court to peremptorily demand it.6°

In actions involving the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), state practice governs, and a unanimous verdict is not required."1

In civil actions pending in the district courts at the advent of statehood, the parties were entitled to the unanimous verdict of a jury of 12 men.62 But a verdict may be returned by three-fourths

56 Bishop v. Mugler, 5 P. 756, 33 Kan. 145, rehearing denied 8 P. 103, 34 Kan. 254.

37 Kennon v. Territory, 50 P. 172, 5 Okl. 685.

58 Const. Okl. art. 2, § 19.

59 Oligschlager v. Stephenson, 104 P. 345, 24 Okl. 760.

60 Curtis & Gartside Co. v. Pigg, 39 Okl. 31, 134 P. 1125.

61 Chicago. R. I. & P. Ry. Co. v. Hughes, 64 Okl. 74, 166 P. 411. Const. U. S. Amend. 7, relating to trial by jury, does not control state courts when enforcing rights under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and in actions thereunder they may give effect to local practice, permitting a less than unanimous verdict. Chicago, R. I. & P. Ry. Co. v. Ward (Okl.) 173 P. 212, certiorari granted 248 U. S. 555, 39 S. Ct. 10, 63 L. Ed. 419.

62 McLeod v. Spencer, 126 P. 753, 34 Okl. 647.

In an action brought prior to statehood, but tried since statehood, a unanimous verdict of the jury is required. Gosnell v. Prince, 129 P. 27, 36 Okl. 445. Actions pending in the United States courts of the Indian Territory at the time of the creation of the state, and transferred to the district courts of the