repeatedly makes improper remarks, prejudicial to the interests of the adverse party, over the objections of the adverse party, and' the verdict is rendered in favor of plaintiff, and may have been procured by reason of such remarks, a new trial should be granted.35 Where, after a trial, there is evidence that the prevailing party may have exercised an unlawful interference with the drawing of the jury, the court should set aside the verdict and order a new trial without proof that the rights of the other parties have been materially affected by such misconduct.36 § 1496. Rulings and instructions A new trial should be granted for rulings or acts of the court prejudicial to the rights of the unsuccessful party, whether they be rulings made on the examination of witnesses, a ruling on a demurrer to the evidence, as the direction of a verdict,39 or the giving 38 35 Huckell v. McCoy, 15 P. 870, 38 Kan. 53. 36 Phares v. Krhut, 91 P. 52, 76 Kan. 238. 37 Refusal to allow defendant to cross-examine on an important matter is a ground for a new trial without showing the answers plaintiff would have returned. McIntosh v. Standard Oil Co., 131 P. 151, 89 Kan. 289, 47 L. R. A. (N. S.) 730, Ann. Cas. 1914D, 112. Where there is competent testimony tending to establish a defense, and incompetent testimony has been offered by the plaintiff of such character as to be likely to influence the jury, and a verdict is rendered in his favor, a new trial must be ordered. Missouri Pac. Ry. Co. v. Johnson, 40 P. 641, 55 Kan. 344. 38 Where a demurrer to the evidence of the plaintiff is erroneously sustained, and the plaintiff files a motion for a new trial, the court should grant the same. Missouri Pac. Ry. Co. v. Goodrich, 16 P. 439, 38 Kan. 224. The court has power to grant a new trial, though a demurrer has been sustained to the evidence. Shawnee Mut. Fire Ins. Co. v. School Board of School Dist. No. 31, Grady County, 44 Okl. 3, 143 P. 194. A ruling on a demurrer to the evidence is a decision of law which is subject to reconsideration on motion for new trial. Buoy v. Clyde Milling & Elevator Co., 75 P. 466, 68 Kan. 436. Where a new trial is granted on the ground that error was committed in overruling a demurrer to the evidence, the court is governed by the same rules in passing on the evidence as when the demurrer was originally considered, and if there was substantial evidence to sustain the cause of action in plaintiff's petition, the granting of a motion was erroId. neous. 39 A new trial is properly granted where the court has disregarded pleaded defenses sustained by evidence and instructed a verdict for plaintiff. State Sav. Bank of Iola v. Michael, 154 P. 271, 97 Kan. 73. of other instructions," providing objection is made and exception saved at the time.41 It is not ground for new trial that the court failed to permit the jury to take the written instructions to the jury room, where neither the jurors nor counsel requested that that be done.42 - An instruction which might be misleading, but which has become immaterial by reason of the findings of the jury, is not a ground for new trial.43 When incompetent evidence has been admitted over the objection of the adverse party, a motion for a new trial on that ground should be sustained, unless it clearly appears that the same verdict must necessarily have been returned had such evidence been excluded." § 1497. Jurors-Disqualification-Misconduct-Communications Whether a juror's alleged disqualification or misconduct requires a new trial is to be determined by the usual rules and depends upon 40 The granting of a new trial because of an instruction wherein the court expressed an opinion on the facts is not error. Busalt v. Doidge, 136 P. 904, 91 Kan. 37. Giving of an instruction to find for defendant if the evidence showed that the date of the conversion was different from that alleged in bill of particu lars is ground for new trial. Missouri, O. & G. Ry. Co. v. Diamond, 48 Okl. 424, 150 P. 175. As a division of function between court and jury is essential to the safe administration of justice, a new trial will be granted where the judge interferes with the lawful province of the jury. St. Louis & S. F. R. Co. v. Wilson, 124 P. 326, 32 Okl. 752. Where the court gave an instruction not justified by the evidence, and another which was improper, and perhaps prejudicial, and the verdict was in favor of defendant, at whose instance such instructions were given, it is not error to grant plaintiff a new trial. Kansas City Belt Line Ry. Co. v. Cain, 44 P. 995, 56 Kan. 786. In an action for damages for wrongful death of his son, an instruction that in considering damages, jury might consider the fact that plaintiff inherited an allotment belonging to the son is prejudicial, and warrants new trial. Missouri, K. & T. Ry. Co. v. James, 61 Okl. 1, 159 P. 1109. 41 An erroneous instruction is an error of law occurring at the trial, and, unless excepted to, is not ground for new trial. St. Louis & S. F. R. Co. v. Werner, 78 P. 410, 70 Kan. 190. Exceptions to the giving or refusing of instructions must be taken at the time, and they are not open on a motion for a new trial, unless so taken. Ber ry v. Smith, 35 P. 576, 2 Okl. 345. 42 Lowenstein v. Holmes, 40 Okl. 33, 135 P. 727. 43 Kershaw v. Schafer, 129 P. 1137, 88 Kan. 691. 44 Marshall v. Weir Plow Co., 45 P. 621, 4 Kan. App. 615, the facts of the particular case. For example, a new trial will be granted where it is shown that a juror, who had been informed concerning one of the principal disputed facts in the case, failed to disclose such knowledge when he was examined, but, after testimony on the fact had been given, he remarked outside of court that he knew more about the fact than the witnesses did; 4 45 but a verdict for plaintiff will not be disturbed because a juror was a creditor of a person interested with plaintiff in the result of the suit, although defendant did not learn of the indebtedness before the trial. 46 Where two members of a jury trying a land damage case, after the evidence was submitted, but before argument, went without the direction of the court, and examined the land, they were guilty of such misconduct as authorized a new trial.47 The mere fact that some members of the jury, during a recess of the trial, took up and examined a transcript of the evidence given in the former trial of the case, will not require a new trial, when it is not shown that the jurors read any part of what was written in such transcript.48 To support an application for a new trial on the ground of misconduct of jurors, it is not sufficient to show that during the trial they read newspaper comments relating to the case, without showing that the comments were such that they might have resulted in prejudice to the losing party. 49 The misconduct of jurors during a view of a street alleged to be defective, causing an injury to a traveler thereon, consisting of talking with an outsider about which way the sewer ran, and of one juror making measurements at the manhole, and of another juror digging into the earth near it with a knife, and saying that he had struck gravel, was not prejudicial, and was not ground for a new trial,50 Refusal of a new trial on evidence of jurors that some unknown juror stated in jury room that during a recess he examined defend 45 Murphy v. Hindman, 15 P. 182, 37 Kan. 267. 46 Schrader v. Saline County Alliance Exch. Co., 54 P. 513, 7 Kan. App. 813. 47 Ortman v. Union Pac. Ry. Co., 4 P. 858, 32 Kan. 419. 48 State v. Miller, 10 P. 865, 35 Kan. 328. 49 Fields v. Dewitt, 81 P. 467, 71 Kan. 676, 6 Ann. Cas. 349. 50 City of Emporia v. Juengling, 96 P. 850, 78 Kan. 595, 19 L. R. A. (N. S.) 223. ant's car and found a rear fender bent was not error, where such evidence was only cumulative upon an unimportant matter.1 A new trial will be granted where it is shown that after the case was submitted, and the jury had retired to the jury room, one of the jurors separated from his fellows, and that afterwards the remaining members of the jury were called to the court room, admonished, and allowed to separate, and the absent juror remained away without charge or admonition from the court for about two hours, and until the jury reassembled.52 That a jury in a civil case had been permitted to separate during a few minutes' recess, without being then admonished, is not ground for a new trial, if they had been previously admonished as to their conduct during separation, and there is no evidence of misconduct. 53 The action of the court in orally instructing the jury in the jury room in the absence of and without notice to plaintiff or his attorney where such oral instructions are not in the record, requires a new trial, under Rev. Laws 1910, § 5033.5* A verdict for a party who, after impaneling of jury and before verdict, treats or entertains the jury or any member thereof, will be set aside." It is no ground for setting aside a verdict for plaintiff that the jurors, some 24 hours before they retired to consider the case, chanced to meet him at a fair, and took several glasses of beer with him, for which he did not pay, where no reference was then made to the case, and the jurors make affidavit that drinking with him had no effect on their verdict.56 On a trial it became necessary that the jury should view the premises, and the judge announced that plaintiff had carriages ready to convey the jury. These carriages were hired from a livery stable owned by a juror of whom plaintiff was a regular customer. This was held insufficient to require setting aside a verdict for plaintiff. Where the successful party, after the impaneling of the jury and 51 Rudy v. Headley, 103 Kan. 417, 173 P. 913. 52 Murphy v. Hindman, 15 P. 182, 37 Kan. 267. 53 Gleason v. Strauss, 48 P. 881, 5 Kan. App. 80. 54 Osage Mercantile Co. v. Harris, 52 Okl. 78, 152 P. 408. 55 Jones v. Frank, 62 Okl. 26, 161 P. 795. 56 St. Paul Fire & Marine Ins. Co. v. Kelly, 23 P. 1046, 43 Kan. 741. 57 Missouri Pac. Ry. Co. v. Bowman, 75 P. 482, 68 Kan. 489. before verdict, took two of the jurors to a restaurant kept by a third juror, and paid for their dinners, and also for the dinner of another juror who afterwards came in, the verdict will be set aside.58 Where the bailiff, while the jury are viewing the locus in quo, distributes to such of the jurors as choose to take them cigars furnished to the bailiff by plaintiff, and the bailiff states that it is his treat, and the testimony of several jurors all tends to show that the jury were not influenced, and had no thought that there was any impropriety in the transaction, the action of the trial court in overruling defendant's motion for a new trial, founded on the distribution of the cigars, will be affirmed on appeal.59 Where the evidence in an action for damages to an automobile at a crossing tended to show the value of the machine to have been from $1,000 to $1,200 before the injury, and practically nothing thereafter, a verdict for only $550 did not entitle defendant to a new trial on the grounds that it was evidently the result of compromise, since a verdict for unliquidated damages for an amount less than any evidence tends to show will not be set aside on the ground that it was necessarily the result of compromise.1 60 That after the jury had retired to deliberate one member said, "Boys, let's hurry up and sign the verdict and go see the balloon ascension," whereupon nine of the jurors signed the verdict and returned it into court, the verdict cannot be impeached four days later by affidavit of one of the three who refused to sign the verdict that the jury did not give proper deliberation to the case.62 Where a party neglects to examine on voir dire examination into the qualifications of proposed jurors, and to show their unfitness or disqualification, and fails to challenge for cause where cause exists, 'he cannot thereafter make the disqualification of a juror ground for new trial.63 Statement of a juror to other jurors that he had heard a rumor 58 Garvin v. Harrell, 113 P. 186, 27 Okl. 373, 35 L. R. A. (N. S.) 862, Ann. Cas. 1912B, 744. 59 Wichita & W. R. Co. v. Fechheimer, 31 P. 127, 49 Kan, 643. 60 St. Louis & S. F. R. Co. v. Model Laundry, 141 P. 970, 42 Okl. 501. 61 Id. 62 Wade v. Sumner, 30 Okl. 784, 120 P. 1011. 63 Bristow v. Carrigar, 132 P. 1110, 37 Okl. 740. |