that one party to the action had offered to compromise, treated by the jury as a rumor, is not sufficient ground for reversal."4

Where it appears that the prevailing party has attempted to tamper with or influence the jury, a verdict in his favor should be set aside without a showing that such attempt has influenced the jury. A verdict should be set aside where it appears that an innocent act of the prevailing party outside the issues has improperly influenced the jury in his behalf.

65

In an action for damage from fires along a railroad right of way, that two jurors who had experience in running engines talked with the other jurors about their conclusions from their experience was not ground for a new trial, where it did not appear what the conclusions of such jurors were; plaintiff not being shown to have been prejudiced thereby.""

It is not error to refuse a new trial for misconduct of jurors where no prejudice could have resulted to the unsuccessful party."

§ 1498. Defective verdict or findings

A new trial will be granted for material inconsistency of special findings with each other, or because special findings are inconsistent with the general verdict. But after return of a general verdict

68

64 Madison v. Kansas City, M. & O. Ry. Co., 129 P. 1157, 88 Kan. 784. 65 Missouri Pac. Ry. Co. v. Bowman, 75 P. 482, 68 Kan. 489.

66 Lillard v. Chicago, R. I. & P. Ry. Co., 98 P. 213, 79 Kan. 25.

67 Root v. Coyle, 82 P. 648, 15 Okl. 574; City of Lawton v. McAdams, 83 P. 429, 15 Okl. 412; Easterly v. Gater, 87 P. 853, 17 Okl. 93, 10 Ann. Cas. 888. 68 Roediger v. Union Pac. R. Co., 147 P. 837, 95 Kan. 146.

In action for malicious prosecution and false imprisonment, granting of plaintiff's motion for new trial because special findings were inconsistent with each other and with general verdict, is not error. Tersina v. Liverpool & London & Globe Ins. Co., 102 Kan. 87, 169 P. 559.

Where special findings returned with the general verdict are inconsistent with each other and with the general verdict, a new trial must be granted. Francis v. Brock, 102 P. 472, 80 Kan. 100; Union Pac. Ry. Co. v. Fray, 3 P. 550, 31 Kan. 739; Atchison, T. & S. F. R. Co. v. Harvey, 3 P. 568, 31 Kan, 750. Where findings of the jury are incapable of being harmonized, and some of them are inconsistent with the general verdict, a new trial should be granted. Wood v. Union Pac. R. Co., 129 P. 193, 88 Kan. 477; Burnett v. Topeka Ry. Co., 133 P. 534, 90 Kan. 282; Blevins v. Atchison, T. & S. F. R. Co., 41 P. 92, 3 Okl. 512; Martin v. Atchison, T. & S. F. Ry. Co., 145 P. 849, 93 Kan. 681. Where plaintiff sued on two notes assigned to him having the same history, and judgment was denied on one note because due when transferred to plaintiff, but he relied on the title of his assignor, who received both notes before due, the question whether the assignor was an innocent holder for value was

and special findings and discharge of the jury without motion for more specific answers to questions submitted, a motion for new trial on the ground that certain findings are irreconcilable should be overruled, if the findings can be fairly reconciled under the evidence or by assuming the negative of a fact, the burden of proving which devolved upon the moving party, and of which he failed to produce any evidence.69

Objections to the form of verdict in replevin, not made until some days later in the motion for new trial, come too late.7°

The findings of fact of a referee, where not challenged within a proper time and manner, become final, and exceptions to a judgment rendered thereon are of law and not fact, and cannot be raised on a motion for a new trial.71

The fact that doubt is expressed by the trial court as to the correctness of findings made by the jury does not render its action in refusing a new trial erroneous.72

§ 1499. Verdict contrary to instructions

A verdict is contrary to law, so as to be ground for a new trial, when it is rendered in disobedience or disregard of the court's instructions.78

material; and, the findings being inconsistent on that question, plaintiff was entitled to a new trial. Underwood v. Fosha, 133 P. 866, 89 Kan. 768. Where from inconsistencies in the findings on a material matter a sound basis for a judgment does not exist, a new trial should be allowed. Id.; Gwin v. Gwin, 48 P. 295, 5 Idaho, 271; Chicago, R. I. & P. Ry. Co. v. Williams, 54 P. 1047, 59 Kan. 700; Shoemaker v. St. Louis & S. F'. Ry. Co., 2 P. 517, 30 Kan. 359; St. Louis & S. F. Ry. Co. v. Shoemaker, 17 P. 584, 38 Kan. 723; Atchison, T. & S. F. R. Co. v. Weber, 6 P. 877, 33 Kan. 543, 52 Am. Rep. 543; Southern Kansas Ry. Co. v. Gorsuch, 28 P. 703, 47 Kan. 583; Kansas City v. Brady, 36 P. 726, 53 Kan. 312, modifying judgment on rehearing 34 P. 884, 52 Kan. 297, 39 Am. St. Rep. 349; Bank of Topeka v. Miller, 54 P. 1070, 59 Kan. 743, re

versing 51 P. 964, 7 Kan. App. 55; Anderson v. Pierce, 64 P. 633, 62 Kan. 756.

69 Brower v. Western Union Telegraph Co., 81 Kan. 109, 105 P. 497; Anthony v. Atwood, 62 P. 720, 10 Kan. App. 578.

70 Evans v. Smith, 50 Okl. 285, 150 P. 1096.

71 First Nat. Bank of Shawnee v. Oklahoma Nat. Bank of Shawnee, 118 P. 574, 29 Okl. 411.

72 Middleton v. Drumm, 48 P. 579, 58 Kan. 813.

78 Constantin Refining Co. v. Thwing Instrument Co. (Okl.) 178 P. 111; Crowder State Bank v. American Powder Mills, 46 Okl. 105, 148 P. 698; Galbreath v. Mayo (Okl.) 174 P. 517.

Where the court properly instructs as to the measure of damages, and the jury brings a verdict contrary to the instruction, a new trial should be granted. Myers v. Fear, 96 P. 642, 21 Okl. 498, 129 Am. St. Rep. 795.

Where the evidence on the trial establishes the fact so clearly and indisputably that the court may instruct the jury to bring in a particular verdict, but neglects so to do, and is not requested to do so, and the jury returns a verdict contrary to what the iaw demands, then, and then only, should the court set aside the verdict of the jury.74

§ 1500. Verdict contrary to evidence

A motion for a new trial should be granted where the trial court, after weighing the evidence,75 is satisfied that the verdict is contrary to the weight of the evidence, or insufficiently supported by the evidence," or based on conjecture,78 but not where the evidence

74 Chicago, R. I. & P. Ry. Co. v. Groves, 93 P. 755, 20 Okl. 101, 22 L. R. A. (N. S.) 802.

75 The fact that the jury are the exclusive judges of all questions of fact submitted to them does not justify the judge of the trial court in declining to examine the sufficiency of the evidence upon which the verdict rests, when it is challenged by a motion for a new trial; and whenever it is manifest that the jury have found against the clear weight of the evidence, and that the party asking for a new trial has not in all probability had a fair trial, nor received substantial justice, it is his imperative duty to set the verdict aside and grant a new trial. Cherokee & P. Coal & Mining Co. v. Stoop, 43 P. 766, 56 Kan. 426.

76 Loth-Hoffman Clothing Co. v. Schwartz (Okl.) 176 P. 916; Shields v. Colonial Trust Co., 61 Okl. 163, 160 P. 719; Union Pac. Ry. Co. v. Diehl, 6 P. 566, 33 Kan. 422; McIntosh v. Crane, 61 P. 331, 9 Kan. App. 314.

In action by boy for injury from explosion of dynamite cap which he helped take from defendants' box near their stone-crushing plant, where verdict for defendants is unsatisfactory to trial court, its grant of a new trial is not error. Goehenour v. Brown, 104 Kan. 808, 180 P. 776.

On motion for new trial challenging the verdict as contrary to the evidence, the court must disapprove the verdict if he cannot conscientiously approve it. White v. Dougal, 60 Okl. 200, 159 P. 907. Not only must the evidence satisfy the jury, but it must be such as the trial court can approve of the verdict rendered thereon. Id.

77 Chicago, R. I. & P. Ry. Co. v. Boring-Kim Produce Co., 57 Okl. 495, 157 P. 351; Chicago, R. I. & P. Ry. Co. v. Reardon, 40 P. 931, 1 Kan. App. 114; Gano v. Prindle, 50 P. 110, 6 Kan. App. 851; Wendt v. Diemer, 58 P. 1003, 9 Kan. App. 481.

Grant of new trial where one ground of motion is insufficiency of evidence is not abuse of discretion, where evidence would have sustained verdict for either party when approved by court. Walden v. Gardner, 56 Okl. 774, 156 P. 643.

Where there is no legal evidence reasonably tending to support the verdict 78 Ingram v. Dunning, 60 Okl. 233, 159 P. 927.

reasonably tends to support the verdict," though the evidence is conflicting, and even though the judge, if trying the case without a jury, might have reached a different conclusion.8o

An order granting a new trial on the ground that the verdict is

of the jury, it should be set aside. Schafer v. Midland Hotel Co. (Okl.) 171 P. 337; Quinton v. Cutlip, 32 P. 269, 1 Okl. 302.

On motion for new trial because verdict is contrary to evidence, trial court must weigh evidence and approve or disapprove verdict, and if it cannot conscientiously approve verdict, and believes that it should have been for opposite party, must set it aside and grant new trial. De Meglio v. Studebaker Corporation of America (Okl.) 175 P. 342.

The trial court should, where new trial is sought for insufficiency of the evidence, grant a new trial, if he cannot conscientiously approve the verdict. Rison v. Harris, 50 Okl. 764, 151 P. 584.

It is the duty of the court on a motion for a new trial for insufficiency of the evidence to either approve or disapprove the verdict, and, if it is such that its own mind refuses to concur in it and the court believes that the verdict should have been for the adverse party, it should grant a new trial. Yarnell v. Kilgore, 82 P. 990, 15 Okl. 591; Ball v. Collins, 165 P. 273, 100 Kan. 448; White v. Dougal, 60 Okl. 200, 159 P. 907; Horton v. Prague Nat. Bank, 60 Okl. 240, 159 P. 930; Hennessey Oil & Gas Co. v. Neely, 62 Okl. 101, 162 P. 214; Ingalls v. Smith, 145 P. 846, 93 Kan. 814.

Where the evidence is conflicting, it is the duty of the court on a motion for a new trial to weigh the facts, and set aside the verdict if it is against the weight of the evidence. Franz v. Mendonca, 63 P. 361, 131 Cal. 205; Ireton v. Ireton, 63 P. 429, 62 Kan. 358.

Under the old Code (Code Civ. Proc. § 306; Gen. St. 1901, § 4754) that the verdict was not sustained by the evidence was a ground for a new trial. The new Code (Code Civ. Proc. § 305; Gen. St. 1909, § 5899) provides that a new trial may be granted if the verdict is in whole or in part contrary to the evidence. Held, that both forms of expression mean the same thing; that is, when the weight of evidence as a whole is insufficient to justify the verdict. Knote v. De Shirley, 84 Kan. 738, 115 P. 539.

On a motion for new trial, the trial judge must exercise his own judgment as to credibility of witnesses and probative force of their testimony, and if of opinion that verdict is not warranted by testimony, must set it aside and

79 J. Rosenbaum Grain Co. v. Pond Creek Mill & Elevator Co., 98 P. 331, 22 Okl. 555.

Where the uncontradicted evidence in a case points only to the conclusion of fact found by the verdict, a motion for new trial, based on the ground that the verdict was not sustained by the evidence, should be overruled. Sovereign Camp, Woodmen of the World, v. Thiebaud, 69 P. 348, 65 Kan. 332; Minneapolis Steel & Machinery Co. v. Schalansky, 165 P. 289, 100 Kan. 562.

So When there is a conflict of testimony, the court ought not to set the verdict of a jury aside and grant a new trial, even though the judge would have reached a different verdict on the same evidence. Atchison, T. & S. F. R. Co. v. Matthews, 58 Kan. 447, 49 P. 602, judgment affirmed 19 S. Ct. 609, 174 U. S. 96, 43 L. Ed. 909.

not sustained by the evidence will not be reversed where the evidence points to any rational conclusion of fact other than the one found by the verdict.81

It is only where a verdict cannot be justified upon any hypothesis that it should be set aside as a compromise verdict.82

When a case is tried on a certain theory, and the jury return answers to special questions of fact submitted to them by the court, and there is no evidence in the record to support or authorize a finding that is essential to a recovery, it is error to overrule a motion for a new trial.83

1501. Special findings

A verdict must be set aside where special findings material to its support are determined by court to be contrary to the evidence.** Where a finding on which the verdict may have been based in part is set aside, a new trial must be granted, unless the remaining findings require the judgment.85

Where special findings of a jury, returned with a general verdict

grant a new trial. Hudson v. Riley, 104 Kan. 534, 180 P. 198; Tersina v. Liverpool & London & Globe Ins. Co., 102 Kan. 87, 169 P. 559.

It is error to overrule a motion for new trial where the material fact necessarily involved in the verdict is wholly unsustained by the evidence. Prinz v. Moses, 91 P. 785, 76 Kan. 232.

A general verdict and special findings of fact unsupported by any evidence should be set aside, and a judgment entered thereon will be reversed. King v. Western Union Telegraph Co., 105 P. 449, 81 Kan. 223; Buchanan v. Fireman's Ins. Co. of Newark, N. J., 146 P. 411, 94 Kan. 132.

81 White v. Chicago, R. I. & P. Ry. Co., 138 P. 589, 91 Kan. 526.

82 Woolsey v. Zieglar, 123 P. 164, 32 Okl. 715.

83 Southern Kansas Ry. Co. v. Duncan, 20 P. 195, 40 Kan. 503.

84 Brice-Nash v. Hutchinson Interurban Ry. Co., 102 Kan. 36, 169 P. 189; St. Louis & S. F. Ry. Co. v. Clark, 29 P. 312, 48 Kan. 321, 329.

Where a special finding on a material issue is submitted to the jury, and the answer is in direct opposition to the evidence, the court should set aside the verdict and award a new trial. Atchison, T. & S. F. Ry. Co. v. Holland, 49 P. 71, 58 Kan. 317; Same v. Davis, 67 P. 441, 64 Kan. 127; Atchison, T. & S. F. Ry. Co. v. Hine, 47 P. 190, 5 Kan. App. 748; Burton v. I. M. Yost Milling Co., 51 P. 67, 6 Kan. App. 921; Parker v. Gilmore, 63 P. 20, 10 Kan. App. 527.

85 Goff v. Goff, 158 P. 26, 98 Kan. 201, rehearing denied 158 P. 662, 98 Kan. 700.

Where the remaining findings and evidence sustain the verdict, the setting aside of a special finding for lack of support in the evidence does not require the setting aside of the verdict nor the granting of a new trial. Wyrick v.