court, in rendering a money judgment, did that which was not sought for in the pleadings, and, if the judgment given had been prayed for, the defendants below would have been entitled of right to a jury trial on the issue raised in which the validity of the judgment was disputed. We have considered the case on the substituted record filed by counsel for the defendant in error.

The judgment of the court below will be reversed, and a new trial ordered. All the justices concurring.

(65 Kan. 332)

SOVEREIGN CAMP, WOODMEN OF THE
WORLD, v. THIEBAUD.
(Supreme Court of Kansas, Division No. 1.
July 5, 1902.)

NEW TRIAL-DISCRETION OF COURT-WEIGHT
OF EVIDENCE.

1. The discretion committed to a trial court to set aside a verdict of a jury and grant a new trial is a legal, and not an arbitrary, one, and does not exist, except authorized by law or established precedent.

2. The uncontradicted evidence in this case all points to but one rational conclusion of fact, -the one found by the verdict of the jury. The motion for a new trial was based upon the ground that the verdict was not sustained by sufficient evidence. Held, that it was error for the trial court to set aside the verdict and grant a new trial.

(Syllabus by the Court.)

Error from district court, Montgomery county; A. H. Skidmore, Judge.

Action by Cora H. Thiebaud against the Sovereign Camp, Woodmen of the World. Verdict for defendant. From an order granting a new trial, defendant brings error. versed.

Re

Argued before JOHNSTON, CUNNINGHAM, GREENE and ELLIS, JJ.

A. L. Wilson and Brome & Burnett, for plaintiff in error. Ergenbright & Banks, for defendant in error.

CUNNINGHAM, J. Action was brought by the defendant in error to recover from plaintiff in error (a beneficiary association) the sum of $2,100, due to her, as she claimed, under the provisions of a beneficiary certificate issued upon the life of her husband; it being alleged that he died while a member of such beneficiary association, having complied with all the conditions requisite to the payment of said sum to the plaintiff, his wife. One of the conditions contained in such beneficiary certificate was that the same should be null and void should the member insured by it die "by his own hand, either sane or insane." The answer alleged that the plaintiff's husband died by his own hand, whereby the terms of said beneficiary certificate became so absolutely null and void and of no effect that all benefits thereunder were absolutely forfeited. Under these pleadings, trial was had to the jury, which found generally in favor of the plaintiff in error, and

specifically answered three questions as follows: (1) Did not the insured, John A. Thiebaud, come to his death by a bullet fired from a pistol into his head April 20, 1899? A. Yes. (2) If you answer the preceding question in the affirmative, was not the said pistol discharged by the deceased, John A. Thiebaud? A. Yes." "(10) If you answer question (two) 2 in the affirmative, then was such pistol discharged by the deceased, John A. Thiebaud, voluntarily and intentionally, or was such pistol discharged accidentally and unintentionally? Answer fully. A. Voluntarily and intentionally." Plaintiff below filed a motion for a new trial on four grounds: "(1) Misconduct of the jury and of the prevailing party. (2) That the verdict was not sustained by sufficient evidence, and is contrary to law. (3) Newly discovered evidence, material for plaintiff, which she could not, with reasonable diligence, have discovered and produced at the trial. (4) Errors of law occurring at the trial, and duly excepted to by the plaintiff." This motion was sustained, and a new trial granted, from which ruling error is prosecuted to this court.

No showing whatever was made in support of the first and third grounds of said motion; so, if the action of the court in sustaining them is affirmed, it must be because it was proper upon the second and fourth grounds. As to the fourth ground,-errors of law occurring at the trial, and duly excepted to by plaintiff, we have carefully examined the entire record, noted every exception taken by defendant in error to the action of the court below, and find that in no case did the court commit error as against her; so we are left to inquire only concerning the second ground, to wit, "that the verdict is not sustained by sufficient evidence, and is contrary to law." If it is sustained by sufficient evidence, it is not contrary to law, as it is well settled in this state that it is entirely competent for parties to a life insurance contract to provide that self-destruction by the insured, whether sane or insane, shall avoid the contract. Hart v. Modern Woodmen of America, 60 Kan. 678, 57 Pac. 936, 72 Am. St. Rep. 380. There was no conflict as to the facts upon the trial below. Briefly summarized, they are as follows: The deceased was a married man, with a family consisting of a wife and two children. He was a tinner by trade, and had but little, if any, property. He had just purchased a little home, mortgaging it for all it was worth to obtain the purchase money. For the last three years preceding his death he had been addicted to the use of intoxicating liquors to excess, and felt that his debauches were a disgrace to his family. He told one, about a week before the shooting, and while working on the coffin box of a friend who had died, that he (Thiebaud) might be the next one to fill one of those boxes, and if he did not quit drinking he would put himself out of the way; that a man was no good to him

of a jury, and that this court has frequently 'declined to reverse the action of trial courts in setting aside verdicts and awarding new trials, declaring the rule to be (Ireton v. Ireton, 62 Kan. 358, 63 Pac. 429,-page 362, 62 Kan., and page 430, 63 Pac.), "If the order of the court granting a new trial can be sustained upon any of the grounds alleged in the motion, this court is bound to sustain it," and "a much stronger case for reversal is required where a new trial has been granted by the district court than where one has been refused." But these rules cannot be taken as authorizing the trial court arbitrarily to set aside verdicts and grant new trials with

fast in the morning, he got up and kissed the baby six or seven times, and then kissed his other little girl, without speaking to his wife, who had called him, and was there watching him. She then went out into the kitchen to finish getting breakfast, and he went upstairs in his night clothes. A sister of his wife was in the house at the time, and he had not been in the habit of going about the house in his night clothes. This proceeding astonished his wife, and she followed him upstairs, and found him feeling in the bottom of a trunk. She started to go downstairs, he following her; but he stopped and looked out of the window, and she waited anxiously at the foot of the stairs for him to come down. He came down, and she went into the kitchen, and he into the bedroom, without speaking a word to her; he closing the bedroom door leading into the kitchen. A revolver was kept in a commode drawer in the bedroom. Shortly afterward she went into the parlor, and found him sitting in an armchair, putting on one of his socks. She soon returned to the kitchen, but had not been there long until she heard the report of a pistol; and she and her sister ran into the room, and found him lying on the floor, with a bullet hole in the side of his head, a little above and in front of his right ear. The flesh was powder-burned, and the hair singed. The bullet hole went straight in. The revolver lay at his feet, having in its cylinder one empty shell. His death resulted immediately from this wound. He was carrying $2,100 insurance in this association, $2,000 in the A. O. U. W., and about a month before this had taken out $1,000 in another company; making an aggregate of $5,100. There was no evidence whatever to indicate that a murder had been committed, or that his death was accidental. The only rational, or, indeed, conceivable, explanation is that the deceased had committed suicide. Any other conclusion would outrage all reason. Had the jury found otherwise, its finding would have been set aside as being against the evidence. So that the question is, may a trial court arbitrarily set aside a verdict in such a case, and award a new trial? We are aware that great latitude must be allowed trial courts in supervising the verdicts

ing. Its conduct is regulated by certain welldefined rules. The judge is as much bound by these rules as is the jury. He may not, without committing error, set aside a verdict regularly obtained, without legal reason therefor; and where, as in this case, there is no conflicting evidence, and it all points unmistakably to but one conclusion, so as to leave no room for any reasonable inference except the one arrived at by the jury, there appears no legal reason why the verdict should be set aside, and the parties put to the trouble and expense of another trial. "It is the interest of the public that there should be an end to litigation, and a court is not compelled to grant a new trial even if all the parties request it; but, where there are no grounds for a new trial, in the interest of an end to litigation no new trial should be granted." Railroad Co. v. Brown, 51 Kan. 6, 32 Pac. 630; Lindh v. Crowley, 29 Kan. 756. The discretion of district courts in the matter of granting or refusing new trials is a legal, not a capricious, one. It must be warranted by law, and guided by established precedent. It may not be exercised simply because the judge might wish the verdict to be otherwise. The test and warrant for its use is, has the applicant therefor shown a legal reason for its existence? The saying that it takes 13 to render a verdict has passed to an adage, but can mean nothing more than that, in cases where conflicting evidence raises a substantial and serious doubt in the mind of the trial judge of the correctness of the conclusion arrived at by the jury, he may interfere; but where, as in the case at bar, no such doubt could arise on the evidence, and no suggestion is made that there exists other evidence which would tend in the least to change the view taken by the jury, the setting aside of the verdict and the granting of a new trial is an unwarranted exercise of the court's power. 2 Graham & W. New Trials, p. 46; Gold v. Ives, 29 Conn, 123.

We have not been favored by the counsel for defendant in error with any discussion, either oral or in the brief, of the question involved, and are unable to arrive at the theory upon which the action of the trial court was based. We are constrained to the

conclusion that there existed no legal reason authorizing the court to set aside the verdict of the jury, and hence reverse such order, and direct that judgment be entered thereon for the defendant below.

(65 Kan. 362)

EDWARDS et al. v. IOLA GAS CO. (Supreme Court of Kansas, Division No. 2. July 5, 1902.)

OIL LEASE-PROVISION FOR FORFEITURE

ENFORCEMENT-EVIDENCE.

1. While a stipulation in an oil and gas lease, providing for a forfeiture of the lease for nonpayment of rent reserved, is inserted for the benefit of the lessor, and is to be strictly construed for his benefit and protection, yet, where the time of payment of such rental is neither in express terms nor by necessary implication made of the essence of the lease between the parties, equity may excuse the default in payment, and will not declare a forfeiture and cancellation of the lease in a case where it would be inequitable and unconscionable to so decree.

2. Findings examined, and found sufficient, in connection with a general finding in favor of the defendant, to excuse a refusal to enter a decree forfeiting the lease in controversy in this action.

(Syllabus by the Court.)

Error from district court, Allen county; L. Stillwell, Judge.

Action by J. W. Edwards and others against the Iola Gas Company. Judgment for defendant, and plaintiffs bring error. firmed.

Af

Argued before DOSTER, C. J., and SMITH and POLLOCK, JJ.

Thompson & Thompson, for plaintiffs in error. H. A. Ewing (Perry D. Rose, of counsel), for defendant in error.

POLLOCK, J. Action brought by plaintiffs in error, plaintiff's below, against the Iola Gas Company, to procure a decree of cancellation of an oil and gas lease upon a tract of land purchased by plaintiffs during the term, and with notice of such lease.

The right to the relief demanded is predicated upon two propositions: (1) That defendant company had failed to comply with the requirements of section 12, c. 10, Laws 1898, commanding a report of its affairs to be made to the secretary of state; (2) that defendant had forfeited its right to the property by nonpayment of rent. The lease in question contains the following stipulation: "In consideration of said grants and demise, the said party of the second part agree to give or pay to the said party of the first part the full equal tenth part of the oil and minerals produced or saved from the premises, and to deliver the same, free of expense, into the tanks or pipe lines to the credit of the first party, and, should gas be found in suflicient quantities to justify marketing the same, the consideration in full to the party of the first part shall be fifty ($50.00) per annum for the gas from each

well, so long as it shall be sold therefrom, gas free of cost for household use on the premises; said second party to have gas or oil free of cost for drilling or pumping purposes. It is agreed that there shall be no wells drilled within 300 feet of the buildings now on the premises without the consent of the first party. It is further agreed that the party of the second part shall complete a well on the above-described premises within ninety days from date hereof, unavoidable delays and accidents excepted, or, in default thereof, to pay to the party of the first part for further delay a yearly rental of twenty dollars on said premises herein leased from the time above specified for completing a well until such well shall be completed. The said rental shall be deposited to the credit of the party of the first part in the Bank of Allen County, or be paid in direct to said first party. And a failure to complete such well, or to make such payments as are herein mentioned, shall render the lease null and void." A gas well was completed upon the premises in the month of November, 1898. The company commenced marketing gas from this well on the 8th day of December, 1898. It is contended the company had wholly failed to make payment of the sum of $50, as specified in the lease, at the time of the commencement of this action, which was December 16, 1899, therefore, the lease became null and void, and plaintiffs entitled to a decree of cancellation. The company based its defense upon a waiver by plaintiffs of the right to insist upon the forfeiture claimed; that plaintiffs were estopped, by their acts and conduct, from insisting upon such forfeiture; the willingness and readiness of defendant at all times to comply fully with the terms of the lease; and the payment of a portion of the amount due to the lessor. There was a trial to the court. Special findings of fact were made at request of plaintiffs, and judgment for defendant. Plaintiffs bring error. The sole ground of error relied upon to work a reversal of the judgment rendered arises upon the action of the trial court in overruling the motion for a new trial and entering judgment in favor of defendant. What effect the failure of defendant company to comply with the provisions of section 12, c. 10, Laws 1898, would have had upon its right to defend this action, need not be considered, as the court specifically finds from the evidence that no such failure was

proven. As to the failure of the company to make payment of the sum of $50 per annum for each gas well sunk upon the premises from which gas was marketed, the court found as follows: "Q. 22. Find what statements and representations, if any, were made by the officers and agents of the defendant company, to induce the said James A. Jeffries to accept the sum of $15 as a payment on the rental for the use of the gas from said well long after said premises were conveyed to these plaintiffs by deed from

him, and after the commencement of this suit. Ans. Said officers and agents, honestly and in good faith, believed that said Jeffries was entitled to said sum; they thereupon tendered the sum to him, and he accepted it. Q. 23. Find whether or not the payment of said $15.00 was made in good faith by said officers and agents of the defendant company to discharge the indebtedness actually due, a debt from said defendant company to said Jeffries,-or was it paid to him for a shift and device to, if possible, prevent the plaintiffs from recovering in this action? Ans. It was not paid as a shift or device to prevent plaintiffs from recovering in this action. The other portions of this question are answered in No. 22. Q. 24. Find whether or not the $50.00 rental for the use of the gas from said well, as provided to be in said lease, for one year from the completion of said well, or the use by the defendant company of said gas from said premises, was paid or offered to be paid to the plaintiffs, or either of them, or to any person for them authorized to receive the same, before the expiration of said year, and before the commencement of this action. Ans. The defendant, by its secretary, met the plaintiff Edwards in the city of Iola a short distance from the defendant's office, and thereupon said defendant, in good faith, through its secretary aforesaid, requested said plaintiff to come to the office of the defendant for the purpose of there being paid all moneys due the plaintiff under the terms of the lease in controversy. The defendant was ready, willing, and able to pay said money, but said plaintiff declined to receive the same for the reason that he considered the lease forfeited. This occurred a few days after December 3, 1899, and before the commencement of this action. Q. 25. Find whether or not the offer of the said defendant company through its secretary, if any such offer was ever made, to pay these plaintiffs the said $50.00 after the commencement of this action, was made in good faith, or merely for the purpose of trying to defeat the plaintiffs' recovery in this action. Ans. This is covered by the last preceding answer."

It is earnestly insisted by counsel for plaintiffs in error that the above findings are insufficient to excuse the refusal of the trial court to enter a decree canceling the lease; that oil and gas leases are exceptions to the general rule that forfeitures are not favored by the law; that, unless a strict and literal compliance with the terms of the lease by the lessee is shown, it is the duty of the court to award a decree of cancellation; and Galey v. Kellerman, 123 Pa. 491, 16 Atl. 474; Wills v. Gas Co., 130 Pa. 222, 18 Atl. 721, 5 L. R. A. 603; Hooks v. Forst, 165 Pa. 238, 30 Atl. 846; Evans v. Trust Co. (Ind. Sup.) 29 N. E. 398, 31 L. R. A. 673; and other cases, are cited in support of this contention. While it is undoubtedly true that provisions for forfeiture in leases of this char

acter are for the benefit of the lessor, and are more strictly enforced than in the ordinary lease between landlord and tenant, yet it is not a rule of universal application that all defaults made by the lessee entitle the lessor to declare a forfeiture, or have a decree canceling the lease.

The

The action here brought is equitable. time of payment specified in the lease is neither in express terms nor by necessary implication of the essence of the contract. In the absence of such stipulation, equity will not decree the cancellation of a contract for the failure of a party to strictly comply with its terms, when it would be unconscionable to so do. While, from the very nature of the undertaking, the situation of the parties, the small amount of rent reserved in leases taken for the purpose of development of new territory, the liability of exhaustion of the supply from wells sunk cn adjacent property, all conduce to render equitable a more strict compliance with the terms of the lease by the lessor in cases of this character than in ordinary cases of landlord and tenant, yet, as in this case the defendant company had expended a large amount of money in development work, and had discovered a paying well upon the property, increasing the amount to be paid under the terms of the lease, and, as the trial court specifically states at the conclusion of his findings, "the above and foregoing answers are only in response to the questions submitted by the plaintiffs, and are not intended to include all the issuable facts in the case," we cannot say, in the face of the general finding for the defendant, and under the findings made at the request of plaintiff's, that the trial court erred in refusing to enter a decree canceling the lease in question. On the contrary, we are of the opinion that under the circumstances of this case, and upon the facts as found by the trial court from the evidence, the decree entered is in harmony with equity and justice as between the parties, and is supported by the authorities. See Lynch v. Gas Co., 165 Pa. 518, 30 Atl. 984; Steiner v. Marks, 172 Pa. 400, 33 Atl. 695.

It follows the judgment must be affirmed. All the justices concurring.

MISSOURI PAC. RY. CO. v. DIVINNEY. (Supreme Court of Kansas, Division No. 2. July 5, 1902.)

RAILROAD-ASSAULT BY STATION AGENTLIABILITY.

1. Where one not a passenger is assaulted by the station agent of a railway company, the company is not liable in damages for injuries received by reason of such assault, unless at the time of its commission the agent was engaged in the performance of some duty imposed upon him by reason of his employment as such agent, or he was acting in the exercise of some authority conferred upon him, either directly or by virtue of his employment.

(Syllabus by the Court.)