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Pearcy t. The Michigan Mutual Life Insurance Company.
the relation sustained by a person called as a juror to his adversary, iu order that he may interpose a challenge for cause, or exercise his peremptory right to challenge. It is the duty of a juror to make full and truthful answers to such questions as are asked him, neither falsely stating any fact nor concealing any material matter., since full knowledge of all material and relevant matters is essential to a fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct is prejudicial to the party, for it impairs his right to challenge. In this instance the appellant had a right to a full and truthful answer from Bowman, and it was his duty to make that answer without evasion, equivocation or concealment.
We think that the question asked the juror required him to answer as to the policy taken out on his own life for the benefit of his wife. This is our conclusion upon the assumption that the question was that which the appellee maintains it was. It was not incumbent upon the appellee to minutely cover by a long series of specific questions all phases of the subject, but it was enough to ask such a question as would indicate to the mind of a fair and reasonable man what information the examining counsel sought to elicit. It seems clear that such a question as that asked Bowman ought to have drawn from him the fact that he had taken out a policy on his own life for the benefit of his wife, for the question certainly indicated that information as to his interest, in the company, as well as his connection with it, was sought by the counsel conducting the examination.
The authorities support our conclusion that if the general question fairly arouses the juror's attention and directs it to the information desired, it is enough without specific questions covering minute phases of the subject.
In Bice v. State, 16 Ind. 298, the juror was asked as to whether he had formed an opinion, and he answered that he Pearcy v. The Michigan Mutual Life Insurance Company.
had not, but no inquiry was made as to whether he had served on the grand jury which found the indictment, and yet it was held, on proof that he had been a member of the grand jury, that the accused was entitled to a new trial. The general question here under discussion was well and elaborately discussed in the case of Block v. State, 10U Ind. 357. In that case no inquiry was made as to whether any of the jurors was a deputy of the prosecuting attorney, and yet a new trial was ordered on its being shown that one of the jurors was the prosecutor's deputy.
In Lamphier v. State, 70 Ind. 317, a juror was asked generally as to whether he was a^ freeholder or householder, and, by reason of an erroneous opinion, he gave an incorrect answer, yet it was held that the accused was entitled to a new trial.
It is true that in exact technical strictness the policy belongs to the beneficiary. Wilburn v. Wilburn, 83 Ind. 55; Pence v. Makepeace, 65 Ind. 345. But in the examination of jurors it is not essential that counsel should employ terms with strict accuracy, for all that need be done is to fairly call the juror's attention to the subject on which information is sought, and indicate to him with reasonable certainty and clearness the purpose of the question. It is common for one who has his life insured for the benefit of his wife or family to regard himself as holding the policy. Nothing, indeed, is more common than for one who has insured his life for the benefit of his family to speak of himself as having the policy, and very few men, if asked the question if they had a policy in a designated company, would think of giving any other answer than that they did have such a policy, even though the policy was payable to some one else. In a broad sense, a man whose life is insured has a policy, although the beneficial interest in it may be in another person, for the policy which expresses the contract is on his life, and he it is that the company insures. We regard it as quite clear that the question asked Bowman required him to Pearcy r. The Michigan Mutual Life Insurance Company.
answer as to a policy taken out on his own life, although that policy was for the benefit of his wife.
The statement of Bowman, that he was influenced solely by the law and the evidence, does not remedy the wrong. A juror who has deceived or misled the court, or the counsel, by a false or incorrect answer, can not, by a subsequent statement, repair the legal injury caused by his conduct on his preliminary examination. Hudspeth v. Herston, 64 Iud. 133; Lamphier v. State, supra; Block v. State, supra; Territory v. Kennedy, 3 Mont. 520; United States v. Upham, 2 Mont. 170.
There are many cases in which the social and business relations between the juror and a party will sustain a challenge for cause, and the authorities go very far toward establishing a rule which would make an interest such as that held by Bowman a cause for rejecting the juror. Davis v. Allen, 11 Pick.466; Thom.&Merr.Juries,section 179; Proff". Jury Trials, section 177. But we need not and do not decide whether the interest of Bowman was such as would have warranted a challenge for cause, for it is enough for the present to decide that the information sought by the question was relevant and material for the purpose of enabling the appellant to intelligently exercise her right to interpose a peremptory challenge.
We have not discussed the questions sought to be presented on the pleadings, for the reason that the record is so confused as not to present them properly, and for the additional reason, that some of these questions are rendered immaterial by the answers to interrogatories returned by the jury.
Filed May 18, 1887.
Fries v. Brier et al.
Drainage.—Repair of Ditches by County Surveyor.—Act of April 6th, 1SS5, Constitutional.—Section 10 of the act of April Gth, 1885, making it the duty of the county surveyor to keep ditches in repair, giving him power to assess the cost upon the lands adjudged benefited in the original proceedings establishing such ditches, and providing for notice of the assessments and for an appeal to the circuit court by any person aggrieved, is constitutional.
Same.— Limit of Surveyor's Authority.—The authority of the county surveyor, under the statute in question, is strictly limited to keeping ditches in repair to the dimensions, as to width and depth, as required in the original specifications.
From the Hancock Circuit Court.
E. Marsh ami W. W. Cook, for appellant.
W. If. Martin, for appellees.
Mitchell, J.—Charles H. Brier and twenty other landowners commenced this action to enjoin the county surveyor of Hancock county from proceeding to repair a certain ditch which had been established and constructed under the order and judgment of the Hancock Circuit Court. So far as appears the surveyor was proceeding according to the provisions of section 10 of the actapproved April 6th, 1885. This section makes it the duty of the county surveyor of any county in which proceedings for the construction of a ditch were had, to " keep the same in repair to the full dimensions, as to width and depth, as required in the original specifications." It also prescribes the duties of the surveyor, in respect to apportioning and assessing the cost of the repairs, upon the lands adjudged in the original proceeding benefited, in proportion to the benefits assessed in the first instance. The surveyor is required to give notice of the assessments, and an appeal to the circuit court is authorized to be taken by any person aggrieved.
The court overruled a demurrer to the complaint, and the Vol. 111.—5
Fries v. Brier el ul.
appellant refusing to plead further, the surveyor and contractor were enjoined from proceeding to make the repairs, and from apportioning the cost thereof upon the appellees* lands.
In support of the ruling of the court, the appellees contend that the section above mentioned, which purports to confer authority upon the county surveyor to keep ditches in repair, is unconstitutional, and that, hence, the surveyor was proceeding without warrant to impose a burden upon their real estate.
The court below proceeded upon the theory that the complaint brought the case within the principles which ruled the cases of Campbell v. Dwiggim, 83 Ind. 473, and Tyler v. State, ex rel., 83 Ind. 563. In these cases sections 4282 and 4307, R. S. 1881, which attempted to authorize township trustees to keep drains in repair and free from obstructions, and to assess the cost thereof upon the lands benefited, according to their judgment in each case, were held unconstitutional, because, in effect, the attempt was thereby made to confer authority to impose an assessment upon land without notice to and a hearing, or an opportunity to be heard, on the part of the owner of the property to be assessed. The effect of the proceedings under these sections was virtually to deprive the owner of his property without due process of law.
The right of the property-owner to have notice and to be heard before his property can be taken, or before a burden can be imposed upon it, must be provided for at some proper stage of the proceedings, and any enactment which attempts to justify a tax or assessment without making such provision is universally regarded as an infringement of the Constitution. Wkit 'eford Tp. v. Probate Judge, 53 Miqh. 130.
The statute under which the proceedings assailed by the complaint in the case before us were being taken, makes provision for notice and authorizes an appearand, consequently, makes ample provision for a hearing. The questions pre