In Wilson v. St. Joe Boom Co., 34 Idaho 253, 200 P. 884, this court said:
"In a suit for personal injuries, evidence that the defendant carries casualty insurance is incompetent and immaterial; but counsel for plaintiff may be permitted on the voir dire examination to ascertain whether the jurors have any interest in the result of the litigation, although this may show such juror's connection with a casualty company, so long as the privilege is not abused or used as a subterfuge to communicate improper matter to the jurors."
See, also, Cochran v. Gritman, 34 Idaho 654, 203 P. 289, andBressan v. Herrick, 35 Idaho 217, 205 P. 555. In the face of this clear statement of the rule, in the voir dire examination of the jury one of plaintiff's attorneys deliberately told the jury: "We are advised that there is an insurance company connected or interested in the suit." In my judgment, the remark was manifestly prejudicial. This court said in Steve v.Bonners Ferry Lumber Co., 13 Idaho 392, 92 P. 363, ". . . . for it is well recognized that it is only done for one purpose, and that is to prejudice the jury." In none of the foregoing decisions has this court indicated that such practice is permissible. The trial court should have granted defendant's motion for a mistrial. *Page 329
The injury occurred on June 28, 1926. The following September respondent had so far recovered as to be able to enter high school, from which he graduated the May following. He joined the national guard in March, 1927, passing the required physical examination and making the following statement under oath:
"I believe myself to be physically qualified to perform the duties of an able bodied soldier, and that at present I am free of illness, disease, injuries and infirmities."
In view of these facts, I am of the opinion that the verdict was so excessive as to be the result of passion and prejudice. The judgment ought to be reversed and the cause remanded for a fair trial.
I am authorized to state that Mr. Justice Varian concurs with me.