I dissent from that part of the majority opinion wherein it is held that: "The question as to whether the trial court erred in denying appellants the privilege of cross-examining Pippinger as an adverse party under the statute has, by reason of his dismissal, become moot." The fact that the appeal as to Pippinger was dismissed did not cure error if error was committed by the trial court in refusing to permit cross-examination of Pippinger under the statute as an adverse party. This court should decide the question, namely: Whether or not the trial court erred in refusing to permit the codefendant to call Pippinger for cross-examination under the statute.
I concur in the reversal of the judgment for the reason that: "the admission in evidence of a certified copy of the policy of insurance, the summary of the award by the Industrial Accident Board, and the compensation agreement signed by guardian L.R. Loomis and Lebak's employer, awarding compensation to the three minor children, was prejudicial," it having been recently held in Department of Finance of State v. Union Pac. R. Co., 61 Idaho 484,104 P.2d 1110, 1117, that:
"Under the statute above quoted [Section 43-1004, I. C. A.] the liability or amount of liability of the tort-feasor is not dependent upon the amount of compensation awarded or the fact that compensation has been awarded the injured employee. . . . . Neither recovery nor the amount of damages recoverable from appellants is controlled or fixed in any way by the amount of the award made by the board, but is based upon the damages sustained by reason of negligence of appellants." *Page 118