I am in accord with all that is said in the majority opinion except that portion dealing with the examination of certain jurors on their voir dire. As to the first two jurors referred to in the majority opinion, there was no occasion at all for respondents' counsel to interrogate them on the subject of insurance. As to the third juror, who voluntarily stated that his occupation was that of "Farmer and insurance salesman," I concede that it was proper to elicit from him, as counsel did, the name of the particular insurance company which he represented. But counsel went further and asked the juror: "Do you know whether Mr. Robertson [appellant's counsel] is *Page 12 attorney for your company?" This, in my opinion, was improper. In any event, to permit counsel deliberately to open up the subject of insurance by asking juror after juror whether he or she has any connection with a casualty insurance company, when that line of inquiry is not prompted by previous answers of the juror respecting his occupation, is in effect to suggest to the jury as a whole that an insurance company stands back of one of the litigant parties, and certainly any jury will quickly divine which one of the parties is thus protected. With that fact impressed upon the minds of those to whom the case is to be submitted for decision, the rest is often easy sailing. No matter how conscientious a jury may be, it will the more readily find for the plaintiff, regardless of the merits of the case, if it knows that an insurance company will in any event reimburse the defendant, than it would if it were deciding the issue simply between the litigant parties and determining which of them must lose by its verdict. Juries should be allowed to determine controversies upon the basis of the facts and the law, and not upon considerations of sympathy or prejudice induced by the thought that an insurance company is involved.
In the argument before the trial court, respondents' counsel took the position that he had a perfect right to ask such questions of every juror, without exception, stating that he had often done so in other cases and that appellant's counsel had habitually done the same thing in cases where he represented the plaintiff. Despite what either counsel may have done in other cases, I am unwilling to make that a basis for permitting it in every similar case, whether tried in Spokane county or elsewhere in the state. Counsel's own statement establishes that the inquiry was made *Page 13 deliberately, and for that reason I think a mistrial should have been declared. Had that been done in this case when the improper occurrence took place, another jury could have been immediately called and the trial could have proceeded without any very great delay. Were that procedure followed regularly, I think that the practice of injecting the insurance question in such cases would soon terminate. For the reasons herein stated, I think the judgment should be reversed and a new trial granted.
ROBINSON, C.J., BEALS, and SIMPSON, JJ., concur with STEINERT, J.