Concurring Opinion
Pfaff, C.J.The majority opinion has, without doubt on my part, correctly applied and employed the rationale of the Supreme Court decision in the case of Pickett v. Kolb (1968), 250 Ind. 449, 237 N. E. 2d 105. We are, of course, not at liberty to disregard or disavow that which the Supreme Court has stated to be the law on this subject. However, I believe it essential to suggest that while the Supreme Court ruling allowing the opposing party the right to cross-examine an “interested” witness so as to elicit prejudice or bias is seemingly desirable, application of this rule is, in my opinion, virtually impossible. While the Supreme Court decision upholds the validity of the prior rule disallowing the admission of evidence which tends to prove the existence of liability insurance, at the same instance it permits admission of evidence which refers to the interest of a witness in the litigation, including by whom he was retained and compensated. In many instances the direct result of admitting evidence of this nature in order to elicit the interest of the witness in the litigation, will be to place before the jury evidence that there exists some form of liability insurance. I refer not to those situations where proof of liability insurance is allowable to establish either a cause of action or a defense, as in these instances there is no problem. My doubts as to the wisdom of the Supreme Court’s binding precedent in Pickett v. Kolb, supra, concern those cases in which insurance is not essential to a *575party’s claim or defense. In those situations, it would seem impossible to determine whether the cross-examination of the witness for the purpose of showing interest, motive, feeling, etc., toward the litigation, is limited to elicitation of only those facts or whether it is intended to go further, to the point of injecting the issue of insurance. Further, jurors, upon hearing even evidence of interest, motive or feeling can reasonably be expected to presume that insurance is involved. Thus, although there may not be an objective statement of the fact that a party is insured, evidence admitted which shows interest, motive or feelings may have the same ultimate result.
As we are bound by precedent, I concur in the law as correctly applied by the majorty opinion. However, I reiterate that while the evidence declared admissible in Pickett v. Kolb, supra, is desirable, the practical effect of its admission is, in my opinion, often likely to constitute an unwarranted and prejudicial injection of the element of insurance.
To me, it would seem more prudent to follow the reasoning of the Appellate Court decision in Pickett v. Kolb (1968), 250 Ind. 449, 231 N. E. 2d 856, which disallowed, on the theory of Miller v. Alvey (1965), 246 Ind. 560, 207 N. E. 2d 633, admission of all evidence tending to show insurance, or to abrogate altogether the evidentiary restrictions pertaining to insurance coverage of the defendant in a damage action growing out of an automobile accident.
Hoffman, J., concurs.
Note. — Reported in 251 N. E. 2d 846.