dissenting: In my opinion the verdict of $15,000 on the facts and circumstances presented by the record in this case indicates that the jurors were influenced by passion and prejudice. Whether the mention of insurance by the appellee on direct examination contributed to the prejudice would be rather difficult to say.
It could be argued that the Santa Fe Railway Company is a multimillion-dollar corporation, and whether it carried liability insurance would be immaterial, since it is just as desirable for a plaintiff before a jury to have the Santa Fe as a defendant as an insurance company. But this is clearly improper because it recognizes one rule of law for wealthy corporate defendants and another for other defendants whose ability to pay a substantial verdict might be questionable.
In my opinion the administration of justice would be improved by a more vigorous application of the rules of law this court has pronounced. This approach would penalize those who improperly permit the insurance of a defendant to creep into a case, and substantially reduce the frequency of the so-called “inadvertent” reference to insurance. At the same time it would protect parties represented by counsel who practice their profession honorably. It is *223clearly the duty of counsel for claimants to admonish their clients and the witnesses they use in the trial of a case concerning any reference to the defendants’ insurance, and the legal effect it might have during the trial of a case. (Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97; and Cannon v. Brown, 142 Kan. 700, 51 P. 2d 1007.)
In my opinion exceptional circumstances have not been shown to avoid the prejudicial effect of the testimony regarding the defendants’ insurance. Here the trial court did not cure the defect by a peremptory order to strike out the testimony, and no further instruction was given by the trial court on the subject. The record does not disclose any action by counsel for the appellants at the trial which might bring the case within the rule of Thompson v. Barnette, 170 Kan. 384, 227 P. 2d 120.
Cases disapproving the “formula technique,” in my opinion, present the most persuasive reasoning. The “formula technique” permits an attorney in arguing his case to a jury to suggest a stated figure in money per day, or per month, or other period, as a basis for determination of the amount of damages to be allowed for pain and suffering, or other such element of damages. This argument is usually made from a blackboard or chart, as here, which is displayed to the jury in the course of argument.
It is clearly apparent the jury seized upon the mathematical formula set forth on the chart in this case, as evidenced by then-request to see the chart after they had commenced deliberations. This is one of the most important indications of its prejudicial influence upon the jurors.
Arguments made to the jury by counsel for the appellee upon display of the figures of $130 per year- for pain and suffering and $30 per month for permanent disability were highly improper. Reference to what “the government pays their people on less disability than that” ($30 per mo.) and “You know of your own knowledge the workmen’s compensation amounts that they draw” was wholly outside the issues in the case. This argument fixed these figures in the jurors’ minds.
The argument thereafter proceeded to ask the jury to “consider it seriously and allow him what you in your heart would want to have for your husband or yourself if you were in Mr. Caylor’s seat.” This was most improper. The so-called “Golden Rule” may not be applied to such damages. (Botta v. Brunner [1958], 26 N. J. 82, 138 A. 2d 713, 60 A. L. R. 2d 1331; Goodrich v. Cort *224[1910], 80 N. J. L. 653, 657, 77 At. 1049; Stein v. Meyer [D. C., E. D. Pa. 1957], 150 F. Supp. 365; Gulf, C. & S. F. Ry. Co. v. Carson [Tex. Civ. App., 1933], 63 S. W. 2d 1096; Fambrough v. Wagley [1943], 140 Tex. 577, 169 S. W. 2d 478; and Jackson v. Southwestern Public Service Company [1960], 66 N. M. 458, 349 P. 2d 1029.) The jurors must give objective consideration to the evidence presented, and not subjective consideration based upon their own desires for money as recompense for injury.
In Faught v. Washam [1959, Mo.], 329 S. W. 2d 588, the court was confronted by a similar argument and said:
“. • . but this character of plea is consistently condemned and uniformly branded as improper, the rationale of rejection being that a juror ‘doing that would be no fairer judge of the case than would plaintiff’ himself [F. W. Woolworth Co. v. Wilson, 5 Cir., 74 F. 2d 439, 442, 98 A. L. R. 681] and that such ‘argument, in effect, affirms as a correct principle that a man may properly sit in judgment on his own case — an idea abhorrent to all who love justice’ and not ‘given a cloak of respectability by associating it with the Golden Rule’ because that Rule ‘applies in favor of the defendant as well as the plaintiff.’ Red Top Cab Co. v. Capps, Tex. Civ. App., 270 S. W. 2d 273, 275.” (p. 602.)
Turning to the evidence in this case, the appellee testified that he told the police officer who investigated the accident at the scene that “as far as I knew I was the only one hurt and I thought I’d be all right.” When asked if he wanted an ambulance the appellee didn’t think it was necessary. While the appellee did receive some injury, he was off work only twenty-five days, and the record does not disclose that he lost a working day since.
Had the jurors been absolutely free of any prejudicial influence, a considerable amount of evidence presented by the record might have been viewed in a different light.
Commencing three months after the accident it would be fair to say the only evidence of pain and suffering or permanent disability had its origin in statements made by the appellee. Dr. Pusitz, called as a witness for the appellee, examined him approximately three months after the accident and found nothing wrong upon physical examination, except some limitation of motion in the neck. X-rays previously taken were examined and no injury was disclosed. Dr. Pusitz’ diagnosis was based upon “subjective complaints of nervousness and of tenderness in the neck region” given by Caylor, who also “described a tenderness over the region of the lumbodorsal spine.” Tests given by Dr. Pusitz to check these complaints did not accentuate the pain.
*225Dr. Roberts’ vagueness and fleeting reference to the permanent disability of Caylor was no doubt prompted by his rebanee upon subjective complaints of Caylor.
A physical examination given Caylor by Dr. D. B. Foster for the appellants almost ten months after the accident disclosed no deviations from normal. Additional X-rays were taken during this examination but disclosed nothing attributable to the accident. At that time Caylor was found to have an active stomach ulcer, an old impairment of the left eye and his left knee, all of which were unrelated to this accident.
Thus, the jury could readily have found from the evidence the appellee was malingering for the designed purpose of recovering damages for future pain and suffering and permanent disability.
Calculations will disclose the damages indicated by the chart for the last two items were compromised by the jury on a fifty-fifty basis, rounding out the verdict to the nearest thousand. Therefore, it would be logical to argue the jury compromised on the evidence, which indicated possible malingering for the purpose of recovery on the last two items of damage.
The appellants were entitled to a fair trial free of error which in all probability had a prejudicial influence upon the jury.
It is respectfully submitted the case should be reversed and a new trial granted.