While concurring in the foregoing opinion in all other respects, I feel compelled to dissent on the subject of the admissibility of the testimony of the witness Bergin relating to the payment by the Phoenix Lodge to the Foresters of the sum of $450 for public liability insurance. The evident purpose of the plaintiff in calling Bergin to the stand was to prove the existence of the relationship of lessor and lessee between the two associations. The written contract was unavailable. The testimony to the effect that the Phoenix Lodge obtained a lease from the Foresters of the dipper and other property and paid therefor a consideration of $2000 sufficiently established that relationship. The statement, which was objected to in limine, that the Phoenix Lodge also paid $450 to secure public liability insurance was unnecessary to the proof of the plaintiff's case, was immaterial and was prejudicial to the defendants. The testimony given by Bergin was at least susceptible of the inference that, the $450 having been paid for that purpose, the Foresters did actually secure public liability insurance which would protect both defendants *Page 750 against any verdict that might be obtained against them by the plaintiff or by anyone else using the dipper or other devices at Waikiki Park. The jury may well have so understood the testimony.
In my opinion a new trial should be granted.