The opinion
Good, J.,
dissenting.
For the reasons hereinafter set forth, I cannot concur in that part of the majority opinion which holds: “Where a plaintiff in a personal injury action seeks by appropriate interrogatories on the cross-examination to discover whether the defendant is indemnified from loss by an insurance. company, it is error for the court to sustain an objection to interrogatories which tend to develop the fact on that question.” It is true that this rule was previously announced in Miller v. Central Taxi Co., 110 Neb. 306 . In that case, however, no reason for the rule was given save .that it was supposedly based on the holding of this court *22 in Egner v. Curtis, Towle & Paine Co., 96 Neb. 18 . In the latter case it was ruled that it is proper to inquire of the jurors, on their voir dire, if they are stockholders or otherwise interested in a company carrying insurance indemnifying defendant against loss from the accident or transaction out of which the action arose. This was on the theory that such information was necessary to enable plaintiff to prudently exercise his challenges. With that ruling I am in entire accord. The point decided, however, has no bearing on the question under consideration and is not authority for the rule announced in Miller v. Central Taxi Co., supra. I do not wish to be understood as contending that it is in no case proper to bring before the jury evidence that defendant carries indemnity insurance. Cases may arise where such disclosure may be proper, for the purpose of showing the interest or bias of witnesses who may'be stockholders, officers, agents or employees of the company carrying the indemnity insurance for defendant.
I have made a painstaking examination of the authorities upon the question and find that, where the precise question has been presented, a view, contrary to that expressed in the majority opinion, has been taken in practically every jurisdiction that has passed upon the question, save that of Nebraska. The courts of 27 of our sister states and the federal courts take a contrary view to that of the majority opinion. Among the decisions holding that it is error to permit the plaintiff, in an action for personal injuries, to offer evidence or make argument to the jury that the defendant in the action is protected by indemnity insurance are the following: Standridge v. Martin, 203 Ala. 486 ; Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288 ; Ex parte Woodward Iron Co., 212 Ala: 220; Roche v. Llewellyn Iron Works Co., 140 Cal. 563 ; Pierce v. United Gas & Electric Co., 161 Cal. 176 ; Wilson v. St. Joe Boom Co., 34 Idaho, 253 ; Mithen v. Jeffery, 259 Ill. 372 ; Ruwisch v. Knoebel, 233 Ill. App. 526 ; Martin v. Lilly, 188 Ind. 139 ; Ryan v. Trenkle, 199 Ia. 636 ; Danville Light, Power & Traction Co. v. Baldwin, 178 Ky. 184 ; Sawyer v. Arnold Shoe Co., 90 Me. 369 ; *23 Feins v. Ralby, 245 Mass. 228 ; Kerr v. National Fulton Brass Mfg. Co., 155 Mich. 191 ; Grubaugh v. Murphy Co., 209 Mich. 551 ; Gracz v. Anderson, 104 Minn. 476 ; Gore v. Brockman, 138 Mo. App. 231 ; Wilson v. Blair, 65 Mont. 155 ; Herrin, Lambert & Co. v. Daly, 80 Miss. 340 ; Sutton v. Bell, 79 N. J. Law, 507; Simpson v. Foundation Co., 201 N. Y. 479 ; Akin v. Lee, 206 N. Y. 20 ; Starr v. Southern Cotton Oil Co., 165 N. Car. 587; Stoskoff v. Wicklund, 49 N. Dak. 708; Jones v. Sinsheimer, 107 Or. 491 ; Curran v. Lorch, 243 Pa. St. 247; Duke v. Parker, 125 S. Car. 442 Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605; Lone Star Gas Co. v. Coates, 241 S. W. (Tex. Civ. App.) 1111; Levinski v. Cooper, 142 S. W. (Tex. Civ. App.) 959; Bianchi v. Millar, 94 Vt. 378 ; Westby v. Washington Brick, Lime & Mfg. Co., 40 Wash. 289 ; Walters v. Appalachian Power Co., 75 W. Va. 676; Chybowski v. Bucyrus Co., 127 Wis. 332 ; Smith v. Yellow Cab Co., 173 Wis. 33 ; Remmel v. Czaja, 183 Wis. 503 ; Stewart & Co. v. Newby, 266 Fed. 287 . I do not desire to be understood as expressing the view that the action of this court should be ruled by a majority of the holdings of other courts, unless and except where they are' based upon sound reason.
What was the purpose sought to be attained in offering such evidence to the jury? I think that all know that the purpose of the offer was not to elucidate any issue involved, but for the effect that it might have on the jury in rendering a verdict for plaintiff. In fact, the plaintiff in this case does not contend otherwise. What useful purpose could be served in the introduction of such testimony? Was it pertinent to any issue in the case? To ascertain this, perhaps it is desirable to state the issues that were presented by the pleadings. They are: (1) Was defendant guilty of negligence that prox'imately caused the death of Mr. Jessup? (2) Was Jessup guilty of contributory negligence? (3) Were defendant and Jessup engaged in a joint enterprise so that the negligence of defendant, if any, should be imputed to Jessup? (4) The amount of plaintiff’s recovery, if any.
*24 If defendant carried indemnity insurance, that fact would tend neither to prove nor to disprove any of the issues raised by the pleadings; nor would it throw any light on the question for the jury’s consideration. The matter inquired about was collateral to and entirely outside of any issue presented by the pleadings. If the proffered evidence should have been received, then, would it not have been proper for the parties to disclose to the jury the amount of indemnity insurance carried by defendant, and to introduce in evidence his insurance contracts, so that the jury might know the exact extent, terms and conditions on which the defendant is indemnified? Would not the defendant be entitled to present to the jury any possible defense that might be made in an action by him against his insurer? Would it not be as pertinent for the jury to consider-any possible defense that the insurance company might make in an action by the defendant? And, if the jury should consider such facts and shofild believe that any possible defense that the insurance company might attempt to make was untenable, and render a verdict accordingly, would such verdict be binding upon the insurance company? We think that no one would so contend. The defendant might be held liable because the jury believed that he was indemnified, when there might be a valid defense to an action brought by him against his insurer, and he might not be, in fact, indemnified. The verdict of the jury would in no wise be binding upon the insurance company. All this only the more clearly shows why any evidence, not pertinent to the real issues to be tried, should be excluded. In my view, the introduction of such evidence could serve no useful purpose and was likely to mislead the jury and divert their attention from the real issues in this case. This court and other courts generally condemn the admission of incompetent and irrelevant matters and condemn the submission to the jury of any issues not raised by the pleadings, because such evidence and such instructions tend to mislead and confuse the jury and are likely to lead to a wrong verdict.
In the majority opinion the terms of a supposed contract *25 of insurance are set forth and commented upon at great length. I use the terms “supposed contract” because no policy of insurance, nor the terms of any policy, are contained in the record. I take it for granted that every one will concede that there is a large number of companies writing indemnity insurance, and that some of the companies write many different forms of indemnity insurance contracts. There may be contracts of indemnity insurance containing the terms and conditions set forth in the majority opinion, but there is not a scintilla of evidence in the record of such a contract.
It is suggested in the majority opinion that the insurance company is the real party defendant, at least to the extent of the insurance carried by the defendant. This is mere assumption, based upon nothing appearing in the record. * It also assumes that defendant will be able to recover his loss in an action against his insurer. This is mere assumption again. »
It is further suggested that the insurance company is responsible for the entire conduct of the defense and calls such witnesses as it pleases, and that the party calling the witnesses vouches for their veracity ;• that therefore the jury should know that the insurance company is the one who vouches for the veracity of the witnesses called. It is a new doctrine to me that the veracity of a witness should be determined by the person who.calls him. It may sometimes happen that a person of poor reputation or . standing for veracity and probity may call as a witness one of high character and probity. On the other hand, a party of high character and standing may, by the exigencies of the situation, be required to call as a witness one who is not of that character. In the latter case, is, then, the witness to be given faith and credit because a person of high standing calls him as a witness; or is a reputable witness of high character and probity to be given little credence because of the character, of the person who calls him as a witness? Certainly, no such rule obtains. Besides, the majority opinion assumes that the insurance company, or *26 those who control its policies and actions, are not of high character and standing. Again, this is mere assumption, not based upon any fact disclosed by the record.
I respectfully Submit that the trial court’s ruling in sustaining the objection is right. I think the correct rule should be that, unless there are disclosed good reasons for offering such evidence, it should be excluded, and if it is brought to the attention of the jury they should be instructed as to the purpose for which it was admitted, and to consider it for that purpose alone.
Rose and Day, JJ., concur in this dissent.