Carr v. Kinney , 41 Haw. 166 ( 1955 )

Not only do I concur in the foregoing opinion of the court, but I also have the view that Choy v. Otaguro, 32 Haw. 543, established — and by virtue thereof and of the provisions of section 1 of the Revised Laws of Hawaii 1945 there was in effect at the time of the trial of the instant case of Carr v.Kinney and applicable therein — the rule of law in this Territory of Hawaii that, on voir dire, jurors may be interrogated "as to their, or their relatives' possible connection with, or interest in, liability insurance companies," or any such, with which a defendant may be insured and which therefore — although not a named party — may be affected financially by a verdict adverse to the defendant. Also, the rule thus established and effective in this jurisdiction should have been applied and should be, as it now is, sustained, not only because it would be inconsistent to fail to do so without stronger showing — which has not been made — for its revocation than was made for its establishment or adoption in the Choy v.Otaguro case, supra; also because I am convinced that the said rule of law is in accord with the modern trend as enunciated in judicially recognized text books and cyclopedia and supported by numerous decisions of the highest courts of other jurisdictions, cited in the opinion of this court, supra.

Careful reading of the opinions in the two cases of Choy v.Otaguro, supra, and Gilliam v. Gerhardt, 34 Haw. 466, reveals nothing inconsistent with each other and no overruling of the former by the latter, but should impress the reader that the rule established or adopted in the Choy v. Otaguro case and sustained in the present case of Carr v. Kinney is applicable only to the examination of prospective jurors on their voir dire and, as indicated in the case of Gilliam v. Gerhardt and as clearly stated previously in Choy v. Otaguro, "* * * evidence is not admissible tending to show either that the defendant is insured or that he is not insured." This has been emphasized in our opinion of the court in this present case of Carr v.Kinney. However, the re-emphasis is made, despite the redundance, because of the importance that all concerned be advised of and bear in mind the difference between the permissible mention of an insurance company in the interrogation of prospective jurors on their voir dire and the inadmissibility — after a jury is sworn to try the case — of testimony as to whether a defendant is or is not insured.