Smithers v. Henriquez , 368 Ill. 588 ( 1938 )

I cannot concur in a decision which I think contrary to all of our previous decisions and destructive of our long established policy.

In Mithen v. Jefferey, supra, the matter of insurance was brought before the jury, as in this case, on the voir dire examination of a juror. In the opinion in that case this court, speaking by the late Mr. Justice Cartwright, said: "It is not proper for an attorney to directly inform a jury that a defendant is insured against liability in the suit on trial, and, of course, the attorney cannot be permitted to accomplish the same result indirectly in the examination of jurors. It is the right of an attorney to ascertain whether a juror has any interest in or relation to claims or suits of the same character as the one being tried, for the purpose of exercising the right of peremptory challenge, (Iroquois Furnace Co. v. McCrea, 191 Ill. 340, ) but that can be readily done by an examination which would not lead the jury to understand that the defendant is insured against liability and is without substantial interest in the question of damages. The purpose of an attorney in making such inquiries as were allowed in this case is to inform the jury that a defendant is insured, and such an examination is improper. Eldorado Coal Co. v. Swan, 227 Ill. 586; McCarthy v. Spring Valley Coal Co. 232 id. 473; Aetitus v. Spring Valley Coal Co. 246 id. 32."

In Kenny v. Marquette Cement Manf. Co. supra, we said: "While the jury were being impanelled, appellee was permitted to ask certain jurymen, ``Are you acquainted with any of the officers or agents of the Ætna Insurance Company?' This question was improper, and the objection to it should have been sustained by the trial court."

In Aetitus v. Spring Valley Coal Co. supra, we said: "The attorney for defendant in error inquired of two of the jurors, on their voir dire, if they were interested in any casualty company which insured employers of labor against damages for injuries to employees. The court sustained an objection to that course of examination. Such examination, if made for the purpose of enabling counsel to exercise their right of peremptory challenge, was held in Iroquois Furnace Co. v. McCrea, 191 Ill. 340, to be proper. The trial court sustained an objection to the examination, and doubtless was of the opinion, from the character of the examination and the persons who were being interrogated, that the questions were not asked for the purpose of exercising the right of peremptory challenge of said jurors, but that the examination, under the authority of McCarthy v. Spring ValleyCoal Co. 232 Ill. 473, was improper. As the amount of the verdict is not large considering the defendant in error's injuries, and as the objection to the examination was promptly sustained by the trial court, we think, although the examination may have been for an improper purpose, its effect was not prejudicial and that the judgment of the trial court should not be reversed by reason of such examination. In a case, however, where the verdict is large and it is not apparent the examination was for the purpose of exercising the right of peremptory challenge, under the authority of the McCarthy case we should not hesitate to reverse a judgment where the fact that the defendant, an employer of labor, was insured by a casualty company against damages for injuries to his employees had been improperly brought before the jurors during their voir dire."

In at least three other cases this court has indicated its views as to the prejudicial effect of interjecting the immaterial insurance issue before a jury. In these cases it was brought out during the examination of witnesses, but the effect was identical and the views of this court were the same. Thus, in Bishop v.Chicago Junction Railway Co. 289 Ill. 63, we said: "We have frequently held that any reference to the fact that a party sued is protected by an insurance policy from the payment of damages is improper by reason of its influence upon the jury. Such a statement has been held to be reversible error. (McCarthy v.Spring Valley Coal Co. 232 Ill. 473.) Any statement which shows that the defendant in a lawsuit is being protected from the payment of damages by being reimbursed for such payment is error, and the superior court erred in not sustaining the objection of plaintiff in error thereto and in not instructing the jury to disregard the statement."

In Eldorado Coal Co. v. Swan, supra, we said: "The conduct of counsel in thus seeking to place before the jury matters not involved in the issue is censurable in the highest degree, and if the amount of the verdict were such as to raise a suspicion in our minds that the jury had been influenced by this misconduct, or if the case were a close one on the facts, we would not hesitate to reverse the judgment for this reason alone."

In McCarthy v. Spring Valley Coal Co. supra, we said: "The question and the circumstances were well adapted to intimate strongly to the jury that the appellant was insured against liability for accidents of this character, and that the party which would have to respond for any judgment which might be rendered was the Ætna Insurance Company. Evidence of this character was not competent. The intimation may not have been true, and it is unfortunate that the suggestion should have been inadvertently made. The only effect it could have would be to convey an improper impression to the jury."

I do not find that the rules laid down in the courts of other States are substantially different in their holdings from the rules to which we have previously adhered. There is considerable language in many of the opinions which might indicate a somewhat broader view than we have taken, and a somewhat different means of applying these views in actual practice in courts. I find nothing, however, which should lead us to overrule the very plain position which we have always occupied, since the Mithen case. I believe an examination of our previous decisions makes certain things clear and that they should now be followed rather than abandoned. The Mithen case does not hold that it is necessarily improper, nor entirely prohibited, to examine prospective jurors on their voir dire concerning their interest in or acquaintance with an insurance company defending for its insured, and, therefore, financially interested. It does, however, point out the highly dangerous and prejudicial character of such an examination and indicates the rather obvious doubt that arises as to the degree of good faith being exercised by the attorney. It is pointed out in that opinion that such things as may be necessary to know before intelligently exercising a right of peremptory challenge may be learned by an examination which would not inform the jury of the defendant's being insured. While the plaintiff may insist upon his right to fully inform himself as to the connections of the prospective jurors, he is nevertheless bound, to the utmost of his ability, to protect the defendant's equally valuable right to have a jury unprejudiced by extraneous matters. I consider the question as one of necessity and good faith, and if a cautiously conducted examination along reasonable lines of approach fails to develop any possible connection between the jurors and the company defending the case, it could hardly be an evidence of good faith for the name of the company to be dragged in. Thus, in the case at bar, had the first juror been asked if he was financially interested, as a stockholder or otherwise, in any corporation and he replied in the negative, the plaintiff's rights would have been guarded as effectually as they were and the defendant would not have been prejudiced. Had he replied in the affirmative he could have been asked to name the kinds of corporations he was interested in and if any of them were insurance companies he could have been asked the names of the insurance companies. Numerous other methods of cautious approach would be instantly apparent to any trial lawyer, and good faith requires that some such method be followed.

Since our decisions noted above the bar of Illinois has been fully aware of the attitude of this court toward this prejudicial subject. If the points involved had never been passed on in this State there could be some possible ground for claiming that the question was asked in good faith. Handled as it has been in this case, the plaintiff obtained no information at all but did succeed in informing the jury of the defendant's insurance, to the prejudice of his case. Since our decisions above noted, it has been known to the bar of this State that we look upon questions of the kind used here as highly prejudicial. If any attorney, in the interests of his client, finds it necessary to deal with such dangerous and prejudicial matters, he must use a degree of care commensurate with the risks involved. Although he should not risk his client's case by failing diligently to inquire into any matter that may be reasonably necessary, yet he should do so with such caution as to avoid prejudice to his opponent. It would be difficult and inadvisable to attempt to lay down a general rule on this subject further than to point out that the elements of necessity, method of handling and good faith, must be considered, and that each case must be judged on its own record. When the necessity for inquiry about insurance matters becomes apparent, the matter of good faith can readily be determined by the degree of caution and delicacy with which the examination is conducted.

In the case at bar the preliminary affidavit did not state that the plaintiff believed, or had any reason to believe, that any prospective juror was interested financially, either as a stockholder or otherwise, in the American Employers' Insurance Company. Neither did it state that plaintiff had made any investigation as a basis for entertaining any such belief. Nothing was stated to show, except for plaintiffs own interjection of the matter, that any juror would or could know that the insurance company had any interest, or that the attorney for the defendant was representing anybody but the defendant. Before the matter was summarily thrown before the entire panel, there was no caution whatever exercised in approaching the subject. No questions were asked as to the corporate or business or financial interests of any juror. Nothing whatever was done except to throw the insurance matter before the entire jury by a general question and then leave it. None of the things which I would consider as evidence of good faith were even attempted. In the face of a situation of this sort, the defendant is not only prejudiced but entirely helpless to do anything about it. He would not be permitted to explain his position even though his amount of insurance might be exceedingly small compared with the size of a possible verdict, and yet the jury would feel that he had no financial interest in the result. On this very record the judgment is for $7500, whereas it is well known that $5000 is a very customary limit of coverage for injury to one person. The case might have been one of those in which the insurance company defends under a non-waiver agreement, leaving the company's liability to pay to be determined by later litigation between it and its insured, yet this fact could not be explained to the jury and would not be material. The insurance is taken for the benefit of the insured, is paid for by the insured, and is intended to preserve his own solvency in the event of misfortune. It is not paid for by the injured party and that party can have no interest in it unless and until the insured's legal liability has been established. Jurors are not likely to understand this point but think only that some insurance company is trying to evade payment of a loss for which they have received a premium, and that the questions of negligence, contributory negligence and damages are of no great importance. For these reasons I feel that, in this case, there was nothing to show any necessity for the question being asked, that the subject was not handled with caution and that there is nothing to evidence good faith in the manner in which it was handled. On this point, alone, the judgment should be reversed.