Wheeler v. Rudek , 397 Ill. 438 ( 1947 )

I do not concur in the majority opinion. In Moore v. Edmonds,384 Ill. 535, the questions asked the jurors on their voir dire examination closely paralleled the questions asked the jurors in the present case. Specific questions regarding the Underwriters at Lloyds of London were propounded, together with general questions concerning the jurors' connection with or financial interest in companies defending personal injury cases. We pointed out that since numerous liability insurance companies are engaged in business in metropolitan centers such as Chicago, the duty devolves upon counsel representing plaintiff in an action for personal injuries to see that persons antagonistic to the payment of claims for personal injuries do not serve as jurors. Among persons having insurance company connections, particular reference was made to the following: (1) shareholders of the company defending the action or of like companies; (2) those engaged as employees of the company or other insurance companies, and (3) friends and relatives of agents or investigators. Accordingly, we held that the plaintiff, Russell S. Moore, enjoyed the right, in good faith, to interrogate jurors on theirvoir dire examination as to their, or their relatives,' possible connection with, or interest in, liability insurance companies, for the purpose of determining the expediency of exercising his right to peremptory challenge to the end of obtaining a jury free from bias and prepudice, "even though such inquiries may develop a suspicion in the minds of the jury that defendant is protected by insurance."

This court did not hold in Moore v. Edmonds the controlling factor was that defendant's counsel had either invited or acquiesced in the procedure leading to the asking of the challenged question. In the Moore case, a specially concurring opinion specifically stated that the basis of the concurrence was that defendant's attorney invited the interrogation of jurors, "now objected to, by suggesting that after they had been generally examined they could be collectively interrogated concerning financial interest, connection or affiliation with the Underwriters at Lloyds. In my opinion the court did not allow interrogation substantially at variance with this suggestion of defendant's counsel, and hence he is in no position to raise the objection that such examination improperly disclosed that an insurance company was involved." The specially concurring opinion recognizes that the ground upon which it is predicated was not the basis of the opinion of the majority of the court. The concurring opinion says, "The majority opinion, however, is not based upon this proposition, * * *. The comment of the court in justifying questions asked in the present case does not base it upon the reasonable construction of the concession made by defendant's counsel, but lays down the general rule that, in addition to showing that a juror is not an interested party, the affidavit of the defendant must also show that no close friends or relatives of the agents or investigators of the insurance company, or former employees of the agency or investigating firm, or the issuer of the policy, or friends or relatives of agents who are engaged in other types of insurance for the same company protecting the defendant must be negatived; otherwise interrogatories may be asked concerning the same."

In Smithers v. Henriquez, 368 Ill. 588, counsel for plaintiff was permitted to ask whether any juror was interested in a named insurance company defending the action. We pointed out that in order for defendant to obtain a reversal on the ground that the questions asked prospective jurors upon their voir dire examination were prejudicial, the examination must have been such as to exhibit a prejudice to the rights of the defendant, observing, "It is to be remembered that plaintiff's right to an impartial disinterested jury is equal to that of the defendant to have an examination of the jury free from prejudice to his interests." The practical effect of the majority opinion in the present case is to overrule sub silentio both Smithers v. Henriquez, 368 Ill. 588, and Moore v. Edmonds, 384 Ill. 535.

It is a well-known fact that many large insurance companies maintain offices in Chicago; that these companies employ thousands of persons in Chicago and Cook county, and that many other persons are closely related to the employees. There is ever present, in my opinion, a reasonable possibility that a prospective juror may be connected with one of the many insurance companies doing business in Chicago. The situation which prevails in a metropolitan community is far different from the situation in a rural community. In personal injuries cases, as well as in other cases, tried in counties other than Cook county, the jurors in the great majority of instances are, no doubt, known to the attorneys representing both plaintiff and defendant. Their connections, if any, with insurance companies are matters of common knowledge in their communities. The fact that the inquiries directed to the jurors in the present case and in Moore v. Edmonds and in Smithers v. Henriquez would be unnecessary in a relatively small community does not obviate the need for such interrogatories in cases tried in the courts of Cook county.

The distinction made in the opinion of the court in this case between the questions adjudged proper in the Smithers and Moorecases, but improper here, is a distinction without a substantial difference. The affidavits in each of the three cases were all substantially to the same effect. Indeed, the plaintiff's affidavit in the case at bar is most complete and, as plaintiff well says, "There are no further facts that can be furnished by plaintiff in such an affidavit to show the ``reasonable possibility' required by the court." The questions asked by plaintiff in this case were: (1) "Have you ever had any interest in or been in any way affiliated with any company that makes a practice of investigating or defending cases of this kind, or do you have any financial interest in such a company as that?" (2) "Do you have any close friends or relatives associated with a company of that kind or financially interested in such a company?" These questions are sufficiently comprehensive to include railroad companies, transit companies, taxicab and bus companies, many of them being self-insured and all of them having cases pending daily in the trial courts of Cook county. The word "insurance" was not mentioned in the questions assailed, nor was any insurance company specifically designated. The questions were, of course, designed to include insurance companies but, at the same time, to prevent, as far as possible, jurors from learning that the defendant was insured against liability and, in the event of an adverse judgment, would not have to satisfy it in whole or in part. In short, the questions were propounded in good faith and clearly meet the requirements with respect to such questions as repeatedly and consistently described by this court. (Smithers v.Henriquez, 368 Ill. 588; Edwards v. Hill-Thomas Lime Cement Co.378 Ill. 180; Kavanaugh v. Parret, 379 Ill. 273; Moore v.Edmonds, 384 Ill. 535.) The mere possibility of prejudice to defendant was remote in the extreme.

No good reason suggests itself for according the special privilege to insurance companies in metropolitan areas granted them by the decision in this case. Insurers are the real parties in interest, as is generally well known, in many personal injuries cases. The protection accorded them here, in my judgment, transcends reasonable bounds.

So long as we employ the jury system, we must accord to the jury some sense of obligation in following the instructions of the court, namely, to treat both parties impartially and without prejudice. The principal opinion in this case assumes that the jury cannot exercise a fair judgment if the fact is suggested that the defendant is insured. The fact is the insurance company is the real party in interest but secures an advantage in the selection of the jury, by reason of the opinion, which it otherwise would not have.

For the reasons assigned, among others, I respectfully dissent from the opinion of the majority of the court.