Kavanaugh v. Parret
| Decision Date | 16 March 1942 |
| Docket Number | No. 26429.,26429. |
| Citation | 40 N.E.2d 500,379 Ill. 273 |
| Parties | KAVANAUGH v. PARRET. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Action by Eugene Kavanaugh against Jeanne Parret for injuries sustained by plaintiff when struck by an automobile driven by defendant. From a judgment of the Appellate Court, 310 Ill.App. 429, 34 N.E.2d 868, affirming a judgment of the circuit court in favor of plaintiff, defendant, on leave granted, appeals.
Reversed and remanded.
Sears, O'Brien & Streit, of Aurora (Barnabas F. Sears, of Aurora, and William M. Garvey, of Joliet, of counsel), for appellant.
Ray F. Faulkner and Charles M. Robson, both of Joliet, for appellee.
This is an appeal on leave granted to review a judgment of the Appellate Court for the Second District affirming a judgment of the circuit court of Will county against appellant in the sum of $4,500, arising out of a collision between a bicycle ridden by appellee and an automobile driven by appellant. The accident occurred in the afternoon of August 2, 1937, on a paved road in Will county. The point at which the accident occurred is comparatively level and visibility up and down the highway was unhindered for more than a mile. It was a clear day. The appellee, then a boy of sixteen years, and his companion Robert Bagnell, seventeen years of age, were riding south on their bicycles. Bagnell was near the west side of the pavement and appellee was near the center line. Appellant was driving her automobile south.
The evidence as to the collision is in sharp dispute. That of appellee tended to show that the appellant approached at a great rate of speed and did not sound her horn until she was very close to them, causing appellee to swerve to the east to avoid hitting his companion. Appellant's evidence tends to show on the other hand that she sounded her horn intermittently for a distance of nearly a half mile as she approached the boys; that she slackened her speed and when she turned into the east traffic lane to pass the bicycles, appellee swerved into that lane and was struck, and that in her effort to avoid striking him she swerved her car so far to the east that the left wheels of her car were off the pavement at the time appellee was struck. Her evidence also was that Bagnell with his bicycle left the pavement on the right side thereof when appellant came within one hundred yards of the two boys.
Errors assigned are in permitting a certain question to be asked of the jurors on voir dire and the giving of certain instructions. It appears that at the commencement of the trial appellee's counsel filed with the judge in chambers, out of the presence of the jury, an affidavit stating upon information and belief, and as a result of his investigation of the case, that appellant was insured in the Union Auto Indemnity Association of Bloomington, Illinois; that that company was a reciprocal and not a stock company and that appellant was being defended by attorneys selected by the company and not those of her own choosing. The affidavit also stated that the company had agents, representatives, solicitors, investigators and numerous policyholders in Will county and was vitally interested in the defense. The affidavit further stated that the question sought to be asked was to prevent appellee's rights being prejudiced in the selection of the jury.
A counter-affidavit was filed by the secretary and executive manager of the insurance company setting forth that the company is not a mutual company but issued all its policies at a stipulated premium not subject to assessment, and that an examination of the records of the company disclosed that none of the jurors, naming them, were policyholders, stockholders, agents, employees or in any way or manner interested financially or otherwise in the affairs of the insurance company. In addition to this the general counsel for the company testified to like effect before the court in chambers. The court granted the motion of appellee's counsel to ask the jurors the proposed question, and they were asked collectively as follows: ‘Are you, or any of you ladies and gentlemen agents, employees, representatives, solicitors, or policyholders of or are you, or any of you interested financially, or otherwise, in the Union Auto Indemnity Association of Bloomington, Illinois?’ The jurors were told to raise their right hand if their answer was in the affirmative but none so indicated.
The question of law raised on this assignment of error has heretofore been considered by this court. Its most recent pronouncement is found in the case of Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, 37 N.E.2d 801, where it was held error to allow such a question to be asked the jurors in the absence of sufficient showing of good faith and of reasons for making it. The only material distinction between this case and the Edwards case lies in the fact that here the request was made under oath, while in the Edwards case it was an oral motion. Such fact does not distinguish the cases. Nor is the affidavit more indicative of good faith. It is based on information and belief and states that the question was proposed in order that plaintiff's rights be not prejudiced in the selection of the jury. It is of course counsel's duty to protect his client against prejudice by the reasonable ascertainment of such information as would permit him to intelligently exercise his right of peremptory challenge, but the right goes no further. St. Clair County Housing Authority v. Quirin, 379 Ill. 52, 39 N.E.2d 363;Aetitus v. Spring Valley Coal Co., 246 Ill. 32, 92 N.E. 579,138 Am.St.Rep. 221. Here that information was given him under oath, subjecting the informant to perjury if false. The counter-affidavit and sworn testimony offered in chambers were positive and tended to show that the plaintiff's rights could not, in the manner suggested, be prejudiced in a trial of the case before the panel of jurors then in court. The only effect of the question was to advise the jury that the insurance company was making the defense and was liable for the payment of any judgment rendered.
As announced in Mithen v. Jeffery, 259 Ill. 372, 102 N.E. 778,Smithers v. Henriquez, 368 Ill. 588, 15 N.E.2d 499, and the Edwards case, supra, it is improper to inform the jury, either directly or indirectly, that the defendant is insured against liability on a judgment that may be entered against him in the trial of the case. In the last cited case it was found unnecessary to decide whether such error required reversal of the judgment, since other errors so requiring had intervened. In this case it is clear from the record that the question put not only was not necessary to plaintiff's right to a fair trial but could serve only to prejudice the defendant. It is a matter of common knowledge that ofttimes casualty insurance policies cover only a portion of the liability arising on a judgment entered against the insured. Whether the defendant has someone to help him pay a judgment, if one is rendered against him, has nothing to do with the case on trial, and to bring it into the lawsuit is to import an influence having nothing to do with the merits of the case and designed only to aid the plaintiff at the expense of the defendant. It would be no more unfair to show that plaintiff is insured, either by contract with his attorney, or otherwise, against the payment of any costs or attorney's fees, in case he loses. Neither makes for a fair and just trial of the lawsuit and neither should be permitted.
As indicated in Mithen v. Jeffery, supra, counsel for plaintiff is permitted to make such inquiries as will prevent prejudice to his client, but the weight of the proof before the judge in chambers showed the question proposed wholly unnecessary to protect plaintiff's rights. That it was prejudicial to the defendant to put the question, seems clear. The proposal to so question the jury and the affidavits and evidence adduced thereon, were all before the court in chambers, and while the trial judge was to determine therefrom whether to permit or deny the question, the discretion in the trial court so to do is not an arbitrary but a judicial discretion, subject to review. Mithen v. Jeffery, supra. Considering the entire proceeding before the trial judge in chambers, it cannot be said...
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