Mithen v. Jeffery

• Decision Date: 08 October 1913
• Citation: 102 N.E. 778,259 Ill. 372
• Parties: MITHEN v. JEFFERY et al.
• Court: Illinois Supreme Court

259 Ill. 372

102 N.E. 778

MITHEN

v.JEFFERY et al.

Supreme Court of Illinois.

June 18, 1913.

Rehearing Denied Oct. 8, 1913.

Error to Branch D Appellate Court, First District, on appeal from Superior Court, Cook County; Farlin O. Ball, Judge.

Action by Torger Mithen against Charles T. Jeffery and another. There was a judgment of the Appellate Court (174 Ill. App. 602) affirming a judgment for plaintiff, and defendants bring error. Reversed and remanded.Frank M. Cox and R. J. Fellingham, both of Chicago, for plaintiffs in error.

Chase R. Rankin, C. H. Johnson, and Daniel Belasco, all of Chicago, for defendant in error.

CARTWRIGHT, J.

Torger Mithen, defendant in error, was in the employ of Charles T. Jeffery and Harold Jeffery, plaintiffs in error, in their factory in Kenosha, Wis., and on August 6, 1906, he was injured while oiling a milling machine which he was operating. He was 18 years and 6 months of age at the time, and brought his suit, by his next friend, in the superior court of Cook county to recover from plaintiffs in error damages on account of the injury. The averments of negligence in the various counts of the declaration, under which evidence was introduced, were: (1) That the defendants, by their foreman, negligently ordered the plaintiff to oil the machine while in motion, and that he was injured while obeying the order; (2) that the plaintiff was a minor and ignorant and inexperienced, whereby it became the duty of the defendants to warn him of the danger of working upon the machine in its alleged defective condition, which they did not do; (3) that the milling machine which the plaintiff was operating was out of order, in that the cutting knives of the machine wabbled, and the machine jerked and shook. There was a trial, at which the jury returned a verdict for the plaintiff for $15,000. Defendants entered their motion for a new trial, and the court, being of the opinion that the damages awarded were excessive, offered the plaintiff the alternative of a new trial or a remittitur of $5,000. The remittitur was entered; whereupon the motion was overruled, and judgment was entered for $10,000 and costs. An appeal was taken to the Appellate Court for the First District, and the cause was issigned to Branch D of that court, The majority of the judges were of the opinion that the second charge, of a failure to instruct, was sustained by the proof, and that, while the trial court might well have stricken out an answer concerning a promise to repair, there was no error which was ground for a reversal, and the judgment was affirmed. Upon consideration of a petition for a writ of certiorari to bring the record here for review, the writ was granted.

[1][2][3][4] During the examination, as to his competency, of one summoned as a juror, he testified that his business was all kinds of insurance, including liability insurance. The following questions and answers followed: ‘Do you know Mr. Jackson? No. Mr. Snow, here? No. The Travelers' Insurance Company?’ Objection was made to the last question, and while the court was considering the motion the attorney for defendants moved to discharge the panel on account of the questions being asked. The court overruled the motion, to which the attorney excepted, and then stated that his objection was to the question. The attorney for plaintiff then further examined the juror as to whether, in handling liability insurance, he came in contact with personal injury claims, to which he answered that the corporation did, but he did not, and that his work was fire losses. He was peremptorily excused. It is urged that the propriety of the question was not saved for review, but we are of the opinion that it was. Objection was made to the question; and, while the attorney for the defendants also made a motion to discharge the panel, he stated at the time of the ruling that his objection was to the question. 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 accomplishthe 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, 61 N. E. 79); 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, 81 N. E. 691;McCarthy v. Spring Valley Coal Co., 232 Ill. 473, 83 N. E. 957;Aetitus v. Spring Valley Coal Co., 246 Ill. 32, 92 N. E. 579,138 Am. St. Rep. 221. There is a further objection that the interminable examination of jurors, so often made as to different individuals and every conceivable relation to them, should not be indulged in. Where the court has correctly ruled, and it has been evident that the questions had no effect upon the jury, the examination has not always been considered ground for reversing a judgment; but in this case the verdict was so large that the court required a remittitur, which the plaintiff was willing to enter. It is not necessary to decide whether the error of the court, alone, would be ground for reversal, if there were no other erroneous and prejudicial ruling.

[5][6] The injury to the plaintiff occurred in the state of Wisconsin, and the rights and duties of the parties were to be determined by the laws of that state which regulated their relations to each other. Christiansen v. Graver Tank Works, 223 Ill. 142, 79 N. E. 97,7 Ann. Cas. 69. The parties introduced their evidence concerning the facts, and each of them also offered in evidence decisions of the Supreme Court of that state, after which the defendants moved the court to direct a verdict of not guilty. That motion was governed by the rules of practice in the courts of this state, and raised the question whether there was evidence fairly tending to prove a cause of action. The evidence most favorable to plaintiff was to be taken as true, and it tended to prove the following facts:

[7][8] The plaintiff was born in Norway, where he attended school from 8 to 12 years of age, and afterward worked at farming. He came to this country in 1905, when he was 17 years of age, and worked on a farm in Wisconsin about one year. He then went to Kenosha and worked in a lamp factory 5 or 6 months, and then went to work for the defendants, and had worked for them 11 or 12 days before the accident. He first operated for 3 or 4 days a drill press, which was run by steam power and drilled holes in iron or steel, and then worked 3 or 4 days on a vise, filing gears, after which he was set to work tending two milling machines, and had tended them several days when he was injured. The frame of the milling machine which caused the injury consisted of upright sides, about 5 feet high and 3 feet apart, and they were connected at the top by a horizontal steel rod, called an ‘arbor support.’ Under the arbor support, and parallel with it, there was a steel shaft. Standing in front of the machine, the left end of the shaft rested in the left upright part, and the other end was supported by and turned on an adjustable center pin extending from the other upright and entering the center of the end of the...