Moore v. Edmonds

• Decision Date: 10 January 1944
• Docket Number: No. 27116.,27116.
• Citation: 384 Ill. 535,52 N.E.2d 216
• Parties: MOORE v. EDMONDS et al.
• Court: Illinois Supreme Court

384 Ill. 535

52 N.E.2d 216

MOORE

v.EDMONDS et al.

No. 27116.

Supreme Court of Illinois.

Sept. 24, 1943.

Rehearing Denied Nov. 19, 1943.

Motion to Reconsider Denied Jan. 10, 1944.

Action by Russell S. Moore against William L. Edmonds, Lawrence J. Kollath, Dudley L. Dewey, and others, to recover for injuries sustained on a toboggan slide. From a judgment of the Appellate Court, 316 Ill.App. 453, 45 N.E.2d 190, affirming a judgment for plaintiff against the named defendants, the named defendants appeal.

Affirmed.Appeal from First Division Appellate Court, First District, on Appeal from Superior Court, Cook County; John J. Lupe, Judge.

Ekern, Meyers & Matthias, of Chicago (Walter F. Dodd, Donald L. Thompson, and William G. Chorn, all of Chicago, of counsel), for appellants.

Gardner, Carton & Douglas, of Chicago (Erwin W. Roemer and James A. Velde, both of Chicago, of counsel), for appellee.

WILSON, Justice.

Prior to and on December 29, 1938, William L. Edmonds, Lawrence J. Kollath, and Dudley L. Dewey, partners, doing business under the firm name and style of Touhy Playfield Winter Sports Company, operated a public toboggan slide at 3131 Touhy avenue, Chicago. The slide consisted of a tower from which runways ran to the ground. Approximately 720 feet from the top of the tower a ditch six to eight feet wide and from twelve to fifteen inches deep traversed the runways at right angles. On the evening of December 29, Moore, accompanied by his young daughter and two of her friends, used his own toboggan on the slide. At the ditch he sustained admittedly serious injuries. Thereafter, the plaintiff, Moore, filed his complaint in the superior court of Cook county against Edmonds, Kollath, Dewey, Kellogg Huntington and the Illinois Brick Company, seeking to recover damages for the personal injuries suffered. The cause was dismissed as to Huntington and the corporation. A jury returned a verdict of $12,500 in favor of plaintiff and against Edmonds, Kollath and Dewey, hereafter referred to as the defendants. Upon appeal, the Appellate Court for the First District affirmed the judgment. Moore v. Edmonds, 316 Ill.App. 453, 45 N.E.2d 190. We have granted defendants' petition for leave to appeal.

The principal question presented for decision is the propriety of certain questions asked for the jurors on their voir dire examination. Prior to the interrogation of the prospective jurors, plaintiff filed an affidavit alleging on information and belief that the defendants carried public-liability insurance with the Underwriters at Lloyds of London against risks identical with the one charged in the complaint; that the action had been and was being defended by the insurer; that the attorneys of record for defendants were local counsel for the insurance Underwriters and were, in fact, representing the Underwriters rather than the defendants in this cause; that the Underwriters were vitally interested in the litigation and would, in the event judgment be rendered against defendants, pay the judgment up to the limits of the liability of the policy. Concluding, plaintiff declared that his interests would be prejudiced unless his counsel be allowed ‘to inquire of prospective jurors on their voir dire as to their financial interest, if any, in the said insurance Underwriters, for the reason that your affiant is informed and believes, and upon such information and belief states the fact to be that the said Underwriters at Lloyds of London has a number of employees in Cook county, and there are others in Cook county financially interested in said company.’ Defendants' attorney interposed a motion, supported by his affidavit, to restrain the interrogation of the jurors requested by plaintiff. It was averred that plaintiff had not shown any financial interest, connection or affiliation of the jurors with the Underwriters at Lloyds of London and, on the contrary, that none of the jurors could possibly have a financial interest with the insurer. The motion continued: ‘These defendants further move that before the plaintiff by his counsel be allowed to interrogate the jurors or any of them on voir dire examination, that the said attorney representing the said plaintiff be ordered to interrogate each and all of the said jurors concerning their residence, employment and occupation before being allowed to interrogate the jurors collectively on the voir dire examination concerning financial interest, connection or affiliation with the said Underwriters at Lloyds. That the plaintiff first be ordered to determine whether any of the jurors individually are connected with any company or association and the kind and nature of business of the said company, corporation or association; that the plaintiff be required to obtain this information before inquiring of the said jurors whether or not they are connected or affiliated or interested in any corporation or association engaged in the insurance business.’ The affidavit of defendants' attorney admitted that defendants carried insurance issued by certain individuals who were members of the Underwriters at Lloyds of London, the maximum liability upon the insurance contract being $20,000. The organization of the Underwriters was set forth in considerable detail. Averments were made that insurance is sold in Chicago and Cook county through ‘certain authorized and designated agents;’ that the Underwriters, and particularly the Underwriters on defendants' insurance policy, have employed agents, investigators and attorneys in and about their several contracts of insurance; that each contract between the particular Underwriters thereon and the particular assured, is a separate and independent contract, and, accordingly, that each of the investigators, agents and attorneys is employed on particular policies and claims and has no interest in any other policy except as employments are made. The affidavit gave the name of the agent writing the insurance of the defendants, R. N. Crawford & Company, the name of the investigators, Toplis & Harding, the name of the law firm retained to defend the claim, Ekern & Meyers, adding that none of the officers, agents or employees of R. N. Crawford & Company, Toplis & Harding, or Ekern & Meyers was on the jury panel and, further, that no other agent, investigator or attorney for any of the Underwriters at Lloyds had any financial interest in the outcome of the litigation. Concluding averments expressed the opinion that plaintiffs' affidavit for permission to question the jurors as to their financial interest in the Underwriters at Lloyds was not made in good faith but that its sole purpose was, instead, to apprise the jurors of insurance coverage on the accident in controversy.

Before the examination of the jurors, a colloquy ensued between the trial judge and the attorneys for the parties. Discussion developed relative to interrogating the jurors about friends or relatives who might have an interest in insurance companies, defendants' attorney asserting, ‘Relatives don't have anything to do with it.’ The trial judge directed plaintiff's attorney to first ask the jurors about their occupation, pointing out that if the jurors appeared acceptable, counsel would then have ‘a right to ask them as to their friends, relatives and associates, with reference to any insurance company.’ The four jurors on the first panel were asked, collectively, the question: ‘Have you ever had any connection at all with any company that makes a practice of defending cases of this kind, or do you have any financial interest in such a company as that? Do you have any close friends or relatives associated with a company of that kind?’ Upon receiving their negative replies, counsel then asked, ‘Do any of you have any connection with the Underwriters, Lloyds of London?’ Again, the replies were in the negative. One of the first four jurors was excused by defendants' counsel. Substantially the same questions were then propounded to a new juror. A second panel was examined in the same manner as the first. Three jurors on the second panel were excused and, when others were found acceptable by defendants' counsel, they were asked the questions which defendants assail. Plaintiff's counsel next examined a third panel of jurors. One was excused by defendants and his successor was asked the controverted questions. The questions were necessarily repeated owing to the examination of the jurors in panels. Also, repetition was required when the questions were asked the jurors who replaced those excused. In this manner, the questions were asked six times. Recourse to the record discloses that altogether approximately 450 questions were asked the jurors, about 200 by plaintiff's counsel and the remainder by defendants' attorney.

Defendants' position is that the interrogation recounted constituted reversible error, the contention being made that the specific questions regarding Lloyds of London, together with the general questions concerning the jurors' connection with or financial interest in companies defending personal injury cases were unnecessary to plaintiff's protection and, conversely, merely prejudicial to his adversaries. On the other hand, plaintiff maintains that the trial judge did not abuse his discretionary power of supervision of the voir dire examination of the jurors; that the purpose in asking the questions was to obtain information in good faith for the possible exercise of peremptory challenges and that, since the evidence clearly established defendants' liability, the questions were not and could not have been prejudicial.

The question with respect to when an inquiry as to jurors' interest in an insurance company is prejudicial to defendant has been the subject of frequent and extended consideration by this court and the courts of other jurisdictions. Judicial opinion almost universally recognizes the right of the plaintiff in good faith to interrogate the jurors on their voir dire...