Wheeler v. Rudek

• Decision Date: 16 September 1947
• Docket Number: No. 29624.,29624.
• Citation: 74 N.E.2d 601,397 Ill. 438
• Parties: WHEELER v. RUDEK.
• Court: Illinois Supreme Court

397 Ill. 438

74 N.E.2d 601

WHEELER

v.RUDEK.

No. 29624.

Supreme Court of Illinois.

March 19, 1947.

As Modified on Denial of Rehearing Sept. 16, 1947.

Appeal from First Division, Appellate Court, First District, on Appeal from Superior Court, Cook County; John F. Bolton, Judge.

Personal injury action by Emma Wheeler against Abraham Rudek. A judgment for plaintiff was affirmed by the Appellate Court, 328 Ill.App. 283, 65 N.E.2d 611, and the defendant appeals.

Reversed and remanded for a new trial.

WILSON and THOMPSON, JJ., dissenting.

Cassels, Potter & Bentley and Samuel Levin, all of Chicago (Kenneth B. Hawkins, of Chicago, of counsel), for appellant.

Louis G. Davidson and Joseph D. Ryan, both of Chicago, for appellee.

MURPHY, Justice.

Plaintiff started this action in the superior court of Cook county to recover damages she sustained when the automobile she was driving collided with an automobile owned by defendant but driven by his servant Robert Lee. The accident occurred at the intersection of Ninetieth street and South Phillips avenue in Chicago. When the suit was started Lee was named as a defendant but later the action was dismissed as to him. Plaintiff and Lee were the only eyewitnesses to the accident. Other witnesses included police officers who testified to the damaged conditions of the automobiles and their location in the street after the collision. There was testimony as to the length and course of certain tire marks on the pavement. The difference in the version of the eyewitnesses as to the circumstances surrounding the accident presentedcontested questions of fact as to the speed of defendant's automobile as it approached the intersection and as to which automobile had the right of way across the intersection. The jury returned a verdict for plaintiff in the sum of $7500. The judgment entered thereon was affirmed by the Appellate Court. 328 Ill.App. 283, 65 N.E.2d 611. We granted defendant's petition for leave to appeal. The errors relied on for reversal are that plaintiff was permitted to ask improper questions in the examination of jurors on their voir dire and that the charge of wilful and wanton negligence as laid in the second count of the complaint should not have been submitted to the jury.

Before starting the impaneling of a jury, a hearing was had out of the presence of the jury to determine whether plaintiff might interrogate the jurors on their voir dire as to their interest in, and relationship to, an insurance company whose business was to insure against risks such as plaintiff's claim. During such hearing it was admitted defendant had a public liability policy with a limitation of $5,000, issued by the Commercial Casualty Insurance Company. The court ruled such inquiry might be made and approved the form and substance of the questions to be asked. They were as follows: ‘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?’ Second question: Do you have any close friends or relatives associated with a company of that kind or financially interested in such a company?‘ The questions were asked of panels of four and all answers were in the negative. Other questions propounded by plaintiff included inquiries as to the juror's residence and occupation, and, if the one being interrogated was a married woman, the inquiry extended to include the occupation and business of her husband. It developed in the examination of one woman juror that her husband had been in the employ of a life insurance company, and plaintiff challenged her peremptorily. Except for such information as might be imparted to the jurors by the two questions, there was nothing that occurred in the examination of the jurors or in the trial that would arouse any suspicion that defendant had public liability insurance.

Questions of similar import were considered by this court in Smithers v. Henriquez, 368 Ill. 588, 15 N.E.2d 499;Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, 37 N.E.2d 801;Kavanaugh v. Parret, 379 Ill. 273, 40 N.E.2d 500, and Moore v. Edmonds, 384 Ill. 535, 52 N.E.2d 216. These cases are cited by both parties and their arguments indicate that they hold widely different views as to the principles of law announced in them. The arguments are directed to the results of each decision rather than to the law, and if the difference in the facts in the several cases is noted, the difference in the results is understandable. A principle of law that runs through all the cases is that, in an action of this kind where defendant carries public liability insurance, the plaintiff has the right, within certain limitations, to interrogate prospective jurors on their voir dire as to their interest and relationship to insurance companies that carry such insurance.

The purpose for which the questions are permitted to be asked is not different from the purpose which permits an inquiry of a prospective juror as to his association, acquaintanceship and relationship to the parties to the action, his present or past business experience and the many other subjects that are frequently developed in the impaneling of a jury. However, the propounding of a question that involves a reference to defendant's insurance is placed on a different basis from most of the other questions. The reason is to protect the defendant against the inclination of jurors to cast the burden of damages, where there is insurance, upon the company whose business it is to insure against such risks. To avoid the possibility of such action on the part of juries, this court has placed certain conditions on which the right to ask the question may be exercised an has directed that the substance of the question shall be restricted to avoid, insofar as possible, the conveying of information to the jury that the defendant has insurance. It may be that under present day conditions of the general use of the automobile and the general practice of automobile owners carrying public liability insurance, the reason for the safe-guarding of such question has lost its force and that the matter is over-emphasized. But since we are dealing with a principle that involves insurance carried by a defendant to protect him against risks arising in various fields of endeavor, we will not, at this time, make any exception to distinguish automobile insurance from other classes of insurance carried for similar purposes.

A principle on which the right to conduct such examination of jurors depends is that the examination must be made in good faith. That is the holding in each of the cases cited. And in all cases there is the ever recurring inquiry as to whether plaintiff asked the question to determine whether the jurors were, by reason of financial interest in or relationship to an insurance company, so defense-minded as to render them unsuitable for jury service or, on the other hand, as to whether the purpose was to covertly convey to the jury information that an insurance company was standing in the background. If it is for the latter purpose, the effort deserves the severest condemnation.

It is clear there must be good faith shown as to defendant's risk being insured. If defendant has no insurance then any interrogation of jurors that would give them information or create a suspicion in their minds as to defendant being insured would be highly improper. Good faith also extends to the probability of there being jurors who may be called that would be unsuitable to plaintiff for jury service by reason of their interest in, connection or relationship to an insurance company. If there is no reasonable probability of any of the jurors who are to be called being connected in some way or interested in the company, then the inquiry should not be made. The facts in the Kavanaugh case were of this character and it was held that the question should not have been asked. In the Edwards case the only showing was that defendant had insurance and that the insurance company was conducting the defense for the defendant. But it did not appear that there was any probability that any of the jurors to be called were connected with or interested in insurance. There are statements in the opinion of the Moore case indicating there was a showing as to the possibility of some of the jurors who had been called being interested in insurance companies whose business it was to insure risks such as was involved in that case, but a factor in that decision was that defendant's counsel had invited or acquiesced with the procedure that led to the asking of the question and therefore could not make complaint.

The subjects mentioned on which there must be a showing of good faith are not intended to include all that may arise in the impaneling of a jury. The ones stated have been mentioned to demonstrate the necessity of showing that the purpose for asking the question is based on something more than a mere surmise. As a matter of practice it is proper to state at this time that the determination of the question of good faith is for the trial court and unless there has been an abuse of that discretion his conclusion should not be disturbed in a court of review. Another point of practice about which counsel in this case seem to be confused is the manner in which the question of good faith may be presented to the court. The cases indicate that the trial courts and the bar generally accepted the statement in the Smithers case, that the filing of an affidavit and a preliminary hearing on the question was commendable, as the announcement of a rule of practice. The showing may be made by affidavit or by testimony of witnesses or a combination of both. To accomplish the purpose of the inquiry, it appears necessary that there be a hearing outside the presence of the jury.

We do not intend by the suggestions made to prescribe a practice that may...