I am unable to follow the majority opinion, either in logic or in view of its former holdings. This question is entirely too controversial and presents to the trial court too much difficulty of solution without a rule laid down that, with justice, can consistently be followed. It is apparent the opinion is in conflict with the case of Moore v. Edmonds, 384 Ill. 535, where a man by the name of Moore, accompanied by his young daughter and two of her friends, was riding on his own toboggan over a slide maintained by the defendant, and Moore sustained serious injuries at a ditch which traversed the runways on said slide. A jury returned a verdict of $12,500 in favor of plaintiff, which was affirmed by the Appellate Court. The cause was appealed to this court and the principal question for decision was the propriety of certain questions asked 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 defendant 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 insurers; that the attorneys of record for defendants were counsel for the insurance company and were representing such company rather than the defendants in the cause; that the insurance company was vitally interested and in the event of a judgment rendered *Page 452 against defendants, must pay up to the limits of the liability of the policy.
Concluding, plaintiff declared that his interest would be prejudiced unless his counsel would be allowed to inquire of prospective jurors on their voir dire examination as to their financial interest, if any, in the said insurance company, for the reason that as affiant was informed and, upon such information, states the facts to be that the insurance company 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 insurance company, and, on the contrary, that none of the jurors could possibly have a financial interest with the insurer.
The trial judge there 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: "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. The questions were repeated owing to the examination of the jurors in panels.
The affidavit of the defendant there, after setting out in great detail that the company was operating extensively *Page 453 in Chicago and Cook county through agents, and that it employed investigators and attorneys to protect defendants' insurance policies, concluded with an averment expressing the opinion that plaintiff's affidavit for permission to question the jurors as to their connection with the insurance company 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.
We held there that the record disclosed good faith in seeking to ask the questions and the painstaking efforts by plaintiff's counsel to interrogate the jurors in a manner eminently fair to the defendant, as well as to his own client; that the procedure pursued by the trial court and plaintiff's counsel reflects a sincere attempt to follow the suggestions of the court inSmithers v. Henriquez, 368 Ill. 588, and demonstrates that counsel can accomplish the objective of preventing persons interested in the insurance carrier from serving as jurors by adhering to our admonition in the Smithers case and in the case of Edwards v. Hill-Thomas Lime Cement Co. 378 Ill. 180, andKavanaugh v. Parret, 379 Ill. 273.
It is stated in the majority opinion "but a factor in that decision [the Moore case] was that the defendant's counsel had invited or acquiesced with the procedure that led to the asking of the question and therefore could not make complaint." This, in my judgment, did not control that decision. The decision in theMoore case, clearly followed the other decisions of this court, presenting principles of law which, in my judgment, should control in the instant case. From the authorities cited and the reasoning followed in that case, the court decided these questions there, which are similar to the questions in the instant case and did not violate the good faith in interrogating prospective jurors on their voir dire examination. *Page 454
An analysis of the affidavits in the Smithers case, as well as in the Moore case, reveals they are substantially the same. The affidavit in the instant case follows the other cases and all are substantially the same. In the Moore case the defendant requested that before the plaintiff be allowed to interrogate the jurors on their voir dire examination, the plaintiff first be ordered to determine whether any of the jurors individually were connected with any company or association, and the kind and nature of the business of said company; that the plaintiff be required to obtain this information before inquiring of the said jurors whether or not they are connected, affiliated or interested in any corporation. This the court did not require and plaintiff was permitted to ask the questions as above pointed out on the showing as made in his affidavit. The majority opinion clearly overrules this holding and imposes an impossible burden in requiring as a condition prerequisite to "good faith" to state facts impossible of ascertainment.
This showing made and the rule laid down in the cases ofSmithers v. Henriquez, 368 Ill. 588, and Moore v. Edmonds,384 Ill. 535, should be followed, as they give to the courts and trial lawyers a proper basis for a showing of "good faith." It is impossible, not only in Cook county, but in other counties, to ascertain the facts pertaining to specific jurors which would justify the inquiry under the tests laid down in the present opinion of the court. If the counsel had this knowledge, he could easily challenge the suspected juror. The preliminary affidavits are for the very purpose of disclosing that the insurance company is the party in interest, and with its many investigators, agents and attorneys, this necessitates an examination of prospective jurors as to their connection with the defendant company or its agents or servants. All of this is for the purpose of properly exercising the right of peremptory challenge. As a practical proposition, I say it is impossible *Page 455 for the plaintiff to know, or for anybody to know, who the jurors will be until they step into the box. It is for that reason that it is necessary to make such inquiry as was made in the instant case. To compel this to be done and to set out such facts is obviously contrary to what was said in the Moore and Smitherscases.
It is apparent that no further or more concrete showing ever can be made by the plaintiff than was made in the instant case or in the cases of Moore and Smithers, and to require a plaintiff to do what apparently required in the opinion in the instant case changes and restricts drastically the rule laid down in the former cases and will render it practically impossible to determine a prospective juror's interest in any insurance company without danger of a reversal, all of which, in my judgment, overrules what, in previous cases, we have determined is a plaintiff's right in interrogating prospective jurors after a proper basis by affidavit has been made for that purpose. It is also just as obvious from the above cases that the showing made by preliminary affidavits warranted the questions being propounded to prospective jurors and that these questions as propounded did not violate "good faith." It seems in the instant case this procedure was followed, both as to affidavit and questions propounded. I do not think plaintiff should be punished because she rightfully relied upon the rule of stare decisis. In my judgment, the procedure, as followed and approved in the Moore and Smithers cases, and which was followed and should be approved in the instant case, is reasonable ground on which to stand, in view of the almost universal holding that in personal injury cases the plaintiff may in good faith interrogate the jury onvoir dire as to their, or their relatives', possible connection with or interest in liability insurance companies. To deny this principal, which is not even denied in other cases, seeks, in my judgment, to afford insurance companies with vast ramifications and connections in every *Page 456 locality an undue advantage to the real party in interest. I am also inclined to believe defendants in such cases are over-sensitive for fear a breath of suspicion may enter the minds of the jury that the defendant is insured. In this day and age it is common knowledge that most, if not all, automobile owners carry insurance and in the trial of cases the defense is usually conducted by the insurer.
Under my views in this case, I must respectfully dissent.