I concur in the result reached by the majority opinion in this case because the defendant's attorney invited the interrogation of jurors, now objected to, by suggesting that after they had been generally examined they could be collectively interrogated concerning financial interest, connection or affiliation with the Underwriters at Lloyds. In my opinion the court did not allow interrogation substantially *Page 552 at variance with this suggestion of defendant's counsel, and hence he is in no position to raise the objection that such examination improperly disclosed that an insurance company was involved; and likewise it would negative the absence of good faith upon the part of plaintiff's attorney.
The majority opinion, however, is not based upon this proposition, but in my opinion extends the rule laid down inSmithers v. Henriquez, 368 Ill. 588, so that for practical purposes the door is now open for the plaintiff upon voir dire examination of jurors to fully disclose an insurance company's interest. And further, the range of questions permitted renders it impossible for a defendant by affidavit to show that no person connected with an insurance company has a direct interest in the result of the litigation.
In Edwards v. Hill-Thomas Lime Cement Co. 378 Ill. 180, the cause was reversed and remanded because the interrogation concerned an insurance carrier of the defendant. No affidavit was filed by the plaintiff showing the necessity for such examination, but simply an oral request before the judge in chambers, and this was held to be insufficient to show such questions were made in good faith. In Kavanaugh v. Parret,379 Ill. 273, the cause was reversed and remanded because the jurors were permitted to be interrogated concerning their interest in a certain insurance company. There was an affidavit filed in this case, but the counteraffidavit disclosed facts which showed the plaintiffs could not be prejudiced by a trial before the jurors then in court. It was said in that case the effect of the question was to advise the jury the insurance company was making the defense and was liable for the payment of any judgment rendered. In St. Clair Housing Authority v. Quirin, 379 Ill. 52, the cause was reversed and remanded because the questions asked upon examination of the jury conveyed information that the government was interested in the financing of a project, and therefore it would not cost the taxpayers. *Page 553
These cases, with the Smithers case, point out the extent to which jurors may be examined upon the interest of an insurance company upon their voir dire, and how it may be avoided. If the plaintiff makes an affidavit showing that he has grounds to fear that there are persons about to be selected on the jury who are interested in an insurance company, this will permit reasonable examination to be made of them, without disclosing the name of the company, unless a counteraffidavit fully discloses that none of the persons on the jury have a direct financial interest in the result of the case.
The Smithers case lays down the rule that the plaintiff is entitled to see that no "interested party" sits as a juror in the case. The comment of the court in justifying questions asked in the present case does not base it upon the reasonable construction of the concession made by defendant's counsel, but lays down the general rule that, in addition to showing that a juror is not an interested party, the affidavit of the defendant must also show that no close friends or relatives of the agents or investigators of the insurance company, or former employees of the agency or investigating firm, or the issuer of the policy, or friends or relatives of agents who are engaged in other types of insurance for the same company protecting the defendant must be negatived; otherwise interrogatories may be asked concerning the same.
The establishment of this rule renders it impossible for a defendant to prevent the disclosure that he is protected by insurance, or the name of the insurance company insuring him, for it is impossible in large-sized communities for an affidavit to be made excluding all such classes of persons. None of such persons are interested parties within the meaning of the law. Such a rule throws an unjust burden upon a defendant, because in many instances an insurance company makes the defense under a nonwaiver agreement, by which it is at liberty to contest payment of the *Page 554 award, because of breach of conditions in the policy; and in such case a defendant not only has the burden of establishing his defense on the merits, but also of overcoming any tendency upon the part of a jury to find against an insurance company.
In my opinion, the additional latitude permitted by this opinion in the examination of jurors is in direct conflict with the result reached in the St. Clair Housing Authority case, andKavanaugh v. Parret and Edwards v. Hill-Thomas Lime Cement Co.cases. The effect of the opinion is to extend the rule without having an issue in the case justifying such a conclusion, and a substantial extension of the law applicable to such cases is made without proper consideration of the decisions following Smithers v. Henriquez, 368 Ill. 588.
To extend the rule on such an important matter of trial practice in my judgment requires that the point be directly presented for consideration, and that the rule not be modified or extended by dicta which is unnecessary for a proper determination of the case. In my judgment the opinion goes far beyond anything heretofore announced by this court, and is in conflict with the decisions pointed out above. While I believe the result reached is correct, I think the language used in the opinion was wholly unnecessary and susceptible of being considered a deviation from our former rulings, and therefore I cannot concur in the reasons given for the affirmance of the judgment in this case.
Mr. CHIEF JUSTICE SMITH and Mr. JUSTICE STONE join in this special concurrence. *Page 555