I cannot agree with this opinion. It states: "It appears that at the commencement of the trial appellee's counsel filed with the judge in chambers, out of the presence of the jury, an affidavit stating upon information and belief, and as a result of his investigation of the case, that appellant was insured in the Union Auto Indemnity Association of Bloomington, Illinois; that that company is a reciprocal and not a stock company and that appellant was being defended by attorneys selected by the company and not those of her own choosing. The affidavit also stated that the company had agents, representatives, solicitors, investigators and numerous policyholders in Will county, and was vitally interested in the defense. The affidavit further stated that the question sought to be asked was to prevent appellee's rights being prejudiced in the selection of the jury."
Then follows a paragraph dealing with a counter-affidavit and testimony about the jury list, to the effect no prospective juror was interested in the insurance company that had been named.
Beginning at page 590 in Smithers v. Henriquez, 368 Ill. 588, we discussed the affidavit made in that case and *Page 281 the correctness of the court's ruling that plaintiff had a right to ask whether any of the jurors had any interest in the insurance company there involved. In the two cases the proceedings and circumstances are as nearly identical as can be. For example, at page 591 in the Smithers case this appears: "It is urged that the plaintiff's affidavit did not allege that she believed or had any ground to believe that any of the jurors were financially interested in the defending insurance company, and that after propounding the question counsel made no effort to obtain an answer." On that same page this appears: "In any case, to say that as a basis for such an inquiry, litigants must, before the trial, examine the jury lists and investigate and determine the qualifications of prospective jurors, would impose an onerous and unreasonable task upon them, and, in effect, nullify the statutory provision and time-honored custom of examining jurors upon the trial. The affidavit made a sufficient showing to warrant the granting of a proper inquiry."
In Edwards v. Hill-Thomas Lime Cement Co. 378 Ill. 180, no affidavit was presented, only an oral motion. At page 185 appears the statement: "While there is nothing in the record to show the request was not made in good faith, the record is equally barren of any fact which tends to show that it was so made. The grounds stated by counsel as reasons for asking the questions were wholly insufficient. Likewise, the facts stated by counsel for appellant, under oath, for the purpose of obviating the supposed necessity for the questions, were insufficient for that purpose, if the grounds upon which the request was made had been sufficient." And at page 187: "In this case because of other errors in the record, it is not necessary for us to determine whether this error, alone, would be sufficient to require us to reverse the judgment. We have set out somewhat in detail the facts surrounding the examination of the jurors *Page 282 and we disapprove the practice followed and admonish trial courts that such an examination of jurors should only be permitted, strictly for the purposes, and upon a proper showing, as pointed out in the decisions of this court."
In the instant case appears the statement: "The only material distinction between this case and the Edwards case lies in the fact that here the request was made under oath, while in theEdwards case it was an oral motion."
This is not correct. I have attempted to set out those material parts of the Smithers case and the Edwards case to show that the case here before us is almost an exact parallel to the Smitherscase. This court did not intend by the Edwards decision to overrule the Smithers decision but that is the effect of this opinion. Two things will follow, and perhaps more, that are highly undesirable. The first is, that plaintiff's counsel will be compelled to search out prospective jurors and learn whether they are interested in the defending insurance company, financially or through employment. If this is done, insurance company lawyers will complain bitterly.
The other thing is that there are counties which have mutual insurance companies operating in them. These companies have a large number of policyholders and at times it has been impossible to get a fair jury in any automobile collision case because there were so many of such policyholders on the jury panel.
I am not in favor of denying a right to a litigant to learn whether prospective jurors will be fair jurors if accepted where he seeks that right as he did here and as was done in theSmithers case with fairness to the defendant.
Mr. JUSTICE WILSON, also dissenting. *Page 283