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Pinkerton v. Oak Park Nat. Bank

JANUARY 15, 1958.

ROBERT WAYNE PINKERTON, A MINOR BY HIS NEXT FRIEND AND MOTHER, ALICE PINKERTON, APPELLEE,

v.

OAK PARK NATIONAL BANK, TRUSTEE UNDER TRUST NO. 1608, GERTRUDE SEELIG AND EXCHANGE NATIONAL BANK OF CHICAGO, TRUSTEE UNDER TRUST NO. 2246. ON APPEAL OF MAURICE NORMAN ET AL., ADMINISTRATORS OF ESTATE OF JOHN L. LYNCH, DECEASED, APPELLANTS.



Appeal from the Superior Court of Cook county; the Hon. DANIEL A. COVELLI, Judge, presiding. Affirmed.

JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

The cause of action in the lower court was for personal injury. It was originally brought in the name of Robert Wayne Pinkerton, a minor, by his next best friend and mother, Alice Pinkerton. The injury allegedly occurred when a railing on a back stair gave way and the minor fell to the ground. There were named as defendants numerous parties who it was alleged were the owners or had some interest in the property at the time the injury occurred. The property was in the course of sale and transfer at or about the time that the injury complained of occurred and there was resulting confusion as to who at that particular date were the owners of the property. Later an order was entered dismissing the defendants who had been sellers of the property and ordering that the plaintiff Robert Wayne Pinkerton be the sole plaintiff, as he had reached his majority, and the action was continued against the purchasers of the property — Maurice Norman, Cyril I. Milton, Pearl Milton, and John R. Karlson and James M. Ryan, Administrators of the Estate of John L. Lynch, deceased, and those defendants are the appellants in this proceeding. They will be hereinafter referred to as the defendants.

The incident out of which it is alleged that this cause of action accrued occurred on April 30, 1951. The plaintiff, who was then 17 years of age, was out of a job and looking for one. He and his friend Russell Creager spent the morning in making application for work. Shortly after noon Russell Creager called the plaintiff and asked him to come to his house for a visit. The plaintiff went to the home of Russell Creager, which was located at 2813 W. Monroe Street on the second floor. He entered the house from the front and was met by Russell Creager's grandmother, who told him that Russell was out back on the first floor. He went through the house, down the back steps and joined Russell, where they spent an hour or two together. At the expiration of that time the plaintiff said he wanted a drink and asked Russell if he might get one, and Russell told him he could go upstairs. Plaintiff went upstairs and got the drink. As he started to return to the first floor he grabbed the banister of the rear stairs with his left hand and it gave way with him and he fell to the first floor. He sustained injuries and was taken to the Cook County Hospital, and there is medical testimony which indicates that his injuries are permanent. The jury returned a verdict in favor of the plaintiff and fixed his damages at $10,000. The customary post-trial motions for a new trial and for judgment non obstante veredicto were made and denied by the trial court. The case is here on the appeal of the defendants from that verdict and that judgment.

The defendants urge error in three particulars: (1) that the court erred in admitting evidence relating to insurance and in denying the motion for a mistrial at that point in the trial of the case; (2) that the court erred in giving an erroneous instruction to the jury; and (3) that the plaintiff was guilty of contributory negligence as a matter of law.

In order to properly understand the matter relating to the mentioning of "insurance" it is necessary for us to understand exactly what transpired and what was said and done. On the afternoon of September 11, 1956 the plaintiff Robert W. Pinkerton took the stand for direct examination. He gave his version of how the accident occurred. In the afternoon session on September 12th the plaintiff resumed the stand for further direct examination, and during that session he was tendered for cross-examination. In the course of that examination by the defendants' attorney it was brought out by defendants' counsel that on June 25, 1951 the plaintiff and his friend Russell Creager had been visited by two men. It was developed by defendants' counsel that one was a stenographer and the other was John E. Leahy; that they asked the two boys questions and that they were given the answers; and then the plaintiff was asked if certain questions were asked and if he gave certain answers. The record indicates the questions were asked from a stenographic report of this witness. The answers which were inquired about were impeaching in regard to his previous testimony as to exactly how the accident had taken place. He denied hearing the questions and making the answers as outlined by defendants' counsel. The plaintiff was still on the stand for cross-examination at the close of that session of court. At the convening of court at 10 o'clock on September 13, 1956, other witnesses were put on the stand for short examinations, and then the plaintiff was placed on the stand again and cross-examination resumed and the cross-examination that morning is represented by an additional 25 pages of transcript. Then the plaintiff was tendered for redirect examination by his counsel and it was developed that Mr. Leahy and the stenographer did not identify themselves when they came — that is, they did not mention their names, but they told the plaintiff where they were from and that they represented the owners of the building. Finally the plaintiff's attorney asked this question: "What, if anything else, was said in addition to what you have told preliminary to having you answer some of these questions?" Objection was made and overruled and the following answer was given: "They were from the New Hampshire Insurance Company." An objection to the answer was made and a motion to withdraw a juror and a motion to declare a mistrial, both of which were denied. This interrogation was intentional to bring out what the plaintiff thought was his right, to show the interest of the persons who took the statement made and used in cross-examination. (See Williams v. Matlin, 328 Ill. App. 645, discussed hereafter.) It was not a casual or inadvertent disclosure, but the record does not indicate that it was done in any inflammatory manner or one intended to arouse passion or prejudice. Neither does the record indicate that there was any prior mentioning of insurance or any subsequent mentioning of insurance by anybody. This is the error of which complaint is made.

Shortly after the turn of the century there developed a line of cases which put a strict restriction upon the mentioning of the fact that a defendant was covered by insurance. In the case of Wiersema v. Lockwood & Strickland Co., 147 Ill. App. 33, plaintiff's counsel had brought out on cross-examination of a doctor that his bill was paid by an insurance company. The court in that case very clearly sets forth the basis upon which that decision was made, as follows:

"We are compelled to reverse and remand the case for another trial because of the manner in which counsel for defendant in error brought to the attention of the jury matter irrelevant and prejudicial to the plaintiff in error. . . .

It is of vital importance in the administration of justice that cases should be fairly presented to the jury. It is fundamental that any verdict shown to have its basis in passion or prejudice, or which may have its basis in irrelevant evidence, must be set aside by the trial judge. . . .

Counsel for Wiersema either suspected or knew that the defendant, Lockwood & Strickland Company, carried insurance in the London Guaranty & Accident Company, whereby defendant would be indemnified or reimbursed for money paid out by reason of any injury to any of the defendant's employes.

If defendant was so protected, that fact could not, under the law, be permitted to either increase or decrease the amount to be recovered by the plaintiff, nor could it be permitted, lawfully, in the slightest degree, to affect the question of defendant's liability for the injury to the plaintiff. Furthermore, the Accident Insurance Company neither was nor could then be before the court, having a hearing in respect to the existence or the extent of its liability. Therefore, if the jury increased the amount of the verdict or if the decision of the jury upon the question of liability was influenced favorably to the plaintiff, in the slightest extent, because the Insurance Company stood back of the employer, who was in court making the defense, to reimburse it, then, to that extent, the Insurance Company was deprived of its property without due process of law — without a hearing. Manifestly such result would be not only erroneous but grossly unfair and unjust. The introduction of irrelevant matter of such possible evil tendency should be most scrupulously avoided by counsel and most carefully guarded against by the court."

As the admission of irrelevant testimony would not necessarily by itself be a basis for a mistrial or reversible error, it is obvious that that decision is based upon two points: (1) that the mentioning of insurance and indicating that the defendant was protected thereby caused passion or prejudice; (2) that the fact that the defendant was protected by insurance would set the defendant apart in a separate class in the minds of the jurors and that that fact should not be permitted to either increase or decrease the amount to be recovered by the plaintiff or influence their opinion as to the existence of liability, and that there was a probability that the jury would do that.

Certainly the public acquaintance with and attitude towards liability insurance is far different today than it was in the days of the Wiersema decision — 1909. Its existence and impact upon our civilization is one of the facts of life.

It would seem highly improbable that you could today select a jury in Illinois where a great number of the jurors would not be entirely familiar with the preponderating use of liability insurance, and, as we always instruct jurors — and did in this case instruct them, that in considering the evidence they are not required to set aside their own observations and experience in the affairs of life, we may well understand and anticipate that they would in the ...


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