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Dertz v. Pasquina

JULY 12, 1973.

DOLORETTA MISHKA DERTZ, PLAINTIFF-APPELLEE,

v.

ELEANORA WAGNER PASQUINA ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 20, 1973.

This is an appeal by Eleanora Pasquina from a judgment upon a verdict assessing damages against her in the amount of $90,000. The trial court directed verdicts against defendant Pasquina, but for her co-defendants, on the issue of liability to the plaintiff. Defendant also urges as error, in addition to the entry of the directed verdicts, the trial court's granting of plaintiff's motion to question prospective jurors on voir dire examination as to their possible connection with two insurance companies, the admission into evidence of an alleged offer of compromise which she made to one of the co-defendants, and the excessiveness of the jury's verdict.

The case arises out of an automobile accident occurring on August 25, 1963, near Butternut, Wisconsin. Plaintiff was a passenger in the front seat of a vehicle owned by co-defendants Stanley and Helen Migon, Jerry and Francis Zavadil, individually and doing business as Cedar Lodge. The vehicle was being driven by defendant Pasquina who, with the plaintiff and two other girls, had come from Chicago to the Cedar Lodge on a brief vacation. During their stay the four girls were offered the use of an automobile owned by the Lodge in order to attend religious services being held nearby. On their way to the services the automobile left the road on a curve and crashed into a deep ditch, seriously injuring the plaintiff.

Plaintiff filed a motion, prior to trial, seeking leave to question prospective jurors on voir dire examination concerning their possible interest — financial or otherwise — in two insurance companies. In support of the motion plaintiff attached an affidavit which stated the following in pertinent part:

"Affiant further states that the defendant Eleanora Wagner Pasquina is covered by a policy of insurance written by Security Mutual Casualty Company, 309 West Jackson Boulevard, Chicago, Illinois; that this company has many employees in Cook County, Illinois; that the Security Mutual Casualty Company is an insurance company owned by Swift & Company, 115 West Jackson Boulevard, Chicago, Illinois, and she has been advised it specializes in writing policies of insurance on automobiles of Swift & Company, as well as in reinsurance agreements; that Swift & Company has many hundreds of employees in Cook County, Illinois, and its stock is traded on the New York Stock Exchange, and there are many persons, residents of Cook County, Illinois, who are financially interested in Swift & Company and in Security Mutual Casualty Company which, she is informed, is known to Swift & Company employees as a wholly owned insurance subsidiary of Swift & Company.

Affiant further states that this action is, according to her information, being defended by each of the said insurance companies; that the attorneys of record for the defendants are local counsel engaged for these insurance companies and are in fact obligated under their contracts to provide a defense for the respective defendants; that these insurance companies are vitally interested in the litigation and would, in the event judgment be rendered against the defendants, pay the judgment up to the limits of the liability of the respective policies.

Affiant further states that in addition to counsel engaged in the actual defense of this case, the said insurance companies employ agents and investigators in and about their several contracts of insurance.

Affiant further states that she believes her interests would be prejudiced unless her counsel be allowed to inquire of prospective jurors on their voir dire as to their financial interest, if any, in the said United States Fire Insurance Company and the said Security Mutual Casualty Company, in that prospective jurors might possibly be financially interested in either of the said companies."

• 1 Defendant Pasquina objected to plaintiff's motion on the ground that plaintiff had failed to show factual circumstances indicating a good faith basis for such an interrogation. The trial court allowed plaintiff's motion, and the entire array of prospective jurors were specifically questioned as to any interest they might have in these insurance companies. The right of a plaintiff to interrogate, in good faith, prospective jurors on voir dire examination as to their possible connection with an insurance company which may be a hidden, yet real, party in interest in the case, has been long established. (Smithers v. Henriquez, 368 Ill. 588.) Under particular circumstances, such an inquiry may be necessary so that plaintiff may intelligently exercise his right of peremptory challenge and have an opportunity to present his case before an unbiased and disinterested jury. However, the allowance of an interrogation of this kind has always been predicated upon the plaintiff's prior showing that such was necessary to secure a fair trial, thus demonstrating that the inquiry will be made in good faith and not merely for the purpose of creating in the minds of the jurors a suspicion that insurance was involved in the case. Wheeler v. Rudek, 397 Ill. 438.

In Wheeler, an affidavit substantially like the one involved here was held to be insufficient to exhibit the good faith of the plaintiff. The court stated, at page 445:

"The fact that defendant carried insurance was conceded, but to conform with the requirement of good faith it was necessary that there be something shown that would indicate there was a reasonable possibility that one or more of the jurors to be called in the case was interested in or related in some way to the Commercial Casualty Insurance Company. Such proof could not be made by the statement of conclusions, and to say that the company has `numerous persons employed at its office' and that it `has many other persons acting as investigators, agents and brokers in Cook county' is resting the claim on the merest shadow of possibility. The jurors were not named and no facts were stated showing that plaintiff knew who the jurors would be. There were no facts upon which a finding of good faith could be made as to the jurors' connection with the insurance company. In the quoted part of the affidavit it is said affiant has `reasonable grounds for believing' that persons who are interested in the company may be among the panel of jurors called into the jury box. Affiant did not set forth what her reasonable grounds were and without them the court had no way of determining whether she was justified in her belief that persons interested in the insurance company would be called into the jury box."

Plaintiff cites Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336, in support of her contention that the interrogation of the prospective jurors concerning the insurance companies was not error. The Haymes case is distinguishable in that the defendant there objected to the plaintiff's voir dire questions concerning an insurance company, but did not object on the ground that there was not a sufficient showing of good faith for such an inquiry. The court held, not that a proper foundation was not necessary, but that the defendant, by not objecting to the lack of foundation, had waived any error in plaintiff's proceeding with the questioning without it. In the case before us, defendant specifically objected to the lack of a proper foundation for the inquiry.

Plaintiff also cites Moore v. Edmonds, 384 Ill. 535, in support of the sufficiency of her affidavit to establish a good faith foundation. Moore and similar authorities predate Wheeler v. Rudek, supra, and while not expressly overruled by that decision, are ...


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