Wall v. Keels

• Decision Date: 01 June 1998
• Docket Number: No. 2848.,2848.
• Citation: 501 S.E.2d 754,331 S.C. 310
• Court: South Carolina Court of Appeals
• Parties: Johnny Mae WALL, Appellant, v. Ernest KEELS and Santee Electric Cooperative, Respondents.

331 S.C. 310

501 S.E.2d 754

Johnny Mae WALL, Appellant, v. Ernest KEELS and Santee Electric Cooperative, Respondents.

No. 2848.

Court of Appeals of South Carolina.

Heard January 8, 1998.

Decided June 1, 1998.

Edward L. Graham, of Zeigler & Graham, Florence, for appellant.

G.D. Morgan, Jr., and Hoover C. Blanton, both of McCutchen, Blanton, Rhodes & Johnson, Columbia, for respondents.

HOWELL, Chief Judge:

Johnny Mae Wall brought suit against Santee Electric Cooperative and Ernest Keels, seeking damages for injuries she suffered when the car she was driving was struck by a Santee truck driven by Ernest Keels. The jury apportioned 50% of the responsibility for the accident to the respondents, but awarded no damages to Wall. The trial court granted Wall's motion for additur, awarding her $2,689.02, which amounted to 50% of the portion of the stipulated special damages the trial court believed it could consider.¹ Wall appeals. We reverse and remand for a new trial.

I.

Wall raises several issues on appeal, but we find it necessary to consider only her arguments concerning the scope of voir dire and the propriety of the respondents' closing argument.

A.

Because the case was tried in Williamsburg County, within Santee's service area, Wall recognized that many of the potential jurors would be Santee customers. Accordingly, Wall submitted to the trial court extensive voir dire requests seeking information about the potential jurors' degree of interest and involvement in Santee's affairs.

The trial court refused to ask most of the questions submitted by Wall. Instead, the court asked whether any members of the venire were employees of Santee or had attended Santee's annual stockholders meetings. The trial court assumed that most of the potential jurors were customers of Santee, stating to the jury:

I live outside the town limits. And you receive electric service from Santee Co-op. Rather than have everyone identify themselves, receive electric and pay a bill every month, I want to ask this question. Are any of you, or have any of you ever served as a director or any other title, if you want to call it that, for lack of a better term, with Santee Co-op? I mean, have you ever had any special title to Santee Co-op, a director or otherwise?

. . . . .

... Let's just have a show of hands who are Santee's line? All right. Thank you. I assumed that. And that's the reason I didn't want to ask that question to each one of you individually.

The court then asked the members of the venire whether they could be fair and impartial, notwithstanding the fact that they received electric service from Santee. All members of the venire indicated that they could be fair and impartial.

The trial court did not require the venire members receiving service from Santee to identify themselves by name, as requested by Wall. Nor did the court ask Wall's question about whether any of the prospective jurors subscribed to Santee's "Living in South Carolina" publication and how often they read it; whether any of the prospective jurors' family members had been a member of the Board of Directors or Board of Trustees for an electric cooperative; or whether any of the prospective jurors had a personal, social, church or employment relationship with any member of either board.

B.

On appeal, Wall contends that the trial court abused its discretion by conducting such a limited voir dire of the jury venire. Wall centers her argument around the fact that those who receive service from a rural cooperative like Santee are much more than mere customers. Instead, they are members of the cooperative who receive proportionate rebates of any excess revenues. See S.C.Code Ann. § 33-49-460 (1990) (providing for the distribution of excess revenues to members of rural electric cooperatives); see also Bush v. Aiken Elec. Coop., Inc., 226 S.C. 442, 445, 85 S.E.2d 716, 717 (1955)

(generally describing operation of electric cooperatives). Thus, Wall argues that cooperative members are more akin to stockholders in a corporation, who are disqualified from sitting as jurors in actions involving the corporation. See Southern Bell Tel. & Tel. Co. v. Shepard, 262 S.C. 217, 221, 204 S.E.2d 11, 12 (1974) ("A stockholder in a corporation is incompetent to serve as a juror in a case in which the corporation is a party or has any pecuniary interest.").

In South Carolina, the disqualification for cause of potential jurors is governed by S.C.Code Ann. § 14-7-1020 (Supp.1997), which provides:

The court shall, on motion of either party in the suit, examine on oath any person who is called as a juror to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appears to the court that the juror is not indifferent in the cause, he must be placed aside as to the trial of that cause and another must be called.

Thus, if membership in an electric or other cooperative involved in a case amounts to an "interest in the cause" such that the cooperative member "is not indifferent in the cause," section 14-7-1020 mandates that members of the cooperative be removed from the venire upon request by a party.

While this issue has not been addressed in South Carolina, it has been considered in other states. Some states hold that members of cooperatives, by virtue of their participation in the cooperative's revenues, are per se incompetent to serve as jurors in cases involving the cooperatives. See Lowman v. Georgia, 197 Ga.App. 556, 398 S.E.2d 832 (1990)

(members of electric cooperative are disqualified from sitting as jurors in criminal prosecution for damage to property owned by the cooperative); Thompson v. Sawnee Elec. Membership Corp., 157 Ga.App. 561, 278 S.E.2d 143, 145 (1981) ("It is clear that the members of an electric membership corporation are in the same position as the stockholders of a corporation ... as regards their right to share in the net earnings of the business. Accordingly, we conclude that the members of an electric membership corporation are disqualified from service as jurors in the trial of a case in which damages are sought from the corporation.") (citation omitted); Ozark Border Elec. Coop. v. Stacy, 348 S.W.2d 586, 591 (Mo.Ct.App.1961) ("[A] member of a rural electric co-operative ..., whose status is akin to that of a stockholder and whose interest, financial and otherwise, is no more remote or minute and certainly no less active or live than that of many stockholders, is disqualified to sit as a juror in a suit to which the co-operative is a party."); State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960) (reversible error to allow member of cooperative association to sit on jury in prosecution for burglary of association's property); Salt River Valley Water Users' Assoc. v. Berry, 31 Ariz. 39, 250 P. 356, 357-58 (1926) (treating members of association as ordinary corporate stockholders and disqualifying them from service on jury in case involving association); Peanut Growers' Exch., Inc. v. Bobbitt, 188 N.C. 335, 124 S.E. 625, 625 (1924) (trial court erred in refusing to strike for cause a juror who was a member of the plaintiff association, notwithstanding juror's assertion that he would be fair and impartial, because "juror was a member of the plaintiff association and necessarily interested in the litigation").

Other states, however, refuse to apply a per se rule of exclusion, instead requiring that actual rather than presumed bias of the potential juror be established through "individualized inquiry as to the nature of the alleged excluding interest." Larson v. Williams Elec. Co-op., Inc., 534 N.W.2d 1, 4 (N.D. 1995); see also Cassady v. Souris River Tel. Co-op., 520 N.W.2d 803, 806 (N.D.1994)

("[M]ere membership in a cooperative association does not signify an interest sufficient to automatically disqualify a person from serving as a juror in a case involving the cooperative. To disqualify a prospective juror, a challenger must establish an actual bias, rather than presumed bias, on the part of the prospective juror."); Garcia v. Coast Elec. Power Assoc., 493 So.2d 380, 384-85 (Miss.1986) ("In a largely rural area such as exists in Mississippi, all people outside municipalities are supplied by electrical cooperatives. Any pecuniary benefit the customer or member receives is practically nil.... Mississippi jurisprudence is not ready to adopt or establish [a per se rule of disqualification]. We have adequate law and authority which will provide for the obtaining of a fair and impartial jury without such a per se disqualification for cause."), overruled in part on other grounds by Whittley v. City of Meridian, 530 So.2d 1341 (Miss.1988) and Robles v. Gollott & Sons Transfer & Storage, Inc., 697 So.2d 383 (Miss.1997).

Nonetheless, we need not in this case decide whether membership in a cooperative association operates as an automatic disqualification from jury service. At trial, Wall did not seek a blanket for-cause disqualification from the venire of all Santee members. Instead, through her proposed voir dire, Wall sought additional information to determine whether any potential jurors, by virtue of their membership in Santee, were in fact biased against Wall's claim.

Thus, the essence of Wall's argument on appeal is that, had she been able to obtain the information she requested, she would have had a basis to seek to strike individual members of the venire for cause, or she would have used her peremptory strikes more intelligently.² Accordingly, Wall contends that the trial court abused its discretion by limiting the scope of the voir dire. Given the unique circumstances of this case, we agree.³

As noted above, S.C.Code Ann. § 14-7-1020 requires the trial court, on motion of a party, to examine the venire to determine if...