Wallace v. Alabama Power Co.

• Decision Date: 19 September 1986
• Citation: 497 So.2d 450
• Parties: Ezzie Charles WALLACE v. ALABAMA POWER COMPANY, A Corporation. FIDELITY & CASUALTY COMPANY v. ALABAMA POWER COMPANY, A Corporation. 83-732, 83-750.
• Court: Alabama Supreme Court

Page 450

497 So.2d 450

Ezzie Charles WALLACE v. ALABAMA POWER COMPANY, A Corporation.

FIDELITY & CASUALTY COMPANY v. ALABAMA POWER COMPANY, A Corporation.

83-732, 83-750.

Supreme Court of Alabama.

Sept. 19, 1986.

Rehearing Denied Nov. 7, 1986.

Joseph J. Boswell, Mobile, for appellant Ezzie Charles Wallace.

A. Danner Frazer, Jr., and Patricia A. Davis of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for intervenor Fid. & Cas. Co.

John P. Scott, Jr., of Balch & Bingham, Birmingham, and Carroll H. Sullivan of Gaillard, Little, Hume & Sullivan, Mobile, for appellee.

PER CURIAM.

These appeals are from the trial court's denial of the plaintiffs' motions for a new trial and the motion of one of the plaintiffs for a judgment notwithstanding the verdict. The appellants cite as error several of the trial court's rulings during the course of the trial. After considering each of their arguments, we reverse and remand.

On August 23, 1977, Ezzie Charles Wallace was working as a roofer in Mobile. While making repairs to the roof of Building # 274 in the Brookley Industrial Complex, he came in contact with, or in close proximity to, power lines owned by Alabama Power Company. As a result of the accident, he suffered severe injuries that required the amputation of both of his arms at the mid-forearm level. Wallace filed this suit in October 1977, alleging that the defendant's negligence in furnishing electricity through the wires at Building # 274 caused his injuries. Wallace received workmen's compensation benefits from his employer's insurer, Fidelity & Casualty Company. Fidelity & Casualty was granted permission by the trial court to intervene in this action to protect its right of subrogation.

Issue 1

Wallace contends the trial court abused its discretion by failing to dismiss a juror for cause. Louise I. Douglas, a member of the prospective juror panel, stated that she owned 100 shares of stock in the Southern Company, the parent company of Alabama Power. The trial judge asked her if her ownership of that stock would affect her ability to render a fair verdict based solely on the evidence admitted at trial, and she answered, "No, I'm sure it wouldn't." Denying Wallace's challenge of Mrs. Douglas for cause, the trial judge stated:

"Considering the number of shares in the Southern Company, one hundred shares is a rather insignificant number. The Court will not grant the motion to strike for cause and sustain the objection to the striking for cause of Mrs. Douglas, especially in the light of her statement that it would not influence her and that she could be selected as a juror and render a fair and just verdict based solely on the evidence in the case."

With respect to challenges for cause, this Court has followed the rule stated in Brown v. Woolverton, 219 Ala. 112, 115, 121 So. 404, 406 (1928):

"To justify a challenge for principal cause there must be a statutory ground, or some matter which imports absolute bias or favor, and leaves nothing for the discretion of the court."

The statutory challenges for cause are set out in Alabama Code (1975), § 12-16-150. Wallace argues that part (12) of § 12-16-150 disqualifies a stockholder of a corporation that is a party to the suit from serving as a juror. Part (12) states:

"It is good ground for challenge of a juror by either party:

"...

"(12) That the juror, in any civil case, is an officer, employee or stockholder of or, in case of a mutual company, is the holder of a policy of insurance with an insurance company indemnifying any party to the case against liability in whole or in part or holding a subrogation claim to any portion of the proceeds of the claim sued on or being otherwise financially interested in the result of the case." (Emphasis added.)

Wallace argues that Douglas, as a stockholder of the Southern Company, is "financially interested in the result of the case" and should be removed for cause.

Alabama Power argues that this statute applies only to an interest in an insurance company and not to an interest in any type of corporation. To support this argument, several cases are cited: Mims v. Mississippi Power Co., 282 Ala. 90, 209 So.2d 375 (1968); Mitchell v. Vann, 278 Ala. 1, 174 So.2d 501 (1965); Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779 (1921). A reading of these cases does not indicate that the statute is specifically limited to stockholders or others financially interested in an insurance company. However in Welborn v. Snider, 431 So.2d 1198, 1201 (Ala.1983), this Court in applying subsection (12) of the statute stated:

"This Court has held that, although the above code section gives a party a challenge for cause against a juror with a financial interest in an insurance company with which a party has a policy, the party who wishes to exercise the challenge does not have to do so blindly, nor does he have to challenge for cause all such prospective jurors."

Part (12) of the statute is limited to those persons who are financially interested in insurance companies. We have not found a case in Alabama where this part of the statute was applied to a juror who was financially interested in a company that was a party to the case other than an insurance company. However, this does not end our inquiry.

Juror Douglas should have been removed for cause because she falls into a class of challenges for cause that existed at common law. In addition to the statutory challenges for cause, Alabama recognizes challenges for cause that existed at common law. See Mitchell v. Vann, supra. The common law challenges for cause are set out in Brown v. Woolverton, supra. A common law challenge for cause must involve " some matter which imports absolute bias or favor, and leaves nothing for the discretion of the court." Brown v. Woolverton, supra (emphasis added). Thus, the question is whether the ownership of stock in the parent corporation "imports absolute bias or favor" on the part of the prospective juror.

The general rule with respect to stockholders of a corporation sitting as jurors in a case in which the corporation is involved is stated as follows:

"A stockholder in a corporation is incompetent to act as a juror in a case in which the corporation is a party or has any direct pecuniary interest.... Also one who is a stockholder of a corporation which owns stock in another corporation which is a party to an action cannot serve as juror in such a case."

50 C.J.S. Juries § 213, at 949-50 (1947). See also, 47 Am.Jur.2d Jury § 325, at 896 (1969).

A number of jurisdictions have adopted and followed this rule in order to provide both parties with fair and impartial juries. See, Thompson v. Sawnee Electric Membership Corp., 157 Ga.App. 561, 278 S.E.2d 143, 144 (1981); Salina v. Commonwealth, 217 Va. 92, 225 S.E.2d 199, 200 (1976); Southern Bell Telephone & Telegraph Co. v. Shepard, 262 S.C. 217, 204 S.E.2d 11, 12 (1974); Ozark Border Electric Cooperative v. Stacy, 348 S.W.2d 586, 588 (Mo.App.1961); Texas Power & Light Co. v. Adams, 404 S.W.2d 930, 943 (Tex.Civ.App.1966). See also, Gladhill v. General Motors Corp., 743 F.2d 1049, 1050 (4th Cir.1984); Chestnut v. Ford Motor Co., 445 F.2d 967 (4th Cir.1971). It appears from the reading of each of these cases that the stockholder/juror may be "excused for cause" because of the "direct" interest he has in the defendant corporation. In two of these cases, it appears that this "direct" interest extends to stockholders who own stock in parent or holding companies.

In Texas Power & Light Co. v. Adams, supra, the challenged juror was shown to own stock in a holding company which owned all the stock in the plaintiff corporation. The Texas Court of Civil Appeals upheld the trial court's decision that the juror was incompetent to serve in the case. The trial court had relied on a statute which disqualified any person from serving as a juror in a suit in which he was interested, directly or indirectly, in the subject matter. The Court of Civil Appeals held that "[w]here a corporation is a party to the suit, its stockholders are necessarily interested in the result." 404 S.W.2d at 943.

In Southern Bell Telephone & Telegraph Co. v. Shepard, supra, the trial court refused to allow inquiry into whether any juror was a stockholder in Southern Bell or American Telephone and Telegraph Company, its parent corporation. A South Carolina statute provided that the trial court was required to allow inquiry into whether a juror "has any interest in the cause." The South Carolina Supreme Court, citing the general rule that a stockholder is incompetent to serve as a juror in a case in which the corporation is a party or has any pecuniary interest, reversed the trial court's judgment. The court wrote the following: "Here, the appellant had the legal right to ascertain whether or not the jury, or any member thereof, had an interest in the cause as a stockholder of either Southern Bell or American Telephone and Telegraph Company." (Emphasis added.) 204 S.E.2d at 12.

We hold that juror Douglas should have been removed for cause, and it was error for the trial court not to do so.

The question we are now faced with is whether the trial judge erred to reversal in denying Wallace's challenge for cause of juror Douglas.

We are convinced that the error requires reversal. Although the disqualified juror did not serve on the jury, the trial court's refusal to discharge her for cause required Wallace to use one of his peremptory strikes to eliminate her. This requires reversal. In Southern Railway Co. v. Milan, 240 Ala. 333, 199 So. 711 (1940), the Court held that it was reversible error where the defendant, who unsuccessfully challenged the prospective juror for cause, was required, in order to eliminate the disqualified juror, to exercise a peremptory strike. The court rejected the argument that the error was harmless and held that it deprived the defendant of a valuable right.

In this case, the fact that...