General Motors Corp. v. Hopper

• Decision Date: 12 July 1996
• Parties: GENERAL MOTORS CORPORATION v. Johnny P. HOPPER. 1940777.
• Court: Alabama Supreme Court

Page 1373

681 So.2d 1373

GENERAL MOTORS CORPORATION v. Johnny P. HOPPER.

1940777.

Supreme Court of Alabama.

July 12, 1996.

Rehearing Denied Aug. 30, 1996.

D. Alan Thomas and Eugene D. Martenson of Huie, Fernambucq & Stewart, Birmingham, R. Chris Harvey of Strasburger & Price, Dallas, TX, for Appellant.

William W. Smith, R. Ben Hogan III and Pamela D. Beard of Hogan, Smith & Alspaugh, P.C., Birmingham, for Appellee.

ON APPLICATION FOR REHEARING

PER CURIAM.

The unpublished memorandum of affirmance issued on November 17, 1995, is withdrawn and the following opinion is substituted therefor:

The Tenth Judicial Circuit, which consists of Jefferson County, is divided into two independent divisions, the "Bessemer Division" and the "Birmingham Division." The Birmingham Division essentially operates as a judicial circuit separate from the Bessemer Division, which operates also as a separate judicial circuit. United Supply Co. v. Hinton Constr. & Dev., Inc., 396 So.2d 1047, 1049-50 (Ala.1981); Glenn v. Wilson, 455 So.2d 2, 3 (Ala.1984).

This case involves a resident of the Bessemer Division who, without objection, served as a juror in a Birmingham Division case, which was tried to a verdict in favor of the defendant, General Motors Corporation. After trial, the plaintiff, Johnny P. Hopper, moved for, and was granted, a new trial on the basis that a resident of the Bessemer Division had improperly served as a juror. At issue is whether the plaintiff was precluded from raising this issue after the trial, i.e., whether the plaintiff's failure to raise the issue before trial acts as a waiver of the issue. ¹

In Pogue v. State, 429 So.2d 1159 (Ala.Crim.App.1983), the Court of Criminal Appeals, citing Batson v. State, 216 Ala. 275, 113 So. 300 (1927), held that the defendant, whose jury in the Pickens County Circuit Court had included a juror who did not live in Pickens County, but in Lamar County, had waived any objection on that basis by not "[The juror's] proper address was given on the list of prospective jurors.... Since the objection could have been discovered with the exercise of due diligence at the time the jury was being qualified, it does not constitute a proper ground for a motion for a new trial. Although counsel was not required to conduct a voir dire examination which would be repetitious of that already conducted by the court, the fact remains that the ground of challenge could have been discovered before trial just as easily as it was discovered after trial."

stating the objection before the jury was sworn. The court noted that the jury list had given for that juror an address suggesting that he was not a resident of Pickens County; the information given by that list reasonably could have led to the discovery of the fact of the juror's nonresidence. That court stated:

429 So.2d at 1161.

We agree with this reasoning and observe that there are no material distinctions between this case and Pogue. ² Here, as in Pogue, the nonresident's "proper address was given on the list of prospective jurors" and "the objection could have been discovered with the exercise of reasonable diligence at the time the jury was being qualified." Thus, any defect in the juror's qualifications, based on nonresidency, "does not constitute a proper ground for a motion for a new trial." Pogue, 429 So.2d at 1161.

The trial court erred in granting the plaintiff's motion for a new trial. The new trial order is therefore reversed, and the case is remanded.

APPLICATION GRANTED; UNPUBLISHED MEMORANDUM OF NOVEMBER 17, 1995, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

HOOPER, C.J., and HOUSTON, KENNEDY, and INGRAM, JJ., concur.

MADDOX, SHORES, and COOK, JJ., concur specially.

MADDOX, Justice (concurring specially).

I agree with the majority in reversing the trial court's new trial order. I write to set out the facts and the reasons why I believe the trial court erred in granting the plaintiff's motion for a new trial.

The issue is whether a party who, before trial, does not object to the general qualifications of a juror can, in a post-trial proceeding, attack the qualifications of the juror and properly receive a new trial. The trial court ruled that the plaintiff could raise this issue post-trial and granted the plaintiff a new trial. I believe that this juror qualification issue should have been raised before trial, and that the plaintiff waived his right to challenge the juror's qualification to serve by not raising the issue before the trial.

This case arose in Jefferson County, which is divided into two court divisions, the Bessemer Division and the Birmingham Division. A juror residing in the Bessemer Division (also known as the Bessemer Cut-off) was summoned for jury service in the Birmingham Division. He was living in the Birmingham Division at the time of this trial.

Originally, I thought that the trial judge correctly held that the juror was disqualified and that the issue could be raised post-trial, and I voted to summarily affirm the order granting a new trial. However, after reading the briefs on application for rehearing and after re-examining the record, I am convinced that the trial court erred in granting the plaintiff's motion for a new trial. I concur with the majority to reverse the new trial order and to remand the cause, based on the following reasons:

(1) The record clearly shows that the plaintiff waived any right to challenge the juror (2) The juror actually lived in the Birmingham Division when the case was tried; furthermore, Ala.Code 1975, § 12-16-90, provides that jurors selected, drawn, and summoned under the provisions of the Code relating to the drawing, summoning, empaneling, etc., of grand and petit juries "must and shall in all respects be deemed legal and to possess in full in every respect power to perform all of the duties belonging to grand and petit jurors";

(3) Even assuming there was not a waiver of the challenge, the practice in Jefferson County, and in Barbour County, of selecting jurors from only a division of a court within a county, is contrary to the policy and intent of the people of Alabama and the Legislature respectively, in ratifying the Judicial Article to the Alabama Constitution (Amendment 328) and in enacting Act No. 594, Ala. Acts 1978, codified at Ala.Code 1975, §§ 12-16-55 through 12-16-64;

(4) The public policy of this State relating to jury service contemplates a uniform system throughout each county of the State, as evidenced by § 12-16-57, which specifically provides that the jury commissions for each county "shall compile and maintain an alphabetical master list of all persons in the county who may be called for jury duty, with their addresses and any other necessary identifying information"; and

(5) Any local acts of the Legislature providing for the selection and service of jurors would not be uniform; therefore, the Legislature intended to repeal those acts by the general repealer clause of Act No. 594, Ala. Acts 1978, codified at Ala.Code 1975, §§ 12-16-55 through 12-16-64.

I am aware of the provisions of Ala.Code 1975, § 12-16-44, and I am aware that it was not specifically repealed by Act No. 594, now codified as Ala.Code 1975, §§ 12-16-55 through 12-16-64. However, I believe, in view of the many references to "county" in Act No. 594, that the provisions of Act No. 59, Acts of Alabama 1939 ( § 12-16-44) was repealed by the general repealer clause. ³ Act No. 594 substantially adopted for this State the provisions of the Uniform Juror Selection and Service Act, and the whole intent of the Judicial Article and the acts the Legislature adopted pursuant thereto was to give uniformity of procedure. I will discuss this in greater detail in section II of this special concurrence.

There are two substantive reasons why the plaintiff is not entitled to a new trial. First, as the majority opinion states, the plaintiff waived any objection he might have had by failing to raise it before trial. Second, even assuming there was not a waiver, I believe this Court should re-examine the provisions of law relating to the drawing of jurors from a division of a court instead of county-wide. ⁴

I.

I believe the plaintiff waived any objection he might have had as to the qualification of the juror to serve on the petit jury. I set out the following underlying facts, which allow a better understanding of this case. The plaintiff filed this product liability action against General Motors Corporation, alleging that the plaintiff Johnny P. Hopper had been injured because of a malfunction of the braking system in a 1987 model Buick Somerset automobile.

The juror in question, James Lowden, had been called for jury service in the Birmingham Division in 1992; he was called again in October 1994, when he served as a member of the trial jury in this case. ⁵ The record shows that for several years before October 1994, ⁶ Lowden had lived at Cross Creek Apartments, 909 Chapel Creek Drive, in Hoover. This Chapel Creek Drive residence, admittedly, was located in the Bessemer Division of the Tenth Judicial Circuit. The record shows that during this time, the juror bought his automobile tags in the Birmingham Division.

On October 1, 1994, Lowden moved from the Cross Creek Apartments on Chapel Creek Drive in Hoover, located within the Bessemer Division, to Tyler Circle in Hoover, located within the Birmingham Division. ⁷ Therefore, Lowden was actually living within the Birmingham Division (the division in which the case was tried) at the time he served on the jury in this case, beginning October 17, 1994, but he had not lived in that Division for all of the 12 months preceding the trial.

The record clearly shows that Lowden, who held a master's degree in education, believed that he was, in fact, a resident of the Birmingham Division during all of the years that he lived in Hoover. He also believed that he was fully qualified to serve on the Birmingham Division jury on October...