Page v. SIEMENS ENERGY AND AUTOMATION

• Decision Date: 08 October 1998
• Docket Number: No. 97-CA-00063-SCT.,97-CA-00063-SCT.
• Citation: 728 So.2d 1075
• Parties: Ronnie PAGE and Lavon Page v. SIEMENS ENERGY AND AUTOMATION, INC.
• Court: Mississippi Supreme Court

728 So.2d 1075

Ronnie PAGE and Lavon Page v. SIEMENS ENERGY AND AUTOMATION, INC.

No. 97-CA-00063-SCT.

Supreme Court of Mississippi.

October 8, 1998.

Rehearing Denied January 21, 1999.

Joseph R. Meadows, Karen J. Young, Gulfport, for Appellants.

Louis B. Lanoux, Rebecca Lee Wiggs, Jackson, for Appellee.

EN BANC.

McRAE, Justice, for the Court:

¶ 1. Ronnie and Lavon Page appeal a December 10, 1996 order of the Jackson County Circuit Court denying their motion for relief from judgment pursuant to Miss. R. Civ. P. 60(b)(3) and 60(b)(6), finding that their claim of a skewed jury was waived. The Pages contend that the circuit court erred in denying their motion to introduce certified testimony taken in an evidentiary hearing. They assert also that the circuit court erred in denying the relief sought because they were deprived of a jury consisting of a fair cross-section of the Jackson County population and in holding that they waived the "skewed jury" issue. They further argue that they were denied a fair and impartial jury because qualified jurors were excluded from the jury list and potential jurors who were over sixty-five as well as those who claimed medical, financial or work hardships were unilaterally excused by the clerk prior to the actual voir dire examination. The Pages further contend that exclusion of jurors close to their age was age discrimination. We find that the Jackson County Circuit Clerk failed to follow the statutory procedures for calling jurors, resulting in the unilateral exclusion from the venire of persons qualified for jury service. Accordingly, the case is reversed and remanded for a new trial.

I.

¶ 2. Ronnie Page was injured in an electrical accident at Litton Ingalls Shipbuilding in Pascagoula on September 1, 1987. Page, an electrician, was in the process of expanding temporary shore power services to a ship under construction by Litton when the accident happened. He was attempting to change over power from a 200 amp disconnect located on a utility substation to a 400 amp disconnect located on an adjacent substation. During the procedure, Page was unexpectedly subjected to an electrical arcing caused when a steel line terminal shield plate fell from its mounting, shorting the energized side terminals. Page sustained third-degree burns to forty-seven percent of his body, leaving him permanently scarred. The disconnect switch was manufactured by Siemens Energy and Automation, Inc.

¶ 3. On May 24, 1993, the Pages filed suit against Siemens seeking both compensatory and punitive damages for the injuries suffered by Ronnie Page, as well as damages on behalf of Lavon Page for loss of consortium. The Pages alleged that the negligent design of a disconnect switch almost electrocuted Page, and that the switch could have been manufactured in a safer way. The case was removed to the United States District Court. At that point, Siemens joined Ingalls Shipbuilding, Inc., Page's employer, as a party defendant. On the Pages' motion, the case was remanded to the circuit court because the joinder of Ingalls defeated diversity of jurisdiction. A jury of the Jackson County Circuit Court returned a 10-2 verdict in favor of Siemens, with final judgment entered on October 24, 1995. On November 5, 1995, the Pages filed a motion for new trial, which was denied.

¶ 4. This case was tried during the October 1995 term of court in Jackson County. The certified jury list contains the names of all citizens summoned for jury duty that week, but only mere voter precincts, not addresses, are included on that list. The list was presented to counsel for both sides several days prior to trial. However, on the day jury selection began, the potential jurors submitted questionnaires revealing their specific addresses.

¶ 5. The Pages' attorney consulted another attorney, George Shaddock, during the jury selection process. Shaddock relayed his concerns about the unusually high number of jurors from Ocean Springs. However, the Pages did not make any objections then or during voir dire to the statistical makeup of the jury.

¶ 6. On November 15, 1995, after the Pages' trial and unbeknownst to them, the circuit court judge ordered the jury wheel to be emptied and refilled according to the proper statutory procedure, because a "disproportionate number of jurors from West Jackson County were drawn from the jury wheel for the current term." The judge so acted only after Shaddock investigated the concerns about the jury and brought them to the judge's attention. ¶ 7. In March 1996, counsel for the Pages discovered that there had been a problem with the jury wheel and the certified jury list drawn by the clerk which provided the jurors in the Pages' trial. The Pages filed a motion for relief from judgment on March 27, 1996, challenging the impaneling of the jury which heard this case. Siemens opposed the motion, and a hearing was conducted on November 8, 1996. On December 10, 1996, the circuit judge denied the Pages' motion for relief from judgment pursuant to Miss. R. Civ. P. 60(b)(3) and 60(b)(6), stating that the skewed jury issue was waived. The circuit court judge ruled that:

plaintiffs' counsel had notice and knowledge for a possible problem with the jury venire even though they may not have been aware of the specific problem, they are required, at the very least, to make a general objection in order to preserve the error, if any. Their failure to enter a timely objection waives this issue.

It is from this denial of their motion for relief from judgment that the Pages now appeal.

II.

¶ 8. The Pages were not in a position to discover the circuit clerk's practices of excluding all potential jurors who had been summoned to serve on the jury within the past two years and of granting excuses to jurors without them coming to court. We reverse on this issue.

¶ 9. Jury selection is controlled by Miss. Code Ann. § 13-5-1, et seq. Miss.Code Ann. § 13-5-8 provides that:

(1) In April of each year, the jury commission for each county shall compile and maintain a master list consisting of the voter registration list for the county.

(2) The circuit clerk of the county and the registrar of voters shall have the duty to certify to the commission during the month of January of each year under the seal of his office the voter registration list for the county.

Section 13-5-10 provides for the maintaining of a jury wheel:

The jury commission for each county shall maintain a jury wheel into which the commission shall place the names or identifying numbers of prospective jurors taken from the master list.... In April of each year, ... the wheel shall be emptied and refilled as prescribed in this chapter.

Further, § 13-5-16(1) provides that:

[F]rom time to time and in a manner prescribed by the court, a private citizen who does not have an interest in a case pending trial and who is not a practicing attorney publicly shall draw at random from the jury wheel the names or identifying numbers of as many prospective jurors as the court by order requires. The clerk shall prepare an alphabetical list of the names drawn. Neither the names drawn nor the list shall be disclosed to any person other than pursuant to this chapter or specific order of the court.

Miss.Code Ann. § 13-5-26 provides as follows for maintaining a jury box:

(1) The circuit clerk shall maintain a jury box and shall place therein the names or identifying numbers of all prospective jurors drawn from the jury wheel.

(2) A judge or any court or any other state or county official having authority to conduct a trial or hearing with a jury within the county may direct the circuit clerk to draw and assign to that court or official the number of jurors he deems necessary for one or more jury panels or as required by law for a grand jury, except as otherwise provided by subsection (3) of this section. Upon receipt of the direction, and in a manner prescribed by the court, the circuit clerk shall publicly draw at random from the jury box the number of jurors specified.

Section 13-5-28 provides for the summoning of jurors:

If a grand, petit or other jury is ordered to be drawn, the clerk thereafter shall cause each person drawn for jury service to be served with a summons, either personally or by mail, addressed to him at his usual residence, business or post office address, requiring him to report for jury service at a specified time and place.

¶ 10. The Pages basically claim that because the actions of the clerk were unconstitutional and without authority of law, the circuit court should have determined that despite any waiver, the motion for relief from judgment should have been granted. This Court has previously rejected a similar argument.

It is said, however, that the action of the court, while not with fraudulent or corrupt design, is a fraud in law, and that, even in the absence of a direct challenge or exception presented in due time, this court should decide that the jury laws have been violated, and should construe this of itself to be sufficient to require the sustaining of the plea in abatement. We cannot so view the matter. The jury laws are expressly recognized by our statute (section 2389, Code 1892) as directory, merely, and a "jury listed, drawn, summoned or impaneled though in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn, and shall have the power to perform all the duties devolving upon a jury." Conceding, therefore, that the trial judge should have adopted some other and different mode of procuring the additional members of the grand jury, still, after the jury was sworn and impaneled, it is by the law "deemed a legal jury," and any error of the court was cured, by the express terms of the section cited.

Posey v. State, 86 Miss. 141, 38 So. 324, 326 (1905). See also Miss.Code Ann. § 13-5-87 (provisions for listing, drawing, summoning and impaneling jurors are directory).

¶ 11. It is clear...