Robson v. Grand Trunk Western R. Co.

• Decision Date: 09 November 1966
• Docket Number: No. 2,No. 597,597,2
• Citation: 5 Mich.App. 90,145 N.W.2d 846
• Parties: John A. ROBSON, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation, Defendant-Appellee. Cal
• Court: Court of Appeal of Michigan — District of US

Page 846

145 N.W.2d 846

5 Mich.App. 90

John A. ROBSON, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation,

Defendant-Appellee.

Cal. No. 597.

Court of Appeals of Michigan, Division No. 2.

Nov. 9, 1966.

Peter E. Bradt, Port Huron, for appellant.

Robert L. Livesay, Detroit, C. Patrick O'Sullivan, Walsh, O'Sullivan, Stommel & Sharp, Port Huron, for appellee.

Before McGREGOR, P.J., and BURNS and QUINN, JJ.

McGREGOR, Presiding Judge.

This is an appeal from a denial of a motion to strike the jury panel, challenging the method used in the selection of a jury list at random, as required by law. Const.1963, art 1, § 14 (C.L.S. 1961, §§ 600.1201, 600.1203, 600.1218, and § 600.1202, as amended by P.A.1963, No. 225 (Stat.Ann.1962 Rev. §§ 27A.1201, 27A.1203, 27A.1218, and Stat.Ann.1965 Cum.Supp. § 27A.1202)). The case is a FELA (Federal Employers' Liability Act) ¹ suit commenced by a former railroad employee for damages sustained from an on-the-job injury, there being no workmen's compensation available. After the question was at issue and scheduled for trial, plaintiff filed a motion challenging the then present jury array (44 in number) as not properly selected, in accordance with the statute applicable thereto, and sought from the trial court an order providing that the pending case might be tried before a jury properly selected at random, as provided by and having the qualifications specified in chapter 12 of the RJA (C.L.S.1961, § 600.1202, as amended by P.A.1963, No. 225; §§ 600.1203, 600.2128 (Stat.Ann.1965 Cum.Supp. § 27A.1202; Stat.Ann.1962 Rev. §§ 27A.1203, 27A.2128)). The verified motion stated that the current jury panel was not so selected. The motion was based primarily upon the jurors' executed questionaires for the current jury panel on file with the court and the affidavit of plaintiff's attorney. Such affidavit stated that one juror was over the age of 70 years ²; that, according to the executed jury questionaires, approximately 1/4 of the jury panel were repeaters who came from governmental units with such large population as to make it virtually impossible that such repetition should occur by chance. The affidavit also stated that from the entire panel approximately 14 were men, of whom no more than 6 were employed; further, that of the remaining 25 who were women, no more than 4 were employed outside the home; and that the jury panel did not represent a fair cross-section of the county and indicated on its face that it was not chosen at random. The affidavit further stated the population of the county, according to the 1960 U.S. census was 107,201 and referred to the 1960 population of the various units required to return jurors. This motion was heard by the trial court on February 18, 1965, at which hearing there were introduced plaintiff's exhibit #1, the 42 jurors' executed questionaires; plaintiff's exhibit #2, the 1960 U.S. census figures for St. Clair county and each township, city and village therein. At this hearing the court's attention was drawn to the fact that the questionaires showed that one juror was over age; that the panel consisted of 20 housewives out of the 26 women on the jury panel, with only 4 of the 26 employed outside the home; that approximately 75% Of the jury panel were unemployed, being either housewives or retired people; that the jury panel included no one under 30 years of age and a majority well over that age. The court's attention was also directed to the fact that the jury panel was made up mostly of elderly retired people and housewives, and also that it contained approximately 25% Repeaters (Example: one juryman from Clay township was drawn in 1962 and again in 1964 ³; a jurywoman from Port Huron township ⁴ was drawn in 1962, 1963 and 1964), all of which the affiant alleges clearly demonstrates that the panel was not selected At random, in accordance with the statutes.

The defendant did not dispute plaintiff's right to trial by a jury selected in accordance with the constitution and the law. Attorney for the defense filed no counteraffidavit nor offered any testimony in opposition thereto, but contended at the hearing that the burden was on the moving party to show that the jury panel was not selected in accordance with the law, and that he had not sustained the burden of proof in this regard.

At the hearing, the county clerk testified that he did not know how it happened that there were so many repeaters serving on the jury panel and that mere chance would not result in 25% Repeaters. Another of the witnesses for the plaintiff was the deputy county clerk who testified that when people telephoned the clerk's office and asked to serve on juries, 'we always advise them to contact their supervisor in their precinct or township, and turn their name in to him.'

On February 22, 1965, plaintiff filed a verified supplemental motion further attacking the jury selection methods, stating that in some townships the township clerk did not participate with the supervisor in the selection of jurors, as required by statute (C.L.S.1961, § 600.1201 (Stat.Ann.1962 Rev. § 27A.1201)) and that in other units the jurors were not selected at random, and that in some units of the county, the jury list did not contain the number of names required by statute (C.L.S.1961 § 600.1203 (Stat.Ann.1962 Rev. § 27A.1203)). The verified supplemental motion requested that the court take the testimony of the officers required by law to return their respective jury lists to the county clerk. This supplemental motion came on to be heard on March 1, 1965. At this hearing, plaintiff offered to prove the sworn allegations in both motions. Defendant filed no affidavits nor presented any testimony in opposition to either motion. Plaintiff's offer of proof was denied and both motions were denied. The trial court commented at the first hearing:

'The Court: Well, I do not like to go through a long trial and then have this question passed on afterward. If you can take it up at this time I will certify it as a question of importance that should be decided before the trial and then perhaps we can get some word from the Court on it, so if you wish to follow that procedure that is all right.'

Then the record shows that in an exchange of viewpoints, the trial court indicated to plaintiff's attorney that he believed that the trial court could certify the question to the Court of Appeals, indicating that he thought there was such a procedure, and later, the trial court said:

'I would be interested in any order that would be helpful in selecting arrays of jurors.'

and subsequently said to the attorney for the plaintiff:

'so, if you prepare an order to be sent to the supervisors I do not doubt but what it could reach them before the actual selection is made on the 1965 panel. You better prepare one that you think will work and then if it does not, I do not know what else to do, except to get instructions from the high court as to how to operate if the administrative officers do not follow instructions.'

The comment by the trial court evidenced his concern for the proper legal compliance by the respective township and city ward officials in the selection of persons for the jury lists.

The pertinent part of the statute (C.L.S.1961, § 600.1201 (Stat.Ann.1962 Rev. § 27A.1201)) provides:

'The supervisor and township clerk of each township, and the supervisor or assessor and alderman of each ward or assessment district in any city, at the time appointed by law for the review of the assessment roll for each year, shall make a list of persons to serve as petit jurors.'

C.L.S.1961 § 600.1202 (Stat.Ann.1962 Rev. § 27A.1202), as amended by P.A.1963, No. 225, provides:

'The officers shall select At random from the persons assessed on the assessment roll or voters' registration lists of the township or ward for the same year, suitable persons having the qualifications of electors to serve as jurors. In making the selection, they shall take the names of only such as are not exempt from serving on juries, who are in possession of their natural faculties and not infirm or decrepit, of good character, of approved integrity, of sound judgment, well informed and conversant with the English language, free from all legal exceptions, and who have not made, and in whose behalf there has not been made, to the officers any application to be selected and returned as jurors.' (Emphasis added).

The attorney for the plaintiff, in the presentation of his argument, referred to the laws of probability, commonly used in the business world today ⁵ (as found in any standard work on mathematics) and demonstrated therefrom that, for one man, drawn for the jury list...