The opinion of the court was delivered by: McRAE, Justice
DATE OF JUDGMENT: 12/10/96
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION REVERSED AND REMANDED - 10/08/98
¶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.
¶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.
¶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 ...