Scott v. Ball

595 So. 2d 848, 1992 WL 39494
CourtMississippi Supreme Court
DecidedFebruary 26, 1992
Docket90-CA-0508
StatusPublished
Cited by90 cases

This text of 595 So. 2d 848 (Scott v. Ball) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott v. Ball, 595 So. 2d 848, 1992 WL 39494 (Mich. 1992).

Opinion

595 So.2d 848 (1992)

Ida Bell SCOTT, as the Wrongful Death Beneficiary of Fred Scott
v.
Dr. David A. BALL.

No. 90-CA-0508.

Supreme Court of Mississippi.

February 26, 1992.

*849 Cynthia Mitchell, Charles M. Merkel, Jr., John H. Cocke, Merkel & Cocke, Clarksdale, for appellant.

Janet G. Arnold, Holcomb Dunbar Connell Chaffin & Willard, Jack F. Dunbar, Holcomb Dunbar Firm, Oxford, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

HAWKINS, Presiding Justice, for the court:

Ida Bell Scott, wrongful death beneficiary of Fred Scott, appeals from a judgment in favor of Dr. David A. Ball in a malpractice suit in the circuit court of the Second Judicial District of Panola County. The issues on this appeal are the refusal of the circuit judge to remove jurors challenged for cause, and Batson violations under the United States Supreme Court decision in Edmonson v. Leesville Concrete Co., Inc., 500 U.S. ___, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). We find the second issue requires reversal.

FACTS

Ida Bell Scott, the widow of Fred Scott, brought this wrongful death action against Dr. David A. Ball on November 21, 1988, alleging that Dr. Ball committed medical malpractice by failing to diagnose and treat Fred Scott's myocardial infarction. The case was tried February 26-28, 1990. During jury selection, Scott challenged for cause twelve potential jurors based on voir dire responses that they or their family members had relationships with Dr. Ball or other physicians in his clinic. The trial judge sustained seven of these challenges for cause and denied the remaining five challenges.

Scott is black and Dr. Ball is white. Counsel for Ball exercised all of his four peremptory challenges against black members of the jury panel. Counsel for Scott objected to Ball's alleged discriminatory exercise of peremptory challenges and moved that Ball be required to state a racially neutral basis for the challenges. Counsel for Ball responded that he did not challenge two or three other blacks on the panel. The trial court ruled that the requirements of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had not been made applicable to civil cases.

The trial jury was composed of eight whites and four blacks. After trial, the jury returned a verdict in favor of Ball. Polling of the jury showed that the verdict was 9-to-3, with each of the jurors who voted for Scott being black. Scott's motion for a new trial was overruled, and she now appeals.

LAW

The record on appeal consists only of the jury selection. The issues presented in this appeal solely involve the jury selection process.

I. CHALLENGES FOR CAUSE

Scott contends the four peremptory challenges allotted by statute were not enough to excuse all the prospective jurors the circuit judge should have excused for cause. After several of the venire were excused by the court, there remained a panel of 43 prospective jurors. Following their questioning by counsel, Scott challenged twelve for cause. The court found Scott had stated a valid reason for seven of these because Dr. Ball or members of his medical firm had treated them or members of their family. Of the five remaining, Dr. Ball had upon one occasion treated the son of Hawkins, No. 8, and had occasionally treated the family of Smith, No. 20, over a period of ten years, but was not the family doctor of either. Of the remaining three, Thaggard, No. 19, was a registered nurse in Oxford; Munford, No. 22, was general manager of a local manufacturing plant with experience in workers' compensation claims; and Cobb, No. 54, had been sued six years previously following an automobile accident.

The circuit judge, as he must, has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause. Mississippi Winn-Dixie *850 Supermarkets v. Hughes, 247 Miss. 575, 589, 156 So.2d 734, 738 (1963); McCarty v. State, 26 Miss. 299, 301, 1 Mor.St.Cas. 705 (1853); 50 C.J.S. Juries, § 208 b., and cases cited thereunder. The circuit judge has an absolute duty, however, to see that the jury selected to try any case is fair, impartial and competent. Miss. Const. art. 3, § 26; King v. State, 421 So.2d 1009, 1016 (Miss. 1982). "[T]rial judges must scrupulously guard the impartiality of the jury and take corrective measures to insure an unbiased jury." Hudson v. Taleff, 546 So.2d 359, 363 (1989); Miss. Power Co. v. Stribling, 191 Miss. 832, 845, 3 So.2d 807, 810 (1941).

To the extent that any juror, because of his relationship to one of the parties, his occupation, his past experience, or whatever, would normally lean in favor of one of the parties, or be biased against the other, or one's claim or the other's defense in the lawsuit, to this extent, of course, his ability to be fair and impartial is impaired. It should also be borne in mind that jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference. Harding v. Estate of Harding, 185 So.2d 452, 456 (Miss. 1966); Howell v. State, 107 Miss. 568, 573, 65 So. 641, 642 (1914).

These varied imponderables make selection of jurors a judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.

In our recent decision, Hudson v. Taleff, supra, we added a factor which the circuit judge should consider in reaching his decision whether or not to excuse a prospective juror when a rational reason to do so has been brought to his attention. Hudson likewise involved a suit against a physician in which a number of the jury panel or members of their family had been patients of his.

Because that suit was in Lauderdale County in which the circuit court could have, without hardship or any significant inconvenience, summoned additional jurors for the venire, we reversed. Our implicit, if not explicit holding in Hudson is that the circuit judge's discretion in determining a juror's qualification where a reasonable challenge has been made is considerably narrowed where, without great inconvenience, other prospective jurors may be readily summoned. When a rational challenge is made by a party to a prospective juror, and other jurors against whom no challenge is made are available, the circuit judge should ordinarily excuse the challenged juror.

In this case the circuit judge could have excused these challenged prospective jurors and still have had remaining on the panel a sufficient number against whom there had been no challenge to form a trial jury. Furthermore, the circuit judge could have directed the clerk to draw more names from the jury wheel. Hudson, supra. While Panola County has two judicial districts, thus reducing the number of prospective jurors that would have been the case had the jurors come from the entire county, it was also within the court's discretion to cause jurors to be summoned from the other judicial district. Miss. Code Ann. § 13-5-21 (Supp. 1991).

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Cite This Page — Counsel Stack

Bluebook (online)
595 So. 2d 848, 1992 WL 39494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-ball-miss-1992.