Claxton Poultry Co., Inc. v. City of Claxton

• Decision Date: 15 July 1980
• Docket Number: No. 59042,59042
• Parties: CLAXTON POULTRY COMPANY, INC., et al. v. CITY OF CLAXTON.
• Court: Georgia Court of Appeals

Page 227

271 S.E.2d 227

155 Ga.App. 308

CLAXTON POULTRY COMPANY, INC., et al. v. CITY OF CLAXTON.

No. 59042.

Court of Appeals of Georgia.

Argued Jan. 15, 1980.

Decided July 15, 1980.

Fred S. Clark, Malberry Smith, Jr., Savannah, for appellants.

Ronald W. Hallman, Claxton, for appellee.

McMURRAY, Presiding Judge.

In the late 1960's the City of Claxton entered into the retail natural gas business. Natural gas was purchased by the city from Southern Natural Gas Company and piped into Claxton. In late November, 1972, an explosion occurred at the Claxton Poultry Company plant in Claxton, Evans County, Georgia. The explosion destroyed the plant, killing two people and injuring several others. Several lawsuits resulted by reason of this explosion.

In the case sub judice Claxton Poultry Company, Inc., and six insurance carriers brought suit against the City of Claxton, filed November 7, 1973, alleging negligence which resulted in the natural gas explosion and seeking to recover loss of profits, damages to plant and equipment and punitive damages. Plaintiffs alleged therein that the explosion was caused by faulty maintenance or installation of the gas regulator. The petition was several times amended in which it was alleged that the defendant, by and through its agents, servants and employees, negligently installed, operated and maintained the natural gas supply system, "thereby permitting a greatly excessive internal pressure to be applied to a certain natural gas pressure control regulator" which allegedly failed and ruptured, "permitting large amounts of natural gas to escape into the air and to be ignited, causing the massive explosion which resulted in the claimed damages to Plaintiffs," as well as other acts of negligence with reference to the natural gas system and safety precautions.

Plaintiffs, by amendment, sought actual damages to the property and business of plaintiff Claxton Poultry Company, Inc., in a sum of almost $3,000,000. They sought the further sum of $500,000 as punitive damages and alleged that the defendant municipality had waived any claim of status of governmental immunity with respect to the local distribution and sale of natural gas and with specific respect to matters complained of herein. The ante litem notice required to be given municipalities by Code Ann. § 69-308 (Ga.L.1953, Nov.Sess., p. 338; 1956, pp. 183, 184) before suit was given, and no issue involves the notice which was acknowledged by the City, although the City denied in its answer that it had waived governmental immunity.

The City answered and in general denied the claim and that the explosion was caused in anywise by its actions, admitting, however, that it was subject to the jurisdiction of the court.

This is the second appearance of this case in this court, the first being City of Claxton v. Claxton Poultry Co., 134 Ga.App. 679, 215 S.E.2d 718 (1975), in which this court affirmed the trial court's denial of summary judgment. For a companion case, reference is here made to Doak v. City of Claxton, 140 Ga.App. 588, 231 S.E.2d 538 (1976), in which this court affirmed the judgment in favor of the defendant City of Claxton in which one of the employees of the chicken processing plant sued for personal injuries received in the explosion.

In 1978, following the publication of several articles appearing in a local newspaper with reference to the explosion, the damage suits filed, and a series of articles dealing with the City of Claxton's natural gas system as to the system's failure to produce annual profits and the reasons for its failure to do so, plaintiffs moved for a change of venue. After hearing evidence and considering the motion, it was denied. The case proceeded to trial and the jury returned its verdict, finding the City of Claxton "not guilty of negligence as charged." Whereupon judgment was entered in favor of the defendant, and motion for new trial was filed, amended, and thereafter denied. Plaintiffs appeal.

Plaintiffs enumerate as error the trial court's denial of their motion for a change of venue; the court's failure to allow individual voir dire of each prospective juror outside the presence of the other jurors; the court's failure to declare a mistrial because of an inflammatory question propounded by the City to one of plaintiffs' witnesses; the court's exclusion of testimony regarding business losses; the court's refusal to give nine requested charges relating primarily to municipal corporations dealing in natural gas; and the court's failure to grant a new trial. Held :

1. The first enumeration of error is concerned with the denial of the motion for change of venue. At the hearing of same plaintiffs produced four public witnesses who testified as to their contentions with reference to the inflammatory nature of the newspaper articles, that is, that the explosion was not the fault of the City; that any judgment in favor of the party injured or damaged would be paid by the City in taxes or increased rates imposed on gas companies; that the principal stockholders of Claxton Poultry Company, Inc., did not need the money sought in this action; and that this action was brought by the insurers of Claxton Poultry Company to get their money back for payments made to the company for its damages. These witnesses then asserted their opinions that plaintiffs could not get a fair trial in Evans County. The City, however, demanded its constitutional right to be tried in the city of its residence, arguing that the newspaper articles were evenhanded and that Claxton Poultry Company was not without friends in the county. It is noted here that the motion was not denied until after the voir dire examination of the jury panel.

A. Our Constitution states that civil cases generally "shall be tried in the county where the defendant resides ... except cases in the Superior Courts where the Judge is satisfied that an impartial jury cannot be obtained in such county." Art. VI, Sec. XIV, Par. VI, Constitution of Georgia of 1976 (Code Ann. § 2-4306). With particular reference to criminal cases "(t)he statutory counterpart of this constitutional provision appears in Code Ann. § 27-1101. That Code section adds the following: 'When be becomes thus satisfied, he may change the venue for the trial.' " Jarrell v. State, 234 Ga. 410, 415(2), 216 S.E.2d 258, 264. In determining this question the trial judge may examine by voir dire those persons named on the jury list (Code § 3-207), although such an undertaking is not required. See Attaway v. State, 149 Ga.App. 693, 694, 256 S.E.2d 94 (1979). The judge is also authorized to consider other evidence such as the testimony of public witnesses "in order to throw light on the condition of the public mind ..." Rawlins v. State, 124 Ga. 31, 40(2), 52 S.E. 1, 5 (1905).

In order to establish that they did not receive a fair trial, plaintiffs must show "(1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible." Street v. State, 237 Ga. 307, 311, 227 S.E.2d 750, 754 (1976). Street v. State, 237 Ga. 307, 227 S.E.2d 750, supra, is predicated upon the decision in Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589. It is clear in Murphy v. Florida, supra, that the language in regard to an inherently prejudicial setting of a trial relates to those situations where under the totality of circumstances the general atmosphere in the community or courtroom is sufficiently inflammatory that prejudice is presumed. The leading cases in which inflammatory publicity raised a presumption of prejudice include Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, and Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. The several newspaper articles regarding this matter in the case sub judice which have appeared over a period of time preceding the trial do not amount to the utterly corrupting and sensationalistic coverage which has resulted in these decisions.

B. It has long been the law in Georgia that a citizen or resident of a municipal corporation, if otherwise competent to serve, is not incompetent to serve as a juror in a case in which that municipal corporation is a party or is interested. Code § 59-715; Hickox v. State, 138 Ga.App. 882(1), 227 S.E.2d 829. Indeed, jurors are not required to be totally ignorant of the facts and issues involved in the case tried before them. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence. Murphy v. Florida, supra ; Allen v. State, 235 Ga. 709, 712-713, 221 S.E.2d 405.

C. It is well established in Georgia that the matter of whether a change of venue is appropriate lies within the sound discretion of the trial court and this discretion will not be disturbed unless an abuse of this discretion is shown. Shinholster v. State, 150 Ga.App. 221(1), 257 S.E.2d 342; Allen v. State, 235 Ga. 709, 712-713, 221 S.E.2d 405, supra; Jarrell v. State, 234 Ga. 410, 415(2), 216 S.E.2d 258, supra. The plaintiffs in this case have shown no abuse of discretion but have only attempted to create by inuendo a shadowy mid-world within which individual factors, though not separately requiring a change of venue somehow metaphysically form a combination producing citizenry who are not only prejudiced against the plaintiffs but concealed this prejudice on voir dire.

The trial court did not err in denying the motion for a change of venue after hearing evidence and after voir dire examination of the jury panel. Veal v. Paulk, 121 Ga.App. 575, 578(4), 174 S.E.2d 465 (1970). "Whenever, by an examination voir dire of the persons whose names are on the jury list and who are compellable to serve on the jury, the presiding judge shall be...