Claxton Poultry Co. v. City of Claxton

Smith, Judge,

dissenting in part.

As I believe that the trial court erred in denying appellants’ motion for change of venue, I respectfully dissent to the holding in Division 1 of the majority opinion. I concur in the holdings in the remaining divisions and in the judgment.

The following facts are worthy of note. The City’s retail natural gas business did not become the profit maker it was predicted to be. In August of 1975, Evans County’s only local newspaper ran a three part series explaining why this undertaking had not been profitable and what could be done to remedy the situation. In addition to relating the history of the City’s involvement and financial difficulties in retailing natural gas, these articles reported that the City’s customers were paying more than twice the rate for gas than that supplied by a large, statewide retailer. Further, it was reported *319that talks with the statewide retailer regarding the possible sale of the City’s gas system were not pursued because of the pending lawsuits. This series was followed by an article in December, 1975 reporting that an Evans County jury had returned a verdict in favor of the City in an action for damages by one of those injured in the explosion. Finally, a few days before the commencement of the trial in this action in June of 1978, an article reporting on the instant case restated the results of the 1975 personal injury case and noted also that six other personal injury suits pending at that time had been dismissed after the jury had returned a verdict in favor of the City. In fact, these cases had been settled out of court and then dismissed voluntarily.

Spurred by the appearance of the June, 1978 article, appellants moved for a change of venue contending that an attitude among the citizens of Evans County, and in particular the City of Claxton, had been induced by the newspaper articles that the explosion was not the fault of the City based on the results in the personal injury cases which stemmed from the explosion; that any judgment in favor of a party injured or damaged by the explosion would be paid by the City in taxes or increased rates imposed on gas customers; that the principal stockholder 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 to get their money back for payments made to the company for its damages. Appellants produced four public witnesses who testified as to these contentions and asserted their opinions that appellants could not get a fair trial in Evans County. After a voir dire examination of the jury panel, the trial court overruled the motion.

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, Ga. Constitution of 1976 (Code Ann. § 2-4306). In determining this question, an examination voir dire of those persons named on the jury list is undertaken. Code § 3-207; see Alley v. Gormley, 181 Ga. 650 (1) (183 SE 787) (1935). 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 (52 SE 1) (1905); see Alley, supra; Veal v. Paulk, 121 Ga. App. 575 (4) (174 SE2d 465) (1970). In order to establish that they did not receive a fair trial, appellants 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 SE2d 750) (1976); *320see Berry v. North Pine Electric Cooperative, 50 NW2d 117, 123 (235 Minn. 562) (1951). Notwithstanding that the voir dire examination here did not affirmatively disclose bias on the part of any individual juror, a change of venue should have been granted.

“A court is ordinarily reluctant to change venue on grounds that there is doubt that a fair trial can be had because in most cases the interrogation of prospective jurors is sufficient to insure that an unbiased jury is chosen.” Sinderbrand v. Schuster, 406 A2d 1344, 1347 (170 N.J. Super. 506) (1979); see Reaves v. State, 242 Ga. 542 (4) (250 SE2d 376) (1978). However, the evidence adduced in each case must determine whether the court has exercised or abused that discretion. Veal, supra; see Attaway v. State, 149 Ga. App. 693 (256 SE2d 94) (1979). Evans County has a population of approximately 7000 people, nearly half of whom live in the City of Claxton. The 28 jurors empaneled for selection to hear this case generally reflected that distribution; several also owned property in the City. Most on the panel had read the newspaper article and many had discussed the case. A number of panel members were customers of the City’s natural gas service, and several of them sat on the jury. Notwithstanding that none of these factors alone would warrant a change of venue, “it seems to us sufficient if there [were] shown facts, that is, existent influential factors, from which probable partiality in substantial degree, and upon the part of a substantial number of persons, and such as to presage appreciable and extensive influence [could] reasonably be inferred . . .” Althiser v. Richmondville Creamery Co., 215 NYS2d 122, 124 (13 A.D.2d 162) (1961).

The majority, in accepting as conclusive the juror’s statements of impartiality, overlooks the fact that, “[n]o matter how conscientious they may be, jurors are but individuals, and may be subject to influences of which they themselves may often be unaware.” Arkwright v. Steinbugler, 128 NYS2d 823, 825 (283 A.D. 397) (1954). For example, “[n]othing can obscure the fact that the cost of living is a major, if not a paramount, contemporary public issue. The cost of fuel is a continually publicized matter. It impinges heavily upon the income of the vast majority of our citizens and is pervasive throughout the entire economic life of our nation. It may be true that the same considerations may also affect the residents of [some other county], but at least they are not directly concerned with any consideration of a possible... pecuniary benefit from this lawsuit and, further, there is the strong possibility that to [the resident of some other county the parties] are distant entities which can be considered dispassionately and objectively.” Long Island Lighting Co. v. New England Petroleum Co., 362 NYS2d 350, 355 (80 Misc. 2d 183) (1974).

*321Appellants did not fear anyone would intentionally do them an injustice. Their objection was that an unconscious, subliminal bias existed which would operate to their disadvantage. Far from being metaphysical, appellants’ motion addressed the all too palpable potential for prejudice which existed in regard to the trial of this case. In addition to the indicia set out above, the jury returned a verdict not simply for the defendant, but declaring the city “not guilty of negligence as charged.” “It has been said that there is nothing so essential in the administration of justice as the avoidance of seeming partiality. Every suitor is entitled to have his case tried before an impartial forum and every effort should be made whenever reasonable to avoid suspicion on his part that the opportunity for a fair trial is not being presented.” Castle v. Village of Baudette, 125 NW2d 416, 418-419 (267 Minn. 140) (1963). I am of the opinion that appellants should not have been required to undertake the risk of prejudice toward their case. Therefore, I would reverse and direct the trial court to grant appellants’ motion for change of venue.

I am authorized to state that Judge Banke joins in this dissent.