7 ELR 20481 | Environmental Law Reporter | copyright © 1977 | All rights reserved


Pollock v. Georgia Power Company

Nos. 53499-501; 53549 (234 S.E.2d 107, 141 Ga. App. 678) (Ga. Ct. App. February 25, 1977)

Reversing the jury decision awarding damages for negligence, the court holds that evidence regarding sulfur content of the coal burned at defendant's plant was improperly excluded. Appellants pecan farmers sued for crop damages caused by sulfur dioxide emissions from the company's power plant. The trial court erred in excluding evidence that would have shown the company had access to cleaner coal and could have subjected the company to exemplary damages. The court also rejects the company's cross-appeal of the trial court's denial of its motion for a directed verdict because there was evidence from which the jury could have inferred negligence.

Counsel for Appellants
Fred B. Hand, Jr.
Hand & Whaley
Hand Bldg., Pelham GA 31779
(912) 294-4807

Counsel for Georgia Power Company
Robert L. Pennington, Daniel S. Reinhardt
Troutman, Sanders, Lockerman & Ashmore
15th Floor, Candler Bldg., 127 Peachtree St., NE, Atlanta GA 30303
(404) 522-7480

Frank S. Twitty
Twitty & Twitty
52 E. Oakland Ave., Camilla GA 31730
(912) 336-0461

Stolz, J. joined by Quillan, P.J. & Shulman, J.

[7 ELR 20481]

Stolz, J.:

The appellants, Mitchell County pecan farmers, sued Georgia Power Company for damages to their crops for various years between 1971 and 1974 caused by sulfur dioxide emissions from Georgia Power's Plant Mitchell general facility. The issue was decided by a jury on grounds of negligence, and damages were awarded in favor of appellants C. M. Pippin and Walter Pollock, Sr. The jury found in favor of Georgia Power as against appellants Roy Lester Pollock and Walter Pollock, Jr. Judgment was entered on the jury verdict. The appellants challenge the court's judgment in Nos. 53449 and 53500, and Georgia Power cross appeals in Nos. 53501 and 53549.

1. The appellants enumerate as error the trial court's exclusion from evidence of an exhibit showing the month-by-month sulfur content of the coal burned at another Georgia generating plant. The exhibit was relevant to show that Georgia Power had access to coal of lower sulfur content than that burned at Plant Mitchell, and, thus, the jury could have found that Georgia Power's failure to burn low sulfur coal at Plant Mitchell was arbitrary and should subject it to exemplary damages.

Georgia Power's contention that the evidence does not indicate an ability by Plant Mitchell to burn low sulfur coal is without merit. There is testimony that Georgia Power told a witness that Plant Mitchell could burn such coal. If the jury had found that Plant Mitchell could burn low sulfur coal and that such coal was available, those findings could have weighed in its consideration of whether Georgia Power was negligent and whether Georgia Power should pay exemplary damages.

2. The court also erred in excluding from evidence the testimony of Dr. Sholtes, an expert testifying for the appellants, to the effect that if coal with a lower sulfur content had been burned at Plant Mitchell, the plant's sulfur dioxide emissions would have been lower. Georgia Power claims that there was no foundation for the testimony and that it was totally irrelevant. If the evidence discussed in Division 1, above, had been properly admitted, a foundation would have existed. And, when considered in conjunction with other evidence, the testimony dealing with a potential reduction in plant emissions could reasonably have led the jury to conclude that burning low sulfur coal would have had a beneficial effect on the appellants' groves.

3. In its cross-appeal, Georgia Power enumerates as error the court's denial of its motion for directed verdict. Georgia Power claims that there was no evidence presented before the court which would indicate its negligent operation of Plant Mitchell. However, there is evidence that Plant Mitchall could have burned lower sulfur coal or raised its emissions stack (Tr. 27). From such testimony a jury could have inferred negligence from the fact that [7 ELR 20482] Georgia Power was able to act, but failed to do so.

This court "must construe the testimony most favorably toward the party opposing the motion for directed verdict." Isom v. Schettino, 129 Ga.App. 73(1), 199 S.E.2d 89 (1973)."In reviewing the denial of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the 'any evidence' test." Jones v. State, 139 Ga.App. 643(3), 229 S.E.2d 121 (1976). Therefore, the enumeration of error presented on Georgia Power's cross appeal is without merit.

Judgment reversed on the main appeals; affirmed on the cross appeals.


7 ELR 20481 | Environmental Law Reporter | copyright © 1977 | All rights reserved