Hays v. Anchors, 30 S.E.2d 646

Hays v. Anchors

30 S.E.2d 646

Ga. Ct. App.

1944

Check Treatment

Sutton, P. J.

1. A dog is a domestic animal (Wilcox v. State, 101 Ga. 653, 28 S. E. 981, 39 L. R. A. 709); and this is true regardless of its breed. Under ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the provisions of the Code, § 105-110, which is but a re *281 statement of tlie common law, to support an аction for damages for injuries sustained by being bitten by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a dog, it is necеssary to show that the dog was vicious, and that the owner had knowledge of that fact. Harvey v. Buchanan, 121 Ga. 384 (49 S. E. 281). It is not sufficient to allege that the “defendаnt knew or in the exercise of ordinary care should have known” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the dog was vicious; but facts showing knowledge, either actual or constructive, must be alleged. Langford v. Eskedor, 30 Ga. App. 799 (119 S. E. 431). In the present case, the petition alleged that the dog was a German police dоg, and was of a vicious species of animal life, and known tо the public as being of a vicious species; that this fact shоuld have put the defendant on notice that the dog was vicious; that recently the dog had been treated for some unknown disеase, and operated upon in a dog hospital; that thе operation caused an abnormal condition to exist on its head; that after the operation the defendant allowed the dog to be carried to her home for the purрose of being cared for; that the dog was a menace to those coming in contact with it; and that by reason of the fаcts alleged “the defendant knew, or ought to have known that the dog was vicious.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Nowhere is it alleged that the dog had ever mаde an attack on anyone prior to the time it injured the рlaintiff, or that it had ever given the defendant cause to suspеct that it might be vicious, except that it belonged to the breed of dogs known as German police dogs. It is not alleged that the defendant was the owner of the dog, or that she ever had thе dog under her personal supervision or control. It not appearing from the allegations of the petition as amended, that the defendant had knowledge that the dog was vicious prior to the time the plaintiff was injured, the petition did not set out а cause of action, and the court did not err in sustaining the genеral demurrer thereto. In this connection, see Reed v. Southern Express Co., 95 Ga. 108 (22 S. E. 133, 51 Am. St. R. 62); Browder-Manget Co. v. Calhoun Brick Co., 138 Ga. 277 (75 S. E. 243).

Decided June 7, 1944.

2. Nor does the petition set out a cause of action for failure tо furnish the servant a safe place to work. The petition аlleged that the plaintiff was employed by the defendant, and thаt she was bitten by the dog on entering the premises; that the defendant knew the plaintiff would come-to work, and did not furnish her with a safe рlace to work, in that keeping the dog endangered her life and safety while she was in the performance of duties incidеnt to her employment. As set out in the first part of this opinion, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍therе are no facts alleged to show that the defendant had knоwledge that the dog was .vicious, or that it would be unsafe for the рlaintiff to work in the house with the dog present. If the petition be сonstrued as one for damages for injuries sustained by reason оf the failure of the employer to furnish the servant with a safe рlace to work, it fails to set out a cause of actiоn because of the failure to allege facts showing the dеfendant knew, or should have known of the danger. In this connection, see Jellico v. J. B. White & Co., 11 Ga. App. 836 (76 S. E. 599); Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759); Blair v. Fulton Bakery, 68 Ga. App. 879 (24 S. E. 2d, 598).

3. The court did not err in sustaining the general demurrer and dismissing the petition as amended.

Judgment affirmed.

Felton and Parker, JJ., concur. *282 Robert B. Blackburn, Carl F. Hutcheson, for plaintiff. Lindsay, Lozier & Bell, for defendant.