Langford v. Eskedor

30 Ga. App. 799 | Ga. Ct. App. | 1923

Luke, J.

This is ail action for damages arising- out of the biting of the plaintiff by the defendant’s mad dog on a public street of the City of Savannah. The dismissing of the petition on general demurrer, because “ there is nowhere in the petition an allegation that defendant had actual knowledge of the alleged condition of the dog,” is assigned as error. The petition alleges that plaintiff was bitten at about 3 :35 p. m. on April 22, 1922; that at or about 3:35 p. m. of the same day, and at or near the place where plaintiff was bitten, to wit, defendant’s residence, the same dog had bitten two other persons; and that “ defendant knew, or in the exercise of ordinary care and diligence should have known, that said dog was suffering from rabies, and should have taken steps to have said dog killed before 3’our petitioner received his injuries.” The petition further alleges that the defendant violated an ordinance of the City of Savannah, providing that any owner or possessor, or any person harboring or keeping any dog, shall confine the same within the limits of his premises, and shall not permit such dog to run upon the streets, lanes, highways, squares, or parks of said city, unless it be accompanied by a competent and responsible care-taker, a violation of said ordinance being punished by fine or imprisonment, or both.

The dog is a domestic animal (Wilcox v. State, 101 Ga. 563, (28 S. E. 981, 39 L. R. A. 109), and since section 4411 of the Civil Code (1910) is but a restatement of the common law, under it, just as at common law, it is necessary not only to show that the animal was vicious or dangerous, but also that the owner knew of this fact. Harvey v. Buchanan, 121 Ga. 384 (49 S. E. 281); Friedman v. Goodman, 124 Ga. 532 (52 S. E. 892); Conway v. Grant, 88 Ga. 40 (13 S. E. 803, 14 L. R. A. 196, 30 Am. St. R. 145); Reed v. So. Express Co., 95 Ga. 108 (22 S. E. 133); Browder-Manget Co. v. Calhoun Brick Co., 138 Ga. 211 (15 S. E. 243).

Where the owner does not know and has no reason to believe that his dog is suffering from rabies, he is not liable for injuries inflicted by such dog. 3 Corpus Juris, 100.

The fact that the mad dog was at large in violation of the municipal ordinance imposing a penalty upon its owner does not alter the rule that scienter must be shown. In this connection see Harvey v. Buchanan, supra.

Since the petition under consideration failed to show that the owner of the dog had either actual or constructive notice of its condition, the court correctly sustained the general demurrer. See Emmons v. Stevane, 77 N. J. L. 510 (73 Atl. 544, 24 L. R. A. (N. S.) 458).

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.