*1 strong had a odor of alcohol his breath and that his him eyes glassy, leading opinionate were that Mr. under Herfurth was the influence of intoxicants shortly the incident. testimony concerning after the breath was, therefore, alcohol test only cumulative and no prejudice resulted. remaining enumerations have been care- considered this court
fully and are either con- opinion trolled or considered to lack merit. in part; reversed in part. Evans affirmed Webb, JJ., and concur. Argued September denied November
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Coleman, Robert W. Cowan, William W. for appellant. Jr., Thomas H. Harper, appellees.
49661. SULLIVAN v. GOSS. Presiding Judge. Pannell, This case is an plaintiff action by seeking recover damages against the defendant because the defendant’s upon plaintiff’s property and killed plaintiff’s game chickens, or "Slasher” birds. There were two alleged occasions. The trial judge directed a verdict for the defendant occasion, as to the first but denied such a motion as to the subsequent occasion. The jury being verdict, unable to reach a a mistrial was declared. Defendant appealed from the denial of his motion for the mistrial as to the last occasion. Held: scienter,
The rule as to
or knowledge on the part of
the owner of a
vicious or
propensity
dog,
(see
Bland,
if
one exists
Connell v.
The evidence adduced such as to authorize a finding dog plaintiffs that the defendant’s the upqn chickens, and killed some of his property the denial of the judgment notwithstanding motion for the mistrial is affirmed. Webb, J., Evans, J., concurs. affirmed. specially.
concurs Argued September 4, 22, 1974 1974 denied 1974. November
Bouhan, Robb, Jr., Williams & Edwin D. Levy, for appellant. Clark, Clark,
Lee & Fred S. appellee. Judge, concurring specially. Evans, plaintiff, Donald Goss as sued Bill Sullivan as defendant, because Sullivan negligently allowed his dog to leave his yard go upon and to Goss’ premises, where thirty game he killed valuable birds known as "Slasher” jury birds. The could not reach a verdict and a mistrial was declared. Defendant made a motion for the which motion over- was ruled, and appeals he to this court. majority places affirms and its decision solely 831, 832;
on a new statute comparatively 62-2004). Code Ann. §
219
court,
affirming
in
of this
the decison
I contend
1.
another
placed
also be
court,
and should
could
the trial
question
in
was
that
the
wit,
the fact
theory,
In
done.
mischief was
the
place
in the
where
wrongfully
liable,
of scienter
irrespective
is
case the owner
such
of
propensities
dangerous
him of the
knowledge
prior
Gregory,
in
held
Caldwell
This court so
dog.
the
SE2d
he does
where
place
in the
dog wrongfully
If
is
a
liable,
prior
of
irrespective
mischief,
is
the owner
dog’s
of
the owner
knowledge
pronouncement
precise
clear and
This was a
proclivities.
aside or
state,
not be shunted
and can
of
law of this
Gately,
obiter. See Chandler
being
as
disregarded
Gates, 194
(3)
Dooly
Ga.
Brown, 200
Ga.
Rivers v.
Co., 115
v. American Credit
Vann
(2) (155
case,
than Connell and
Next,
being older
than
later case
Carter,
followed rather
supra, must be
of stare
principle
This is on the
in
therewith.
conflict
*3
590, 596
Co., 200 Ga.
R.
Frazier v. Southern
decisis. See
Barnes,
(37
120 Ga.
Boston Ins. Co.
499, 501; Peppers
Gray,
Gray
Co.,
SE
McKibben
v. Travelers Ins. State, in a none of 3. As the case resulted have trial in the first trial rulings judge made See Colevins judicata. the "law of this case” or res become Co., v. Nat. Union Fire Ins. defendant’s trial overruled judge correctly mistrial, and
motion for judgment judgment. I affirm that would