Jett v. Norris

211 S.E.2d 639, 133 Ga. App. 596, 1974 Ga. App. LEXIS 1146

• Court: Court of Appeals of Georgia
• Decided: December 5, 1974
• Docket: 49715
• Status: Published

Opinions

Pannell, Presiding Judge.

Jo Ann Franklin brought an action in tort against James Norris seeking recovery of damages occasioned by a collision in which the parties and their automobiles were involved. Defendant denies he was negligent and counterclaimed against the complaint and brought a third-party action against W. H. Jett, claiming Jett was "negligent in causing a dog” owned by Jett to cross the road, which was the proximate cause of the collision between the complainant and the defendant—third-party plaintiff Norris. The third-party action also alleged (Par. 4) "that the negligence on the part of the third-party defendant was in violation of the DeKalb County Ordinance and constituted negligence per se.” The allegations of negligence were expressly denied by Jett in his answer. Jett filed a motion for summary judgment accompanied by his affidavit. No evidence was submitted relative to the allegations of Paragraph 4 of the third-party complaint. The trial judge overruled the motion. Held:

Argued September 4, 1974 Decided December 5, 1974 Rehearing denied December 19, 1974

1. The affidavit of the owner of the dog, in the absence of any evidence to the contrary (and the third-party plaintiff produced none), was sufficient to demand a finding of lack of knowledge of the owner that his dog had ever crossed a road in front of an automobile. See Chandler v. Gately, 119 Ga. App. 513 (2) (167 SE2d 697); Starling v. Davis, 121 Ga. App. 428 (174 SE2d 214); Carter v. Ide, 125 Ga. App. 557 (2) (188 SE2d 275).

2. While there was no evidence by defendant showing he had complied with "the DeKalb County Ordinance” (assuming it to be one requiring dogs to be kept on the owner’s premises, except when on a leash) this was not necessary; for where there is a lack of scienter even the breach of a leash law is not sufficient to hold the owner responsible for the acts of the dog. Connell v. Bland, 122 Ga. App. 507, 510 (177 SE2d 833) and cases therein cited and discussed. See also Sellers v. Woods, 129 Ga. App. 383 (199 SE2d 555) which is in accord with this ruling.

3. The trial judge erred in denying summary judgment for the third-party defendant.

Judgment reversed.

Bell, C. J., Deen, P. J., Quillian, Clark, Stolz, Webb and Marshall, JJ., concur. Evans, J., dissents. Greer, Pollock & Klosik, Frank J. Klosik, Jr., for appellant. Richardson, Chenggis & Constantinides, Robert P. Mallis, Thomas H. Knuth, for appellees.