Mauldin v. Green

184 S.E.2d 498, 124 Ga. App. 557, 1971 Ga. App. LEXIS 1021

• Court: Court of Appeals of Georgia
• Decided: September 13, 1971
• Docket: 46109, 46110
• Status: Published

Opinions

Quillian, Judge.

This is a personal injury case arising out of the defendants’ dog biting the plaintiff, a five-year-old child. The trial judge granted the defendants’ motion for a summary judgment and the case is here for review. Held:

1. The plaintiff contends that the trial judge erred in sustaining the defendants’ motion for summary judgment because there was circumstantial evidence that the defendants had knowledge that their dog was vicious. "In order to recover in a case of this nature the plaintiff must prove (1) that the animal has a vicious or dangerous character and (2) knowledge of this propensity on the part of the owner. Flowers v. Flowers, 118 Ga. App. 85 (162 SE2d 818); Starling v. Davis, 121 Ga. App. 428 (174 SE2d 214).” Keener v. Tate, 123 Ga. App. 484 (181 SE2d 547). There was evidence that: the attack upon the child was vicious; that defendants owned two dogs and one was allowed to roam free while the one that bit the child was kept in a fenced backyard; a Mrs. Wilson stated that the dog had snarled at her and chased her into her house. Assuming that this evidence might have been sufficient to show that the dog was vicious it was no proof that the defendants had knowledge of that fact.

Argued May 6, 1971 Decided September 13, 1971 Rehearing denied October 7, 1971 Peek, Whaley & Haldi, Glenville Haldi, C. Glenn Stanford, for appellants. Powell, Goldstein, Frazer & Murphy, John T. Marshall, John C. Gray, for appellees.

2. The plaintiff also contends that the testimony of a Mrs. Mauldin was sufficient to prove that the defendants had knowledge that the dog was vicious. Mrs. Mauldin testified that a neighbor had told her that Mrs. Green, one of the defendants, had told her of the vicious tendencies of the dog. The' plaintiff argues that this evidence while hearsay would be admissible to prove the dog’s reputation. Caldwell v. Gregory., 120 Ga. App. 536 (171 SE2d 571). Assuming, but not deciding, that this evidence would be admissible to prove the dog’s reputation it would not be admissible to prove the defendants’ knowledge of the dog’s propensity for viciousness. The defendants having testified that they had no knowledge of this essential element and there being no evidence to the' contrary, the granting of the defendants’ motion for summary judgment was not error.

3. A consideration of the transcript of the hearing on the motion for summary judgment not being necessary for. a decision of this appeal, the motion to dismiss is denied. Hill v. Gen. Rediscount Corp., 116 Ga. App. 459 (2) (157 SE2d 888).

Judgment affirmed.

Bell, C. J., Jordan, P. J., and Eberhardt, J., concur. Hall, P. J., concurs in the judgment. Whitman, J., concurs specially. Pannell, Deen and Evans, JJ., dissent.