Sanders v. Bowen

396 S.E.2d 908, 196 Ga. App. 644, 1990 Ga. App. LEXIS 1010, 1990 WL 152087
CourtCourt of Appeals of Georgia
DecidedJuly 11, 1990
DocketA90A0607
StatusPublished
Cited by14 cases

This text of 396 S.E.2d 908 (Sanders v. Bowen) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanders v. Bowen, 396 S.E.2d 908, 196 Ga. App. 644, 1990 Ga. App. LEXIS 1010, 1990 WL 152087 (Ga. Ct. App. 1990).

Opinions

Deen, Presiding Judge.

Defendant Donald Sanders appeals a judgment entered on a jury verdict for plaintiffs Daimian and John Bowen in the amount of $76,000 damages for personal injuries received by Daimian when he was bitten by defendant’s pit bulldog.

1. After a case is tried, an appellate court will not review the denial of a motion for summary judgment because that issue became moot upon the trial. Drillers Svc. v. Moody, 242 Ga. 123 (249 SE2d 607) (1978); Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154 (1) (264 SE2d 662) (1980); Hardaway Constructors v. Browning, 176 Ga. App. 530 (1) (336 SE2d 579) (1985).

2. Sanders enumerates as error the denial of his motions for directed verdict and j.n.o.v. in enumerations 2 and 18. He also asserts that it was error for the court to permit the submission of the issue of agency regarding defendant’s sons (enumeration of error 7), which proposition is supported by substantially the same argument as are the evidentiary questions presented in enumerations 2 and 18. We consider these grounds together.

On September 23, 1986, 13-year-old Daimian Bowen and Adam Marlow visited defendant’s property. According to Daimian, defendant’s son Wayne had invited him and Adam to see some game chickens about two weeks before. “Bad Eye,” an 8-10 month old pit bulldog which defendant had owned between one and two months, was tied to a tree in the backyard. As Daimian approached defendant’s sons in the yard, the dog broke his part chain, part rope restraint and bit him, causing severe injury.

Neither side contends that the leash portion of OCGA § 51-2-7 is in issue. The heart of the case involves plaintiffs’ burden of proving that defendant had knowledge that the dog was a vicious or dangerous animal. Harvey v. Buchanan, 121 Ga. 384 (49 SE 281) (1904).

Defendant denied any knowledge of dangerous propensities or of his dog ever having bitten another person prior to the incident involving Daimian. To counter this and meet their burden of proof, plaintiffs sought to establish that defendant has designated his three sons, [645]*645Steve age 16 or 17, Wayne age 15 or 16, and Jay age 9 or 10, to take care of Bad Eye and thus constituted them as defendant’s agents so that their admissions could be attributed to him as their principal (OCGA § 24-3-33), he would be responsible for their acts (OCGA § 51-2-2), and their knowledge would be his knowledge, at least constructively. See Flowers v. Flowers, 118 Ga. App. 85 (2) (162 SE2d 818) (1968); Hays v. Anchors, 71 Ga. App. 280 (1) (30 SE2d 646) (1944). In support of this theory, plaintiffs attempted to introduce testimony that defendant’s sons told them that the dog had tried to bite Wayne and had bitten defendant’s youngest son, Jay. Defendant contends this evidence was hearsay.

Daimian and Adam Marlow both testified that Jay Sanders told them that Bad Eye had bitten him prior to the dog’s attack on Daimian. Jay denied this as did other members of defendant’s family. This created a jury issue as to what Jay said and whether he was bitten by Bad Eye. Jay was the only one to whom any statement about Bad Eye’s biting him was attributed. In order to demonstrate defendant’s knowledge of the dog’s actions, plaintiffs had to introduce evidence that Jay acted as defendant’s agent in caring for Bad Eye. Defendant testified that he gave his sons permission to keep the dog in the backyard and in response to the question, “Which one of your sons took care of the dog Bad Eye?” he answered: “Wayne did mostly.” Plaintiffs fail to show by the record that this crucial fact of Jay’s agency was otherwise established. This evidence was at most ambiguous as to Jay’s special status and thus as to defendant’s knowledge of the event. The mere fact that Jay was defendant’s son would not be enough to show defendant knew the dog had bitten him.

A minor child may be considered his parent’s agent where he performs actions in that respect. Butler v. Moore, 125 Ga. App. 435, 436 (3) & (5) (188 SE2d 142) (1972). No direct evidence shows that Jay acted as an agent for his father in taking care of Bad Eye. Where an issue in a civil case rests upon circumstantial evidence, “the testimony must be such as to reasonably establish the theory relied on. There must be more than a ‘scintilla’ of circumstances to carry the case to the jury.” McCarty v. Nat. &c. Ins. Co., 107 Ga. App. 178 (2) (129 SE2d 408) (1962). Approved Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 358 (2) (138 SE2d 886) (1964). Although there might be a hint that Jay was his father’s agent, “ ‘inferences must be based on probabilities, not on possibilities.’ ” Cohen v. Hartlage, 179 Ga. App. 847, 851 (348 SE2d 331) (1986). From the evidence elicited, it was at most merely possible that Jay was his father’s agent.

Other evidence of knowledge about the dog’s vicious tendencies was testimony by Daimian’s sister that Wayne, who did not testify at trial, told her he was training Bad Eye to fight for money. He also described how he had trained the dog to hold onto a two-by-four [646]*646board with its jaws, that he tormented him with dead chickens, and that he fed the dog irregularly so as to make him “mean.” Adam Mar-low related that in his presence Bad Eye “popped” a basketball. Although an expert witness for plaintiffs testified that because a dog was trained to fight did not necessarily make him “people aggressive” and that there was no evidence that Bad Eye was particularly trained to be “people aggressive,” he did testify that a dog trained to fight would be more likely to bite a human than one not so trained. He also testified that a pit bulldog is a high energy dog and a fighting dog to begin with, and that its restraint by a chain or leash is a great stimulant.

Evidence introduced by plaintiffs as to the size and breed of the dog as well as the fact that it was kept restrained is not of itself availing. Stanger v. Cato, 182 Ga. App. 498 (356 SE2d 97) (1987). Accord Freeman v. Farr, 184 Ga. App. 830 (363 SE2d 48) (1987) (physical precedent only). “Proof that the owner of the dog either knew or should have known of the dog’s propensity to do the particular act which caused injury to the complaining party is indispensable to recovery.” Fitzpatrick v. Henley, 154 Ga. App. 555 (269 SE2d 60) (1980). As to the need to show more than knowledge of the propensity to do harm in one or more specific ways, it must be knowledge of harm of the type actually inflicted. See Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978); Penick v. Grimsley, 130 Ga. App 722 (204 SE2d 510) (1974), and Carter v. Ide, 125 Ga. App. 557 (188 SE2d 275) (1972). Carter held that knowledge of the propensity to attack other animals is not necessarily notice that the dog will attack humans. Here, however, the naturally-fighting dog was being deliberately trained to be vicious by someone whom the jury could find was defendant’s agent. A reasonable inference, at least, could be made that Wayne knew that his training and the demeanor being built into this pit bulldog gave him a dangerous propensity with respect to people, perhaps especially strangers, and not only to boards and dead chickens.

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Sanders v. Bowen
396 S.E.2d 908 (Court of Appeals of Georgia, 1990)

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Bluebook (online)
396 S.E.2d 908, 196 Ga. App. 644, 1990 Ga. App. LEXIS 1010, 1990 WL 152087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-bowen-gactapp-1990.