Opinion
31699.
DECIDED SEPTEMBER 13, 1947.
Damages; from Macon Municipal Court — Judge Feagin. May 29, 1947.
Roy B. Rhodenhiser Jr., for plaintiff in error.
Thomas W. Johnson, C. A. Cunningham, V. Eugene Morgan, contra.
1. The motion to dismiss the writ of error is denied.
2. Where in an action for damages it is alleged that the plaintiff was bitten and injured by the dog kept by the defendant, and that the dog was vicious and accustomed to bite mankind, which was known to the defendant, the allegations are sufficient as against a general demurrer.
3. The assignments of error on the overruling of the special demurrers are treated as abandoned.
DECIDED SEPTEMBER 13, 1947.
C. E. Orr filed an action for damages in the Municipal Court of the City of Macon against Roy Greene, seeking to recover $495 for the following allegedly negligent acts on the part of the defendant: "1. . . On the 26th day of March, 1947, A. D., the said defendant wrongfully and injuriously did keep a certain dog, to wit, a collie, which the said defendant during all that time well knew was used and accustomed to attack and bite mankind. He negligently and carelessly managed said dog, in that he permitted said dog to go at liberty knowing said character of said dog, and that the injuries hereinafter alleged were sustained while said dog was at liberty on the Bloomfield Road near Columbus Road and resulted from said careless management. 2. . . that the said dog, while the defendant so kept the same as aforesaid at or about 1 p. m. on the 26th day of March, 1947 . . did attack and bite plaintiff and did then and there greatly lacerate, hurt, and wound the left leg of the plaintiff . .; plaintiff shows further that said dog kept by the defendant was vicious and that the defendant knew that said dog was vicious."
The defendant demurred generally to the petition as setting forth no cause of action, and specially to paragraph 2 of the petition on the ground that the allegations of negligence were vague, indefinite, uncertain, and insufficient in law, and called upon the plaintiff to allege and specify wherein and how said dog was vicious and wherein and how the defendant knew of said viciousness, and wherein and how the defendant was negligent. The court overruled both the general and special demurrers, and the defendant excepted.
1. The motion to dismiss the writ of error is denied. A bill of exceptions reciting that the court erred in overruling the general and special demurrers, and that "to this ruling the plaintiff in error excepted and now excepts and assigns the same as error upon the ground that it was contrary to law," contains a sufficient assignment of error where the demurrers themselves appear in the record. Toomey v. Read, 133 Ga. 855 ( 67 S.E. 100); Walker v. Crummey, 18 Ga. App. 414 ( 89 S.E. 539); Holloman v. Tifton, 3 Ga. App. 293 ( 59 S.E. 828).
2. As shown by the record of file in the office of the Clerk of the Supreme Court, the plaintiff in Conway v. Grant, 88 Ga. 40 ( 13 S.E. 803, 14 L.R.A. 196, 30 Am. St. R. 145), alleged that the defendant "wrongfully and injuriously did keep certain dogs, five in number, she, the said defendant during all that time well knowing that the said dogs then were used and accustomed to attack and bite mankind, and that they were of a ferocious and mischievous nature, and not keeping the said dogs properly secured." The defendant on the trial of the case made a motion to dismiss the petition as setting forth no cause of action, which was granted. Chief Justice Bleckley said in the opinion reversing the trial court: "The ferocious character of the dogs and the knowledge of the owner are sufficiently alleged." If not almost identical to the allegations of the instant case, the allegations of the Conway case are so strikingly similar to those of this case as to preclude any further discussion of the sufficiency of the allegations as against general demurrer. In Hays v. Anchors, 71 Ga. App. 280 ( 30 S.E.2d 646), there were no allegations that the dog was vicious and that the defendant had knowledge of its viciousness, but merely an allegation that the dog "was of a vicious species of animal life and was known to the public as being of vicious species and that this classification was of such general knowledge as to put the defendant on notice of the fact that the dog referred to was vicious," which, when construed against the pleader as against demurrer, is not an allegation that the dog in question was vicious, but that dogs of his breed were vicious, and it is not an allegation that the defendant knew of the dog's vicious propensities, but that the public knew or classified the breed as vicious. The law requires that, in order for the plaintiff to recover, the dog in question be vicious and that the keeper have knowledge of the viciousness. The petition in the Hays case, supra, did not meet those requirements.
3. Since counsel for the plaintiff in error has not insisted upon his assignments of error upon the overruling of his special demurrers, they will be treated as abandoned.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.