Opinion
58861.
SUBMITTED NOVEMBER 19, 1979.
DECIDED MARCH 4, 1980.
Action for damages. Fulton Superior Court. Before Judge Alverson.
James H. Archer, R. William Hamner, Anne S. Rampacek, for appellant.
Edward L. Savell, W. Wray Eckl, Theodore Freeman, for appellees.
Appellant brought suit to recover for injuries sustained when he fell or was thrown from a horse owned by appellee Barbara Shanks. Appellant asserts that the trial court erred in granting appellees' motion for summary judgment. We affirm.
1. In order for appellant to recover, "it must appear that the animal had a propensity to do the act which caused the injury and that the defendant knew of it." Chandler v. Gately, 119 Ga. App. 513, 519 ( 167 S.E.2d 697) (1969). The record in this case establishes that appellees neither knew nor had cause to know of a propensity on the part of the horse to disobey commands of its rider and run wild. Appellant has failed to rebut appellee Shanks' testimony that the horse was "very gentle," had no "bad habits," and had never thrown any of its riders.
Appellant argues that the behavior of the horse during the time that appellant was upon it constituted a demonstration of the "dangerous propensities" of the horse which served to put appellee Shanks on notice that the horse posed a threat to appellant's safety. We reject this argument. While the record does indicate that the horse "moved sideways" at times and seemed to appellant to be difficult to restrain, such actions alone do not raise a jury question as to the horse's "dangerous propensity" or appellees' knowledge thereof.
2. "Whether plaintiff is proceeding under Code § 105-110 (keeping a vicious or dangerous animal) or in fraud and deceit, proof of scienter is still essential to his case." Johnson v. Hurt, 120 Ga. App. 761 ( 172 S.E.2d 201) (1969). In light of our holding in Division 1, appellant's claim for damages based on a theory of misrepresentation must be rejected.
Judgment affirmed. Quillian, P. J., and Birdsong, J., concur.