Candler v. Smith

• Decision Date: 16 February 1935
• Docket Number: 24047.
• Citation: 179 S.E. 395,50 Ga.App. 667
• Parties: CANDLER v. SMITH.
• Court: Georgia Court of Appeals

179 S.E. 395

50 Ga.App. 667

CANDLER v. SMITH.

No. 24047.

Court of Appeals of Georgia, Second Division

February 16, 1935

Syllabus by Editorial Staff.

Owner is liable for injuries inflicted by vicious or dangerous animal as result either of owner's negligence in allowing animal at large or negligence in failing to prevent animal from escaping confinement (Civ. Code 1910, § 4417).

Where animal feræ naturæ injures person by attack, negligence of animal's owner or keeper is presumed, since owner or keeper is required to exercise that degree of care which will absolutely prevent occurrence of injury to others through such vicious acts of animal as animal is naturally inclined to commit, provided that injury is not brought about by negligence of person injured (Civ. Code 1910, § 4417).

Petition alleging that defendant brought baboon upon his premises that baboon was able to escape and come upon plaintiff's premises and commit injury complained of, held not demurrable for failure to allege that injury occurred by reason of defendant's actual negligence (Civ. Code 1910 § 4417).

Petition alleging that defendant's baboon escaped from its place of confinement and came upon plaintiff's premises and there committed injury complained of held not demurrable for failure to state how escape was effected (Civ Code 1910, § 4417).

Petition alleging that defendant's baboon came upon plaintiff's premises and there committed injury complained of held not demurrable for failure to allege that owner was negligent in allowing baboon to be at large, since baboon is "animal feræ naturæ,'DD' and owner is charged with knowledge of its ferocious nature and is bound to keep it secure at his peril (Civ. Code 1910, § 4417).

Petition alleging that defendant's baboon came upon plaintiff's premises, and advanced upon plaintiff in menacing manner, causing her to trip and fall and sustain bruises and nervous shock, sufficiently showed existence of physical injury to authorize recovery for fright and nervous shock (Civ. Code 1910, § 4417).

Damages for mere fright are generally not recoverable, but may be recovered where there is some physical injury attending cause of fright, or where fright is of such character as to produce some physical or mental impairment directly and naturally resulting from wrongful act.

Acts of negligence not willful or wanton will authorize recovery, where resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or physical or mental impairment naturally follows as direct consequence.

In suit for injuries sustained when plaintiff was frightened by defendant's escaped baboon, charge that, if jury believed baboon was animal feræ naturæ not susceptible of substantial domestication, plaintiff need not prove that defendant had knowledge of vicious and dangerous propensities of baboon, held not to entitle defendant to new trial, although petition alleged defendant knew that baboon was vicious (Civ. Code 1910, § 4417).

Where statute is subject to either construction, construction in conformity with common law, rather than in derogation of common law, should be adopted.

Owner is not liable for injury caused by animal's viciousness unless owner has knowledge of animal's vicious nature, but such knowledge is presumed where animal belongs to class of "animals feræ naturæ,'DD' such as lions, tigers, bears, wolves, baboons, apes, and monkeys.

In action for injuries sustained when plaintiff was frightened by escaped baboon, charge that plaintiff must show that defendant was careless in management of baboon, although erroneous, held not to entitle defendant to new trial, since favorable to defendant.

In action for injuries sustained when plaintiff was frightened by escaped baboon, evidence that defendant kept baboon in cage near place elk was kept, that it was easy for elk to tear hole in cage, as he did, and that baboon had bitten people, held to authorize finding that defendant owner was negligent in manner of keeping baboon (Civ. Code 1910, § 4417).

Refusal of requested instructions as to matter fully and fairly presented in charge given is not cause for reversal (Civ. Code 1910, § 6084).

In action for injuries sustained when plaintiff was frightened by escaped baboon, refused statutory charges on damages held sufficiently covered by charge given (Civ. Code 1910, §§ 4502, 4506-4509, 6084).

In action for injuries sustained when plaintiff was frightened by escaped baboon, defendant could not complain of refusal to charge rule for assessing nominal damages, where defendant's evidence authorized general verdict for defendant and verdict was rendered for plaintiff (Civ. Code 1910, § 4502).

In action for injuries sustained when plaintiff was frightened by escaped baboon, testimony that animals were brought upon defendant's premises and into his zoo after plaintiff received injuries was admissible to shed light on plaintiff's alleged nervous condition, and its admission did not entitle defendant to new trial, where defendant did not object to other similar testimony and so testified himself.

Allowing depositions to be read held not error, although deposing witness was present in court and could have been put upon witness stand.

Verdict, to be set aside as excessive, must be, not merely generous or large, but such as to shock moral sense to extent leading to belief that jury was actuated by improper motives or influences.

In determining whether verdict is excessive, Court of Appeals places great weight upon trial judge's approval of verdict (Civ. Code 1910, § 4399).

$10,000 held not excessive for injuries, including pain and suffering and neurosis, sustained by woman who tripped and fell when frightened by escaped baboon (Civ. Code 1910, § 4399).

Court of Appeals does not have as much discretion as trial court in setting aside verdicts and granting new trials (Civ. Code 1910, §§ 6082-6088).

Error from City Court of Decatur; Frank Guess, Judge.

Suit by Mrs. M. L. Smith against Asa G. Candler, Jr. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

STEPHENS, J., dissenting.

Branch & Howard and Bond Almand, all of Atlanta, for plaintiff in error.

Heyman, Bolding & Heyman, Allen Post, and Howell & Post, all of Atlanta, for defendant in error.

Syllabus OPINION.

SUTTON Judge.

Asa G. Candler, Jr., had on the premises where he resides in De Kalb county a private zoo, wherein he kept various wild beasts, including a certain baboon. This baboon escaped from the zoo and came upon the premises of Mrs. M. L. Smith. Mrs. Smith's automobile was parked in the driveway at her home. She started to use the automobile, and discovered that it would not start. She went into her house to telephone a mechanic to fix the car. She left her pocketbook on the front seat of the automobile. When she returned, she discovered in the automobile "a large baboon, approximately the size of an Airedale dog." This baboon belonged to Candler. The sight of the baboon frightened Mrs. Smith, and it started towards her "in a menacing manner." Going back into her house, Mrs. Smith "tripped upon the doormat" and fell, bruising and hurting herself. She reached her residence and saved herself from being overtaken by the baboon by "slamming the door in his face." The baboon then went back to the automobile, took Mrs. Smith's pocketbook, and threw out, lost, and destroyed its contents, including currency and other valuables. Mrs. Smith's fall was caused solely by the "assault upon her person made by said baboon, and was caused by the attempt of Mrs. Smith to escape from said menacing and advancing baboon." As a result of said baboon being in the automobile and advancing toward her, Mrs. Smith suffered a severe nervous shock and fright, and will continue so to suffer. This nervous shock was received by Mrs. Smith "as a direct result of said fall and the bruises and injuries to herself caused by said fall." Mrs. Smith brought suit for damages against Candler, alleging that the defendant was liable because he "brought and kept upon his land said wild and vicious animal, the nature of which he knew and the vicious propensities of which were apparent to him. He so kept said baboon which he had brought upon his property at his own risk, and to the severe danger of his neighbors and petitioner, the said baboon was able to escape and trespass upon the land and automobile of petitioner," and it was alleged that, "as a direct result of said trespass and said negligence, all of the above damages followed." She sought actual damages for the value of her property lost and destroyed by the baboon and for damages for the fall and nervous shock and fright resulting therefrom. The foregoing appeared in substance from the allegations in plaintiff's petition.

The defendant demurred to the petition generally and because it was not shown that the defendant was negligent in the manner in which the animal was kept, because no facts are alleged to support the allegations that the baboon was vicious and dangerous and that the defendant knew of his vicious propensities. The defendant further demurred to that part of the petition wherein the plaintiff sought to recover damages for fright and nervous shock, because there are no allegations of any physical injury as a result of the defendant's alleged negligence, and the plaintiff would not be allowed to recover for fright and nervous shock in the absence of any physical injury. The trial judge overruled the demurrers, and to this judgment the defendant excepted pendente lite. The case proceeded to trial, and the trial resulted in a verdict in plaintiff's favor for $10,000. The defendant moved for a new trial, and to...