Candler v. Smith

• Decision Date: 16 February 1935
• Docket Number: No. 24047.,24047.
• Citation: 179 S.E. 395,50 Ga.App. 667
• Parties: CANDLER v. SMITH.
• Court: Georgia Court of Appeals

50 Ga.App. 667

179 S.E. 395

CANDLER

v.SMITH.

No. 24047.

Court of Appeals of Georgia,

Division No. 2.

Feb. 16, 1935.

Syllabus by Editorial Staff.

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.

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 by the Court.

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. D 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, arid 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 ani-mal, 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 (herefrom. 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 the judgment overruling the motion he excepts, assigning error also upon his exceptions pendente lite taken to the overruling of the demurrers.

1. A person who owns or keeps a vicious or dangerous animal of any kind, and, by careless management of the same, or by allowing the same to go at liberty, another without fault on his part is injured thereby, such owner or keeper shall be liable in damages for such injury. Civil Code 1910, § 4417. Under this section there are two theories on which a defendant may be held liable for injuries done by a "vicious or dangerous animal, " one where he voluntarily permits the animal to roam at large, and the other where he is negligent in the manner used to prevent the animal escaping and going at large.

(a) The present action was brought upon the latter theory; the contention of the plaintiff being that the defendant "so kept said baboon which he had brought upon his prop erty at his own risk * * * that said baboon was able to escape and trespass upon the land and automobile of petitioner."

2. When a person is injured by an attack of an animal ferae naturæ, the negligence of the owner or keeper thereof is presumed, because of the dangerous and ferocious propensities of a wild beast, such as a lion, tiger, leopard, bear, ape, baboon, and such like wild beasts, and the law recognizes that safety lies only in keeping such animals perfectly secure. It is not in itself unlawful for a person to keep wild beasts, even though they are of such a nature and kind as to be dangerous, ferocious, and irreclaimable. However, the owner or keeper of such dangerous creatures is required to exercise that degree of care in regard to them which will absolutely prevent the occurrence of an injury to others through such vicious acts of the animal as he is naturally inclined to commit, provided of course that the injury is not brought about by the negligence of the person injured. Under these circumstances, the occurrence of the act producing the injury affords sufficient evidence that the owner or keeper has not exercised the degree of care required of him, and therefore, to successfully set out a cause of ac-tion against the owner or keeper of an animal ferae naturae, it is not necessary to allege that the injury occurred by reason of the actual negligence of the owner or keeper, but an allegation that the owner brought such wild beast upon his premises and so kept him there at his own risk in such a manner that the beast was able to escape and come upon the premises of the plaintiff and commit the injury complained of, is sufficient to make out a case against the defendant owner of such wild animal. See Congress, etc., Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487; Parker v. Cushman, 195 P. 715, 117 C. C. A. 71; Gooding v. Chutes Co., 155 Cal. 620, 102 P. 819, 18 Ann. Cas. 671, 23 L. R. A. (N. S.) 1071 and note; Besozzi v. Harris, 1 Fost. & F. 92; Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99; Lyons v. Merrick, 105 Mass. 71; Hayes v. Miller, 150 Ala. 621, 43 So. 818, 124 Am. St. Rep. 93, 11 L. R. A. (N. S.) 748, and note; Ammons v. Kellogg, 137 Miss. 551, 102 So. 562, 39 A. L. R. 351 and note; Connor v. Princess Theatre, 27 Ont. L. Rep. 466, Ann. Cas. 1914A, 762; Serio v. American Brewing Co., 141 La. 290, 74 So. 998, L. R. A. 1917E, 516; Barrett v. State, 220 N. Y. 423, 116 N. E. 99, L. R. A. 1918C, 400, Ann. Cas. 1917D, 807; Laverone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 269; Phillips v. Garner, 106 Miss. 828, 64 So. 735, 52 L. R. A. (N. S.) 377; Beckett v. Beckett, 48 Mo. 396; Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123; Commonwealth v. Fourteen Hogs, 10 Serg. & R. (Pa.) 393; Filburn v. People's Palace, etc., Co., 25 Q. B. D. 258; Missio v. Williams, 129 Tenn. 504, 167 S. W. 473, L. R. A. 1915A, 500.

(a) So, where it is alleged that a monkey or baboon (being classed as an animal feræ naturæ) had escaped from its place of confinement and come upon the plaintiff's premises and there committed the injury complained of, this is sufficient to withstand a demurrer, even though it is not stated in the petition how the escape was effected. It is not necessary to allege that the owner was negligent in allowing the animal to be at large, for he is bound to keep it secure at his peril. See Phillips v. Garner, supra; Popple-well v. Pierce, 10 Cush. (Mass.) 509; May v. Burdett, 9 Q. B. 101, 115 Eng. Reprint, 1213, 3 Eng. Rul. Cas. 108; Parsons v. Manser, 119 Iowa, 88, 92, 93 N. W. 86, 62 L. R. A. 132, 97 Am. St. Rep. 283.

(b) In the leading English case upon this subject it was ruled that "a person who keeps a mischievous animal with knowledge of its propensities, is bound to keep it secure at his peril; and if it does mischief, negligence is presumed without express averment. The negligence is in keeping such an animal after notice." May v. Burdett, supra.

(c) However, it has been ruled in this country that, where an animal is by nature a fierce and dangerous beast, his owner or keeper is charged with knowledge thereof. It is not necessary to allege and prove any knowledge of such animal's ferocious habits and nature. Earl v. Van Alstine, 8 Barb. (N. Y.) 630; Moss v. Pardridge, 9 Ill. App. 490; Phillips v. Garner, supra; Congress, etc., Spring Co. v. Edgar, supra; Hayes v. Miller, supra; cases cited note, 69 A. L. R. 511.

(d) As was said by Lord Hale in his Pleas of the Crown, p. 430: "Tho he have no particular notice that he did any such thing before, yet if it be a beast that is feræ naturæ, as a lion, a bear, a wolf, yea an ape or monkey, if he get loose and do harm to any person, the owner is liable to an action for the damage, and so I knew it adjudged in Andrew Baker's case, whose child was bit by a monkey that broke his chain and got loose."

(e) The doctrine, promulgated in some jurisdictions, that where an animal, although classed as feræ naturæ, is susceptible of substantial domestication, as the bee, deer, and monkey, the owner is not liable, in the absence of proof of negligence in the...