Chalker v. Raley
| Decision Date | 02 February 1946 |
| Docket Number | 31110. |
| Citation | 37 S.E.2d 160,73 Ga.App. 415 |
| Parties | CHALKER v. RALEY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
'Jurors are not absolutely bound by opinion testimony as to the value of property sued for, although not contradicted by any other evidence in the case.'
Jimmie Chalker, by next friend, hereinafter called the plaintiff sought recovery against L. W. Raley, hereinafter called the defendant, for $100. The petition alleged that the defendant wantonly, intentionally, wilfully and maliciously with a shotgun shot and killed the plaintiff's dog while the dog was tied in the back yard of the plaintiff's parents' home. The defendant, in answering the petition, alleged that he was justified in killing the dog for the reasons that a short time before the shooting of the dog, the dog had without provocation, bitten the four year old son of the defendant in the face and had, a short time thereafter and at a different place in the Town of Gibson, attacked and bitten the defendant; that the dog was a nuisance; that before the defendant killed the dog he had reported the incidents to the Mayor, who authorized the defendant to kill the dog. The jury returned a verdict in favor of the plaintiff for $10. The plaintiff being dissatisfied with this verdict, filed his motion for a new trial on the general grounds and thereafter added a special ground. The trial court overruled this motion for a new trial. The plaintiff in error assigns error on this judgment here.
The evidence for the plaintiff substantially shows that the plaintiff, a boy of twelve years of age, owned a bull dog about one year old; that on the occasion when the dog was alleged to have attacked the Raley child there were several children playing with the dog, pulling his head and ears that the dog slightly bit or scratched the child in the face and thereafter as the dog was being led through the street the defendant was about to enter an automobile and the dog evidently thinking that the defendant was about to kick the dog, bit the defendant. The twelve year old boy who owned the dog testified that the dog was valuable and that the plaintiff thought a lot of him; that the dog accompanied the plaintiff about the town; that the dog was worth $100 although the owner would not have taken that for him; that after the dog did the biting, the owner returned him to the house where he tied him to in the back yard and that soon thereafter the defendant came to the house and shot the dog while he was tied. This was substantially all the material testimony of the plaintiff.
The evidence for the defendant is substantially as follows: Mrs. Raley, the wife of the defendant, testified that on the afternoon the dog was killed and while in the edge of her yard and while she was standing on her porch without any provocation the dog just 'yow, yow' in the face of her four year old child and bit him on the cheek. The bite broke the skin, but the wound did not bleed. 'The bite broke the skin, * * * it grazed the skin on his [meaning the child's] face.' She applied iodine to the wound. The defendant was not there. About 15 or 30 minutes later the wife of the defendant went up town where she found the defendant doctoring his leg. Upon inquiry she learned from her husband, the defendant, that the same dog had attacked and bitten the defendant and the defendant was at the ice plant doctoring the wounds on his leg. Then it was that she informed her husband, the defendant, that the same dog had bitten their four year old child.
The defendant testified substantially that he was the Game Warden of Glascock County; that on the afternoon that he killed the dog he was up town in front of the ice house talking to a Mr. Allen; that he had his right foot on the running board of the car and his left foot on the ground; that the plaintiff came along with the dog and that before he knew anything or did anything, the dog attacked and bit him. The dog sank all four teeth in the defendant's leg, whereupon the defendant admonished the owner of the dog to take him home and keep him there, otherwise the defendant would kill him. At this time the defendant did not know that the dog had bitten his child. Upon learning of this he went to the Mayor of the town and informed the Mayor that he should do something about the dog, whereupon the Mayor told the defendant that if the dog had bitten him he would go down and kill the dog. Then the defendant, with a shot gun, went to the home of the child who owned the dog. Mr. Chalker was not at home, but the mother, Mrs. Chalker, was at home. The defendant informed the mother as to what had happened to the effect that the dog had bitten him, and repeated his conversation with the Mayor. The mother stated, The defendant told her 'Mrs. Chalker, I can't afford to untie the dog, he will bite me again,' and that he proposed to kill the dog. After Mrs. Chalker had gone into the house the defendant shot and killed the dog and dragged him into the swamp. The next morning the defendant went to the place where he had dragged the dog and severed its head and sent it to Atlanta. The head was so torn up from shot that the authorities could not tell whether it was affected with hydrophobia.
The Mayor of Gibson testified to the conversation between him and the defendant substantially as the incident was related by the defendant. A Mr. Allen, the gentleman who was in the automobile and with whom the defendant was talking when bitten by the dog, was introduced as a witness for the defendant and testified substantially as the defendant related.
The special ground sets forth substantially the testimony which relates to the value of the dog as given by both sides. The special ground is argued with the general grounds. The substantial part of the special ground is set forth in the record as follows:
'Because the jury having...
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