Chandler v. Gately, s. 44075

CourtUnited States Court of Appeals (Georgia)
Citation119 Ga.App. 513,167 S.E.2d 697
Docket Number44076,Nos. 1,Nos. 44075,3,2,s. 44075,s. 1
PartiesH. H. CHANDLER v. Drue GATELY. H. H. CHANDLER v. Richard GATELY
Decision Date04 April 1969

Page 697

167 S.E.2d 697
119 Ga.App. 513
Richard GATELY.
Nos. 44075, 44076.
Court of Appeals of Georgia, Division Nos. 1, 2, 3.
April 4, 1969.

Page 699

Syllabus by the Court

1. (a) An affidavit submitted in support of or in opposition to motions for summary judgment must show affirmatively that it is made upon the personal knowledge of the affiant and thus that he is competent to testify relative to the subject matter or matters therein. If it appears that any portion of the affidavit was not made upon the affiant's personal knowledge, or if it cannot be determined that it was so made, [119 Ga.App. 514] that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.

(b) Facts and not mere conclusions in the affidavit are to be considered; the conclusions have no probative value.

2. Before the owner of a domestic animal can be held for the injury of another by alleged negligence in permitting the animal from viciousness to inflict injury to person or property it must appear that the animal had a dangerous or vicious disposition, Indicating a tendency to inflict the injury, and that the owner knew of it.

3. The rule that a party's conflicting, evasive or vague evidence is to be construed against him when he relies upon his evidence to establish his claim or to establish his defense is to be applied in summary judgment proceedings even when the party offers his conflicting, evasive or vague evidence in opposition to the motion, but it is applied for the purpose of reconciling the evidence by eliminating from consideration that portion or those portions of his conflicting evidence which are favorable to him, and, having done so, the court will take the testimony before it, including that of the party as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.

4. Appellant's contention that the defendant Mrs. Gately's testimony as reflected in her deposition requires a finding that she assumed the risk of injury in riding or handling the horse is not ruled on.

5. A summary judgment was demanded for the defendant in each of the cases.

H. H. Chandler was the owner of a show horse known as Mr. Bee and was desirous of having it ridden in horse shows during

Page 700

the summer of 1966. He had planned to have it ridden by his granddaughter, who was fifteen years old, but shortly before the first show of the season asked Mrs. Drue Gately, a horsewoman of experience, to ride it and she agreed to do so.

She took fifth place and at the conclusion of her event, delivered the ribbon to Mr. Chandler and took the horse into an [119 Ga.App. 515] area back of the trailers for walking and cooling it down, as was customary. There were no other people or animals in the area. While she was leading it with the use of a two-foot chain to which a piece of leather was attached at the end, placing her about four feet ahead of the horse, it suddenly stopped, turned and kicked Mrs. Gately, injuring her.

To recover for her injuries Mrs. Gately brought suit against Mr. Chandler, and her husband sued for loss of services and medical expenses. The defendant moved for summary judgments, attaching his affidavit and Mrs. Gately's deposition. Plaintiffs countered with Mrs. Gately's affidavit. The evidence submitted in each case was the same.

In her deposition Mrs. Gately testified that she had been engaged in riding and training horses since she was some thirteen or fourteen years old, and was so employed by a stable near Augusta at the time of her injury. She had known defendant's horse, having become acquainted with it while employed at the J. C. Thomas stable where Mr. Chandler boarded his horses. She rode the horse some ten or twelve times there and had no trouble with it. The defendant's granddaughter rode it at times while the horse was kept at the Thomas stable, and Mr. Thomas rode it a few times. The horse was always gentle and mild-mannered when she rode it, but the defendant's granddaoughter, not being an experienced rider, did have some trouble with it. It would occasionally buck without warning and put its head down.

She had heard that the horse did, on one occasion, kick at somebody, though she did not know who it was. She heard it from a Mr. Pete Wells, who had been interested in buying the horse. She did not know whether Mr. Chandler had heard about the incident or not, and she did not know whether the report was true. (There was no affidavit or deposition from Mr. Wells.)

The defendant was not present when the horse kicked her. There was nobody around to bother the horse. She had not idea why it did so, but she knew that 'if a horse is going to kick, nobody is going to stop him.' He was a gelding, five years old, which is an 'all around type horse.' It was perfectly healthy, and she did not know why it kicked her.

Mr. Chandler, by affidavit, asserted that the horse had always [119 Ga.App. 516] been a mild-mannered and gentle one; he had never experienced any trouble with it; so far as he knew the horse had never bitten or kicked anyone prior to March 26, 1966, when Mrs. Gately was injured. No one had ever told him of any such conduct on the part of the horse, and the only information he had was that it was a good, gentle, mild-mannered one. Mrs. Gately was an experienced horsewoman and had ridden the horse on a number of prior occasions and had never reported any trouble with it.

Plaintiffs submitted the counter-affidavit of Mrs. Gately in which she asserted that the horse was a nervous, high-strung, temperamental one, and had on one occasion at the Thomas stable thrown defendant's granddaughter to the ground, and had kicked an employee of Thomas, all of which was known to the defendant.

The motions for summary judgment were denied, and defendant, obtaining a certificate from the judge to comply with the statute, appeals.

Jay M. Sawilowsky, Fulcher, Fulcher, Hagler, Harper & Reed, E. D. Fulcher, Augusta, for appellant.

Henry R. Smith, Augusta, for appellees.

Page 701


1. (a) The statute requires that 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' Code Ann § 81A-156(e). Mrs. Gately's affidavits fail to assert or affirmatively show that the statements which she made in them that the defendant knew that the horse was of a nervous disposition and temperament, and had on one occasion kicked an employee of the stable were made from her personal knowledge, nor do the facts recited in the affidavit show that these were made on her personal knowledge. 1 Consequently, as was asserted in [119 Ga.App. 517] Hancock v. Hancock, 223 Ga. 481, 487, 156 S.E.2d 354, 358: 'Nowhere in the affidavit is it recited or shown affirmatively that this statement was made on personal knowledge and that the affiant is competent to testify as to the matters stated in it, as required by Code Ann. ( § 81A-156(e)). From all that appears this statement is a mere conclusion, not as to a fact to which the plaintiff could testify.'

'An affidavit considered on motion for summary judgment must show that the affiant has personal knowledge of facts stated in (the) affidavit, and must contain evidentiary matter which, if affiant were in court and testified on the witness stand, would be admissible as part of his testimony.' Planters Rural Telephone Cooperative, Inc. v. Chance, 108 Ga.App. 146, 132 S.E.2d 90. 'An affidavit which shows on its face that it is not made on the personal knowledge of the affiant is insufficient to show to the court that there is a genuine dispute for the jury to decide.' Cochran v. Southern Business University, Inc., 110 Ga.App. 666(2), 139 S.E.2d 400. And see Bussie v. Wilson, 114 Ga.App. 298, 151 S.E.2d 186.

(b) 'In considering depositions and affidavits in support of or in opposition to motions for summary judgments the facts contained therein, and not the conclusions stated, determine whether a genuine issue of fact exists.' Varnadoe v. State Farm Mutual Auto. Ins. Co., 112 Ga.App. 366(1), 145 S.E.2d 104. Mrs. Gately's statements are no more than conclusions, and would not be admissible in evidence. They are without probative value. 'A witness can not state his mere conclusion that others than himself knew a fact.' Bush & Hattaway v. McCarty Co., 127 Ga. 308(6), 56 S.E. 430. Where a witness testified 'I am quite sure that she (petitioner) knew the details of that affidavit. She intimated to me she knew the contends of the paper and knew what she was signing,' it was [119 Ga.App. 518] held to be objectionable as a mere conclusion or opinion of the witness. Brewer v. New England Mortgage Security Co., 144 Ga. 548(4), 87 S.E. 657. Accord: Aldridge v. Dixie Fire & Casualty Ins. Co., 223 Ga. 130, 132, 153 S.E.2d 723.

In a summary judgment proceeding we held that 'The statement by the plaintiffs in their affidavits that the owner knew that the driver was incompetent and reckless and knew of his prior arrest record, without any showing of evidence to disclose actual knowledge, is merely a conclusion, and as such is of no probative value in overcoming the owner's sworn statement

Page 702

concerning the extent of his actual knowledge.' Saunders v. Vikers, 116 Ga.App. 733, 736, 158 S.E.2d 324, 327. And see Mims v. Brook & Co., 3 Ga.App. 247, 250, 59 S.E. 711. '(I)t is not competent for a witness to state merely that another person knew a thing. In the future of advancing psychology it may become possible for one person to look into the mind of another and testify what the latter knows. But at present the law treats such statements as conclusions, not facts.' Slaughter v. Heath, 127 Ga. 747, 759, 57 S.E. 69, 75.

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