Sanders v. Bowen

• Decision Date: 11 July 1990
• Docket Number: No. A90A0607,A90A0607
• Parties: SANDERS v. BOWEN et al.
• Court: Georgia Court of Appeals

Page 908

396 S.E.2d 908

196 Ga.App. 644

SANDERS v. BOWEN et al.

No. A90A0607.

Court of Appeals of Georgia.

July 11, 1990.

Rehearing Denied July 31, 1990.

Certiorari Denied Sept. 4, 1990.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Atlanta, for appellant.

Robert A. Falanga, Jesse E. Barrow, III, Atlanta, for appellees.

DEEN, Presiding Judge.

Defendant Donald Sanders appeals a judgment entered on a jury verdict for plaintiffs Daimian and John Bowen in the amount of $76,000 damages for personal injuries received by Daimian when he was bitten by defendant's pit bulldog.

1. After a case is tried, an appellate court will not review the denial of a motion for summary judgment because that issue became moot upon the trial. Drillers Svc. v. Moody, 242 Ga. 123, 249 S.E.2d 607 (1978); Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga.App. 154(1), 264 S.E.2d 662 (1980); Hardaway Constructors v. Browning, 176 Ga.App. 530(1), 336 S.E.2d 579 (1985).

2. Sanders enumerates as error the denial of his motions for directed verdict and JNOV in enumerations 2 and 18. He also asserts that it was error for the court to permit the submission of the issue of agency regarding defendant's sons (enumeration of error 7), which proposition is supported by substantially the same argument as are the evidentiary questions presented in enumerations 2 and 18. We consider these grounds together.

On September 23, 1986, 13-year-old Daimian Bowen and Adam Marlow visited defendant's property. According to Daimian, defendant's son Wayne had invited him and Adam to see some game chickens about two weeks before. "Bad Eye," an 8-10 month old pit bulldog which defendant had owned between one and two months, was tied to a tree in the backyard. As Daimian approached defendant's sons in the yard, the dog broke his part chain, part rope restraint and bit him, causing severe injury.

Neither side contends that the leash portion of OCGA § 51-2-7 is in issue. The heart of the case involves plaintiffs' burden of proving that defendant had knowledge that the dog was a vicious or dangerous animal. Harvey v. Buchanan, 121 Ga. 384, 49 S.E. 281 (1904).

Defendant denied any knowledge of dangerous propensities or of his dog ever having bitten another person prior to the incident involving Daimian. To counter this and meet their burden of proof, plaintiffs sought to establish that defendant has designated his three sons, Steve age 16 or 17, Wayne age 15 or 16, and Jay age 9 or 10, to take care of Bad Eye and thus constituted them as defendant's agents so that their admissions could be attributed to him as their principal (OCGA § 24-3-33), he would be responsible for their acts (OCGA § 51-2-2), and their knowledge would be his knowledge, at least constructively. See Flowers v. Flowers, 118 Ga.App. 85(2), 162 S.E.2d 818 (1968); Hays v. Anchors, 71 Ga.App. 280(1), 30 S.E.2d 646 (1944). In support of this theory, plaintiffs attempted to introduce testimony that defendant's sons told them that the dog had tried to bite Wayne and had bitten defendant's youngest son, Jay. Defendant contends this evidence was hearsay.

Daimian and Adam Marlow both testified that Jay Sanders told them that Bad Eye had bitten him prior to the dog's attack on Daimian. Jay denied this as did other members of defendant's family. This created a jury issue as to what Jay said and whether he was bitten by Bad Eye. Jay was the only one to whom any statement about Bad Eye's biting him was attributed. In order to demonstrate defendant's knowledge of the dog's actions, plaintiffs had to introduce evidence that Jay acted as defendant's agent in caring for Bad Eye. Defendant testified that he gave his sons permission to keep the dog in the backyard and in response to the question, "Which one of your sons took care of the dog Bad Eye?" he answered: "Wayne did mostly." Plaintiffs fail to show by the record that this crucial fact of Jay's agency was otherwise established. This evidence was at most ambiguous as to Jay's special status and thus as to defendant's knowledge of the event. The mere fact that Jay was defendant's son would not be enough to show defendant knew the dog had bitten him.

A minor child may be considered his parent's agent where he performs actions in that respect. Butler v. Moore, 125 Ga.App. 435, 436(3) & (5), 188 S.E.2d 142 (1972). No direct evidence shows that Jay acted as an agent for his father in taking care of Bad Eye. Where an issue in a civil case rests upon circumstantial evidence, "the testimony must be such as to reasonably establish the theory relied on. There must be more than a 'scintilla' of circumstances to carry the case to the jury." McCarty v. Nat., etc., Ins. Co., 107 Ga.App. 178(2), 129 S.E.2d 408 (1962). Approved Old Colony Ins. Co. v. Dressel, 220 Ga. 354, 358(2), 138 S.E.2d 886 (1964). Although there might be a hint that Jay was his father's agent, " 'inferences must be based on probabilities, not on possibilities.' " Cohen v. Hartlage, 179 Ga.App. 847, 851, 348 S.E.2d 331 (1986). From the evidence elicited, it was at most merely possible that Jay was his father's agent.

Other evidence of knowledge about the dog's vicious tendencies was testimony by Daimian's sister that Wayne, who did not testify at trial, told her he was training Bad Eye to fight for money. He also described how he had trained the dog to hold onto a two-by-four board with its jaws, that he tormented him with dead chickens, and that he fed the dog irregularly so as to make him "mean." Adam Marlow related that in his presence Bad Eye "popped" a basketball. Although an expert witness for plaintiffs testified that because a dog was trained to fight did not necessarily make him "people aggressive" and that there was no evidence that Bad Eye was particularly trained to be "people aggressive," he did testify that a dog trained to fight would be more likely to bite a human than one not so trained. He also testified that a pit bulldog is a high energy dog and a fighting dog to begin with, and that its restraint by a chain or leash is a great stimulant.

Evidence introduced by plaintiffs as to the size and breed of the dog as well as the fact that it was kept restrained is not of itself availing. Stanger v. Cato, 182 Ga.App. 498, 356 S.E.2d 97 (1987). Accord Freeman v. Farr, 184 Ga.App. 830, 363 S.E.2d 48 (1987) [physical precedent only]. "Proof that the owner of the dog either knew or should have known of the dog's propensity to do the particular act which caused injury to the complaining party is indispensable to recovery." Fitzpatrick v. Henley, 154 Ga.App. 555, 269 S.E.2d 60 (1980). As to the need to show more than knowledge of the propensity to do harm in one or more specific ways, it must be knowledge of harm of the type actually inflicted. See Banks v. Adair, 148 Ga.App. 254, 251 S.E.2d 88 (1978), Penick v. Grimsley, 130 Ga.App. 722, 204 S.E.2d 510 (1974), and Carter v. Ide, 125 Ga.App. 557, 188 S.E.2d 275 (1972). Carter held that knowledge of the propensity to attack other animals is not necessarily notice that the dog will attack humans. Here, however, the naturally-fighting dog was being deliberately trained to be vicious by someone whom the jury could find was defendant's agent. A reasonable inference, at least, could be made that Wayne knew that his training and the demeanor being built into this pit bulldog gave him a dangerous propensity with respect to people, perhaps especially strangers, and not only to boards and dead chickens. He was urging the dog into habits of aggressiveness and attack which common sense says would not be confined to inanimate objects. See 3 Restatement (2d) Torts § 509, cited in Carter, supra at 558, 188 S.E.2d 275.

Defendant's motion for directed verdict and subsequent motion for JNOV were properly denied.

3. (a) Enumerations of Error 10, 13 and 17 complain of the trial court's instructions to the jury. Although the purported charges are set out, there is no reference to their location in the transcript and no mention of any objection made or where it might be found. This violates Court of Appeals Rule 15(c)(3)(i) and OCGA § 5-5-24(a).

(b) Enumeration 12 sets out the instruction, but fails to reference it and fails to show where and if objection was made. Although one page is specifically referred to, there is no objection on that page. This enumeration also fails. Court of Appeals Rule 15(c)(3)(i) and OCGA § 5-5-24(a).

(c) Enumeration 15 sets out the objected to instruction without specifying where in the transcript it may be found and references one page which contains no objection to the charge at issue, only a discussion of whether Daimian could be considered an invitee. This ground is not properly presented for appellate consideration.

Even if it were, defense counsel asked both Daimian and Adam Marlow if the purpose of their visit was to purchase game chickens and received affirmative answers. The invitee issue was applicable to the evidence.

4. (a) Enumeration of Error 3 asserts error in admission of certain testimony contended to be hearsay. At the time the testimony was originally offered, defendant's objection was sustained. Crane v. Gaddis, 224 Ga. 804, 805(1), 164 S.E.2d 844 (1968). Defendant subsequently cross-examined the witness about that same subject matter and other testimony to the same effect was introduced, all without further objection by defendant. This shows no error. East Point Ford v. Lingerfelt, 123 Ga.App. 520, 522(1b), 181 S.E.2d 713 (1971).

(b) Enumeration 4 contends the testimony of an expert witness for plaintiffs should not have been admitted. No objection on any ground was interposed to his testimony. Eiberger v. West, 165 Ga.App. 559(1), 301 S.E.2d 914 (1983).

(c) Enumeration 5 assigns error in the exclusion of a report and the testimony of the witness who prepared that report. It is asserted that this evidence would have shown that plaintiffs made different statements as to what...