Johnson v. Hurt

120 Ga. App. 761 (1969)

172 S.E.2d 201

JOHNSON et al. v. HURT.

44894.

Court of Appeals of Georgia.

Submitted November 5, 1969.

Decided November 18, 1969.

Rehearing Denied December 4, 1969.

Erwin, Epting, Gibson & Chilivis, Eugene A. Epting, for appellants.

Rupert A. Brown, George B. Brooks, for appellee.

HALL, Presiding Judge.

The defendants in a personal injury action appeal from a judgment of $3,500 and enumerate error on the denial of their motion for judgment notwithstanding standing the verdict. The evidence shows that the plaintiff and a friend went to defendant's farm to inquire about a horse plaintiff had heard was for sale. The evidence is in conflict concerning what, if anything, was said to plaintiff about the gentle nature of the horse and concerning who, if anyone, urged plaintiff to take a trial ride. At any rate, plaintiff rode the horse, was thrown, sustained injuries, and sued the defendants.

There is no evidence in the record from which the jury could infer that the defendants knew the horse had a dangerous or vicious disposition. Whether plaintiff is proceeding under Code § 105-110 (keeping a vicious or dangerous animal) or in fraud and deceit, proof of scienter is still essential to his case. Chandler v. Gately, 119 Ga. App. 513 (167 SE2d 697); Leatherwood v. Boomershine Motors, 53 Ga. App. 592 (186 SE 897).

The trial court erred in denying defendants' motion for judgment notwithstanding the verdict.

Judgment reversed. Pannell and Quillian, JJ., concur.