Sellers v. Woods

129 Ga. App. 383 (1973)

199 S.E.2d 555

SELLERS v. WOODS et al. BROWN v. WOODS et al. MAY v. WOODS et al.

48162, 48163, 48164.

Court of Appeals of Georgia.

Argued April 30, 1973.

Decided June 27, 1973.

Rehearing Denied July 17, 1973.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Neely, Freeman & Hawkins, Albert H. Parnell, Swift, Currie, McGhee & Hiers, Clayton H. Farnham, for appellants.

White, Webb & Jewett, C. Lawrence Jewett, John Robert White, for appellees.

BELL, Chief Judge.

Plaintiff sued the defendants in these cases to recover personal injuries caused by their alleged negligence in permitting their respective dogs to be unattended and out of control off their premises in violation of the DeKalb County Animal Control Law. The defendants' motions for summary judgment were denied. Held:

We reverse. The parties stipulated that there was no evidence that any of the dogs were in any way vicious. In view of this stipulation, it necessarily follows that there can be no knowledge on the part of the defendants. Scienter is an essential element that must be proved in order for plaintiff to recover. The fact that the dogs were allowed to be unattended in violation of the county law is immaterial. Harvey v. Buchanan, 121 Ga. 384 (49 SE 281); Langford v. Eskedor, 30 Ga. App. 799 (119 SE 431); Connell v. Bland, 122 Ga. App. 507 (177 SE2d 833). The defendants are entitled to judgment as a matter of law.

Judgments reversed with direction to enter judgments for the defendants. Deen and Quillian, JJ., concur.