Opinion
37640.
DECIDED MAY 28, 1959.
Action for damages. Cobb Superior Court. Before Judge Manning. February 5, 1959.
J. G. Roberts, Hurt, Gaines, Baird, Peek Peabody, Boynton C. Emerson, for plaintiff in error.
Jean E. Johnson, Ben F. Smith, contra.
The court erred in overruling the general and special demurrers to count 2 of the petition and in overruling the motion to dismiss counts 1 and 2.
DECIDED MAY 28, 1959.
Alan J. Kieffer sued P. B. Latimer to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The petition as amended was in two counts. Count 1 is probably predicated on the theory of the negligence of a minor who was alleged to be a servant of the defendant. Count 2 is predicated on the theory that the defendant was negligent in placing a highly spirited horse in the possession of a thirteen-year-old child. Count 1 alleges: "3. Petitioner shows that on July 18, 1955, at approximately 12:40 p. m. he was driving his 1951 Studebaker convertible automobile in a north-easterly direction along Concord Road between Pine Street and Hunter Street in the City of Smyrna, Cobb County, Georgia, and that he was traveling approximately fifteen miles per hour. 4. Petitioner shows that suddenly and without warning a highly spirited unattended horse crashed into the left side of his automobile from a northerly direction; that the horse's head crashed through the top of the automobile and that its front foot caught in the left rear bumper, and that the horse continued over the trunk of the automobile, lifting said automobile onto two wheels and violently throwing your petitioner from under the steering wheel onto the floorboard of said automobile. 9. Petitioner shows that the defendant entrusted the highly spirited and dangerous horse into the care of one Billy Hiatt, age thirteen years, who at all times was acting as agent and servant of the defendant, and who at the time this accident occurred was in the performance of his master's business, but that due to the spirited disposition of said horse and the physical limitations of Billy Hiatt, age thirteen years, said agent and servant was unable to control said horse, thus permitting said horse to run into the automobile driven by your petitioner. 10. Petitioner shows that defendant was negligent in the following particulars: (a) Defendant was negligent in permitting the horse to run into his automobile. (b) Defendant was negligent in entrusting a highly spirited and dangerous horse into the care of an infant of such tender years. (c) Defendant was negligent in permitting such a high spirited horse to be out of control on such a heavily traveled thoroughfare." Count 2 alleges: "3. Plaintiff shows that on July 18, 1956, at approximately 12:40 o'clock p. m., he was driving his 1951 Studebaker convertible automobile in a northeasterly direction along Concord Road between Pine Street and Hunter Street in the City of Smyrna, Georgia, and that he was traveling at a rate of speed at approximately fifteen (15) miles per hour. 4. Plaintiff shows that suddenly and without warning a high-spirited, unattended horse crashed into the left side of his automobile from a northerly direction, that the horse's head crashed through the top of the automobile, that its front foot caught in the left rear bumper, and that the horse continued over the trunk of the automobile lifting said automobile onto two wheels and violently throwing your petitioner from under the steering wheel onto the floorboard of said automobile. 5. Plaintiff shows that the defendant, P. B. Latimer, had entrusted the highly spirited and dangerous horse into the care of an infant, one Billy Hiatt, age 13. 6. Plaintiff shows that the said horse was highly spirited and dangerous and, in fact, was a show horse of the age of 6 years; and plaintiff shows that the said Billy Hiatt, due to his tender years, was wholly incompetent to properly manage said horse and to keep same under control. Plaintiff shows that the said defendant, P. B. Latimer, permitted said Billy Hiatt, of the age of 13 years, to ride said horse on the public streets and in highly congested areas in the City of Smyrna where said horse could easily become excited and unmanageable by the many noises and occurrences that occur in a city the size of Smyrna, and that the facts alleged herein were well-known to the defendant, P. B. Latimer, when he entrusted said animal to the aforenamed infant. 7. Plaintiff shows that the said defendant placed no limitations on where the said Billy Hiatt might ride or carry said horse. 10. Plaintiff shows that all of the aforesaid damages and injuries were directly and proximately caused by the following acts of negligence of the defendant, P. B. Latimer. (a) Defendant was negligent in failing to use ordinary care for the safety of plaintiff and others at said time and place; (b) Defendant was negligent in entrusting said highly spirited and dangerous horse to the infant, Billy Hiatt, age 13; (c) Defendant was negligent in expressly giving the said Billy Hiatt authority to ride said horse and handle said horse in highly congested and populated areas where said horse was likely to become excited and unmanageable because of noises or other occurrences; (d) Defendant was negligent in turning said horse over to an infant minor." The defendant demurred to count 2 generally and specially, as follows: "1. Defendant demurs to and moves to strike count 2 of said petition as amended upon the ground it sets out no cause of action against this defendant. 2. Defendant demurs specially to and moves to strike the words in paragraph 6 of count 2 of said petition, `. . . and, in fact, was a show horse of the age of 6 years;' upon the ground it is irrelevant and immaterial, said allegations not being germane to any issues in said petition and in no way showing or illustrating that the horse was in fact highly spirited or was dangerous or was vicious in any way. 3. Defendant demurs specially to and moves to strike the words in paragraph 6 of said petition, `Plaintiff shows that the said defendant, P. B. Latimer, permitted said Billy Hiatt, of the age of 13 years, to ride said horse on the public streets and in highly congested areas in the city of Smyrna, where said horse could easily become excited and unmanageable by the many noises and occurrences that occur in a city the size of Smyrna, and that the facts alleged herein were well known to the defendant, P. B. Latimer, when he entrusted said animal to the aforenamed infant.' upon the ground said allegations are irrelevant and immaterial and illustrate no issue set out in count 2 of said petition, it not being set out in said paragraph or elsewhere in said count 2 that at said time and place said accident in fact occurred in a highly congested area in the City of Smyrna or that in fact said accident occurred at a place where a horse would easily become excited and unmanageable or in fact that there were many noises and occurrences in this particular place in the City of Smyrna that would excite a horse and make him become unmanageable. Defendants further demur to said words in paragraph 6 of count 2 of said petition upon the ground they are irrelevant and immaterial, there being no allegations in said paragraph or elsewhere in said count 2 to show that said accident occurred on account of said horse becoming excited or becoming unmanageable as a result of any noises or occurrences in said city. 4. Defendant demurs specially to and moves to strike subparagraph (a) of paragraph 10 of said petition upon the ground it is irrelevant and immaterial and does not constitute a proper specification of negligence, it not being anything more than a general allegation of failure to use ordinary care. 5. Defendant demurs specially to and moves to strike subparagraph (b) of paragraph 10 of Count 2 of said petition upon the ground it is irrelevant and immaterial there being no facts set out in said paragraph or elsewhere in said petition to show that plaintiff's injuries occurred as a result of the entrustment of said horse to said Billy Hiatt or resulted from any act of said Billy Hiatt in failing to keep said horse under control. Defendant demurs specially to and moves to strike subparagraph (c) of paragraph 10 of count 2 of said petition upon the ground it is irrelevant and immaterial, there being no facts set out in said paragraph or elsewhere in said count 2 showing that said horse at said time and place was in a highly congested and populated area and there being no facts showing that said horse was likely to become excited and unmanageable because of noises or other occurrences, there being no allegations whatsoever to show that there were in fact any noises or occurrences which might excite a horse or cause him to become unmanageable. Defendant demurs specially to and moves to strike subparagraph (c) of paragraph 10 of count 2 of said petition upon the ground it is irrelevant and immaterial, and does not constitute a proper specification of negligence, there being nothing contained in said paragraph or elsewhere in said petition to show that said horse collided with the automobile of the plaintiff on account of becoming excited or becoming unmanageable either as a result of any noises or other occurrences or as a result of any other thing or reason. 8. Defendant demurs specially to and moves to strike subparagraph (d) of paragraph 10 of count 2 of said petition upon the ground it is irrelevant and immaterial and does not constitute a proper specification of negligence, there being insufficient facts to show merely because said horse was turned over to a person who was in fact a minor, that is, who was less than twenty-one years of age, in the absence of other allegations in said specification of negligence to show that said minor was incapable of riding and caring for said horse. Defendant further demurs to said subparagraph (d) upon the ground it is irrelevant and immaterial it not appearing in said subdivision of said paragraph 10 or anywhere else in said petition that the collision between said horse and said automobile occurred as a result of any act of said minor in failing to properly manage said horse or to keep same under control, there being no allegation to show that said minor was riding said horse at said time and said horse broke away from the control of said minor. 9. Defendant demurs specially to and moves to strike the words in paragraph 6, `. . . and plaintiff shows that the said Billy Hiatt, due to his tender years, was wholly incompetent to properly manage said horse and to keep same under control,' upon the ground that the same are irrelevant and immaterial and are not germane to any issues in said case as there are no allegations whatsoever to show that at said time and place the said Billy Hiatt was riding said horse and failed to manage said horse properly or to keep said horse under control or that at said time and place the collision between said horse and said automobile was anywise whatsoever conducted with any act of this defendant or of said Billy Hiatt or that the collision between said horse and said automobile resulted from any incompetency on the part of the said Billy Hiatt." The defendant also moved to dismiss counts 1 and 2 and to dismiss the petition as a whole because neither count nor the petition as a whole set forth a cause of action. After the demurrers and motion above described were filed the plaintiff amended count 2 by adding paragraph 12, as follows: "12. Petitioner shows that the horse referred to was a dangerous horse in that it had previously run away and had run into a truck, the exact time and place of said incident being unknown to your petitioner, but well known to the defendant P. B. Latimer." The defendant then renewed its motion and demurrers; the court overruled all of them and the defendant excepts to that judgment.
1. The motion to dismiss both counts and the general demurrer to count 2 should have been sustained. Count 1, construed as seeking to allege a cause of action based on the negligence of the child servant of the defendant, does not set forth a cause of action for the reason that no negligence is alleged against the child. Construed as seeking to allege a cause of action based on the negligence of the defendant in turning over a high-spirited horse to a minor, it is defective in that it fails to allege that the defendant knew that the horse was high-spirited or dangerous. Harvey v. Buchanan, 121 Ga. 384 ( 49 S.E. 281); Sinclair v. Friedlander, 197 Ga. 797 ( 30 S.E.2d 398); Alropa Corp. v. Pomerance, 190 Ga. 1 ( 8 S.E.2d 62); Candler v. Smith, 50 Ga. App. 667 ( 179 S.E. 395). Neither did it allege that the defendant knew that there was some incapacity or incompetency in the child which might have resulted in some foreseeable injury to another. Young v. Kicklighter, 213 Ga. 42 ( 96 S.E.2d 605).
For the same reasons count 2 failed to state a cause of action. One additional observation must be made as to count 2. The amendment thereto is insufficient to allege that the horse was dangerous or high-spirited or that the defendant knew that fact.
2. Paragraphs 2 and 3 of the defendant's special demurrers to paragraph 6 of count 2 should have been sustained for the reasons stated in the respective grounds of demurrer.
3. Paragraph 4 of the defendant's special demurrer to subparagraph (a) of paragraph 10 of count 2 should have been sustained. Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (1) ( 50 S.E. 974); Milton v. Mitchell County Elec. c. Assn., 64 Ga. App. 63, 65 ( 12 S.E.2d 367).
4. Paragraphs 5, 6, 7, 8, and 9 of the defendant's special demurrers to count 2 should have been sustained for the reasons stated in said paragraphs of the special demurrers.
The court erred in overruling the general and special demurrers to count 2 and in overruling the motion to dismiss counts 1 and 2.
Judgment reversed. Nichols, J., concurs. Quillian, J., concurs in the judgment on the rulings on the general demurrer to count 2 and motions to dismiss counts 1 and 2.