Opinion
33652.
DECIDED SEPTEMBER 12, 1951.
Action for damages; from Fulton Superior Court — Judge Pharr. April 16, 1951.
D. W. Krasner, Saul Blau, for plaintiff in error.
Willingham, Gortatowsky Morrison, contra.
1. As against the general demurrers, the petition stated a cause of action against the defendant for injuries suffered by the minor plaintiff when she was bitten by a vicious dog belonging to the defendant and permitted by the defendant to run at large upon the public streets and highways.
2. "Demurrer, being a critic, must itself be free from imperfections."
DECIDED SEPTEMBER 12, 1951.
Janet Underwood, by and through her next friend, sued Mrs. Dorothy Rutherford and Charles W. Rutherford, her husband, for damages, alleging substantially the following facts: Plaintiff is an 8-year old girl living in her parents' home on Alvarado Terrace, S.W., Atlanta, and defendants are man and wife residing on Kenolia Drive, S.W., Atlanta; for several years prior to October 12, 1950, the defendant, Mrs. Rutherford, owned a large black and white Shepherd dog named "Shep" and said dog was fed and sheltered by the defendants at the home of defendant, Charles W. Rutherford; that defendants knew that the said dog had bitten a certain named little girl in February, 1949, and a certain named young boy in July, 1949, and knew that said dog was a dangerous and vicious animal; that defendants failed to keep the said dog from running loose on the streets in Fulton County; that on the afternoon of October 12, 1950, plaintiff, on returning home from school saw this dog on the front lawn of her parents' home and that she spoke gently and kindly to the dog while standing on the property of her parents, but that nevertheless the dog sprang upon her and bit her in the face without cause, thus inflicting the particularly described injuries for which she sued; that plaintiff did not know the defendants' dog and did not know that it was vicious until it sprang upon her and bit her. The prayer was for general damages in the sum of $10,000, and punitive damages of $2000.
The defendant, Dorothy Rutherford, filed 26 general and special demurrers. The trial court overruled all the demurrers except one, and the exception here is to so much of the order as overruled demurrers numbered one through 9, and demurrers 12 and 13.
1. The defendant demurred generally to the petition on the grounds that no cause of action was alleged either against Mrs. Rutherford or against both defendants; that no facts were alleged to support an action at law or equity; that it fails to charge the defendant Dorothy Rutherford with any obligation or responsibility other than being the wife of the other defendant; that the mere fact of marriage between the parties defendant is insufficient to place any legal obligation in the matter upon the defendant; and on the ground that the petition seeks to charge the defendant, Dorothy Rutherford, with a duty, obligation or responsibility merely because the animal was fed and sheltered at the home of the other defendant, Charles W. Rutherford.
The petition alleges that the defendant, Mrs. Dorothy Rutherford owned the dog in question; that it was fed and sheltered at the home where both of the defendants lived as man and wife; and that both defendants permitted the said dog to run at large on the streets of Fulton County, knowing that it had bitten two named children on two separate named dates and knowing that the said dog was a dangerous and vicious animal.
In this State a person who keeps a vicious and dangerous animal, and who carelessly or negligently permits the same to run at large, is liable to one injured because of the vicious nature of the animal. Code, § 105-110. The allegations of the petition in this case are sufficient to charge the defendant Dorothy Rutherford with keeping a dog of the character referred to by the Code section and to charge her with knowledge of the dog's vicious and dangerous character, and as against a general demurrer were sufficient. Greene v. Orr, 75 Ga. App. 673(2) (44 S.E.2d 273).
2. The fourth, fifth, twelfth and thirteenth grounds of demurrer are as follows: "4. Said named defendant demurs to the petition as a whole on the ground that the same is too vague, general and indefinite, and is based on imagination, supposition and opinions. 5. Said defendant demurs to the petition as a whole on the ground that the same is duplicitous." "12. Said named defendant demurs to the petition on the ground that the same is a misjoinder of causes of action. 13. Said defendant demurs to said petition on the ground that said petition has a misjoinder of parties defendant.'
"`A special demurrer which is itself vague, uncertain, and indefinite, and does not specifically point out wherein the petition is defective, will not be considered by the court.' Central of Georgia Ry. Co. v. Hill, 21 Ga. App. 231 ( 94 S.E. 50). It has been held many times that a demurrer `being a critic, must itself be free from imperfection.' This is particularly true of a special demurrer, which must point out clearly and specifically the alleged imperfection in the pleading attacked by it. It `must lay its finger, as it were, upon the very point.' Alford v. Davis, 21 Ga. App. 820 (4a) ( 95 S.E. 313)." Martin v. Gurley, 74 Ga. App. 642 (1), 643, 644 ( 40 S.E.2d 787).
We think that each of these four special demurrers is subject to the very criticism pointed out in the Martin case. These grounds of demurrer wholly fail to point out wherein or how the petition is vague, general or indefinite, or wherein or how it is based on imagination, supposition and opinion, or in what respects the petition is duplicitous, or why there is a misjoinder of causes of action and parties defendant. Under these circumstances the demurrers were subject to some of the very defects they sought to have remedied in the petition. Such demurrers need not be considered by the trial court and will not be considered by this court.
Judgment affirmed. Sutton, C.J., and Felton. J., concur.