Chalker v. Raley , 73 Ga. App. 415 ( 1946 )

"Jurors are not absolutely bound by opinion testimony as to the value of property sued for, although not contradicted by any other evidence in the case."

DECIDED FEBRUARY 2, 1946. Jimmie Chalker, by next friend, sought to recover $100 from L. W. Raley. The petition alleged that the defendant wantonly, intentionally, wilfully, and maliciously, with a shotgun shot and killed the plaintiff's dog while the dog was tied in the back yard of the home of the plaintiff's parents. The defendant, in answering the petition, alleged that he was justified in killing the dog for the reasons that a short time before the shooting, the dog had, without provocation, bitten in the face the four-year-old son of the defendant, and, a short time thereafter and at a different place in the Town of Gibson, had attacked and bitten the defendant; that the dog was a nuisance; that before the defendant killed the dog he had reported the incidents to the mayor, who authorized the defendant to kill the dog. The jury returned a verdict in favor of the plaintiff for $10. The plaintiff, being dissatisfied with this verdict, filed a motion for a new trial on the general grounds, and thereafter added a special ground. The trial court overruled this motion. The plaintiff in error assigns error on this judgment.

The evidence for the plaintiff shows substantially, that he, a boy twelve years of age, owned a bull dog about one-year old; that on the occasion when the dog was alleged to have attacked the Raley child there were several children playing with the dog, pulling his head and ears; that the dog slightly bit or scratched the child in the face, and thereafter as the dog was being led through the street the defendant was about to enter an automobile, and the dog, evidently thinking that the defendant was about to kick him, bit the defendant. The twelve-year-old plaintiff who owned the dog testified that he was valuable, and that the plaintiff thought a lot of him; that the dog accompanied the plaintiff about the town; that the dog was worth $100, although the owner would not have taken that for him; that after the dog did the biting, the owner returned him to the house where he tied him in the back yard; and that soon thereafter the defendant came to the house and shot the dog while he was tied. This was substantially all the material testimony of the plaintiff.

The evidence for the defendant is substantially as follows: Mrs. Raley, the wife of the defendant, testified that on the afternoon the dog was killed while in the edge of her yard and while she was standing on her porch without any provocation, the dog just "yow, yow" in the face of her four-year-old child and bit him on the cheek. The wound did not bleed. "The bite broke the skin, . . it grazed the skin on his [meaning the child's] face." She applied iodine to the wound. The defendant was not there. About 15 or 30 minutes later the wife of the defendant went up town, where she found the defendant doctoring his leg. Upon inquiry she learned from her husband, the defendant, that the same dog had attacked and bitten the defendant, and he was at the ice plant doctoring the wounds on his leg. Then it was that she informed her husband, the defendant, that the same dog had bitten their four-year-old child.

The defendant testified substantially: That he was the game warden of Glascock County; that on the afternoon when he killed the dog he was up town in front of the ice house talking to a Mr. Allen; that he had his right foot on the running board of the car and his left foot on the ground; that the plaintiff came along with the dog, and before he knew anything or did anything, the dog attacked and bit him. The dog sank all four teeth in the defendant's leg, whereupon the defendant admonished the owner of the dog to take him home and keep him there, otherwise the defendant would kill him. At this time the defendant did not know that the dog had bitten his child. Upon learning of this he went to the mayor of the town and informed the mayor that he should do something about the dog, whereupon the mayor told the defendant that, if the dog had bitten him, he would go down and kill the dog. Then the defendant, with a shotgun, went to the home of the child who owned the dog. Mr. Chalker was not at home, but the mother, Mrs. Chalker, was there. The defendant informed the mother as to what had happened, to the effect that the dog had bitten him, and repeated his conversation with the mayor. The mother stated: "Mr. Raley [the defendant], that dog will bite you. We didn't want Jimmie up there with the dog, but if you are going to kill him, don't kill him here in the yard." The defendant told her, "Mrs. Chalker, I can't afford to untie the dog, he will bite me again," and that he proposed to kill the dog. After Mrs. Chalker had gone into the house, the defendant shot and killed the dog and dragged him into the swamp. The next morning the defendant went to the place where he had dragged the dog, severed the head, and sent it to Atlanta. The head was so torn from shot that the authorities could not tell whether or not the dog was affected with hydrophobia.

The mayor of Gibson testified as to the conversation between him and the defendant substantially as the incident was related by the defendant. A Mr. Allen, who was in the automobile and with whom the defendant was talking when bitten by the dog, was introduced as a witness for the defendant and testified substantially as the defendant related.

The special ground sets forth in substance the testimony relating to the value of the dog, as given by both sides. The special ground is argued with the general grounds. The substantial part of this ground is as follows: "Because the jury, having returned a verdict for the plaintiff against the defendant, found that [the] killing of plaintiff's dog by defendant was not justified, verdict for plaintiff for only ten dollars was contrary to law and evidence and without evidence to support it, in that the evidence demanded (if jury found killing of dog was not justified, and found for plaintiff) that verdict for plaintiff be for sum of one hundred dollars, the proven value of plaintiff's dog. Plaintiff testified as to value of the dog as follows: ``I was 12-years-old in July, but the dog was killed when I was 11 years old. I had a bull dog that got killed; it was a year old. The dog was worth $100, but I would not have taken that for him. I got him when he was a puppy and had had him about seven or eight months. He was a very valuable dog and I thought a lot of him.' Defendant testified as to value of the dog as follows: ``I would not consider the dog to be worth anything if he was going around biting people. If he was going to keep him shut up in the yard, he might have been of service to Mr. Chalker. With reference to its value, I don't have any idea I could have gotten over $10, if that, for it.'. . (a) Jury having found that defendant was not justified in killing the dog, it was mandatory under the law and evidence that verdict for plaintiff be for one hundred dollars, the proven value of said dog, as there was no ``data' in the evidence upon which the jury could legitimately exercise their ``own knowledge and ideas' as to value of plaintiff's dog." The only question argued here is, is the verdict of the jury authorized under the law and evidence. While we have set forth the testimony as contained in the special ground, we do not agree that such is the only evidence which the jury were authorized to consider in fixing the amount of their verdict. It is our opinion that the jury, in arriving at the verdict, were authorized to take into consideration all the facts and circumstances relating to the killing of the dog, and were not confined merely to the conclusions of the witnesses who testified on the subject. Indeed, in a case of this nature, the jury were not confined to what either the plaintiff or the defendant testified. In arriving at the value of the dog, they were authorized to consider his vicious character and other qualities, and reach their own conclusions as to a correct value. Counsel for the plaintiff in error cite and rely on only one case,Jefferson v. Kennedy, 41 Ga. App. 672 (3) (154 S.E. 378), in which the court said: "Questions of value are peculiarly for the determination of the jury, where there are any data in the evidence upon which the jury may legitimately exercise their ``own knowledge and ideas.' Baker v. Richmond City Mill Works,105 Ga. 225 (2) (31 S.E. 426); Sweat v. Sweat, 123 Ga. 801 (8) (51 S.E. 716); Georgia Ry. c. Co. v. Tompkins, 138 Ga. 596 (75 S.E. 664); Maynard v. American Railway Express Co.,29 Ga. App. 329 (2) (115 S.E. 35); Kraft v. Rowland,33 Ga. App. 806 (5) (128 S.E. 812)."

This is the only case which the plaintiff in error particularly calls to the attention of the court. In addition, we call attention to the citations therein and particularly toMaynard v. American Railway Express Co., 29 Ga. App. 329 (2) (115 S.E. 35).

Counsel for the defendant in error cite Martin v. Martin,135 Ga. 162 (68 S.E. 1095), Maynard v. American Ry. ExpressCo., supra, and Baker v. Richmond City Mill Works, supra. There are many other decisions pertaining to the principle here involved, among them Johnson v. Stevens, 19 Ga. App. 192 (2) (91 S.E. 220), which reads as follows: "Jurors are not absolutely bound by opinion testimony as to the value of property sued for, although such testimony may not be contradicted by any other evidence in the case." Jurors are not bound to accept as correct the opinion of a witness as to value. They may place a lower value upon the property than the witnesses state. Georgia Northern Railway Co. v. Battle, 22 Ga. App. 665 (97 S.E. 94). Although the testimony as to value is uncontradicted, the jury may consider the nature of the property involved, along with the facts and circumstances throwing light on the question. Birmingham PaperCompany v. Holder, 24 Ga. App. 630 (101 S.E. 692). See alsoWidincamp v. McCall, 25 Ga. App. 733 (104 S.E. 642);Hines v. Mizell, 26 Ga. App. 151 (105 S.E. 736);McLendon v. LaGrange, 47 Ga. App. 690 (171 S.E. 307). We therefore hold that under the facts of this case and in view of the facts and circumstances as to the quality of the dog in question, sufficient data was afforded from which the jury could determine the value of the dog notwithstanding the testimony of the plaintiff. The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.