329 S.W.2d 804 | Mo. Ct. App. | 1959
This original proceeding in prohibition is an outgrowth of a civil action (hereinafter referred to as the damage suit) styled Joan Lee Lawrence, a minor, by A1 Lawrence, her father and natural guardian, plaintiff vs. The Kroger Company, a corporation, defendant, in which plaintiff (as disclosed by her petition) prays $3,000 for personal injuries alleged to have resulted when she was bitten by “a tan mongrel dog” while “an invitee” in a Kroger market in Ca-ruthersville. The owner of the dog is not identified. In this proceeding, The Kroger Company seeks to prohibit respondent, as judge of the Circuit Court of Mississippi County (before whom the damage suit is
Although the trend of modern practice is to enlarge the scope of discovery and our civil code of 194S was conceived in that spirit (State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 1099, 219 S.W.2d 383, 390, 8 A.L.R.2d 1124), nevertheless the discovery provisions in our code were not designed or intended for untrammeled use as .a factual dragnet or for unlimited employment in far-flung fishing expeditions.
The omnibus language of interrogatory 8, demanding the “knowledge” of “any employee” of defendant Kroger concerning the presence of any dogs on Kroger’s premises “on any occasion” during the entire period of the operation of this market prior to the occurrence in suit, is much too broad and all-inclusive
Seized by furor scribendi with which appellate judges sometimes are afflicted, we observe preliminarily that, although plaintiff Joan’s petition depreciatingly and disparagingly refers to the animal alleged to have bitten her as “a tan mongrel dog,” the canine (as a class) has a proud heritage rooted in antiquity. To the ancients, the dog was more than a pet in the household, a servant in the field, and an assistant in the hunt. He was an object of ceremony, reverence and veneration as well. The Egyptians regarded him as a symbolic guide and protector of the dead, crowned their god Anubis with a doglike head, fashioned images of the dog on the walls of their burial chambers and temples, ceremoniously embalmed his body and entombed it in the special burial ground set aside for dogs in every town, and even built a city, Cynopolis, in his honor. The dog was scarcely less important to the Greeks, where Socrates’ favorite pledge was by the dog, Plato called the dog a philosopher, Pythagoras 'taught that a dog should be held to the mouth of a dying man as the animal most worthy of receiving the departing spirit and perpetuating its virtues, and in Greek mythology the dog of the hunter Orion was transformed into Sirius, the brightest star in the heavens, whose rise marked the Athenian New Year. Ethiopian tribesmen once crowned a dog as their king; and, with the ancient Persians, it was a less grievous offense to kill a man than to destroy a dog. In Rome, dogs became so popular that Julius Caesar is said to have mused aloud that Roman ladies of luxury had decided to have dogs instead of children; and, Cicero said, in tribute to dogs, that "such fidelity of dogs in protecting what is committed to their charge, such affectionate attachment to their masters, such jealousy of strangers, such incredible acuteness of nose in following a track, such keenness in hunting — what else do they evince but that these animals were created for the use .of man.” Centuries later, Olway the poet wrote of dogs as “honest creatures (who) ne’er betray their masters, never fawn on any they love not.” And, in his classic encomium to the dog triumphantly climaxing the celebrated suit for the loss of “Old Drum,” Missouri’s Senator George Graham Vest eulogized the fierce loyalty, unswerving devotion and unwavering steadfastness of the dog — noble qualities perhaps the more highly esteemed by man because he is so often found wanting in them himself.
Since, down through the ages, the dog has earned and has merited acceptance as man’s best friend, small wonder then that the law long ago recognized dogs as ordinarily harmless and classified them as animals domitae naturae, i. e., domestic animals, rather than as animals ferae naturae, i. e., wild animals,
To comply with interrogatory 16, defendant Kroger would be compelled, after painstakingly seining the seven seas of legislative enactments and administrative regulations, to reach and express a legal opinion and conclusion as to what (if any) enactments and regulations subject Kroger “to supervision or regulation by any governmental agency or body (either federal or state) concerning the health and safety requirements in the conduct of the retail grocery business,” and then to present counsel for plaintiff Joan with a copy of all such regulations deemed applicable to Kroger. As we read the cases, this would not be proper and permissible even in the more liberal discovery practice under the Federal Rules of Civil Procedure, 28 U.S.C.A., where the general rule seems to be that the interrogated party should be compelled to answer only as to matters of fact within his knowledge and should not be required to express opinions or to engage in research and compilation of data and information not readily known to him.
Our preliminary writ of prohibition as to interrogatories 6, 7, 8 and 16 is made permanent.
. “6. Was any employee or any person on beliaif of defendant notified that plaintiff was bitten by a dog while present upon defendant’s premises on or about October 26, 1957? If so, state the name and address of such person receiving such report, by whom it was made, and the substance of such report and the time it was made.
“7. Did any employee or any person ■on behalf of defendant make any written reports and memoranda to defendant concerning the plaintiff’s dog bite? If so, state the name and address of the person making such report, the name and address of the person who now has possession and custody of such report, and attach a written copy of such report.
“8. Prior to October 26, 1957, did any employee of defendant have knowledge that dogs were present on the same premises of defendant on any occasion? If so, state the name and present address of such person having such knowledge, the number of times the dogs were observed on the premises and the respective dates.
“16. Is defendant subject to supervision or regulation by any governmental agency or body concerning the health and safety requirements in the conduct of the retail grocery business? If so, state the name of such governmental agency or body and attach a copy of its regulations.”
.State ex rel. Bostelmann v. Aronson, 361 Mo. 535, 546, 548, 235 S.W.2d 384, 389, 391(9) ; State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 1093, 1098, 219 S.W.2d 383, 386(3), 390, 8 A.L.R.2d 1124. See also State ex rel. Clemens v. Witthaus, 360 Mo. 274, 284, 228 S.W. 2d 4, 10; State ex rel. Burke v. Seott, 364 Mo. 420, 431, 262 S.W.2d 614, 619.
. State ex rel. Williams v. Buzard, 354 Mo. 719, 725, 190 S.W.2d 907, 910; State ex rel. Thompson v. Harris, 355 Mo. 176, 180, 195 S.W.2d 645, 647-648(9), 166 A.L.R. 1425. And, see Johnson v. Cox, Mo., 262 S.W.2d 13, 17; Belding v. St. Louis Public Service Co., 358 Mo. 491, 503, 215 S.W.2d 506, 513-514. Consult also State ex rel. Chicago, R. I. & P. R. Co. v. Biederer, Mo. (banc), 303 S.W.2d 71, 73(1).
. State ex rel. Williams v. Buzard, supra, 354 Mo. loe. cit. 726, 190 S.W.2d loe. cit. 910; State ex rel. Thompson v. Harris, supra, 355 Mo. loe. cit. 180, 195 S.W. 2d loc. cit. 648; State ex rel. Kansas City Public Service Co. v. Cowan, 356 Mo. 674, 681, 203 S.W.2d 407, 410-411 (9); State ex rel. Miller’s Mut. Pire Ins. Ass’n v. Caruthers, 360 Mo. 8, 11— 12, 226 S.W.2d 711, 713(2); State ex rel. Land Clearance for Redevelopment Authority of Kansas City v. Southern, Mo.App., 284 S.W.2d 893, 897. See also Davis v. Illinois Terminal R. Co., Mo., 291 S.W.2d 891, 899(9); Johnson v. Cox, supra, 262 S.W.2d loe. cit. 17.
. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 1138, 93 S.W.2d 947, 952(3); Mattan v. Hoover Co., 350 Mo. 508, 520, 166 S.W.2d 557, 566(11); Davis v. Seda-lia Yellow Cab Co., Mo.App., 280 S.W.2d S69, 871; Winegar v. Chicago, B. & Q. R. Co., Mo.App., 163 S.W.2d 357, 367. See also Roush v. Alkire Truck Lines, Mo., 299 S.W.2d 518, 521.
. State ex rel. S. S. Kresge Co. v. Shain, 340 Bio. 145, 152-153, 101 S.W.2d 14, 17-18(2) ; Shelton v. Wolf Cheese Co., supra, 338 Mo. loe. cit. 1139, 93 S.W.2d loe. cit. 953(6); Ohawkley v. Wabash Ry. Co., 317 Mo. 782, 801, 297 S.W. 20, 26 (10); St. Charles Sav. Bank v. Den-ker, 275 Bio. 607, 615, 205 S.W. 208, 210(1); Yoyles v. Columbia Terminals Co., Mo.App., 239 S.W.2d 559, 562(5); Lemen v. Kansas City Southern Ry. Co., 151 Mo.App. 511, 514-515, 132 S.W. 13, 14 (2) ; 31 C.J.S. Evidence § 346, p. 1120; 20 Am.Jur., Evidence, § 599, p. 510.
. State ex rel. Terminal R. Ass’n of St. Louis v. Elynn, 363 Mo. 1065, 1072-1075, 257 S.W.2d 69, 73-75; State ex rel. Miller’s Mut. Eire Ins. Ass’n v. Caruthers, supra, 360 Bio. loe. cit. 12, 226 S.W.2dloe cit. 713. And, see particularly Snyder v. Atchison, T. & S. F. Ry. Co., D.C.. Bio., 7 E.R.D. 738, 739(4).
. Compare State ex rel. Bostelmann v.. Aronson, supra, 361 Bio. loe. cit. 545, 235-S.W.2d loe. cit. 389; State ex rel. Clemens v. Wittbaus, supra, 360 Mo. loe. cit, 283-284, 228 S.W.2d loe. cit. 9-10; State ex rel. Cummings v. Witthaus, 358 Bio. loe. cit. 1098, 219 S.W.2d loe. cit. 390; State ex rel. Kramer v. Carroll, Bio. App., 309 S.W.2d 654, 657(4, 5). See also State ex rel. Burke v. Scott, supra,. 364 Mo. loe. cit. 429-431, 262 S.W.2d loc. ' cit. 618-619.
. Merritt v. Matehett, 135 Mo.App. 176, 183, 115 S.W. 1066, 1068; Splaine v. Eastern Dog Club, 306 Mass. 381, 28 N.E.20 450, 452(4), 129 A.L.R. 427; 2 Am.Jur., Animals, § 4, loc. cit. 692; Restatement of the Law of Torts, Vol. 3, § 518, comment j, loe. cit. 40.
. Every reported Missouri case tor personal injury by a dog has so recognized. See Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, 13 A.L.R. 485; Patterson v. Rosenwald, 222 Mo.App. 973, 6 S.W.2d 664; Gallagher v. Kroger Grocery & Baking Co., Mo.App., 272 S.W. 1005; Bruñe v. DeBenedetty, Mo.App., 261 S.W. 930; Carrow v. Haney, 203 Mo. App. 485, 219 S.W. 710; Merritt v. Matehett, supra: Speckmann v. Kroig, 79 Mo.App. 376. For representative holdings from other jurisdictions, see Kennett v. Engle, 105 Mich. 693, 63 N.W. 1009; Gcrulis v. Lunecki, 284 Ill.App. 44, 1 N.E.2d 440; Burke v. Fischer, 298 Ky. 157, 182 S.W.2d 638; Thomas v. Pecoraro, La.App., 164 So. 435; Anderson v. DTngianni, 16 La.App. 560, 134 So. 412; Gardner v. H. C. Bohack Co., 179 App.Div. 242, 166 N.Y.S. 476; Trum-ble v. Happy, 114 Iowa 624, 87 N.W. 078, 680(9); Kansas City Southern Ry. Co. v. Pinson, 5 Cir., 61 F.2d 1001.
. Gallagher v. Kroger Grocery & Baking Co., supra, 272 S.W. loe. cit. 1006; Andrews v. Jordan Marsh Co., 283 Mass. 158, 186 N.E. 71, 72(2), 92 A.L.R. 726, 729; Goodwin v. E. B. Nelson Grocery Co., 239 Mass. 232, 132 N.E. 51, 53(7); Pally v. F. W. Woolworth & Co., 194 Mise. 211, 88 N.Y.S.2d 378, 380; Mar-salis v. LaSalle, La.App., 94 So.2d 120, 123-124(2-4); Pallman v. Great Atlantic & Pacific Tea Co., 117 Conn. 667, 167 A. 733; 2 Am.Jur., Animals, § 65, p. 742; annotation 17 A.L.R.2d 459, 464 (§§• 6, 8).
Snyder v. Atchison, T. & S. F. Ry. Co., D.C.Mo., 7 F.R.D. 738(3); Cinema. Amusements, Inc. v. Loew’s, Inc., D.C..
. Compare Richards v. Maine Central Railroad, D.O.Me., 21 F.R.D. 590, 592 (3); Tobacco and Allied Stocks, Inc. v. Transamerica Corp., D.C.Del., 16 F.R.D. 537, 541-543(8, 9); Colorado Milling & Elevator Co. v. American Cyanamid Co., D.C.Mo., 11 F.R.D. 580, 582; Onofrio v. American Beauty Macaroni Co., D.C.Mo., 11 F.R.D. 181, 184(2, 3); United States y. Columbia Steel Co., D.C.Del., 7 F.R.D. 183, 185; Byers Theaters, Inc. v. Murphy, D.C.Va., 1. F.R.D. 2SG, 2S9(S).