Boyer v. Callahan, 32151

• Decision Date: 19 July 1966
• Docket Number: No. 32151,32151
• Citation: 406 S.W.2d 805
• Parties: Fred A. BOYER, Plaintiff-Appellant, v. George CALLAHAN and Kenneth Downs, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 805

406 S.W.2d 805

Fred A. BOYER, Plaintiff-Appellant, v. George CALLAHAN and Kenneth Downs, Defendants-Respondents.

No. 32151.

St. Louis Court of Appeals, Missouri.

July 19, 1966.

Motion for Rehearing or for Transfer to Supreme Court Denied

Sept. 13, 1966.

John J. Relles, John J. Stewart, Clayton, for plaintiff-appellant.

Carter, Bull, Baer, Presberg, Lee & Stanard, Richard O. Funsch, St. Louis, for defendant-respondent George Callahan.

Dennis J. Quillin, Clayton, for defendant-respondent Kenneth Downs.

LACKLAND H. BLOOM, Special Judge.

Plaintiff-appellant instituted suit in the City of St. Louis against the defendants alleging that they 'owned, kept and harbored a collie dog of dangerous and vicious propensities,' and that they negligently allowed and permitted said dog to bite the plaintiff. The parties will hereafter be referred to in accordance with their designations in the trial court. The jury returned a verdict in favor of plaintiff and against defendant Callahan in the sum of $9,000 and in favor of the defendant Downs. The trial court sustained a motion of defendant Callahan for judgment in accordance with his motion for a directed verdict and in the alternative sustained defendant Callahan's motion for a new trial. The court further sustained the plaintiff's motion for a new trial as to the defendant Downs. This appeal is from the order of the trial court sustaining defendant Callahan's motion for judgment and in the alternative his motion for a new trial. No appeal has been taken by defendant Downs from the order granting plaintiff a new trial as to him.

We will set forth only those facts essential to a consideration of the issues raised on this appeal. The defendant Downs and his wife owned a farm in Hematite, Missouri, where they raised chickens for the purpose of producing eggs for sale. On July 3, 1962, pursuant to prior permission granted to him, the plaintiff Boyer and his family came to a portion of the Downs farm for the purpose of camping out over the 4th of July holiday. Boyer and his two boys had remained on the farm, sleeping in Boyer's truck, on the evening of July 3rd. The next morning plaintiff experiencing a call of nature went behind his truck for the purpose of relieving himself. While so engaged and standing behind the truck, he was attacked and bitten by a collie dog on a private and very sensitive part of his anatomy. It is not necessary for purposes of this review to set forth the nature or the extent of the alleged injuries sustained by plaintiff by reason of the dog's bite.

The evidence is in conflict as to who owned the dog on the date of the attack on plaintiff. Plaintiff had not seen the dog prior to the attack at any time. Peggy Downs, wife of the defendant Kenneth Downs, testified for the plaintiff that the defendant Callahan had brought the dog out to their farm and had asked her husband if he could leave it there for '* * * a few days to see how it would get along * * *.' She testified that Callahan had said that he couldn't keep it in the city any longer 'Because it had gone over after some lady * * *' and they had to get rid of the dog. They brought it out to their farm to see how it would work out there and to see what they could do with it. She testified that she was present when the dog was brought out and the dog acted all right. But when it was taken to the garage it would curl its lip up and snarl and she did not go near it because she was afraid of it. Mr. Callahan brought some dog food and two red dog bowls with the dog. She saw the dog lunge at one of the men who worked on the farm and it bit him on the arm but didn't hurt him very much. She thought it was the next day after the dog had been left there and was positive that it was before the plaintiff was bitten. She said after the plaintiff was bitten that they never saw the dog as it ran away. She testified that she was afraid of the dog and told her husband to give it back to George. On crossexamination she stated that Mr. Callahan had said the police had been called because the dog was frightening some people or some ladies.

Defendant Callahan testifying on his behalf stated that he had acquired the dog in July, 1959, as a pet for his five children when the dog was six weeks old. He kept the dog in his back yard until it got large enough that it would jump the fence and he then had a special fence built for the dog which was six feet high and enclosed an area about four feet wide and twelve to fourteen feet long. He testified that he never knew the dog to harm any of the children or show any animosity toward any other people or to act in a threatening manner toward any person. He had received a complaint that the dog annoyed a party in the neighborhood with his barking. On cross-examination he stated that the police came to see him about the dog on one occasion in March or April of 1962 and merely advised him that a neighbor had complained about the dog barking and disturbing her stepfather. They asked him to try to keep the dog quiet.

He had known defendant Downs for approximately fifteen years. He knew that Downs owned other dogs and asked him, 'Would you like to have another dog?' He said he thought this conversation took place in his, Callahan's, office in the city and that at that time Downs said that he thought he would like to have another dog. Within a few days prior to the time he took the dog out there he again talked to Mr. Downs and he said, 'Yes, bring the dog out.' He thought he took the dog out to the farm on Saturday, June 30th, although it could have been on the following Sunday. He and two of his children took the dog to the Downs' farm and Mr. Downs and his wife were there. The dog was on a leash when he took him out of the car and they went over to a picnic bench and sat down and gave the dog a chance to look around. They took the leash off of the dog and sat and talked for a few minutes. They looked around the farm and the egg factory and at that time the dog was put in a fenced-in enclosure. The dog jumped the fence and came back to them. They put him in a second time and he again jumped the fence. The dog was not acting in a vicious manner but in a friendly manner and came over to the kids. When they got ready to leave they put the dog in a wooden shed, like a garage, and closed the door and he and the children got in the car and drove off. He brought the dog's collar, leash, two dog bowls, about a half sack of Purina Dog Chow, and six or eight cans of dog food. He brought everything except the dog house which wouldn't fit in his station wagon. It was his intention to permanently give up ownership of the dog at that time. When he took the dog to Downs the dog was approximately three years old and quite a large dog. On cross-examination he denied ever hearing the dog snarl and did not hear it growl except in a playful way when the kids would wrestle with it. Nor did he ever have occasion to see it threaten any person. The reason he wanted to get rid of the dog was because his yard was too small for the dog or the dog was too large for the yard and because of the fact that a neighbor was complaining about the dog barking. He wanted to keep peace with the neighbors. He did not charge Mr. Downs anything for the dog as he was giving it to him. He did tell Downs that if for some reason, at a later date, Downs decided he didn't want the dog, to let him know and he would come and get him and try and find someone else who would take the dog. He denied ever having received a message from Downs prior to the occurrence on July 4th to come and get the dog and stated that after he was advised that the dog had bitten someone and had run away that he and his children went down to try and find the dog but could not do so. He stated that he intended the transfer to be final but that he wanted Downs to know that if at some future time he did not want the dog, rather than just turn him loose, he would want Downs to call him and he would take the dog back and try to find another home for it.

Defendant Downs testifying in his own behalf stated that approximately a week before defendant Callahan had brought the dog to his farm he had a conversation with him in Callahan's office. Callahan asked him whether he would be interested in a dog and he explained to Callahan that he had an interest in dogs and that he had quite a few and didn't want another dog. He had a hobby of raising dachshunds and had five females, and a male dog would present a problem. He stated Callahan then asked him if he would care for the dog for a short time. He got the impression from Callahan that the dog was causing quite a bit of trouble at home and he had to move the dog almost immediately. 'I said I would help him.' He stated he was at the office again the Friday before Callahan brought the dog to the farm and that Callahan asked him if it would be all right to bring the dog that weekend. According to Downs nothing was said concerning the extent of the time that he was to keep the dog. He added, 'I would assume from what they said they had to remove the animal almost immediately, did not want to destroy it. They felt attached to it because it was a children's pet * * *.' He testified that when Callahan first arrived with the dog it got in a fight with one of his dachshunds and he had to lock up the dachshund. While Callahan was there they put the dog in an enclosure and it jumped through the window and over a six foot high fence on two occasions. After Callahan had left he locked the dog in a utility shed but that the dog was able to escape by digging a hole through the floor. He kept enticing the dog into the shed with food but he would continue to escape and by Tuesday they abandoned any effort to confine him. His wife kept after him to call George from Sunday on and he did on several occasions. He did not reach him but left messages at his home and office. He notified defendant Callahan on the date...