Gallagher v. Kroger Grocery & Baking Co.

• Citation: 272 S.W. 1005
• Decision Date: 02 June 1925
• Docket Number: No. 19102.,19102.
• Court: Court of Appeal of Missouri (US)
• Parties: GALLAGHER v. KROGER GROCERY & BAKING CO.

272 S.W. 1005

GALLAGHER v. KROGER GROCERY & BAKING CO.

No. 19102.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Rehearing Denied June 24, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Lydia Gallagher against the Kroger Grocery & Baking Company. Judgment for plaintiff, and defendant appeals. Reversed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant.

Sievers & Hartmann and Ben F. Turner, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages, based on the alleged negligence of the defendant in permitting a customer to bring into its grocery and meat market a fierce, vicious, and dangerous bulldog, and in harboring said dog in its store, in the city of St. Louis, when the agents and servants of said defendant knew, or by the exercise of ordinary care could have known, that said dog was fierce, vicious, and dangerous, and liable to attack and bite persons therein.

The case was tried before the court and a jury, and resulted in a verdict and judgment in favor of the plaintiff for $1,000. From this judgment, defendant appeals.

The owner of the dog, a Mrs. Koch, brought the dog into the grocery and meat shop of defendant during the noon hour on the day in question. The dog was described as a large, vicious looking bulldog, unmuzzled, and tied to a chain. The evidence considered most favorable to the plaintiff discloses that this dog was at the meat counter, where defendant's butcher was waiting upon customers, for about 20 minutes prior to the time it bit plaintiff. There were several customers in the store at the time. The servants of defendant who were working in the store consisted of a manager, a clerk, and a butcher. The manager and clerk spent most of their time waiting upon the customers who desired to purchase groceries, and the butcher was on the opposite side of the building, and was working behind the counter in that portion of the store where defendant kept its meats, which were retailed to customers coming into the store. The dog was not muzzled. A chain was attached to a collar around its neck, and the other end of the chain was held by Mrs. Koch. Mrs. Koch proceeded to the meat counter for the purpose of purchasing meats while there were several customers in the store. Plaintiff came in with a little child, and proceeded to the meat counter where Mrs. Koch was. Mrs. Koch was upon the left of plaintiff, and there was one other person standing at the counter between them. The dog had its front feet upon the side of the counter, and was looking over the counter at the butcher. The butcher threw the dog two small pieces of meat. The dog then lurched around the person who was standing between plaintiff and Mrs. Koch, and; without any warning, bit plaintiff on the arm. It is unnecessary to describe the injuries inflicted, because there is no point made here as to the size of the verdict, or that plaintiff was not injured. Plaintiff testified that when she went up to the counter there was a lady standing there with a large white bulldog; that she passed around the dog and took her position as far away from it as she could, and placed her little daughter on the farther side of her, and had just told the butcher what she wanted when the dog bit her.

A Mrs. Billenkamp, who was standing between plaintiff and the owner of the dog, described the incident in the following language:

"I was at the Kroger Grocery & Baking Company on the 18th day of January, and was purchasing some groceries, and I saw a lady entering the store with a large dog, and he was extremely large and had a large head, and was an extremely large dog, and she had a large chain out of iron, and she takes this dog and leads him to the grocery counter and stands there and talks very friendly with the butcher, and he must...