Merritt v. Matchett

Citation115 S.W. 1066,135 Mo. App. 176
PartiesMERRITT v. MATCHETT.
Decision Date01 February 1909
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Buchanan County; C. A. Mossman, Judge.

Action by Ida M. Merritt against W. R. Matchett. From a judgment granting a new trial on verdict for plaintiff, she appeals. Reversed and remanded, with directions.

W. K. Amick, for appellant. Oscar D. McDaniel, for respondent.

JOHNSON, J.

Plaintiff, a married woman, was attacked and injured by a large dog, which she claims was owned or harbored by defendant, and brought this suit to recover the damages sustained. She alleges that the animal "was of a mischievous and vicious propensity, and was in the habit of attacking persons, and other animals without cause or provocation," and that defendant had knowledge of such propensity. The answer is a general denial and a plea of contributory negligence. The verdict of the jury was for plaintiff in the sum of $1,500, but it was set aside on the hearing of the motion for a new trial, on the ground of "error in plaintiff's fourth instruction." Plaintiff appealed, and argues that the instructions correctly declare the law of the case. Defendant contends, first, that the case should not have been submitted to the jury; and, second, that the court was right in granting a new trial on the ground stated in the order.

Defendant conducted a grocery store in St. Joseph. The evidence of plaintiff is to the effect that he owned the store, while defendant testified that his wife was the owner, and employed him as manager of the business. Before the injury defendant had harbored a large brindle dog at the store. It is a fair inference from some of the evidence that defendant owned the dog, but he and his witnesses say that the animal was the property of a young man employed by defendant as the driver of a delivery wagon. Generally the dog stayed in the store at night, and in the daytime was in the habit of following the delivery wagon. There is evidence in the record that tends to convict him of possessing a vicious, or at least a mischievous, disposition. Not only was he prone to attack dogs and other domestic animals without provocation, but on some of his excursions with the delivery wagon he rushed at people as though he intended to do them bodily harm. There is no proof that he ever bit a person, but he is depicted, in the evidence of plaintiff, as being a canine bully that delighted in terrifying people and animals with ferocious demonstrations. On August 10, 1907, plaintiff, then in a pregnant condition, was sitting on the front porch of her residence when the delivery wagon passed along the street. The dog was following the wagon, and, when opposite the premises of plaintiff, suddenly, and without provocation, charged at her. He jumped the front fence, rushed up on the porch, and jumped at plaintiff in a ferocious and terrifying manner. Plaintiff, greatly excited, managed to push him away with her arms. He fell, striking his breast on the edge of the porch, got up, ran over to an adjoining house, snapped at a woman standing on the porch of that house, and then suddenly turned and ran after the wagon. Plaintiff was so shocked by terror that she fell ill, suffered a miscarriage, and at the time of the trial had not recovered fully from the evil effects of the attack.

The above statement of facts is collected from the evidence of plaintiff, and is contradicted by the testimony of defendant and his witnesses. They describe the dog as being possessed of a peaceable disposition, and say that he never assailed human beings or domestic animals in any way without provocation. The driver of the wagon, who claimed to be the owner of the animal, testified that a dog owned by plaintiff's neighbor attacked his dog in the street. In the course of the fight that ensued the brindle dog prevailed, and chased the other into the latter's yard, where the fight was resumed. At this juncture the woman who owned the defeated dog appeared with a gun, and shot at the brindle dog. Of course she did not hit him, but she did scare him away, and he ran across plaintiff's front yard to overtake the...

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26 cases
  • State ex rel. Kroger Co. v. Craig, 7792
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Diciembre 1959
    ...... See also State ex rel. Burke v. Scott, supra, 364 Mo. loc. cit. 429-431, 262 S.W.2d loc. cit. 618-619. 9 Merritt v. Matchett, 135 Mo.App. 176, 183, 115 S.W. 1066, 1068; Splaine v. Eastern Dog Club, 306 Mass. 381, 28 N.E.2d 450, 452(4), 129 A.L.R. 427; 2 Am.Jur., ......
  • Frazier v. Stone, 9704
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Diciembre 1974
    ...... includes as well a natural fierceness or disposition to mischief as might occasionally lead him to attack human beings without provocation.' Merritt v. Matchett, 135 Mo.App. 176, 115 S.W. 1066 at 1069 (1909).         The plaintiff produced three liability witnesses. They were plaintiff ......
  • Moss v. Bonne Terre Farming & Cattle Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 6 Noviembre 1928
    ......Young, 63 Mo. 42; City of Union v. Lendemann, 242 S.W. 416; Putermann v. Simon,. 127 Mo.App. 511; Head v. Powells, 212 Mo.App. 310;. Merritt v. Matchett, 135 Mo.App. 176; 3 Corpus. Juris, 89; 3 Corpus Juris, 97; Smith v. Matteson, 41. Hun. 216, 4 N.Y. 204. (2) The gist of the offense ......
  • Moss v. Bonne Terre Farming & Cattle Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 6 Noviembre 1928
    ......Young, 63 Mo. 42; City of Union v. Lendemann, 242 S.W. 416; Putermann v. Simon, 127 Mo. App. 511; Head v. Powells, 212 Mo. App. 310; Merritt v. Matchett, 135 Mo. App. 176; 3 Corpus Juris, 89; 3 Corpus Juris, 97; Smith v. Matteson, 41 Hun. 216, 4 N.Y. 204. (2) The gist of the offense ......
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