State ex rel. Kroger Co. v. Craig

329 S.W.2d 804, 1959 Mo. App. LEXIS 413
CourtMissouri Court of Appeals
DecidedDecember 3, 1959
DocketNo. 7792
StatusPublished
Cited by28 cases

This text of 329 S.W.2d 804 (State ex rel. Kroger Co. v. Craig) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Kroger Co. v. Craig, 329 S.W.2d 804, 1959 Mo. App. LEXIS 413 (Mo. Ct. App. 1959).

Opinion

STONE, Presiding Judge.

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 [806]*806now pending), from enforcing an order directing Kroger to answer certain interrogatories propounded by counsel for plaintiff Joan in the damage suit. Since our preliminary writ of prohibition was limited to interrogatories 6, 7, 8 and 16 (copied marginally1), we presently address ourselves to those interrogatories only.

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.2 Soon after the effective date of our present civil code, it was pointed out and settled by our Supreme Court, en banc, that the scope of examination on interrogatories under Section 510.020 RSMo 1949, V.A.M.S., is coextensive with that permitted on depositions and that discovery of matters inadmissible in evidence is not authorized, even though such matters might aid the inquiring party in preparing for trial.3 So, numerous cases evidence the fact that, in simple recognition and practical application of the foregoing principle, courts should not compel interrogatories to be answered or documents to be produced where it is apparent that the answers or the documents would constitute or be predicated upon inadmissible hearsay.4 Since any information elicited in response to instant interrogatory 6 obviously would be rank, undisguised, unadulterated hearsay, that interrogatory was improper and an answer thereto should not be compelled.

[807]*807Interrogatory 7, calling for “any written reports and memoranda to defendant (Kroger)” by “any employee or any person on behalf of defendant,” would encompass not only inadmissible reports reflecting or necessarily predicated upon hearsay but also all narrative reports by employees or claim representatives of Kroger subsequent to the alleged occurrence in suit and all intracompany memoranda pertaining to investigation of the damage suit or preparation for its defense, none of which would be competent evidence in the damage suit upon plaintiff Joan’s theory that such reports and memoranda “would constitute admissions against interest” on the part of defendant Kroger. For, “ ‘declarations’ or admissions ‘of an agent with respect to an act or transaction, made after the occurrence of the act or the completion of the transaction, are not provable against the principal. * * * Such statements are merely hearsay and like those of any other person, and cannot affect his principal. A rule that would allow an agent, after a transaction is closed, to admit away the rights of his principal, would be too dangerous to be tolerated.’ ” 5 Only declarations or statements made by an employee or agent “in the course of, relating to, and connected with the ordinary business of the principal, within the scope of his authority, and then depending, are excepted from the hearsay rule and competent as admissions'against his principal.” Shelton v. Wolf Cheese Co., 338 Mo. 1129, 1139, 93 S.W.2d' 947, 953(5) ; State ex rel. S. S. Kresge Co.v. Shain, 340 Mo. 145, 153, 101 S.W.2d 14, 18. And, the firmly-established converse is that a mere narrative of the facts and circumstances surrounding an accident, made by an employee long after the accident, will not be received in evidence as an admission against interest on the part of the employer.6 Thus, interrogatory 7 is improper in that it would require production of narratives by Kroger’s employees subsequent to the alleged dog bite, and it is just as improper in that it would compel disclosure of intracompany reports and memoranda pertaining to investigation and preparation for defense of the damage suit.7

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 8 and would afford adequate reason, in and of itself, to re[808]*808quire condemnation of this interrogatory. But, the effort of counsel for plaintiff Joan to justify interrogatory 8 on the theory that “knowledge of the presence of dogs upon the premises of the defendant on previous occasions is an essential element of plaintiff’s cause of action” suggests the propriety of our exploration of the nature and gist of such cause of action, that we may determine whether information of the character sought by this interrogatory (and by others to be scrutinized herein and in a companion proceeding) would be material and relevant to the issues in the damage suit. Consult State ex rel. Clemens v. Witthaus, 360 Mo. 274, 280, 282, 228 S.W.2d 4, 7, 9(9).

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Misischia v. St. John's Mercy Medical Center
30 S.W.3d 848 (Missouri Court of Appeals, 2000)
Duren v. Kunkel
814 S.W.2d 935 (Supreme Court of Missouri, 1991)
May Department Stores Co. v. Ryan
699 S.W.2d 134 (Missouri Court of Appeals, 1985)
State ex rel. Jones v. Moore
696 S.W.2d 870 (Missouri Court of Appeals, 1985)
State Ex Rel. Anheuser v. Nolan
692 S.W.2d 325 (Missouri Court of Appeals, 1985)
Farrior v. Payton
562 P.2d 779 (Hawaii Supreme Court, 1977)
Lindberg v. Safeway Stores, Inc.
525 S.W.2d 571 (Missouri Court of Appeals, 1975)
Frazier v. Stone
515 S.W.2d 766 (Missouri Court of Appeals, 1974)
State Ex Rel. State Highway Commission v. Baker
505 S.W.2d 433 (Missouri Court of Appeals, 1974)
Stevens v. Wetterau Foods, Inc.
501 S.W.2d 494 (Missouri Court of Appeals, 1973)
Boosman v. Moudy
488 S.W.2d 917 (Missouri Court of Appeals, 1972)
Pruiett v. Wilform
477 S.W.2d 76 (Supreme Court of Missouri, 1972)
Cornet Stores v. SUPERIOR CT. IN & FOR CTY. OF YAVAPAI
492 P.2d 1191 (Arizona Supreme Court, 1972)
Pyles v. Bos Lines, Incorporated
427 S.W.2d 790 (Missouri Court of Appeals, 1968)
Smith v. Wabash Railroad Company
416 S.W.2d 85 (Supreme Court of Missouri, 1967)
State ex rel. Gamble Construction Co. v. Carroll
408 S.W.2d 34 (Supreme Court of Missouri, 1966)
Boyer v. Callahan
406 S.W.2d 805 (Missouri Court of Appeals, 1966)
Robidoux Ex Rel. Robidoux v. Busch
400 S.W.2d 631 (Missouri Court of Appeals, 1966)
State Ex Rel. State Highway Commission v. Foeller
396 S.W.2d 714 (Supreme Court of Missouri, 1965)
State Ex Rel. Hof Ex Rel. Hof Ex Rel. Hof v. Cloyd
394 S.W.2d 408 (Supreme Court of Missouri, 1965)

Cite This Page — Counsel Stack

Bluebook (online)
329 S.W.2d 804, 1959 Mo. App. LEXIS 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kroger-co-v-craig-moctapp-1959.