Anderson & Nelson Distilling Co. v. Hair
| Decision Date | 17 February 1898 |
| Citation | 103 Ky. 196,44 S.W. 658 |
| Parties | ANDERSON & NELSON DISTILLING CO. v. HAIR. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Jefferson county.
"To be officially reported."
Action by John F. Hair against the Anderson & Nelson Distilling Company for personal injuries. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Humphrey & Davie, for appellant.
Augustus E. Willson, for appellee.
In December, 1892, the appellee, Hair, was a United States storekeeper, and assigned to duty at the distillery of appellant in the Fifth internal revenue district of Kentucky. On the evening of the first day of his work at appellant's distillery, while in the performance of his duties as storekeeper, in going over and inspecting the various parts of the distilling apparatus, he was in the second story of the building, in what is called the "mash room," and came down the stairway to the first floor to inspect the fermenting tubs, and, when he got to the first floor at the foot of the stairway, appellee fell into a hole, where tubs had been removed, into the cellar, a distance of some ten feet, and suffered injury, for which this action was brought in the Jefferson circuit court. The petition is framed on the idea of negligence of appellant in so constructing and maintaining its distillery that at the foot of this stairway, and within three feet of it, there is a hole through which a person might fall; that is, when the fermenting tub, which belongs there, is removed, as on the occasion when appellee was injured. These fermenting tubs rest on timber on the cellar floor, and project through the first floor. The light on this first floor room is furnished by windows some 30 feet away. The room is dimly lighted, and while appellee was in the exercise of his duty as an officer of the government, he was, without fault on his part injured. The answer admits the injury at the time and place and under the circumstances, alleged in the petition. It denies any duty to appellee to keep the premises safe for him, and denies any negligence at all, in any manner, specifically denying each and every charge of negligence made; also pleaded contributory negligence of appellee, and denied any damage or liability therefor. The case was tried before a jury, and resulted in a verdict for appellee for $1,500. After appellant's reasons and motion for new trial had been overruled, it prosecuted this appeal.
It appears that at the conclusion of the testimony of appellee (by which it was shown he was a United States revenue storekeeper on duty at appellant's distillery, and that in the performance of his official duties, he was compelled to go from the mash room, down a stairway, to the fermenting room, to examine the tubs; that this was his duty daily; and in so doing, when he reached the foot of the stair,-the second step,-he fell through a hole in the floor, and fell through to the cellar, sustaining the injuries; that the fermenting room at that hour, 4 p. m., in December, was almost dark, no light save from windows some distance away) the appellant asked a peremptory instruction, on the theory that appellee, being an officer, was a mere licensee, and that appellant owed him no duty, and that, therefore, there could be no negligence. Counsel for appellant strongly urge this proposition in their brief to this court. This question is vital to the case, for, if appellant owed appellee no duty, then he cannot recover. We are referred by counsel to cases which hold that a sheriff, policeman, or fireman in the discharge of his duty is a mere licensee, and that the owner of the property owes to such officers no duty to maintain his premises in safe condition. In our opinion, this does not come within that class of cases. Here, by the laws of the federal government, appellant's distillery could not run without the presence of a storekeeper, such as appellee was. By the law and rules of the internal revenue department, this storekeeper is required to daily inspect all parts of the distillery, and it therefore follows that appellee must be held to be present at the distillery at the implied invitation of appellant, and not as a mere...
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Mounsey v. Ellard
...(10th Cir.) (meat inspector); Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472 (building inspector); Anderson & Nelson Distilleries Co. v. Hair, 103 Ky. 196, 44 S.W. 658 (United States revenue officer); Jennings v. Industrial Paper Stock Co., 248 S.W.2d 43 (Mo.Ct.App.) (public health......
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... ... Rindskopf ... (Mo.), 70 S.W.2d 1085; Standard Oil Co. v ... Anderson, 212 U.S. 1215, 29 S.Ct. 252; Baker v ... Scott County Milling Co., ... there at the implied invitation of the owner--citing Anderson & Nelson Dis. Co. v. Hair, 103 Ky. 196, 44 S.W ... We now ... ...
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