Rock Spring Distilling Co. v. Thruston

• Decision Date: 24 February 1897
• Citation: 39 S.W. 253
• Parties: ROCK SPRING DISTILLING CO. v. THRUSTON.
• Court: Kentucky Court of Appeals

39 S.W. 253

ROCK SPRING DISTILLING CO. v. THRUSTON.

Court of Appeals of Kentucky.

February 24, 1897

Appeal from circuit court, Daviess county.

"Not to be officially reported."

Action by Rock Spring Distilling Company against Alfred Thruston to recover the value of goods lost through defendant's negligence. There was a judgment for defendant, and plaintiff appeals. Reversed.

J. A Dean and Sweeney, Ellis & Sweeney, for appellant.

Reuben A. Miller and Robert S. Todd, for appellee.

GUFFY J.

The appellant instituted this action against the appellee in the Daviess circuit court, seeking to recover judgment against appellee for the sum of $432.25, being the value of whisky which appellant alleged was lost by the negligence, etc., of appellee. It is alleged, in substance, that the appellee was the United States gauger in charge of the warehouse and cistern room for the storage of appellant's whisky, it being engaged at the time in making whisky. It was alleged in the petition that the distillery was so arranged and constructed that the whisky, when finished, was conveyed by pipes to tanks or cisterns situated in the distillery warehouse, and in a room in said warehouse known as the "cistern room"; that from these tanks or cisterns the whisky was drawn through stopcocks or faucets into barrels, and gauged and entered into the distillery warehouse. There was no means of access to this cistern room except through a door, and this door was kept locked, and the key in the custody of the United States gauger on duty at said warehouse. No one had access to this room except said gauger, whose duty it was to draw the whisky from the cistern into the barrels, gauge and mark it, so it might be entered into the distillery warehouse. These stopcocks or faucets were inclosed in a box, which was kept locked, and the key in the custody of said gauger, who alone had access to the said cocks. It was also alleged that appellee was the gauger in charge of said cistern room, and had the keys to the cistern room, and also to the box inclosing the stopcocks of the cistern; and that it was his duty to, and he did, each day, unlock the box, open said stopcocks, and draw the whisky into barrels gauge and mark it; and that, when through drawing the whisky it was his duty to close the stopcocks, and lock the box inclosing them, and to close and lock the cistern-room door so that no one could gain access to it in his absence,-all of which the appellee undertook to do. It is further alleged that on the 16th January, 1893, appellee, being on duty, and acting as aforesaid, did negligently and carelessly fail to close the stopcock of the cistern aforesaid, and did negligently and carelessly leave the same open, whereby a large quantity of plaintiff's whisky-viz. 1,710 gallons-was allowed to run out and waste, to appellant's damage in the sum of $432.29. The appellee, in his answer, alleged, in substance, that it was the duty of appellant to draw the whisky from the cistern into the barrels, and denied that it was his duty to do so; denied that he alone had access to the stopcocks; admitted to having the keys; but denied that he owed any duty to appellant in regard to opening and closing the cocks, etc. Appellee further pleaded that the agents of plaintiff, on the 13th of January,...