sessed of the faculties of a rational and responsible actor and punishable as such, for any criminal transgression; that being the only way, known to all law, to regulate the action of man, except when devoid of this rational element, in which case he would be placed custodia legis.

Upon the ground of public policy, and as an essential in the regulation and protection of diversified rights in communities, this elementary law (that the only remedy for a crime, is the punishment, civilly and criminally, of the person who commits it) has been modified, or changed, with respect to innkeepers, carriers of passengers, assaults, etc., committed by servants, while acting within the line of their duty, and now by the Pennsylvania (Rommel v. Schambacher (1887), 126 Pa. 582; S C., 27 AMER. LAW REG. 156) and Minnesota courts (in Ahlbeck v. St. Paul, P. M. & M. Co., and McCord v. Western Union Tel. Co., supra, pp. 23, 24), to places open to and for the entertainment of the public. In these cases, the principal is held responsible for the assaults, or insults, which he did not commit. He is punished civiliter, for a crime which another committed, because public policy exacts the duty of protection in such cases, and holds him, who is required to exercise that duty, liable for any failure or neglect.

Within the law governing the liability of innkeepers, may be found the whole and true principle for holding one man civilly responsible for a crime committed by another, and the application of this doctrine to the other classes, is not the advancement of a new principle in the law. There is no difference between the reasons which hold the innkeeper responsible, and those for holding a master liable for the assaults of his servant, while doing the business with which he was entrusted, and holding a railroid liable for assaults by

its employees. It is settled that a car rier is liable for an assault upon a pas senger, whether committed by an employe or a stranger. Some jurisdictions place the liability on the ground of contract, and others on the ground of duty, while the minority of the cases exclude all liability for assault, unless committed by the servant within the scope of his duty, but do not define what is or what is not within the line of the servant's duty. Prominent in fol. lowing this judicial jugglery is the Supreme Court of Ohio in (Witmore v. L. M. R. R. Co. (1869), 19 Ohio St. 110) holding the carrier not liable where the baggage checker struck the passenger with a hatchet whilst in the act of checking his baggage, on the ground that the servant was hired to check baggage and not to use the hatchet or assault passengers, hence he was acting outside the scope of his duty. Whether the principle for the liability is that of contract or duty, the weight of the decisions hold the carrier bound to protect the passenger during the ingress to the carriage, and the exit. The principle for the protection during the carriage in the conveyance of the carrier, is plain, no matter whether it rests on contract or duty, because it is only a distinction of terms, and not of substance, to say, that as matter of law, the passenger contracted for safe transportation (as most clearly announced in Chamberlain v. Chandler (1823), U. S. C. Ct. Dist. Mass., 3 Mason 242), or that the law imposes the duty of safe transportation.

For an assault committed on a passenger during the time he is being carried in the conveyance, the weight of the authority is that the liability rests on contract; namely, that the passenger contracted for safe transportation, and an assault is a breach of that contract; or, in other words, the law imposes the duty of safe transportation

by virtue of the contract, whether the breach is committed by a stranger, or by a servant, without respect to the question whether the servant was or was not acting within the scope of his duty: Chamberlain v. Chandler, supra, p. 27; Nieto v. Clark (1858), U. S. C. Ct., Dist. Mass., 1 Cliff. 145; Goddard v. Grand Trunk R. R. (1869), 57 Me. 202; Craker v. Chicago, etc.,Ry. (1875), 36 Wis. 657; Chicago, etc., R. R. v. Flexman (1882), 103 Ill. 546; Fakt Co. v. True (1878), 88 Id. 608; Sherley v. Billings (1871), 8 Bush. (Ky.) 147; McKinley v. R. R. (1876), 44 Iowa 314; New Orleans R. R. v. Burke (1876), 53 Miss. 200; Bryant v. Rich (1870), 106 Mass. 180; Landreau v. Bell (1833), 5 La. (O. S.) 434; Flint v. Trans. Co. (1868), 34 Conn. 554; Pittsburgh, etc., R. R. v. Hinds (1866), 53 Pa. 512; Phila. & Reading R. R. v. Derby (1852), 14 How. (55 U. S.) 468; Seymour v. Greenwood (1861), 7 Hurl., Nor. 354; Moore v. Fitchburg, etc., R. R. (1855), 4 Gray (Mass.) 465; Weed v. Panama R. Co. (1858), 17 N. Y. 362; Milwaukee, etc., R. v. Finney (1860), 10 Wis. 388; Quigley v. Central Pac. R. Co. (1876) 11 Nev. 350; Malecek v. Tower Grove R. R. Co. (1874), 57 Mo. 18; Hanson v. European, etc., R. R. Co. (1873) 62 Me. 84; Pendleton v. Kinsley (1871), U. S. C. Ct., Dist. R. I., 3 Cliff. 416; Rounds v. Delaware, etc., R. Co.(1876), 64 N. Y. 129; Shea v. Sixth Ave. R. Co. (1875), 62 Id. 180; Cohen v. Dry Dock Co. (1877), 69 Id. 170; Stewart v. Brooklyn, etc., R. R. (1882), 90 Id. 588; Ramsden v. Boston & Alb. R. R. (1870), 104 Mass. 117; Terre Haute and Indianapolis, R. R. Co. v. Jackson (1882), 81 Ind. 19; Wabash and St. Louis R. R. v. Rector (1882), 104 Ill. 296; Lynch v. Met. Elevated R. R. (1882), 90 N. Y. 77; Louisville, etc., R. R. v. Kelly (1883), 92 Ind. 371; International, etc., R. R. v. Kentle

(1883), 2 Tex. Ct. App. 262; Bryan v. Chicago, etc., R. R. (1884) 63 Iowa 464. This liability is confined to the period during which the passenger was being carried in the carrier's conveyance; as where, during the carriage, the brakeman struck the plaintiff because he intimated that the brakeman stole his watch: Chicago, etc., R. R. v. Flexman (1882), 103 Ill. 546; where the clerk assaulted the passenger: Sherley v. Bellings (1871), 8 Bush. (Ky.) 147; where the conductor kissed a lady passenger: Craker v. Chicago, etc., Ry. Co. (1875), 36 Wis. 657; where the driver of the street car assaulted and beat the plaintiff: Stewart v. Brooklyn, etc., R. R. (1882), 90 N. Y. 588.

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The other line of decisions exclude, the theory of contract or Cuty arising out of contract, and place the liability on the ground of the servant acting within the scope of his employment; the rule being, if the servant committed the assault, or tortious act, within the line of his employment, the master was held liable, and if he did not so commit it, the master was not liable. The difficulty was in determining what was, and what was not, within the servant's line of duty, and this has been the trouble since the case of Macmanus v. Cricket (1800), 1 East 103, which introduced the rule. The jurisdictions which hold the carrier liable, on the ground of contract, or duty, must necessarily reject this rule, and it is not applicable to innkeepers, nor, in Pennsylvania (Rommel v. Schambach.r (1887), 126 Pa., 582; s. c. 27 AM R. LAW REG. 156) to saloons or places open to the public, and, by the decision in the principal case, not applicable to depot companies. Where the doctrine prevails, the decisions attempted to define the rule, some stating the test to be the answer to the question "Was the servant acting for his own purpose, or

the purposes, or behalf of the company?"—and others that “ If the servant has the power to do the act, the master is responsible for the manner in which it was done,”-as, for instance, having the power to eject a passenger from the car, the carrier was held responsible, if the ejection was improper and unlawful: Indianapolis, etc. R.R. v. Anthony (1873), 43 Ind. 183; as ejection on a false charge, on improper grounds and abuse of the power: Ramsden v. Boston & Alb. R. R. (1870), 104 Mass. 117; Higgins v. Watervliet, etc., R. R. (1871), 46 N. Y. 23; Passenger R. R. v. Young (1871), 21 Ohio St. 518; Redding v. South Carolina R. R. (1871), 3 S. C. 1; Schultze v. Third Ave. (1880), 46 N. Y. Super. Ct. 211. On the other hand, the carrier was held not liable for the assault upon a passenger, by a brakeman: Evansville R. R. v. Baum (1866), 26 Ind. 70; nor for the driver of the car knocking a small boy from the platform: Pittsburg, etc., R. R. v. Donahue (1871), 70 Pa. 119; because in the former case the brakeman was not pursuing his duties as a brakeman when he committed the assault, that is, he did not assault the passenger while in the act of turning or regulating the brakes; and in the latter case, because the driver's line of duty was to drive and not to put any one off the car.

In the jurisdictions which hold the carrier liable on the ground of contract, or duty, arising from contract, the identical facts in Evansville R. R. v. Baum (1866), 26 Ind. 70, and Pittsburg, etc., R. R. v. Donahue (1871), 70 Pa. 119, were sufficient to hold the carrier liable : Chicago, etc., R. R. v. Flexman (1882), 103 Ill. 546. The reason of the conflict is that two different principles have been invoked, one following the doctrine of duty, and the other respondeat superior ; one, that it is a duty, which the law imposes and the principal cannot shirk, and

is therefore liable, whether he performs the duty personally, or delegates it to another; and the other depends upon the fact, whether the servant acted within the scope of his em; loyment.

If it could be generally affirmed that a master is liable for the acts of his servant, tortious or contractural, while doing the business with which he is entrusted there would not occur so much trouble. The servant, quoad the business, is the master during the transaction of that business, as, for instance, the brakeman of the train represents the master during the whole trip, and whether he acts as brakeman, conductor, porter or car sweeper, the passenger and third persons have the right to hold the principal, present and acting in the person of the brakeman, and doing in all respects that which the principal would do if present. It is very narrow judgment to split such business up into as many divisions as the servant wishes, making one part the acts of the master, and the other part only binding on the servant; as, for instance, where the conductor stopped the train and took up the plaintiff's child: Gilliam v. South, etc., R. R. (1881), 70 Ala. 268; or set fire to the child:. Cooley 68; it was held that the master was not liable. It was the servant's act, outside of the line of his duty to his

master.

The distinction is too small. The master put into the hands of the servant the means by which the wrong was committed. He hired the wrong servant. If the master had been in charge of the train, or if he had hired a careful and proper servant, the train would not have stopped and the assault would not have been committed, nor the child fired. Hence, because he failed in his duty, by hiring the wrong servant, the master is exempt from liability for the wrongs his servant commits.

The objection is not directed to the substance of the doctrine, but to the

statement of it. If properly defined and properly applied, it is believed to be in perfect accord with the doctrine of duty. Take the case which first laid down the rule: Macmanus v. Cricket (1800), 1 East 103, and ask the question, which is the more sensible, to say that having put the servant in charge of a vehicle to drive to a certain place, the master is liable for all the acts of the servant while so driving the vehicle, because he is put there by the master to perform a duty which the master was bound to do; namely, to drive the vehicle and conduct himself so as not to do injury to another; or to say that the master is not liable, because the servant, instead of going on the direct road to do the business with which he was entrusted, went in a roundabout way and committed the wrong com. plained of. In the former case, the master is liable, because it was his duty to so use his property as not to injure another, whether he drove the vehicle himself, or entrusted the driving to his servant; and in the latter case, the question of route is the criterion.

Holding a master responsible for the willful wrong of the servant, is an infringement of the natural and primitive rule that man, being rational, is individually responsible for his own wrongs, and that one man should not suffer for the wrongs and sins of another. The term wrong, means willful, such as assaults and not negligence, or injuries resulting from want of care. This impingement was made for public policy, in the law of innkeepers, and applied to the doctrine of respondeat superior, and the other branches above mentioned, but, because the principle for the impingement is nowhere advanced, and nowhere affirmed, the decisions have oscillated to and fro. That the principle above contended for, is the true and proper one, is supported by the reasoning and discussions of the following

cases:

Phila. & Reading R. R. v. Derby (1852), 14 How. (55 U. S.) 468; Philadelphia, etc., R. R. v. Quigley (1858), 21 How. (62 U. S.) 202; Moore v. Fitchburg, etc., R. R. (1855),4 Gray. Mass. 465; Pennsylvania, etc., R. R. v. VanDever (1862),42 Pa. 365; Pittsburg, etc., R. R. v. Slusser (1869), 19 Ohio St. 157; Atlantic, etc., R. R. v. Dunn (1869), Id. 162; Dalton v. Beers (1871), 38 Conn. 529; Hopkins v. Atlantic, etc., R. R. (1857), 36 N. H. 9; Baltimore, etc., R. R. v. Blocher (1867), 27 Md. 277; Hanson v. European R. R.(1873), 62 Me. 84; New Orleans, etc., R. R. v. Hurst (1859), 36 Miss. 660; Sherley v. Billings (1871), 8 Bush. (Ky.) 147; Malecek v. Tower Grove R. R. (1874), 27 Mo. 18; Goddard v. Grand Trunk Ry. (1869), 57 Me. 202, Brand v. Schenectady, etc., R. R. (1850), 8 Barb., N. Y., 368; Seymour v. Greenwood (1861), 7 Hurl. & Nor. 354; Milwaukee R. R. v. Finney (1860), 10 Wis. 388; Pittsburg, etc., R. R. v. Hinds (1865), 53 Pa. 512; Weed v. Panama R. R. (1858), 17 N. Y. 362; Flint v. Transportation Co. (1868), 34 Conn. 362; Landreau v. Bell (1833), 5 La. (O. S.) 434; Chamberlain v. Chandler (1823), U.S. C. Ct., Dist. Mass., 3 Mason 242; Nieto v. Clark (1858), U. S. C. Ct., Dist. Mass., 1 Cliff. 145.

About the best discussion is found in Goddard v. Grand Trunk Ry. (1869), 57 Me. 202; and the conclusion reached was that it was the duty of the carrier to protect the passenger against violence and insults of strangers, co-passengers and . servants, and-"If this duty is not performed and this protection not furnished, but on the contrary, the passenger is assaulted and insulted * * by the carrier's servant, the carrier is responsible." The same conclusion is reached in Rounds v. Delaware, etc., R. R. (1876), 64 N. Y. 137, though the reasoning is laborious and not close; the