in the employ of the company, and that the wrongful act was done by the servant or agent of the company while in the course or general work about which he was employed."

A verdict against a railroad company for an assault committed upon a passenger by one of its employés is sustained by evidence that the person committing the assault was at the time acting as brakeman under the authority of the defendant, though not on his regular train." There must always exist either by express contract, or by implication, the relation of master and servant to create the liability resting on that foundation. Thus, the owner of a vessel carrying emigrants, who has provided a competent surgeon under Act of Congress of Aug. 2, 1882, is not liable for the want of care of such surgeon in performing an operation.* A railroad company cannot be made liable for an assault upon a passenger by mere evidence that the assailant carried a lettered lantern and wore a badge and a lettered cap, it not appearing that he was in any way connected with the operation of the train." A lessee or licensee of the exclusive privilege of entering railroad cars or upon the right of way to sell or supply lunches is not a servant or agent of the corporation, so as to render it liable for an assault and battery committed by such lessee or licensee upon a competitor who seeks lawfully, on his own premises, to obtain the patronage of passengers."

'Sachrowitz v. Atchison, T. & S. F. R. Co. 37 Kan. 212.

'Conger v. St. Paul, M. & M. R. Co. 45 Minn. 207.

$22 U. S. Stat. at L. 188.

O'Brien v. Cunard SS. Co. 13 L. R. A. 329, 154 Mass. 272, 10 Ry. & Corp.
L. J. 309.

'Sachrowitz v. Atchison, T. & S. F. R. Co. 37 Kan. 212.

Fluker v. Georgia R. & Bkg. Co. 2 L. R. A. 843, 81 Ga. 401.

CHAPTER XIX.

PROTECTION OF PASSENGER FROM EMPLOYÉS AND FELLOW PASSENGERS.

§ 109. Liability of Carrier for False Arrest by Employé.

§ 110. False Arrest where Employé is a Conservator of the Peace. § 111. Carrier must Protect Passengers from Insult.

§ 112. Liable only to Passenger for Act of Employé.

§ 113. Termination of Relation by Act of Passenger or Carrier. § 114. If Passenger Provokes Assault, the Carrier is not Liable.

§ 109. Liability of Carrier for False Arrest by Employe.

The common carrier of passengers is liable for the false imprisonment of a passenger, made or caused to be made by its conductor in charge of the train, during his execution of the carrier's contract to treat properly and convey safely.' A railroad company is liable for a false imprisonment if committed by its authority. In one case it was held that evidence that the imprisonment was by the direction of the superintendent, to whom all the employés of the company referred as the superior authority, was sufficient evidence to go to the jury on the question whether the arrest was authorized by the company. Where train employés, upon discovering a person near an obstruction on the railroad track, unlawfully took him into custody, without other authority than that arising from their employment, the company is not liable for false imprisonment.' Here no relation of carrier and passenger existing the liability of the master was controlled by the ordinary rule of agency. But this distinction is often overlooked and it is said that for a false arrest of a passenger by the servants of a railroad company, the company is not liable unless it authorized or ratified it; and that a street railroad company is not liable

'Gillingham v. Ohio River R. Co. 14 L. R. A. 798, 35 W. Va. 588. 'Goff v. Great Northern R. Co. 3 El. & El. 672.

Porter v. Chicago, R. I. & P. R. Co. 41 Iowa, 358.

Roe v. Birkenhead, L. & C. J. R. Co. 7 Exch. 36.

for the act of a driver, without instructions, in causing the arrest of a passenger on a charge of passing counterfeit money. In an English case the plaintiff was arrested by the defendant's station master for refusing to pay fare for his horse, for which he was entitled to free transportation. It was held that the defendant was not liable for such unlawful arrest, it being an act which the defendant was not authorized to do and beyond the scope of the agent's authority. So it has been declared that, as a matter of law, it cannot be said that it is within the scope of the duties of a railroad conductor to procure the arrest of a passenger on a charge of passing counterfeit money. But whether within the scope of the employment or not, it is a clear violation of the carrier's duty to protect the passenger and transport him safely. It is admitted in England that the act of a ticket collector of a railroad, with authority to arrest persons attempting to avoid payment of fare may render the company liable for a mistake in erroneously giving a passenger into custody who had already paid his fare."

In Massachusetts, where the rules of the carrier require passengers to deliver up their tickets before leaving its boat, its officers may lawfully detain for a reasonable time a passenger attempting to leave without delivering up his ticket, for the purpose of investigating its alleged loss, and to make provision for the carrier's security against the outstanding ticket. But in New York, where plaintiff having once paid his fare, lost his ticket during his journey, was detained and his arrest caused at the station where he alighted by the gate keeper who was acting under instructions to collect tickets or fares, it was held that the company was liable in an action for false imprisonment."

The removal of a disorderly passenger by the railway officers to the baggage-car, where he rode without objection to his destination, will render the company liable neither for assault nor imprisonment. But malice and want of probable cause on the 'Lafitte v. New Orleans City & L. R. Co. 12 L. R. A. 337, 43 La. Ann. 34. 'Poulton v. London & 8. W. R. Co. L. R. 2 Q. B. 534.

'Galveston, H. & S. A. R. Co. v. Donahoe, 56 Tex. 162.

Moore v. Metropolitan R. Co. L. R. 8 Q. B. 36.

'Standish v. Narragansett SS. Co. 111 Mass. 512, 15 Am. Rep. 66. Lynch v. Metropolitan Elev. R. Co. 90 N. Y. 77, 43 Am. Rep. 141. 'Sullivan v. Old Colony R. Co. 1 L. R. A. 513, 148 Mass. 119.

part of a railway conductor, in causing the arrest of a passenger on a charge of fraudulently evading payment of fare, if estab lished, may be imputed to the company.' Where the action was for assault and battery and false imprisonment, it was held that the court correctly charged that, if the defendant's employé unjustifiably assaulted the plaintiff while and because plaintiff attempted to pass through a gate which the employé was in charge of, and as a part of the same transaction, and assuming to act under the defendant's authority, called in a police officer and had the plaintiff arrested, defendant was liable, and that it was immaterial whether it authorized the arrest or not.'

A street railroad company is liable for a false arrest of a passen. ger, procured by the driver in charge of the car, and assumed by its inspector, on a charge of not paying his fare. For a false imprisonment of a passenger on his car, procured by the driver of a street car, the company is liable. For a false imprisonment of a passenger, procured by the platform man at an elevated railroad station, the company is liable. An elevated railroad company is liable in an action for false imprisonment by reason of the detention by its ticket agent of an intending passenger who had purchased a ticket and passed to the platform, on the charge of hav ing passed a counterfeit coin.

In a very recent case the New York Court of Appeals in a majority opinion held that a railroad company is not liable for the act of its ticket agent in taking a bill for tickets which he believed to be counterfeit and then causing the arrest of the passenger. It is sought to distinguish this case from other cases, where the carrier has been held liable by the same court for causing an arrest, by looking to the motive that prompted the action to

'Krulevitz v. Eastern R. Co. 2 New Eng. Rep. 37, 140 Mass. 573.

Hame! v. New York & N. Y. Ferry Co. 25 N. Y. S. R. 153, affirmed 125 N. Y. 707.

White v. Twenty third St. R. Co. 20 N. Y. Week. Dig. 510.

Corbett v. Twenty-third St. R. Co. 42 Hun, 587.

'Shea v. Manhattan R. Co. 15 Daly, 528. This decision was an affirmance by the general term of the New York common pleas of the decision of the general term of the city court of New York in the same case, 27 N. Y. S. R. 33.

Palmeri v. Manhattan Elev. R. Co. (N. Y.) 16 L. R. A. 536.

determine whether the ticket agent was acting in the line of his employment. It is said that the proof showed that the agent directed the arrest, and that the plaintiff had committed no offense that justified it, still the question remains whether the agent was acting in the line of his duty, so as to make the defendant responsible for his acts. It is quite clear from the evidence that the agent was first put upon his guard, and in fact, set in motion not by any direction from the defendant, but by the police. When he took the bill he knew, or at least he believed, it to be a counterfeit; but, notwithstanding this, he gave the plaintiff defendant's property for it, whereas it was his duty, considering him merely as the agent of the defendant, to refuse it. He did not take the bill in the course of his business as agent, but for the purpose of entrapping persons that he believed to be engaged in the commission of crimes. This may have been laudable enough on his part as a citizen or as a person aiding the police, but, in the opinion of the court, he was not acting in the line of his duty as defendant's agent. If he had been cheated or imposed upon by the plaintiff, or if he honestly believed he had been, and then attempted to recover what he had or supposed he had lost by the arrest of the plaintiff, it might then be said that he was engaged in the protection of the property and interests of the defendant, and therefore acting within the line of his duty. But here a ticket agent of a railroad deliberately takes from a person applying to purchase a ticket what he believes to be a counterfeit five dollar bill,-not, of course, in good faith, or in the regular and ordinary course of his business, but for the purpose of aiding the police in the detection of criminals,-and then immediately directs the arrest of the person from whom he took the bill. Such an act on his part is not binding on his principal. If he was in fact acting within the scope and in the line of his duty, he would have refused to receive what he believed to be counterfeit money for the property of his principal, and would have refused to part with such property, except upon receipt of what at least he believed to be good money. The defendant's agent, as a citizen, might with perfect propriety render to the police such services as he could in procuring the detection and arrest of persons engaged in passing counterfeit money, but it does not follow that all his acts in that respect are