Supreme Court of Minnesota. CHARLES D. DEAN, Appellant, V. ST. PAUL UNION DEPOT CO., Respondent. Where a depot company contracts to furnish terminal facilities for the passenger business of a railroad, it is bound to use ordinary care and diligence to keep its premises in a safe condition for passengers; and this obligation renders it liable for knowingly employing, or allowing to be employed in the depot building, a man of vicious temper, of bad character, and who frequently assaults passengers in a wilful and vicious manner. Appeal from District Court of Ramsay County. Davis, Kellogg and Severance, for appellant. John O'Brien, I. V. D. Heard, and Cole, Bramhall and Morris, for respondent. COLLINS, J., August 5, 1889. The plaintiff appeals from an order sustaining defendant's demurrer to the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action. From said complaint, and a stipulation as to certain facts, made by the parties, and by agreement considered as if the facts therein stated had been a part of the pleadings demurred to, it appears that the defendant is a domestic corporation, organized for and engaged in the business of furnishing and conducting an Union Depot and station-house in the city of St. Paul, in which several lines of railway deliver and receive passengers, by virtue of their contracts with defendant; that on May 17th, 1888, plaintiff reached said depot as a passenger upon one of the said roads, and with the intention of pursuing his journey to a point beyond, by another road, entered the station-house, approached the parcel-room therein, leased by defendant to a tenant who operated and controlled it, for the purpose of checking his valise and was there maliciously attacked and beaten by the man in charge, who was in fact the employe of defendant's tenant. The complaint further alleges that this employe was of vicious temper, of bad character, and had frequently, in a wilful and malicious manner, assaulted and beaten people lawfully upon the premises, during the six years he had been employed in said parcel-room, all of which was known to the defendant on the day of the attack upon plaintiff. In support of its demurrer, the defendant corporation contends, first, that it owed no duty whatever to the plaintiff, because no contractual relation existed between the parties; that therefore he must look to the railway company, whose passenger he was or had been, for compensation for his injuries; second, if it should be held that the duties imposed by railway companies towards their arriving and departing passengers have been assumed by the defendant, it is not responsible in this case, because the alleged assault was not committe by one of its servants or employes, but by the employe of a tenant who was engaged in an independent business, wholly disconnected from that of a common carrier of passengers, and conducted solely for the accommodation and convenience of those who choose to patronize the room and pay for the privilege of having their parcels temporarily taken care of. Finally, if these positions prove untenable, it is argued that the assault of the employe was for purposes of his own, outside of his occupation, in disregard of the object for which he was employed, not committed in execution of it, and therefore, in no event, can the defendant be held responsible. It has been announced by this Court, in Ahlbeck v. St. P. M. & M. Ry. Co. [decided in the Supreme Court of Minnesota, November 20, 1888] that in respect to the handling and care of baggage, the relation between the defendant corporation and the carriers who use its depot, is that of principal and agent. But under the allegations of the complaint now before us, it is not essential to determine the precise relations existing between the defendant (organized for the special purpose and under contract to furnish to certain railway corporations proper and adequate depot and station-house accommodations for those who are entitled to use the same) and the plaintiff, who, arriving upon the train of one of these carriers, remained its passenger until he had an opportunity, by safe and convenient means, to leave the cars, the railway and the station-house: Warren v. Fitchburg Ry. Co. (1864), 8 Allen (Mass.) 227. Nor is it necessary to pass upon the contention of the defendant, that whatever duty it owed the plaintiff as a passenger, it cannot be held liable for the wilful act of the servant and em ploye of one who had leased a room in its depot building for the purpose of carrying on an independent business, not required of the carriers of passengers and conducted by a tenant, solely for the convenience of the traveling public. Nor, as we regard the pleadings, need we regard the final position assumed by defendant, that the master is not responsible for the wilful acts of his servant, performed outside of his employment, not in execution of it, and for purposes of his own, although the subject has been referred to in McCord v. Western U. T. Co. [decided by the Supreme Court of Minnesota, September 4, 1888], in which is mentioned approvingly, the case of Stewart v. Ry. Co. (1882), 90 N. Y. 588, whereby Isaacs v. Third Avenue Co. (1871), 47 N. Y. 122-relied upon by the respondent-was, in effect, overruled. This complaint, considered in connection with the stipulation, charges that the defendant knowingly and advisedly permitted its tenant to keep in his employ, for more than six years, in its depot building, into which it encouraged people to come, and was under contract to admit the plaintiff as an arriving passenger, a man of savage and vicious propensities and who had, during said period of six years, frequently assaulted and beaten persons lawfully upon said premises, and who, upon the day named, attacked and beat the plaintiff with. out provocation. Whatever obligation otherwise, by virtue of its contract with the carrier, rested upon the defendant as to the plaintiff, it is manifest that it was bound to use ordinary care and diligence to keep its premises in a safe condition for those who legitimately came there. It had no more right, therefore, to knowingly and advisedly employ, or allow to be employed, in its depot building, a dangerous and vicious man, than it would have to keep and harbor a dangerous and savage dog, or other animal, or to permit a pitfall, or trap, into which a passenger might step, as he was passing to or from his train. Order reversed. The doctrine announced in this case is wholesome and salutary, and it is regretted that the principle upon which it should rest, was not carefully considered and as emphatically announced. It is contended by the writer that the principle for this doctrine is, that the proprietor, owner or controller of a place open to and for the public, is bound, as a matter of duty, to see that all persons who come there on the business for which the place is open, are protected from assaults and insults, because, having the privilege of doing such a business and inviting the public to come there, he owes the duty to protect all who come there on that business. This principle was some years ago asserted by the Indiana Court in Henry v. Dennis (1883), 93 Ind. 452; and recently by the Supreme Court of Pennsylvania in Rommel v. Schambacher (1888), 120 Pa. 582; s. C., 27 AMER. LAW REG. 156. This is nothing more than the announcement of the general doctrine of duty to another invited to a place of business. It is objected that, if this principle is carried to its legitimate conclusion, it will hold responsible proprietors of stores, and business houses, for assaults and insults committed by strangers who come there with the vicious purpose and intent to do wrong. Is there any reason why they should not be held responsible? If the proprietor had knowledge or notice of the vicious intent, or propensity, or, with reasonable care, could have had such notice, he should be held responsible for his neglect of duty, in not keeping such persons away. If he did not have such notice, and could not have had it by the exercise of reasonable watchfulness and care, there is then a reason for exemption from liability, but, as will hereafter appear, the reason for the principle above stated does not advance this distinction. The Minnesota Court (Ahlbeck v. Railroad Co., supra, p. 23; McCord v. Western Union Telegraph Co., supra, p. 24), holds the defendant liable, because he did not keep his premises in safe condition, free from dangerous and vicious men, the same as he must keep it free from dangerous and vicious dogs or other animals, and free from pitfalls or traps. There are three different doctrines announced in this supposed principle given as the ground or reason for the ruling in this case: the first is the principle which governs the liability resulting from defective and dangerous premises; the second is the principle which controls liability for injuries from dangerous and vicious dogs or other animals; and the third, those applical le to human beings. The principles which control the law applicable to the actions of man, are different from those regulating the liability for defective premises, or dangerous and other animals. The | rinciples of the law of liability for defective premises are confined to the unsafe condition, arising from unsafe construction, repair or use, as for instance injuries from pit-falls, the law of which has remained substantially the same since the case of Blyth v. Topham (1603), Cro. Jac. 158; Roll Abr. 88; or injuries from spring guns and other instruments of destruction, first discussed in Deane v. Clayton (1817), 7 Taunt. 489; and developed in Ilott v. Wilkes (1820), 3 Barn. and Ald. 304; Bird v. Holbrook (1828), 4 Bing. 628; Wootton v. Dawkins (1857), 2 C. B. (N. S.) 413; Townsend v. Wathen (1808), 9 East 277; Hooker v. Miller (1873), 37 Iowa 613; Johnson v. Patterson, (1840), 14 Conn. I: Or injuries from dangerous places, or dangerous instrumentalities, on private premises or private way, near the highway: Pargreaves v. Deacon (1872), 25 Mich 1; Kohn v. Lovett (1871), 44 Ga. -51, Corby v. Hill (1858), 4 C. B. (N. S.) 554; Clark v. Chambers (1878), 3 Q. B. Div. 327; or injuries from dangerous places in business houses and grounds, as defined in Carleton v. Franconia Iron Co. (1868), 99 Mass. 216; and Indemaur v. Dame: (1866), L. R. 1 C. P. 274; on Appea' (1867), 2 C. P. 311: or dangerous places in public houses, places of public resort, and exhibitions: Francis v. Cockrell (1870), L. R. 5 (2. B. 184; or school buildings: Donovan v. Board of Education (1878), 55 How. Pr. (N. Y.) 176; Bassett v. Fish (1877), 12 Hun. (N. Y.) 209. The application of this principle to railroad depots, stations, platforms and approaches, means that these must be free from such defects, as far as reasonable care can make them; and is well expressed by GRAY, J., in Carleton v. Franconia Iron Co. (1868), 99 Mass. 216: "The owner, or occupant of premises is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted or permitted by him, for an injury occa-ioned by the unsafe condition of the land, or of the access to it, which is known to him and not to them, and which he has negligently suffered to exist and has given them no notice of." So, McDonald v. Chicago, etc., R. Co. (1869), 26 Iowa 124; Toledo, etc., R.R. Co. v. Grush (1873), 67 Ill. 262; Liscomb v. N. J., etc., Trans. Co. (1872), 6 Lans. (N. Y.) 75; Picard v. Smith (1861), 10 C. B. (N. S.) 470; Martin v. Great Northern R. Co. (1855), 16 C. B. 179; Clussman v. Long Island, etc., R. Co. (1877), 9 Hun. (N. Y.) 618. The care demanded is reasonable care only: Pittsburgh, etc., R. Co. v. Brigham (1876), 29 Ohio St. 374; Indiana, etc., R. Co. v. Hudleson (1859), 13 Ind. 325; Welfare v. London, etc., R. Co. (1869), L. R. 4 Q. B. 693; Chicago, etc., R. Co. v. Wilson (1872), 63 Ill. 167; Cornman v. Eastern Counties R. Co. (1859), 4 Hurl. & Nor. 781; Cross v. L. S. & M. S. R. R. Co. (1888), 27 AMER. Law REG. 405. The liability for injuries by vicious and dangerous dogs, or other animals, rests on different principles; see a lengthy annotation to Worthen v. Love, 27 AMER. LAW REG. 631. At common law, the owner of a dog was not iable for its vicious acts, unless he had knowledge of the vicious propensities and failed to exercise the proper care in restraint, because a dog was considered tame and harmless, and hence to charge the owner or keeper, scienter must be alleged and proved: Read v. Edwards (1864), 17 C. B. (N. S.) 245; Dearth v. Baker (1867), 22 Wis. 73; Slinger v. Henneman(1875), 38 Id. 504; Fairchild v. Bentley (1858), 30 Barb. (N.Y.) 147. This is the rule as to all animals domita naturae, unless changed by State statute, but with respect to wild animals, the owner, or keeper, was held an insurer against all injuries, though the late cases seem to place the liability upon the degree of care used, holding the keeper, or owner, to that high degree of care which a knowledge of the vicious propensities seems to demand: Cooley on Torts 349. In both cases, the scienter must be alleged and proved, because, knowing the vicious and dangerous propensities, it is his duty to adopt such measures, and use such precaution and restraint as will prevent injury from such propensities: May v. Burdett (1846), 9 Q. B. 101; Earl v. Van Alstine (1850), 8 Barb. (N. Y.) 630; Van Leuven v. Lyke (1848), I N. Y. 515; Loomis v. Terry (1837), 17 Wend. (N. Y.) 496. A careful and exhaustive research has failed to discover any authority, where this doctrine has been applied to human beings, because the purposes, causes, and reasons, for the birth and existence of the doctrine are not applicable to man, and it is believed that no court, and no writer, has heretofore asserted such an application. Among the many reasons for the non-applicability of this doctrine to the acts of man, discoverable by a study of the cases, is the primitive one, that with all law and at all times, man has been recognized as a rational being, not possessing and incapable of exercising the propensities of the dog, or other animal, but pos |