has ceased, there can, of course, be no question but that the ordinary application of the rule of respondeat superior should A railroad company operating a union depot will be liable in damages for an assault by a gatekeeper on a passenger who has purchased a ticket, and the exact spot where the attack took place, whether before or after passing the gate, is immaterial, since the gist of the action is the unlawful attack on the passenger within defendant's depot and by defendant's servant. Railway Co. v. Cooper, 6 Ind. App. 202, 33 N. E. Rep. 219. In Palmeri v. Railway Co., 133 N. Y. 261, 30 N. E. Rep. 1001, 16 L. R. A. 136, 28 Am. St. Rep. 632, the plaintiff purchased a ticket of the agent at the elevated railroad station and passed through to take the cars, after some altercation about the amount of change. The ticket agent immediately afterwards came out upon the platform of the station, charged her with having given him a counterfeit piece of money and demanded another quarter in the place of the one given him. She insisted on her money being genuine and refused to give another quarter, or to hand back the change. He became angry and called her a counterfeiter and a common prostitute. He placed his hand upon her and told her not to stir until he had procured a policeman to arrest and search her. He detained her in the station for a while, but let her go when he failed to get an officer. An action was brought against the company for the unlawful imprisonment, accompanied by the slanderous words. The court distinguished the case from that of Mulligan v. The Railway Co., 129 N. Y. 506, and said that the agent was acting for his employers and with no other conceivable motive, losing his temper and injuring and insulting the plaintiff. What he did was in the endeavor to protect and recover his employer's property, and if, in his conduct, he committed an error which was accompanied by insulting language and detention of the person, the defendant, as his employer, was legally responsible in an action for damages for the injury. Contrast Gray v. Railroad Co., 168 Mass. 20, 46 N. E. Rep. 397, where the carrier was held liable for injuries caused by the plaintiff being knocked down by its servant and a drunken man, while the former was ejecting the latter from the station, with Goodloe v. Railroad Co., 107 Ala. 233, 18 So. Rep. 166, 29 L. R. A. 729, where the carrier was held not liable for injuries caused by plaintiff being accidentally pushed from the station platform during a friendly scuffle of the carrier's servants on the platform. Where a passenger contracts smallpox from the carrier's ticket agent, the carrier is not liable in damages to such passenger unless it is shown that it knew or had reason to know the ticket agent was so afflicted. Long v. Railroad apply. And the same result has also been reached by the majority of the courts in those cases where the relation of carrier and passenger exists, but the passenger is either waiting for or has just left his train and is still upon the station premises. The reason for this latter view is that, while on the station premises, the passenger is supposed to be able to care for himself in some degree, and the carrier is not obliged to exercise that extraordinary degree of care for his safety that is required while on the train. It is but just, therefore, that the carrier should be held liable for the tortious acts of its servants done in the course of their employment about the station grounds, but not for their malicious and unauthorized acts outside the scope of their employment. Illustrations of cases where the carrier has been held liable or not liable are found in the notes. Sec. 1100. (§ 601.) Liability of carrier for wrongful arrest of passenger by carrier's servants.-As cases of wrongful arrest of a passenger by the carrier's servants usually arise before the actual carriage has commenced, or after it has ceased, the usual rule of respondeat superior is applied in that class of In the application of that rule, however, the earlier cases,1 and especially the English cases, show a much more cases. Co., 48 Kan. 28, 28 Pac. Rep. 977, 15 L. R. A. 319. See also, Railroad Co. v. Batchler, 32 Tex. Civ. App. 14, 73 S. W. Rep. 981, where the company was held liable for an assault upon a passenger after he had left the train but before leaving the premises, and Railroad Co. v. Tracey, 109 Ill. App. 563. In Tate v. Railroad Co., 26 Ky. L. R. 309, 81 S. W. 256, there was held to be sufficient evidence to go to the jury on the question of the liability of the carrier where a section boss had assaulted a waiting passenger in the presence of the ticket agent. 1. In the case of Poulton v. The Railway, L. R. 2 Q. B. 534, in which the action was against the company for false imprisonment by its station-master, the liability of the company was denied, because, as stated by Blackburn, J., "it was an act out of the scope of his authority, and for which the company would no more be responsible than if he had committed an assault or done any other act which the company never authorized him to do... Having no power themselves, they cannot give the station-master any power to do the act. Therefore the wrongful imprison stringent construction in favor of the carrier than do the latter cases, which broaden the rule considerably in favor of the passenger.2 Arrests that are purely malicious on the part of the carrier's servant will not render the carrier liable in damages ment is an act for which the plaintiff, if he has a remedy at all, has it against the stationmaster personally, but not against the railway company." And by Mellon, J., it was said: "I am of the same opinion. I think the distinction is clear; it limits the scope of the authority, to be implied from the fact of being the station-master, to such acts as the company could do themselves, and I do not think it even can be implied that the company authorized the station-master to do that which they have no authority to do themselves; and that seems to me to be the boundary line. It was well put by counsel for plaintiff, and no doubt there is a difficulty at first in seeing where the distinction begins and where it ends; but I cannot help thinking it is analogous to an action against magistrates. If the station-master had made a mistake in committing an act which he was authorized to do, I think, in that case, the company would be liable, because it would be supposed to be done by their authority. Where the stationmaster acts in a manner in which the company themselves could not be authorized to act, and under a mistake or misapprehension of what the law is, then I think the rule is very different, and I think that is the distinction on which the whole matter turns. So if the magistrate acts within the scope of his authority, however erroneously he judges of the facts, he is protected; but the moment he assumes a jurisdiction over a matter which does not belong to him, then an action lies. It is a kindred distinction, and I only refer to it for the sake of illustration." See also, Roe v. The Railway, 7 Exch. 36; Edwards v. The Railway, L. R. 5 C. P. 445; Lafitte v. Railroad Co., 43 La. Ann. 34. (In this latter case the company was held not liable for the arrest, but liable for the act of the conductor on the car in charging plaintiff with passing counterfeit money.) In Mulligan v. Railway Co., 129 N. Y. 506, 29 N. E. Rep. 952, 26 Am. St. Rep. 539, 14 L. R. A. 791, reversing 14 N. Y. Supp. 456, it was held by a divided court that a ticket agent who caused the arrest of two persons, who had purchased tickets, on the charge that they had passed counterfeit money which subsequently proved genuine, where it did not appear that the persons arrested were yet under the protection of the carrier with respect to the execution of the contract of transportation, acted without the scope of his authority, and the company was not liable in damages. 2. Railroad Co. v. Dean, 98 Tex. 517, 85 S. W. Rep. 1135, 70 L. R. A. when the arrest does not occur upon the carrier's vehicle,3 but the question whether an arrest was purely malicious or was made under the direction or by the acquiescence of one of the carrier's servants is for the jury.* If the wrongful arrest occurs during the carriage of the passenger upon the carrier's vehicle, and the passenger is hurried from the train and placed in jail, the carrier certainly cannot escape liability for the act of its servant, even though malicious, in having the passenger so arrested, such a case being one in which exemplary damages should clearly be allowed. As to whether or not a discrimination should be made between the acts of the officer making the arrest while removing the passenger, and his acts after such removal is accomplished, there seems to be a difference of opinion. One court has held that, for the first, the officer making the arrest could be considered the special agent of the carrier for that purpose, while for the latter he could not and the carrier would not be liable. But another court has held that the imprisonment and detention are the proximate results of the wrongful arrest and may properly be considered by the jury in reaching a verdict.7 Sec. 1101. (§ 602.) Liability for indecent assaults on female passengers. The duty which a carrier owes to a female passenger to protect her from indecent assaults by its servants cannot be frittered away by questions of whether the servants were acting within the scope of their authority. Public policy and public decency require that a more stringent rule should 943, affirming (Tex. Civ. App.) 82 S. W. Rep. 524; Gillingham v. Railroad Co., 35 W. Va. 588, 14 S. E. Rep. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827; Railroad Co. v. Galliher, 89 Va. 639, 16 S. E. Rep. 935; Moore v. The Railway, L. R. 8 Q. B. 36. 3 Patterson v. Railroad Co., 25 Ky. L. R. 1750, 78 S. W. Rep. 870. 4. Duggan v. Railroad Co., 159 Pa. St. 248, 28 Atl. Rep. 186, 39 Am. St. Rep. 672; Goff v. The 5. Railroad Co. v. Henry, 55 Kan. 715, 41 Pac. Rep. 952, 29 L. R. A. 465; Railway Co. v. Conder, 23 Tex. Civ. App. 488, 58 S. W. Rep. 58; Schmidt v. Railways Co., 116 La. - 40 So. Rep. 714. 6. Southern Pac. Co. v. Hamilton, 54 Fed. 468, 4 C. C. A. 441, 7 U. S. App. 626. 7. Railway Co. v. Conder, 23 be applied not only while the female passenger is on the carrier's vehicle, but while on the station premises, and the courts have gone to extreme lengths in this regard; as, for instance, where the complaint was by a female passenger that undue and improper liberties had been taken with her by the conductor of a train against her will, and which she alleged to have been an assault upon her person. The law was held by the learned court, before which the question came, against the company, though the question seems to have been treated as by no means free from difficulty. The fact that the offending agent was the conductor, to whom the plaintiff had the right to look for protection, and a part of whose duty and business it was to compel respectful treatment to the carrier's passengers, was considered as sufficient to affix to his indiscretion the character of misconduct in the line of his duty. The same ruling was followed in another case in which the conductor of the train was guilty of indecorous conduct, and in a case in which the porter of a sleeping-car made an indecent assault upon a female passenger.10 So likewise, a carrier was held liable where a female passenger who was waiting at a station to take a train was assaulted by the station agent.11 But if the passenger opened the way for an assault by an immodest or improper remark, while that fact would not justify an assault by the carrier's servant, evidence of it would be properly admissible as affecting an award of punitive damages.12 Sec. 1102. Liability of carrier where ill-treatment is provoked by the passenger.-But whilst care and kind treatment Tex. Civ. App. 488, 58 S. W. Rep. 58. Am. St. Rep. 85, 40 L. R. A. 483. 9. Louisville, etc. R. Co. v. 8. Craker v. The Railroad, 36 Ballard, 85 Ky. 307. Wis. 657. The same rule has been applied where a train baggage-master, after locking both doors of the coach, assaulted a female passenger and attempted to commit rape upon her person. Railway Co. v. Quo, 103 Ga. 125, 29 S. E. Rep. 607, 68 10. Campbell Fed. 484. V. Car Co., 42 11. Railway Co. v. Griffith, 12 Tex. Civ. App. 631, 35 S. W. Rep. 741. 12. Strother v. Railroad Co., 123 N. Car. 197, 31 S. E. Rep. 386. |