The first contention of defendant is that it is in no event liable, because the boat had been chartered by Morris Ferebee for the occasion, and the contract of carriage was between the last-named parties and plaintiff. And it is found in the case "that defendant had no control or direction of said excursion, or of said boat, except that it employed the crew as aforesaid." But the defendant is a corporation *Page 437 duly chartered under the laws of North Carolina and doing business as a common carrier of passengers, for the purpose of using not only its trains, but one or more steamboats. One of these steamboats was chartered to Morris Ferebee. The word "chartered," as here used, means "hired." The defendant, however, by virtue of its franchise, was the common carrier and would have no power to relieve itself of liability to passengers simply by delegating its privilege to others.
It is upon the same principle that it has been so often held that unless there be express authority by statute to a railroad company to lease its line, the company is liable for the negligent acts of its lessee. See 2 A. E., p. 756, where many authorities are cited. It will be seen also that this boat was hired fully manned by officers and crew in the pay of the defendant.
It cannot differ materially from the hiring of a train for the carrying of an excursion, where the contract of carriage is made between the passengers and the hirers under whose direction the excursion (634) is made. In the present case the boat was hired to run from Edenton to Nag's Head and return, between certain hours. The defendant had no control or direction of the excursion, or of the boat, except that it owned the boat and employed the crew. The crew, however, constituted the agency by which the boat was run. There might have been a distinction if the naked boat had been let to parties without further stipulation; but here the specific object of the excursion is stated in the contract and the servants of defendant directed to carry it out.
"Hiring a train for an excursion does not excuse the company from liability to the passengers for injury caused by their servants." 2 Redfield Railways, 212. The case of Skinner v. R. R. is cited, where the declaration alleged that the plaintiff, at the request of the defendants, became a passenger in one of their trains, to be carried, etc., for reward to them, etc.; that through the carelessness, negligence and improper conduct of the defendants, the train in which the plaintiff was such passenger struck against another train, whereby the plaintiff was injured. At the trial it appeared that the train in question had been hired of the company by a benefit society for an excursion, the tickets for which were sold and distributed by the treasurer of the society, from whom the plaintiff purchased one, and that the accident was occasioned by the train, in which the plaintiff was, running against a train standing at the station, it being then dark. One of the points made by defendants was, that there was no evidence that plaintiff was a passenger, to be carried by defendants for hire. Upon this point Alderson, B., said: "The company, by giving their tickets to the treasurer of the society to distribute, constitute him their agent to contract with those who take the tickets; at all events, that was a question for the jury." *Page 438
The test in such a case as the present is whether the defendant abandoned the entire control of its servants, the master and crew of (635) the boat, to the hirers. "If the hirer is vested for the time with the exclusive right to discharge the servants and employ other, he alone is responsible for their default." Shearman Red. Neg., sec. 74, note I. The defendant hired to H. for a day a steamer and crew. The crew were hired and paid and entirely controlled by the defendant, who also had power to substitute others in their place. By the negligence of the crew an injury was occasioned to the plaintiff: Held, that the defendant was liable, as the crew were its servants and not those of H. Dolvell v.Tyser, El. B. L., 889.
In this instance would the hirers have had the right to discharge the crew and employ others in their stead? Or did the defendant retain the authority to employ and discharge them? This contract of hiring is something like a charter party, in which the owner may either let the capacity of burden of the ship, continuing the master and crew in the employment, or he may surrender the entire ship to the charterer, who then assumes possession and control and provides himself with master and crew. The first is a mere covenant for the performance of a stipulated service, and the owner is responsible under such circumstances for the conduct of the master and crew. 3 A. E., 144, note 6.
It is contended that, as the boat was chartered to run to points not upon defendant's regular lines, the defendant would not be liable under the facts of this case. We have held in Washington v. R. R., 101 N.C. 239, that a common carrier who entered into a special contract to transport passengers or freight to a point beyond its own line, which can only be reached by another line, thereby constitutes the latter its agent in the performance of the contract, and will be held liable for any damage resulting from the negligence of the agent. So we conceive that the liability of the defendant would not be affected by the fact (636) that the boat was chartered to run between points not upon defendant's regular lines.
It is contended also that there is a distinction between the liability of the master for negligence and that for a wilful wrong committed by the servant. Upon this point we have held in Hussey v. R. R., 98 N.C. 34, that "the rights, the powers and the duties of the corporate bodies have been so enlarged in modern times and these artificial persons have become so numerous and entered so largely into the every-day transactions of life that it has become the policy of the law to subject them, as far as practicable, to the same civil liability for wrongful acts as attach to natural persons, and this liability is not restricted to acts committed within the scope of granted powers, but a corporation may be liable in *Page 439 an action for false imprisonment, malicious prosecution and libel." Pearce Railroads, 273.
We have endeavored to show, however, further on, that the liability of defendant arises here, not for the negligence or wrongful acts of its servants within the scope of their employment, but upon the distinct principle of its obligation to protect its passengers from insult or harm. This being the case, is defendant liable for the assault made by its engineer upon the plaintiff, a passenger? Whether this wrongful act was done by the engineer while acting within the scope of his employment is of no moment. The doctrine of respondeat superior is not involved. Its general principle is, that a master is liable for the act of his servant, done in the course of his employment about his master's business. But he is not liable for an act done outside of his employment, nor for the wanton violation of the law by him. Wood Master and Servant, 552-559.
The liability of defendant here rests upon the obligation on the carrier not only to carry its passengers safely, but to protect them from ill treatment from other passengers, intruders or employees. "Kindness and decency of demeanor is a duty not limited to the (637) officers, but extends to the crew." Judge Story, in Chamberlain v.Chandler, 3 Mason, 242.
"Passengers do not contract merely for ship-room and transportation from one point to another; they also contract for good treatment and against personal rudeness and every wanton interference with their persons, either by the carrier or his agents employed in the management of the ship or other conveyance. In respect to such treatment of passengers, not merely officers, but the crew, are agents of the carriers." See also, 2 Wood Railway, sec. 315.
"It is among the implied provisions of the contract between a passenger and a railway company that the latter has employed suitable servants to run its trains, and that passengers will receive proper treatment from them; and a violation of this implied duty or contract is actionable in favor of the passenger injured by its breach, although the act of the servant was wilful and malicious, as for a malicious assault upon a passenger, committed by any of the train hands, whether within the line of his employment or not. The duty of the carrier towards a passenger is contractual, and, among other implied obligations, is that of protecting a passenger from insults or assaults by other passengers or by their own servants." Many authorities are cited to sustain this doctrine.
A very apt illustration of the distinction between the consequence to the master of the wrongful act of the servant, done to one not a passenger and to whom the master owed no duty, and an injury of a passenger by a servant, whether done within the scope of his employment or not, may be found in Williams v. Pullman Co., 8 Am. St. Rep., 512. *Page 440
We think there was error in the intimation of his Honor, and that the case should have gone to the jury.
New trial.
Cited: Redditt v. Mfg. Co., 124 N.C. 104; Carleton v. R. R., 143 N.C. 50;Stewart v. Lumber Co., 146 N.C. 60; Jones v. R. R., 150 N.C. 481.
(638)