On Petition for Rehearing.
This matter came up to be heard upon a petition for a rehearing upon the order of this court filed July 25, 1913, refusing a motion to remand.
The application for rehearing was upon the ground that the complaint in this case is solely for a’tort jointly committed by the de*930fendants for which they are jointly liable. The complainants therefore claim that the court was in error in its previous order holding that there were two different' causes of action set up in the complaint, as to one of which there was a controversy solely between the plaintiffs and the defendants the Southern Bell Telephone & Telegraph Company.
The plaintiff claims that the willful breach of the contract in effect justified an action in tort, and that where a tort occurs all tort-feasors, including therein employer and employe, are by the law of South Carolina jointly liable. The question, as it is an action at law, is to be decided mainly upon the principles adjudicated as governing similar actions at law in the state courts of South Carolina. A great deal of confusion has arisen with regard to the distinction between actions on contract and actions on tort. Originally the general definition of an action arising on contract was where the action was either to recover the amount due under the contract, or for damages for the breach of- the contract. The breach of the contract has been also held to be, not an action on contract, but an action in the nature of an action on tort for damages for the unlawful breach of the contract. But the general definition of an action on contract was supposed to include both an action-to recover the amount due under the terms of the contract, as well as an action to recover for the damages for the breach of the contract. An action in tort was supposed to be distinguished from that of an action on contract inasmuch as it arose entirely independent of any contract or agreement of the parties and wholly out of reciprocal and respective duties fixed by law. In many cases, however, the lines between the two classes of cases was difficult of ascertainment. Some torts appeared to arise out of a condition of affairs produced by a breach of contract, i. e., the parties occupied a certain relation torvards each other by virtue of contract, and upon its breach action might be taken by one party against the other, not strictly within the line of an action for a breach of the contract, but arising from the duties imposed by law upon the parties respectively by virtue of their relations created by contract, and which action has been characterized as one in tort.
When an action is brought in such cases, therefore, it may be difficult -to ascertain from involved and uncertain allegations in the complaint whether the plaintiff is suing for a breach of the contract, or whether he is suing for the tort from which he claims to have suffered by the act of the other party independent of the contract itself, but simply occurring by the situation consequent upon the contract, or whether he is suing upon both. If he was suing upon a tort wholly and independently, it may be a case in which the master and servant are jointly responsible. The master is not responsible jointly with the servant for all of the torts of the servant. He is responsible only for such torts as were committed in the line and the scope of the employment of the servant. He is never liable for willful and malicious acts of the servant committed wholly outside of the scope of his employment. In the state of South Carolina, however, the doctrine has been established that for acts of trespass to person *931or property committed by the servants of common carriers, or similar employés, while in the course of the employment, even in the execution merely of the duties as employé, but in charge of the appliances and apparatus for the purposes of such employment, the master and the employé are jointly liable. The servant is not as a rule liable to third parties for breach of the master’s contract, or for the performance of that contract or for his own nonfeasance in the course of his employment under his duty to his master. The difference perhaps may be better illustrated by an example. A servant under the law of South Carolina is liable together with his master for tortious acts of misfeasance or tort in the nature of trespass upon the person or property of third parties, such as the negligence of an engineer in injuring a person in the operation of a train, or the misconduct of the conductor towards a passenger during transportation. The servant is not liable to a third party for his mere nonfeasance in a matter of leading to the breach of the contract by his master; as in the case of a bricklayer employed upon the construction of a building when the master is under contract to finish it within a .certain period. If the negligence or nonfeasance of the bricklayer employed by the master operates to prevent the performance of the contract within the stipulated period the servant would not be liable to the other party to the contract.
Speaking generally, the servant is not responsible for the damages resulting from the breach of the master’s contract, but only for such damages as may be inflicted by some negligent or willful tort of his own. In the present case the complaint seems to set up two causes of action. It distinctly alleges that the action against the defendants was for an act done in breach of the contract. Next, that it was in willful and wanton disregard of the rights of the plaintiffs and their public duty and service then and there owing to the plaintiffs for which punitive damages are asked. The joinder of these two different,causes of action seems to be allowed by the practice of the state courts of South Carolina. In the case of Cave v. Seaboard Air Tine Ry. Co., 77 S. E. 1017, decided April 7, 1913, the Supreme Court of South Carolina decides expressly that for the carrier’s breach of a contract in the case of a carrier’s failure to perform its contract for. transportation or of its duty to the public the passenger's remedy is an action for damages. That would appear to mean that the plaintiff in such cases has two causes of action against the carrier: One, for the breach of the carrier’s contract made between the carrier and the plaintiff personally; the next, for the breach of the carrier’s duty to the passenger as part of its duty to the public for its failure to perform that duty to the particular plaintiff. That court further holds that there can be another cause of action, to wit, the conduct of the conductor in insulting and humiliating the passenger, for which the plaintiff could recover punitive or vindictive damages from both the carrier and its employé.
The Supreme Court of South Carolina in brief, in this case, seems to hold that, in the case of a public service corporation transporting passengers, a passenger wrongfully ejected has three causes of action: *932First, an action for damages for breach of the contract of transportation. Second, an action for damages for the breach of duty by failure of the carrier to perform the duties which by law such a public service corporation owed to the public, including the particular plaintiff. Third, a cause of action for punitive damages for the improper and wrongful action of the employe of the defendant the conductor in his treatment of the plaintiff at the time of the breach of the contract. These three causes of action are held by the Supreme Court of South Carolina as causes of action which can be set up and recovered upon as separate causes of action in actions at law in the state courts of South Carolina. To the two first causes of action, viz., that for breach of the contract of transportation, and that for breach of the duty of a public service corporation such as a common carrier to a person whom it engaged in transporting, are causes of action arising upon contract and wholly against the corporation. The last cause of action for punitive damages for the action of the conductor being for negligence or tort of the employe committed by him in the scope and the line of his employment is one which- the plaintiff has the right to bring against the master and servant jointly. This last cause of action under the rules of pleading and practice prevailing in the state courts of South Carolina could be instituted alone, without any action being brought upon the two first-mentioned causes of action.
This rule in South - Carolina as mentioned in the first order made is different from the common-law rule. Under the rule at-common law there would be but one cause of action in this case, viz., failure of the defendant to perform its contract of transportation, that contract being in effect one; the particular contract to be transported between two particular points as paid for by the passenger being treated as a contract made and having written in it as a part of the particular contract the duties due by the public service corporation to the passenger under such a contract. The punitive damages at common law would not be a separate cause of action, but would be simply an intensification or aggravation of the damages arising from the tortious act of the conductor in the performance of his duty. Under the common-láw rule of practice and pleading, the conductor could properly be joined in an action brought for that purpose,' the cause of action being one and the cause would not be removable; but where, as under the practice and law in the state of South Carolina, the causes of action are declared to be wholly separate and independent, and which can be set up or sued upon separately, they are held to constitute separate and independent controversies. Such being the case, under the language of this complaint a controversy is therein set up in the shape of a recovery sought against the defendant for the breach of contract. It is a separate independent cause of action, and one which can be sued upon and recovered upon separately and is a controversy existing wholly between the plaintiff and the defendant the Southern Bell Telephone & Telegraph Company, and the case would be removable upon the ground of a separable controversy.
*933It is therefore ordered that the motion to rehear and reconsider the previous order in this case made refusing the motion to remand is hereby refused.