While there are many loose statements in the books to the effect that the liability of common carriers to their passengers and entity, the corporation, can act only through the liability of innkeepers to their guests natural persons, its officers and servants, and as it of necessity commits its trains are similar; and while that proposition absolutely to the charge of officers of its may be conceded, it is certain that the limits of these liabilities are by no means, own appointment, and passengers of necesthe same. A railroad company is liable to sity commit to them their safety and comfort in transitu, under conditions of such utmost care in the preparation of its road its passengers for a failure to exercise the peril and subordination, we are disposed to and the operation of its engines and trains hold that the whole power and authority upon it, because the swift movement of of the corporation, pro hac vice, is vested in its passenger trains is always fraught with these officers, and that, as to passengers on extraordinary danger, which it requires board, they are to be considered as the cor- extraordinary care to avert. But an innporation itself, and that the consequent keeper's liability for the condition and opauthority and responsibility are not generation of his hotel is limited to the failure erally to be straitened or impaired by any to exercise ordinary care, because his is arrangement between the corporation and an ordinary occupation fraught with no ex

traordinary danger. Sandys v. Florence, | cupation of the parties, but it is subordi47 L. J. C. P. N. S. 598, 600. It no more nate to the ordinary business or pleasure /follows, from the similarity of the liability of the guest. The innkeeper assigns a room of the carrier to that of the innkeeper, that to his guest, but neither he nor his servthe latter is liable for the wilful or negants direct him when or how he shall occupy ligent acts of its servants beyond the scope it; but they leave him free to use or to of their employment, than it does that the fail to use it, and all the other means latter is liable for a failure to exercise the of entertainment proffered, when and as highest possible care to make his hotel he chooses, and to retain the uncontrolled and its operation safe for its guests, be- dominion of his person and of his movecause the carrier must exercise that de- ments. The agreement is not that the guest gree of care in the management of its rail shall surrender the control of his person and road, engines, and trains. action to the servants of the innkeeper, in order that he may be protected from injury and entertained. It is that the guest may retain the direction of his own action, that he may enjoy the entertainment offered, and that the innkeeper will exercise ordinary care to provide for his comfort and safety. The servants of the innkeeper are not placed in charge of the person of the guest, to direct, guide, and control his location and action, nor are they employed to perform any contract to insure his safety; but they are engaged in the execution of the agreement of the master to exercise ordinary care for the comfort and safety of the visitor. The natural and logical result of this relation of the parties is that when the servants are not engaged in the course or scope of their employment, although they may be present in the hotel, they are not performing their mister's contract, and he is not liable for their negligent or wilful acts.

Again, there is a marked difference in the character of the contracts of carriage on a railroad or steamboat and of entertainment at an inn, and a wide difference in the relations of the parties to these contracts. In the former, the carrier takes and the passenger surrenders to him the control and dominion of his person, and the chief, nay, practically the only, occupation of both parties is the performance of the contract of carriage. For the time being all other Occupations are subordinate to the transportation. The carrier regulates the movements of the passenger, assigns him his seat or berth, and determines when, how. and where he shall ride, eat, and sleep, while the passenger submits to the rules, regulations, and directions of the carrier, and is transported in the manner the latter directs. The contract is that the passenger will surrender the direction and dominion of his person to the servants of t'e carrier, to be transported in the car, seat. or berth and in the manner in which they direct, and that the latter will take charge of and transport the person of the pissenger safely. The logical and necessary result of this relation of the parties is that every servant of the carrier who is employed in assisting to transport the pissenger safely, every conductor, brake man, and porter who is employed to assist in the transportation, is constantly acting within the scope and course of his employment while he is upon the train or bot. because he is one of those selected by his master and placed in charge of the person of the passenger to safely transport him to his destination. Any negligent or wiful act of such servant which inflicts injury upon the passenger is necessarily a breach of the master's contract of safe carriage, and for it the latter must respond. But the contract of an innkeeper with his guest, and their relations to each other, are not of this character. The innkeeper does not take, nor does the guest sur render, the control or dominion of the latter's person. The performance of the contract of entertainment is not the chief oc

Moreover, the authorities in the cases involving the liability of common carriers, of owners of palace cars, of steamboats, and of theaters, upon which counsel for the plaintiff seems to rely, when carefully examined, are found to be cases in which the servants were acting within the course or scope of their employment, and they do not rest upon the proposition that the defendants in those cases were liable for the wilful or negligent acts of their employees beyond that scope.

In Duinelle v. New York C. & H. R. R. Co. 120 N. Y. 117, 126, 127, 8 L. R. A. 224, 17 Am. St. Rep. 611, 24 N. E. 319, the porter of a sleeping car, who had taken up the ticket of a passenger, was held to be acting within the scope of his employment when he struck the passenger during an altercation between them relative to the return of the ticket.

In Stewart v. Brooklyn & C. T. R. Co. 90 N. Y. 588, 591, 43 Am. Rep. 185, the court declared the limit of the company's liability to be "to protect the passenger against any injury arising from the neg ligence or wilful misconduct of its servants while engaged in performing a duty which

In Goddard v. Grand Trunk R. Co. 57 Me. 202, 203, 2 Am. Rep. 39, a brakeman, who had authority to collect tickets, and who, after collecting one from a passenger, demanded another of him, and grossly insulted him because he declined to pay for his passage again, was held to have been acting within the scope of his employment, and the company was charged with the damages he inflicted.

the carrier owes to the passenger," and principals of the defendants. Bass v. Chiheld that a driver of a street car, who cago & N. W. R. Co. 36 Wis. 450, 463, 17 was also the conductor, and who beat a Am. Rep. 495. There are no such reasons passenger in the car, was within the scope for the existence of the liability of innkeepof his employment to carry the passenger ers for the wilful or negligent acts of their safely when he committed the assault. servants beyond the scope of their employment, and the argument of counsel in support of such an extension by analogy with the liability of common carriers fails (1) because innkeepers are not liable to their guests for extraordinary care, while carriers are liable to their passengers for the highest degree of care; (2) because innkeepers do not intrust to their servants the absolute control and dominion of their hotels and of the persons of their guests, nor do the latter surrender themselves to the dominion and direction of such servants; and (3) because the wilful and negligent acts of their servants, for which carriers have been held liable, were committed in the discharge of the duties which they were employed to perform, while those of the servants of innkeepers, now under consideration, were done outside the actual and the apparent scope of their employment.

So in Craker v. Chicago & N. W. R. Co. 36 Wis. 657, 673, 17 Am. Rep. 504, a conductor who kissed a passenger; in Pendleton v. Kinsley, 3 Cliff. 416, 427, 428, Fed. Cas. No. 10,922, the clerk of a steamer who assaulted a passenger while trying to collect his fare; in Chicago & E. R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33, a brakeman who struck a passenger because during a search for a lost watch he said he thought the brakeman had it; in Terre Haute & I. R. Co. v. Jackson, 81 Ind. 19, 22, a conductor or brakeman who drenched a passenger with water; in Campbell v. Pullman Palace Car Co. 42 Fed. 485, a porter of a sleeping car who made indecent proposals to a passenger; in Williams v. Pullman Palace Car Co. 40 La. Ann. 421, 8 Am. St. Rep. 538, 4 So. 85, a porter of a Pullman car who assaulted a passenger; and in Dickson v. Waldron, 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. 506, 35 N. E. 1, the ticket taker and special policeman of a theater, who, in endeavoring to sell the tickets to a customer, assaulted him,-were all held to be, and undoubtedly were, acting within the scope of their various employments when they inflicted the injuries for which the defendants were made to pay.

When all these authorities, and others cited by counsel for the plaintiff, are carefully considered, it clearly appears that the controlling reasons why common carriers have been held liable for the wilful or negligent acts of their servants in these cases are (1) that they owe to their passengers the highest degree of care, and (2) that during the transportation they intrust the entire care, custody, and control of their trains, steamboats, and passengers to these servants, and the passengers yield obedience and control of their movements to these servants, under conditions of peril and subordination in which the passengers are confined and helpless, and the servants in charge of the train are practically the vice

In addition to the argument by analogy which we have been considering, our attention is called to the remarks of Chief Justice Shaw in Com. v. Power, 7 Met. 596, 601, 41 Am. Dec. 465, a case in which the question was whether a railroad company had the right to exclude a disorderly person from its railroad station, and Chief Justice Shaw, in discussing that question, said: "An owner of a steamboat or railroad, in this respect, is in a condition somewhat similar to that of an innkeeper, whose premises are open to all guests. Yet he is not only empow ered, but he is bound, so to regulate his house, as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and, of course, he has a right, and is bound, to exclude from his premises all disorderly persons, and all persons not conforming to regulations necessary and proper to secure such quiet and good order."

It is also called to the opinion of Judge Story, of the same tenor, in Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258, a case which involved a similar question, to wit, the right of the owner of a steamboat to exclude a disorderly person therefrom; to the decision of the supreme court in Rommel v. Schambacher, 120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779, that an innkeeper who furnished liquor to make a man drunk, and then with gross carelessness permitted him to attach a paper to the back

The evidence tended to show that one of the defendant's servants assaulted and inflicted serious injury upon the plaintiff while she was in the hotel as a guest, but the court held that the guest could not recover, because the assault and battery, although committed by the defendant's servant in her hotel, was not inflicted while the servant was acting within the actual or apparent scope of his employment.

Stanley, against the executors of the estate | Dakota territory directly decided the very of Bircher for injuries to her person re- questions presented in this case in acsulting from her fall down an elevator cordance with this general rule and in favor shaft of a hotel operated by Bircher. She al- of the innkeeper. The complaint in that leged that she was a guest at this hotel, case alleged, among other things, that that it became his duty, and that he agreed, "The defendant undertook, for a compento furnish safe accommodations for the rea- sation paid her by the plaintiff, to keep sonable wants of the plaintiff, and that he safely and from harm and in a proper mandid not perform the duty or keep the agree- ner this plaintiff while she should remain ment, in that the door to the elevator pit in the defendant's inn or hotel; that while was dangerously constructed and negligently this plaintiff was stopping at the inn or left open by Bircher and his servants, so hotel of the defendant this plaintiff was, by that she walked into it and was injured. the wrongful and spiteful acts of the deA demurrer was interposed to this com- fendant's servants, greatly injured." plaint on the ground that the cause of action did not survive the death of Bircher. Mark that the complainant clearly alleged a breach of a contract to keep the guest safely, as well as a failure to discharge the duty to exercise ordinary care as in the case at bar, and that the question was whether or not the innkeeper's obligation included a contract of safe-keeping. If it did, the cause of action survived, and the action could be maintained; otherwise, it could not be. The supreme court of Missouri held that the obligation of an innkeeper comprised no such contract, that the action could not be changed from an action on the case for a breach of the duty to exercise ordinary care to one for a breach of contract of safe-keeping by an averment or proof of such contract and breach, because no such contract arose out of the relation of innkeeper and guest. That court said: "But it is claimed by counsel for plaintiff that the action is for the breach of a contract, and that it is not an action on the case for injuries to the person. The allusions in the petition to the formal contract between the plaintiff and the proprietor of the hotel, whereby the plaintiff became a guest in the hotel, cannot change the true character of the action. In setting forth an action of trespass on the case, the pleader often finds it proper, although not absolutely necessary, to mention matters of contract connected with the tort, by way of inducement and explanation. In this case the relation of host and guest, which originated in contract, explains how the defendant's testator came to owe the plaintiff a duty. That duty, however, the law imposes. It is a public duty, which is not defined by the contract. Neither can the proprietor relieve himself from that duty by contract. The action in truth is for a violation of the duty which the law imposes, independent of the contract. Neither the damages nor the scope of the action can be measured or limited by the contract."

And in Curtis v. Dinneen, 4 Dak. 245, 30 N. W. 148, 149, 152, the supreme court of

The result is that when the defendants made their contract to entertain the plaintiff at their hotel the law was, and in our opinion it still is (Rahmel v. Lehndorff, 142 Cal. 681, 65 L. R. A. 88, 100 Am. St. Rep. 154, 76 Pac. 659), notwithstanding the late decision of the supreme court of Nebraska to the contrary, that their agreement was to exercise reasonable care for his safety, comfort, and entertainment, and that their agreement did not include an insurance of his person against the wilful or negligent acts of their servants beyond the course of their employment. A change of this law and an extension of the liability of the innkeepers now, after the execution of the contract, so as to make the agreement include such an insurance, is to make a new agreement for the parties after the event, and to impose upon the defendants a liability which they could not foresee and to which they did not assent. A retroactive decision, which makes and applies a new rule of law, and attaches another and unforeseen liability to a contract after its execution, is as vicious as an ex post facto statute.

The judgment below enforced the contract which the parties made in strict accordance with the law which governed it, and it is affirmed.

Thayer, Circuit Judge, dissenting:

The important question in this case is whether an innkeeper is exempt from liability to one of his guests who is injured within the hotel by an act of gross negligence on the part of a servant of the innkeeper, because the servant, at the time he committed the negligent act, was not en