of contract, and cannot be waived by contract, it must necessarily owe its existence to the policy of the law.*

KNOXVILLE TRACTION COMPANY v. LANE.

103 Tenn. 376. 1899.1

SHIELDS, Special Judge. This action was brought by J. E. Lane and his wife, Maggie Lane, against the Knoxville Traction Company, a common carrier of passengers, to recover damages for injuries to the feelings and sensibilities of Maggie Lane while she was a passenger on one of the street cars of the defendant company, growing out of an alleged breach of its contract of carriage, caused by insulting and indecent language used to and about her by one of the company's employees in charge of said

The undisputed facts, as disclosed by the record, are as follows: On July 29, 1898, the plaintiff Maggie Lane, who was a woman of good character, boarded one of the defendant's cars at or near Lake Ottosee, in the suburbs of Knoxville, for the purpose of being transported into the city, and paid the fare required by the defendant. Just before the car reached the city, the plaintiff noticed that the motorman was drinking. She was sitting near the center of the car. The motorman turned and looked towards her, and said, "You are a good looking old girl, and I would like to meet you when you get off." She became indignant, and remarked that she would have some one attend to him when she got off. Thereafter he continued to make signs to her until the conductor interfered, and the motorman then said, "She is nothing but a whore." The plaintiff commenced to cry, and the motorman seemed to get angry, and said other abusive things to her. He stated that he knew all about her, and that she "would go out to the lake and throw herself out to the men there." He did not put his hands on her, or attempt to do so. When he ar

4 Accord: Bradburn v. Whatcom C. Ry. & L. Co. (1907), 45 Wash. 582: Gobbert v. Hackett (1908), 135 Wis. 86.

Cf. Duncan v. Maine R. R. Co. (1902), 113 Fed. 508, 509 (where one riding on a void pass is considered an "unauthorized intruder "): Van Auken v. Michigan Cent. R. R. Co. (1914), 182 Mich. 331 (where such a one is treated by the majority of the court as a licensee). See Note, 13 Michigan L. Rev. 328.

As to the position of one who has obtained transportation by fraud practiced upon the carrier. see Fitzmaurice v. New York, N. H. & H. R. R. (1906), 192 Mass.. 159: Brayles. Cent. of Ga. R. Co. (1910), 166 Ala. 616: Denny v. Chicago, R. I. & Pac. Ry. Co. (1911), 150 Ia. 460. 1 Parts of the opinion are omitted.- ED.

rived at the station the plaintiff went to the office of the defendant company, crying, and complained of the insulting conduct of the motorman towards her. The motorman was taken off the run, and immediately discharged by the company. This motorman had theretofore shown himself to be a good and faithful employee of the company, and had never been drunk before while on duty. The defendant did not know that he drank at all. . . .

The first error assigned is that the circuit judge erred in overruling the defendant's demurrer to the plaintiff's declaration. This demurrer raised sharply the question as to whether a common carrier can be held in damages for injuries to the feelings of passengers caused by a verbal insult of one of its employees in charge of the car upon which the passenger is riding. The plaintiff in error insists that it is not liable for the injury complained of, unless the servant inflicting the injury would be liable, and that the servant could not be held liable for damages for mere injuries to feelings resulting from a verbal insult. This court cannot assent to this proposition. In the absence of any contractual relation between the parties, this insistence of the plaintiff in error might be tenable, but that is not the case presented by this declaration. When Mrs. Lane entered the car of the defendant company, and paid her fare, there was an implied contract on the part of the company that she should receive proper, polite, and courteous treatment from its employees, and that she should be protected against hearing obscenity, witnessing immodest conduct, or submitting to wanton approach; and a violation of this contract on the part of the defendant company is actionable, and entitles her to some damages. The contract to carry passengers is not one of mere toleration and duty to transport the passenger on its cars, but it also includes the obligation on the part of the carrier to guaranty to its passengers respectful and courteous treatment, and to protect them, not only from violence and insults from strangers, but also against violence and insult from the carrier's own servants. Rose v. Railroad Co., 106 N. C. 170; La Fitte v. Railroad Co. (La.) 8 South. 701; Goddard v. Railway Co., 57 Me. 202; Craker v. Railway Co., 36 Wis. 657; 2 Wood, Ry. Law, § 315; 4 Elliott, R. R. § 1630; 2 Rap. & M. Ry. Dig. pp. 428-130, and authorities there cited.

2

2 Notes, 19 Columbia L. Rev. 240; 2 Cornell L. Quart. 113; 35 Harvard L. Rev. 467.

As to right to recover for property taken from passenger in course of assault, compare Weeks v. New York, N. H. & H. R. R. (1878), 72 N. Y. 50, and Repp v. Indianapolis C. & S. Tr. Co. (1916), 184 Ind. 671.

As to duty of carrier's servants to protect passenger from illegal arrest, see Nashville C. & St. L. Ry. v. Crosby (1913), 183 Ala. 237; Anania v. Norfolk & W. Ry. Co. (1915), 77 W. Va. 105; Note, 29 Yale L. Jour. 352.

It is insisted, however, that the defendant company did not authorize the injury complained of, and did not ratify the wrongs perpetrated by its servant, and that therefore it cannot be held. liable for the unlawful, oppressive, and insulting acts of its motorman. This insistence on the part of the defendant company is also untenable, and is not supported by the authorities. It is well-settled law that, in all cases where the master owes a contractual duty to third persons or to the public, he cannot shirk or evade it by committing its performance to another, but is bound absolutely to perform the duty, and is liable for a failure to do so in any respect whereby injury results to others, whether such failure results from negligence, or from the willful, wanton, or criminal conduct of the agent to whom the duty is committed. Being bound to do the act or perform the duty, if he does it by another the master is treated as having done it himself; and the fact that his servant or agent acted contrary to his instructions, without his consent, or even fraudulently, will not excuse him. Authorities cited above; also, Pullman Palace Car Co. v. Gavin, 93 Tenn. 58; 2 Wood, Ry. Law, § 315; 4 Elliott, R. R. § 1630. . . . The defendant insists, further, that this suit is based solely upon injury to the feelings of the plaintiff, and that it was held by this court in the case of Wadsworth v. Telegraph Co., [infra] that such an action cannot be sustained. The defendant is mistaken in its assumption that this case rests alone upon injury to the feelings of the plaintiff, for the gravamen of this action is the defendant's breach of its contract of carriage, which includes, as has been heretofore stated, the duty to protect the passenger from insult or injury either by its employees or third persons. This contract on the part of the defendant was directly violated by the inexcusable conduct of its servant towards Mrs. Lane, and the violation of the contract gave her a clear right of action, and entitled her to recover some damages. She may therefore maintain her action to recover all the damages she may show herself to have sustained by reason of the wrongful act of the defendant's agent, including injuries to her feelings and sensibilities, as was held in the case of Wadsworth v. Telegraph Co., 86 Tenn. 707. The jury have fixed the damages at $500, and it is not assigned as error that the verdict of the jury is excessive; nor would such an assignment, if made, have been available in this case.

...

It results that there is no error in the judgment of the circuit court, and the judgment is affirmed, with costs.3

3 Gillespie v. Brooklyn H. R. R. Co. (1904), 178 N. Y. 342. See DeWolf v. Ford (1908), 193 N. Y. 397 (innkeeper liable for insult to guest by servant): Rahmel v. Lehendorf (1904), 142 Calif. 681, and Clancy

FELDMAN v. THE CHICAGO RAILWAYS COMPANY.

289 Ill. 25. 1919.1

MR. JUSTICE STONE delivered the opinion of the court.

This cause comes to this court by certiorari to the Appellate Court for the First District, which court heard the cause on appeal and reversed the judgment of the circuit court of Cook county without remanding the cause.

It is conceded and admitted by the plaintiff in error and the defendants in error that there is no contradiction in the testimony relative to the facts and circumstances surrounding the happening of the accident in question. On the morning of the accident the plaintiff in error took the south-bound car of defendants in error on Cicero avenue, entering the same at Harrison street. His journey was to Douglas boulevard and Turner avenue, which necessitated his transfer to another car of defendants in error going east, at the corner of Twelfth street and Cicero avenue. Upon boarding the car he paid his fare and called for and received from the conductor in charge a transfer which would entitle him to a continuous ride by transferring at Twelfth street and Cicero avenue to Douglas boulevard and Turner avenue. The car upon which he was riding came to a complete stop on the north side of Twelfth street. At this point the north and south bound tracks of defendants in error on Cicero avenue intersected with their east and west tracks on Twelfth street. A switch extended from the west side of the south-bound track on Cicero avenue to the north side of the west-bound track on Twelfth street, connecting said tracks. The front trucks of the car passed south over the switch before the car stopped. The plaintiff in error thereupon left the car, alighting at the rear end thereof, and started toward the southwest corner of the intersection, which was the usual and customary place for passengers to wait for cars going east, one of which cars would take him to his journey's end. When he reached a point five or six feet west of the car and in the neighborhood of the north curb or crosswalk of Twelfth street the car from which he had alighted was started by the motorman, but instead of going south the rear end of the

v. Barker (1904), 131 Fed. 161 (innkeeper not liable for assault by servant, not in the course of employment, upon guest, THAYER, J., dissenting in the federal case); Clancy v. Barker (1904), 71 Neb. 83 (innkeeper held liable on the same facts as in next preceding case); Duckworth v. Appostalis (1913), 208 Fed. 936 (innkeeper liable for assault upon a guest by a servant who was retained after knowledge of his quarrelsome disposition). Note, 27 Harvard L. Rev. 171 (servant's assault provoked by the plaintiff).

1 Parts of both opinions are omitted.- ED.

car suddenly swung around to the west, completely out of its course of travel, so that the end of the car almost touched the west curb of Cicero avenue, striking plaintiff in error and knocking him down. It is apparent from the evidence that after the front trucks had passed over the switch for some reason not found in the evidence the switch had changed its position so as to guide the rear trucks on to the switch in a southwesterly direction, thereby throwing the car around, as above described, to such an extent that at the time of the injury to the plaintiff in error the car was in a position extending almost east and west. The plaintiff in error was removed to a hospital, where an examination disclosed a fracture of the clavicle or collar bone into three parts, one part of which (a little triangular piece) was directed downward and entirely out of line of the fractured ends. After being operated upon it was found that the plaintiff in error had developed an enlargement of the artery extending from the heart into the region. of the collar bone.

The jury returned a verdict for the plaintiff in error in the sum of $5,500. Motions for new trial and in arrest of judgment were overruled, and an appeal was prayed and perfected to the Appellate Court for the First District by the defendants in error. The Appellate Court held as a matter of law that the plaintiff in error at the time of the accident was not a passenger of the defendants in error; that when the plaintiff in error alighted from the Cicero avenue car upon which he had been traveling the relation of passenger and carrier ceased. . . . [The Appellate Court reversed the case without remanding, and gave judgment for the Railways Company.]

As we have seen, the first count charges that plaintiff in error was a passenger. While the decisions of the courts of the various states have not been uniform as to this rule, it has been before this court in earlier cases. In Chicago City Railway Co. v. Carroll, 206 Ill. 318, the appellee, Carroll, was a passenger on a street car of appellant. He took the car at Sixty-Third street and Wentworth avenue and rode to Thirty-Fifth street, where appellant had a line crossing the line on which appellee was riding. Appellee, upon reaching Thirty-Fifth street, alighted from the Wentworth avenue car to go to the Thirty-Fifth street car. The trolley pole from the Wentworth car, from which he had just alighted or was alighting, fell and struck him on the head and knocked him down. This court held that the appellee was a passenger on both lines of appellant while making a continuous journey to his destination. It is urged that the court there based its decision on other grounds, and that the only reference to the relation of carrier