633 MACRAE, J. 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 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 Am. & Eng. Ency. of Law, 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 634 is made between the passengers and the hirers under whose direction the excursion 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 on Railways, 212. The case of Skinner v. London etc. Ry. Co., 5 Ex. 786, 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."

The test in such a case as the present is whether the defendant 635 abandoned the entire control of its servants, the master and crew of the boat, to the hirers. "If the hirer is vested for the time with the exclusive right to discharge the servants and employ others, he alone is responsible for their default": Shearman and Redfield on Negligence, sec. 74, note 1. The defendants 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: Dalyell v. Tyrer, El. B. & E. 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 or 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 Am. & Eng. Ency. of Law, 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. Raleigh etc. R. R. Co., 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 liabil ity of the defendant would not be affected by the fact that the boat 636 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 willful wrong committed by the servant. Upon this point we have held in Hussey v. Norfolk etc. R. R. Co., 98 N. C. 34, 2 Am. St. Rep. 312, that "the rights, the powers, and the duties of 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 an action for false imprisonment, malicious prosecution, and libel ": Pearce on 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 on 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 637 is a duty not limited to the officers, but extends to the crew": Judge Story in Chamberlain v. Chandler, 3 Mason, 242.

"Passengers do not contract merely for shiproom 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 Woods on Railway Law, 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 willful 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 toward 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 Palace Car Co., 40 La. Ann. 87; 8 Am. St. Rep. 512.

We think there was error in the intimation of his honor, and that the case should have gone to the jury.

New trial.

RAILROADS-LIABILITY FOR NEGLIGENCE OF LESSEE.-A railroad company cannot escape the obligations which it assumed in accepting its charter by leasing its road to another, whether the injury complained of arises from a defective track or from carelessness in running trains: Harmon v. Columbia

etc. R. R. Co., 28 S. C. 401; 13 Am. St. Rep. 686, and note, with the cases collected.

RAILROADS-DUTY TO PROTECT PASSENGERS.-It is the duty of carriers of passengers by railway to protect them, in so far as possible, by the exercise of a high degree of care, from the violence and insults of other passengers, strangers, or the carrier's own servants: Dillingham v. Russell, 73 Tex. 47; 15 Am. St. Rep. 753, and note; Richmond etc. R. R. Co. v. Jefferson, 89 Ga. 554; 32 Am. St. Rep. 87, and extended note. This principle is further discussed in the late cases of Butler v. Manhattan Ry. Co., 143 N. Y. 417; 42 Am. St. Rep. 738, and note; and Graeff v. Philadelphia etc. R. R., 161 Pa. St. 230; 41 Am. St. Rep. 885, and note.

STATE V. GORHAM.

[115 NORTH CAROLINA, 721.]

INTERSTATE COMMERCE-RIGHT TO TAX TRADES.-A state may tax trades, professions, and avocations carried on within its borders, although the goods dealt in are manufactured in another state.

INTERSTATE COMMERCE-LICENSE TAX.-One acting as agent for the sale and delivery in one state of the manufacturers of lightning-rods made in another, who, after receiving the rods in bulk, breaks the original package for distribution to his customers, and puts up the rods without extra charge whenever a purchaser requests it, is an itinerant putting up lightning-rods within the meaning of a statute of the former state, providing for a license tax on such itinerant, and the imposition of such license tax on such agent is not the imposition of a burden on interstate

commerce.

Attorney General and W. J. Peele, for the appellant.

P. Busbee and H. G. Connor, for the appellee.

725 MACRAE, J. Section 27 of chapter 294 of the acts of 1893, being a part of schedule B, the taxes in which are imposed as license taxes for the privilege of carrying on business or doing the act named, is as follows: "On every itinerant who puts up lightning-rods, fifty dollars annually, for each county in which he carries on business." There is nothing in the words of the statute to indicate a purpose to levy a tax in any form upon, or to impose a restriction in any manner upon, citizens or inhabitants of other states from engaging in business connected with the commerce between the states, which is protected from state legislation by the constitution of the United States. The right of a state legislature to tax trades, professions, and avocations within the borders of the state has never been disputed.

It is earnestly contended, however, by the learned counsel,