Gulf, C. & S. F. R. Co. v. Luther - 40 Tex. Civ. App. 517, 90 S.W. 44 (1905)

Rule:

A carrier is bound to discharge the implied duty, arising out of its contract and imposed by law, that its passengers shall be protected from injury by its servants and shall not be willfully insulted and harmed by them, and if it commits the discharge of this duty to an employee it does so at its peril, notwithstanding the exercise of care on its part in selecting the servants. A passenger has no control over the employees, and the company alone has the power to select and remove them. It is, therefore, just to make the company, rather than the passengers, take this risk, and to hold it responsible. This leads to the conclusion that a railroad company is liable for an injury willfully inflicted upon a passenger by an employee while engaged in performing a duty which the carrier owes to the passenger, or in executing the contract, although the company is guilty of no negligence in selecting them and such act was not strictly within the scope of their employment or line of their duty in the sense that it was done for the carrier or arose out of the performance of their particular duty.

Facts:

The present suit was brought by appellee to recover damages for an alleged insult to his wife, made by a waitress in attendance on the ladies' waiting room in the appellant railroad's passenger station, and for alleged nervous prostration of appellee's wife caused by such insult. The appellant answered by a general denial and specially that the waitress was provoked to say what she did by opprobrious epithets addressed to her by appellee's wife. The trial of the cause resulted in a verdict and judgment against the appellant for $2,500. Appellant challenged the judgment. 

Issue:

Under the circumstances, was it correct to enter judgment against the appellant? 

Answer:

Yes.

Conclusion:

The judgment of the trial court was affirmed, noting that a carrier was liable absolutely, as an insurer, for the protection of the passengers against assaults and insults of his own servants, because he contracted to carry the passenger safely and give him decent treatment en route. In this case, as the testimony of the wife was corroborated by other circumstances and as the jury believed her narration of the occurrence, the court found it was true; that the wife, in consequence of the ill treatment by the waitress, was frightened, humiliated, worried and distressed, causing her nervous prostration, physical pain and mental anguish to the passenger's damage in the amount found by the verdict. It was for the jury to say whether the passenger's wife, in consequence of the outrage inflicted upon her by the railroad's servant, suffered from nervous prostration and sickness, and there being evidence to support its finding, the court affirmed it. The court held that the wife's deposition was admissible, even though the passenger and his attorney were present, because no suggestions were made by either of them and her answers were written by the notary in the very language in which they were given.