
    Obadiah B. Andrews v. Yazoo & Mississippi Valley Railroad Company.
    1. Raileoads. Intending passenger. Assault and hattery. Station agent.
    
    A railroad company is not liable to a plaintiff who, intending to take a train not due for more than one hour, for which he had not purchased a ticket, obtained permission from the station agent to do some writing in the office of the station, and while there became involved with the agent in an altercation over a private matter in which the agent committed an assault and battery on him.
    2. Same. Code 1892, \ 4313.
    Such a case is not aided by Code 1892, § 4313, requiring railroad companies to furnish suitable reception rooms and keep them open for one hour before the arrival and for half an hour after the departure of passenger trains, and to protect passengers therein from offensive conduct, since the statute has no application to the case.
    From tbe circuit court of Sunflower county.
    Hon. A. MoO. Kimbrough, Judge.
    Andrews, tbe appellant, was plaintiff, and tbe railroad company, tbe appellee, defendant in tbe court below. From a judgment in defendant’s favor, predicated of a peremptory instruction, tbe plaintiff appealed to tbe supreme court.
    Tbe evidence for the plaintiff was in substance as follows: Plaintiff, a traveling inspector for an insurance company, was íd Ruleville (a small village), and, having some acquaintance with tbe depot agent at that place (a Mr. Travis), went to tbe depot more than two hours before tbe train be desired to take was due, and going into tbe depot, through a side entrance provided for tbe employes of tbe company, spoke to tbe agent through a window, and requested tbe privilege to enter tbe private office and to do some writing, which tbe agent permitted him to do. Tbe agent, at bis request, furnished him with a place to write, some stationery, including pen and ink, and be began to write up bis daily report to tbe insurance company. Plaintiff testified tbat be went to tbe station to catcb a train. “I walked into a little anteroom, and accosted Mr. Travis, wbo was behind tbe desk, and said, 'Mr. Travis, I bave an bour or so until train time, and I know it is against tbe rules of tbe railroad'company, but I bave some letters or reports to make up, and I would like to come in and write these, if agreeable to you.’ And be consented, and I walked around into tbe office, where tbe tickets were, and told him I bad no stationery of my own, tbat I didn’t bave my grip, and tbat I would like to sponge on him, I believe, for a little stationery, and be very kindly gave me some, and bis pen and ink; and I bad written several pages, and bad my back to him. He remarked, 'I understand you didn’t bave a very good opinion of me tbe last time you were here;’ and I stated I bad not thought much about it, and bad not thought of it. He said, 'I beard you madé some remark about me;’ and I asked what it was, and be told me what it was, and said, 'I bave a friend wbo overheard you;’ and I said, 'Get your friend, and we will go over tbe matter;’ and be went out, and was gone some time, and came back with Mr. Bailey, bis friend, and be said, 'Here is tbe man wbo beard you make tbe remark about me;’ and I got up and sat on tbe corner of tbe desk, and Mr. Bailey said, 'You made tbe remark at Moorebead;’ and I said, 'I don’t know tbat I did make this remark, but you seem to want it tbat way, and seem to be looking for trouble, and you can let it stay tbat way.’ Mr. Travis said, 'I want an apology,’ and I said if I thought it necessary I would make one. Then Mr. Travis drew back bis band, and I made a dive for him, and be turned and pulled out a pistol.” He further stated tbat Travis struck him over tbe bead with tbe pistol, inflicting a wound. He bad not bought a ticket.
    Johnson, Ohapman & Neill, for appellant.
    Tbe proper construction of tbe statute, Code 1892, § 4313, is tbat tbe agent must preserve order as long as tbe station bouse is open, for tbe reception of passengers. Tbis duty is not confined to tbe bonr before tbe arrival of trains and one-balf bonr afterwards; tbe statnte does not mean tbat tbe company is bound only to preserve order in tbe limits of times named therein. If it is tbe dnty of tbe agent to preserve order, then, certainly, tbe company would be responsible for an assault and battery committed by tbe agent bimself. In tbe keeping of order in tbe station bouse tbe agent is tbe servant of tbe company, and it is responsible for bis acts, botb of omission and commission, in tbe line of bis duty. King v. Railroad Go., 69 Miss., 245. •
    If tbis agent was under duty of preserving order in tbe station bouse, altbougb more than an bour before tbe arrival of tbe train, tben tbe company is liable for any neglect of tbe duty, and most certainly for an assault and battery committed by tbe agent. We think tbe principle of tbis case is in line with tbe decisions which require tbe conductors of trains to preserve order, and make tbe company liable for any injuries to passengers of which tbe conductor has notice, and which be ought by reasonable care to have prevented. Railroad Go. v. Burk, 53 Miss., 200; Railroad Go. v. Minor, 69 Miss., 110; Ward v. Railroad Go., 79 Miss., 145.
    It was within tbe scope of tbe duty of tbe railroad agent to preserve order in its station bouse and to treat tbe parties who came into tbe station bouse for tbe purpose of taking trains with courtesy. Tbe agent was in tbe scope and line of bis employment. It was a part of bis duty while in charge of tbe station bouse not to attempt by violence to redress bis own grievance, real or supposed, upon persons awaiting trains, or, for tbat matter, upon persons who were in tbe station bouse. We think tbe case is clearly under tbe decision of Richburger v. American JSx. Go., 73 Miss., 171; Pullman Go. v. Lawrence, 74 Miss., 783; Wcvrd v. Railroad Go., 79 Miss., 145.
    
      
      Mayes & Longstreet, for appellee.
    It will be observed by the court that tbe evidence demonstrates a total absence of those elements and conditions which, under the law, create the relation of carrier and passenger.
    The general rule is, “The relation of carrier and passenger begins when one puts himself in the care of the carrier, or directly within its control, with the bona fide intention of becoming a passenger, and is accepted as such by the carrier.” 5 Am. & Eng. Ency. Law (2d ed.), 488; Spannagle v. Chicago, etc., B. Co-., 31 Ill. App., 460; Allender v. Chicago, etc., B. Co., 37 Iowa, 64; Webster v. Finchburg B. B. Co., 161 Mass., 298.
    The facts of this case show that Andrews had at no time and in no wise put himself in the care of the carrier or directly within its control; that he did not have at the time he rejoaired to the station the bona fide intention of then becoming a passenger, and there was no act on the part of the carrier through its agent to indicate that he was accepted as such.
    There is no evidence in the transcript that the plaintiff applied to the agent, or had provided himself with a ticket or other evidence of right of transportation. Bailway Co. v. Drummond, 73 Miss., 813.
    “A person is not a passenger who is at a station house by mere permission, and not for the purpose of transacting any business with the company, or its agent, or in any business connected with the operation of the road.” Pittsburg Bailroad Co. v. Bingham, 29 Am. St. Rep., 364.
    “One who goes upon the premises of a railroad station from curiosity or for the transaction of business not connected with the company is not a passenger.” St. Louis B. Co. v. Fa-irbarn, 48 Ark., 491; Diebold v. Penn. B. B. Co., 50 N. J. ,L., 478; Pittsburg B. B. Co. v. Bingham, 29 S. T., 364 (23 Am. St. Rep., 751) ; Qillis v. Perm. B. B. Co.j 59 Penn. S. T:, 129 (98 Am. Dec., 317) ; Kansas City B. B. Co. v. Kwhsey, 60 Ark., 366.
    “Nor is it enough that the person who comes to the carrier’s station with the intention of taking passage at some indefinite time in the future. He must come to the station in a reasonable time before the departure of the train by which he is to travel.” Harris v. Stevens, 31 Vt., 79 (73 Am. Dec., 337). (As to what constituted a reasonable time for passengers to go to depots to meet trains, see Code 1892, § 4313, which fixes the time for depots to receive passengers, etc.)
    The evidence shows that the assault complained of was caused by personal and individual matters between the agent of the defendant and plaintiff, and that the agent, Travis, was not acting within the scope of his authority or his employment at the time the assault was made. As to the liability by principal for torts of agents or servants, see Webb’s Pollock on Torts, pp. 84-107.
    Argued orally by Eugene JoJmson, for appellant, and James 0. Longstreet, for appellee.
   Truly, J.,

delivered the opinion of the court.

Under no theory of law applicable to the facts disclosed by this record can any liability attach to the appellee. It is perfectly obvious that the relation of carrier and passenger did not exist between appellant and appellee at the time of the difficulty between appellant and Travis. Appellant, according to his own statement, did not resort to the depot for the purpose of then securing passage upon a train, nor with the intention of establishing the relation towards the appellee of passenger and carrier. Giving his statement the most far-reaching effect and the broadest meaning of which his language admits, while his intention was ultimately to take passage when the train not due for several hours should arrive, the prime object of his going to the depot at that hour was that he might have a comfortable and convenient place in which to transact the business of writing up his daily insurance reports — a strictly private matter. While about this business he became involved in a dispute, and, subsequently, a difficulty, with Travis about another matter, purely personal to themselves, not even remotely connected with the duty of Travis or the business of appellee. At that time appellant had not in any sense “put himself in the care of the carrier, or directly within its control, with the bona fide intention of becoming a passenger,” and, hence, under the general rule, the relation of carrier and passenger had not begun. 5 Am. & Eng. Ency. Law, 488. Nor was he at the time of the occurrence in any place prepared or intended for the accommodation of passengers. On the contrary, he was, in knowing violation of the rules of the railroad company, availing himself of the courtesy of the agent, Travis, who, upon the special request of appellant, had extended him the use of his private office.

In our opinion, Code 1892, § 4313, has no application to the facts of the instant ease. That section was intended to conserve the convenience and comfort of the traveling public, first, by providing comfortable and cleanly rooms for their reception and accommodation; and, second, by protecting them from boisterous and offensive conduct from others. This section attempts to achieve the desired end by imposing it as a positive duty on all railroad companies at every passenger station to keep open, under the conditions and for the time stated therein, cleanly, warm, and properly lighted reception rooms, and by vesting the person in charge of such rooms with necessary power as a conservator of the peace. But appellant at the time of the difficulty of which he now complains, though in fact due to his own reprehensible language and aggressive conduct, was not in the room so prepared, but in another part of the depot building, into which he had gone in furtherance of his personal ends and in willful disregard of an established rule of the appellee. We hold that every prospective passenger or other person lawfully entitled to the use of the reception rooms at a passenger station, and whose own conduct is not boisterous or offensive, is protected in such use by the provisions of the section cited. But that statute cannot be so extended as to cover a difficulty of a personal nature, not growing out of or connected with tbe service of tbe employe or tbe business of tbe master, arising between two individuals not in tbe reception room, even tbougb one of tbe parties should be an employe of tbe railroad company owning or controlling tbe depot.

The judgment is affirmed.  