We say that it should not, under Steinmeir's Case, 72 Md. 313. The lower Court thought that it should under Scharnagl's Case, 105 Md. 199; Twilley's Case, 106 Md. 445. These cases involved the wrongful arrest of passengers.
Some of our prior decisions in this area have turned on the question of whether the assault on the passenger occurred before or after the contract for safe carriage had ended. For example, in Central Ry. Co. v. Peacock, 69 Md. 257, 14 A. 709 (1888), the carrier was held not to be liable for an assault by its driver on a passenger who had alighted from a streetcar to report the driver for misconduct. Other cases holding that where the offending employee occupied a dual capacity, i.e., an employee of the carrier who was also a private policeman or peace officer, the determination of which role he was assuming being for the jury, are not germane to the issue before us. See Balto., C. A. Ry. Co. v. Ennalls, 108 Md. 75, 69 A. 638 (1908); Balto., C. A. Ry. Co. v. Twilley, 106 Md. 445, 67 A. 265 (1907); Tolchester Beach Imp. Co. v. Scharnagl, 105 Md. 199, 65 A. 916 (1907); Balto. Ohio R.R. Co. v. Deck, 102 Md. 669, 62 A. 958 (1906); Deck v. Balto. Ohio R.R. Co., 100 Md. 168, 59 A. 650 (1905); Tolchester Beach Imp. Co. v. Steinmeier, 72 Md. 313, 20 A. 188 (1890). In denying liability, this Court cited New Jersey Steamboat Co. v. Brockett, 121 U.S. 637 (1887) as authority for the proposition that a carrier must protect his passengers from the violence of the carrier's employees and from that of other passengers but added that to bring a case within the operation of the Brockett rule, it must appear that the claimant was a passenger, and that the employee was executing the contract of transportation at the time of the assault.
Professor Casner, annotating the Restatement of the Law of Agency, section 217, Comment "b", while conceding that this court has not extensively discussed the problem, states that indications from existing decisions are "in accord" with the principles of the Restatement ( Md. Annot. Restatement Law of Agency, page 123), but the decisions cited and discussed by him would not seem to justify his conclusion, for generally speaking they are assault and battery cases involving railroad companies, and in all of them this court held it to be the duty of the trial court to determine whether the servant was acting solely as a police officer or solely as a servant of the carrier. See Balto. O.R. Co. v. Deck, 102 Md. 669, 62 A. 958; Tolchester Co. v. Scharnagl, 105 Md. 199, 65 A. 916; Baltimore C. A.R.R. Co. v. Twilley, 106 Md. 445, 67 A. 265; and Baltimore C. A.R.R. Co. v. Ennalls, 108 Md. 75, 69 A. 638. The court, in Furstenburg v. Furstenburg, supra, construing Code, art. 45, sec. 5, held that a wife could not maintain an action against her husband for a personal tort.
We therefore deem it unnecessary to again review the law upon the subject. Green's Case, supra; Central Railway Co. v. Peacock, 69 Md. 263; Deck v. B. O.R.R. Co., 100 Md. 168; B.C. A.R.R. Co. v. Twilley, 106 Md. 445; Tolchester Co. v. Scharnagl, 105 Md. 199; B.C. A.R.R. Co. v. Ennalls, 108 Md. 199. The first three of the plaintiff's prayers deal with the legal principles affecting the equitable plaintiff's relation of passenger to the defendant if they found the facts to be as therein stated, as well as the nature and extent of its liability for the acts of Baldwin as its employee, in accordance with the views expressed by us in the cases to which we have referred.
We must hold therefore that defendant's first special exception was properly overruled, and the plaintiff's second prayer properly granted. The defendant's objection to this prayer, based on the instruction taken from Twilley's Case. 106 Md. 445, cannot be sustained, because that was a prayer offered by the defendant and presents a counter proposition to that contained in the plaintiff's second prayer. It would have been entirely proper for the Court below to have granted a prayer concluding for the defendant, modelled after the one referred to in the Twilley's Case, supra, but no such prayer seems to have been offered, and as we have said we see no objection to the form of plaintiff's second prayer as granted.
These principles are too firmly settled by the decisions in this Court to admit of dispute. Carter v. The Howe Machine Company, 51 Md. 290; Central Railway Company v. Peacock, 69 Md. 263; Deck v. B. O.R.R. Co., 100 Md. 168; B.C. A. Ry. Co. v. Twilley, 106 Md. 445; Tolchester Co. v. Scharnagl, 105 Md. 199; B.C. A. Ry. Co. v. Ennalls. 108 Md. 75. It has become a common practice for certain corporations to have some of their employees appointed as special officers to protect their property and to maintain order upon trains and around the station.