engaged in the execution of the agreement of the master to exercise ordinary care for the comfort and safety of the visitor. The natural and logical result of this relation of the parties is that when the servants are not engaged in the course or scope of their em ployment, although they may be present in the hotel, they are not performing their mas ter's contract, and he is not liable for their negligent or wilful acts. Moreover; the court considers that the authorities in the cases involving the liability of common car riers, of owners of palace cars, of steam boats, and of theaters, upon which plaintiff relied, were cases in which the servants were acting within the course or scope of their employment. Thayer. Circuit Judge, vigorously dissents from the conclusion reached by the majority. He is of the opinion that the rule governing the liability of a carrier for injuries to pas sengers by the carrier's servants applies in the case of injuries to guests by the servants of an innkeeper. In support of the proposi tion that the relation existing between a car rier and a passenger is similar to that exist ing between an innkeeper and his guests, Judge Thayer cites Commonwealth г: Pow er, 7 Metcalf 596, 41 American Decisions 465; Bass v. Chicago & Northwestern Ry. Co., 36 Wisconsin 450, 17 American Reports 495; Norcross v. Norcross, 53 Main 163; Dickson v. Waldron, 34 Northeastern Re porter 506, and Pinkerton v. Woodward, 33 California 557. As to the proposition that an innkeeper is not an insurer of the safety of the person to his guest while within the hotel, which proposition the majority relied on, Judge Thayer says that the same may be said of carriers. They do not insure the per sonal safety of passengers, but only to exer cise a very high degree of care, or, as it is sometimes said, "the utmost care," for their protection. Yet it is now well settled that this duty is so comprehensive that it renders the carrier responsible for injuries inflicted on passengers so long as the relation of car rier and passenger exists, not only by the negligent acts of its servants done while in the performance of some duty, but also by
their wilful and wrongful acts, such as as saults committed on passengers or indigni ties offered to them. After a review of the authorities relating to the duties of an inn keeper to his guests, Judge Thayer states that he has been unable to discover any suf ficient reason why an innkeeper should not be held responsible to his guests for the con sequences of any wilful and wrongful acts of his servants committed within the hotel to the same extent that the carrier is respon sible to its passengers for like wrongful acts of its servants, and he fully approves the doc trine of the Supreme Court of Nebraska to that effect in Clancy v. Barker, 98 N. W. Rep. 440, which case was adversely criticised in the majority opinion. INSURANCE. (MUTUAL BENEFIT ASSOCIATION — BENEFICIARIES— POWERS.) UNITED STATES CIRCUIT COURT, E. D. MISSOURI.
The power of a mutual benefit society to issue a certificate payable to a person who was married to insured, and who, in good faith, lived with him as his wife, though she was not his legal wife by reason of his hav ing a former wife from whom he had not been divorced, was questioned in James v. Supreme Council of the Royal Arcanum, 130 Federal Reporter 1014. It appeared that the laws of the State wherein the society was incorporated, and the constitution and by laws of the society, gave it express power, not only to provide for the widows, orphans., and other relatives of deceased members, but also to make provision for "any persons dependent upon deceased members/' It further appeared that the beneficiary in this case was dependent on insured for her sup port. Hence the court concluded that she came within the designation "any persons dependent upon deceased members" and could, therefore, be designated as a benefi ciary. This conclusion the court considers abundantly supported by Story v. Williamsburgh Masonic Mutual Benefit Association, 95 New York 474; Supreme Tent of Knights of Maccabees v. McAllister. 92 Northwestern Reporter 770; Senge v.
