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long as the relation of carrier and passenger exists, not only by the negligent acts of its servants done while in the performance of some duty, but also by their willful and wrongful acts, such as assaults committed on passengers or indignities offered to them. The obligation also rests on the carrier to protect its passengers while in transit, not only against the willful and wrongful acts of its own servants, but so far as practicable from acts of violence committed by strangers and corpassengers. It makes no difference, as it seems, what motive may have actuated a servant of the carrier in committing the wrongful act complained of, or whether it was done in conformity with the carrier's orders, or in express violation thereof and on the sole responsibility of the servant; for, if it was done while the relation of carrier and passenger existed, the carrier is responsible, and it cannot defend on the ground that the act of its servant was done without its sanction and at a moment when he was not rendering any special service to the carrier. A different rule obtains, of course, as respects willful and wrongful acts done by employés to those to whom the carrier at the time owed no other or greater duty of protection than it owed to every other person in the community; but, when the peculiar relation of carrier and passenger exists, the modern rule appears to be that the carrier is under an obligation to see to it that a passenger suffers no harm on account of the wrongful and willful acts of its servants, and that every practicable precaution is taken to protect him against the wrongful acts of strangers and co-passengers. Stewart v. Brooklyn & Crosstown Railroad Co., 90 N. Y. 588, 43 Am. Rep. 185; Dwinelle v. New York Central & H. R. R. R. Co., 120 N. Y. 117, 125, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; Goddard v. Grand Trunk Ry., 57 Me. 202, 213, 2 Am. Rep. 39, and cases there cited; Bryant v. Rich, 106 Mass. 188, 8 Am. Rep. 311; Spohn v. Missouri Pacific Ry. Co., 87 Mo. 74, 80; Craker v. Chicago & Northwestern Ry. Co., 36 Wis. 657, 17 Am. Rep. 504; Pendleton v. Kinsley, 3 Cliff. 416, 427, Fed. Cas. No. 10,922; Chicago & Eastern R. R. Co. v. Flexman, 103 111. 516, 42 Am. Rep. 33; Terre Haute & Indianapolis R. R. v. Jackson, 81 Ind. 19.

Now, it is true that a hotel is an immovable structure and does not run on wheels like a train of cars; but in all other respects the relation existing between an innkeeper and his guest is like that existing between a carrier and passenger, and this fact has always been recognized, as shown by the cases above cited. An innkeeper, like a carrier, is engaged in a quasi public service. When he embarks in the business of keeping a hotel, he is bound to provide entertainment for all travelers who seek a place of rest and refreshment, provided they come to him in a fit condition to be entertained as guests, and are able to pay the customary charges. Unless relieved of the obligation by an express statute, the innkeeper, like the carrier, is an insurer of his guests' baggage against loss occasioned otherwise than by an act of God or the public enemy. American & English Ency. of Law (2d Ed.) vol. 16, p. 528, and cases there cited. Besides, an innkeeper is vested with the same power of control over his premises which the carrier exercises over such means of public conveyance as he provides. An innkeeper has the right to exclude from his premises all disorderly persons, and to suppress all disturbances therein that tend to disturb his guests or imperil their safety, and according to the decision of Chief Justice Shaw in the case above cited (7 Metc. 596, 601) it is his common-law duty to exercise this power. Aside from these considerations, the innkeeper, like the carrier, has the exclusive right to select all of the persons who are to aid him in the discharge of his quasi public functions. I have been unable, therefore, to discover any sufficient reason why he should not be held responsible to his guests for the consequences of any willful and wrongful acts of his servants, committed within the hotel, to the same extent that the carrier is responsible to his passengers for like wrongful acts of its servants; and within the authorities above cited a carrier would be clearly responsible to one of its passengers for an injury inflicted by one of its employés under such circumstances as those disclosed in the present case.

Relative to the authorities cited in the majority opinion and not already referred to, this may be said:

Calye’s Case, 4 Coke's Rep. 63, 66, contains the single detached statement that, “if the guest be beaten in the inn, the innkeeper shall not answer for it.” But it does not say by whom beaten, whether by a servant of the innkeeper or by a stranger. This, however, is a very old case, decided in 1584, and the statement quoted is purely dicta, since the case involved no question respecting the liability of an innkeeper for an assault committed upon a guest within the hotel. Moreover, as the learned editor of the American & English Ency. of Law remarks, in substance (vide vol. 16 [2d Ed.] p. 545), it may well be doubted whether the statement above quoted would be accepted at the present day as authority for the doctrine which it enunciates, since the modern authorities are opposed to the view that an innkeeper cannot be held responsible for an assault committed upon one of his guests within the hotel by a servant, or even by a stranger when the innkeeper has not taken proper care to exclude disorderly persons from his premises.

Curtis v. Dinneen (Dak.) 30 N. W. 148, was a case in which a guest of a hotel kept by a married woman sought to hold her responsible for an assault and battery committed by her husband without her consent or ratification. The husband was living with the wife in the hotel, as he had a right to do, and was assisting her to operate it, so that the case was embarrassed by the existence of the marital relation; the court holding that under the circumstances the wife could not be held responsible for the tort of the husband.

The other cases that are referred to are without exception cases where it was sought to hold the innkeeper responsible for some defect in the hotel premises, and in one of them (Sandys v. Florence, 47 L. J. 598, 600) it was remarked arguendo, in discussing a demurrer to the complaint, that an innkeeper's duty “is not to insure his guests, but to see only that they did not suffer from want of reasonable and proper care on his part.” None of the cases, however, discuss the particular question which is presented in the case at bar, whether an innkeeper is liable to his guest for the reckless conduct of one of his servants committed upon the hotel premises, whereby the life of the guest is jeopardized. In my judgment an innkeeper ought to be held liable for an act of that nature, and as respects that question I concur in the view which was expressed by the Supreme Court of Nebraska in Clancy v. Barker, 98 N. W. 440, that was decided upon the same state of facts which this record discloses.

I think the judgment below should be reversed, and a new trial ordered.

PHENIX BRIDGE CO. v. CASTLEBERRY.

(Circuit Court of Appeals, Fourth Circuit. May 25, 1904.)

No. 499.

1. JUDGMENTS-COLLATERAL ATTACK–FEDERAL AND STATE COURts.

The jurisdiction of a court to render a judgment is always subject to collateral attack and inquiry in a court of another sovereignty in which such judgment is relied on, and in such respect federal and state courts

are foreign to each other, although sitting within the same state. 2. SAME-FEDERAL COURTS-FOLLOWING STATE DECISIONS.

The right of collateral attack on a judgment is a matter of general law as to which the decisions of the courts of a state are not binding on a

federal court. 3. ADMINISTRATION OF Estates—PRIORITY OF JURISDICTION-SOUTH CAROLINA

STATUTE.

Under 2 Code Civ. Proc. S. C. $ 48, which provides that, "when any probate court shall have first taken cognizance of the settlement of the estate of a deceased person such court shall have jurisdiction of the disposition and settlement of all the personal estate of such deceased person to the exclusion of all other probate courts," that court first "takes cognizance of the settlements of an estate which first grants letters thereon, which is the first judicial act in the proceeding, the petition being ex

parte, and the issuance of citation thereon ministerial. 4. MASTER AND SERVANT-INJURY OF SERVANT-RULE GOVERNING MASTER'S

DUTY.

The rule as to the duty of a master in respect to providing a safe place to work is not applicable to a case where a servant is injured by reason of defects in or insufficiency of a temporary structure, such as a scaffolding or framework for supporting heavy materials, which are appliances 6. SAME-RULE APPLIED-INSPECTION.

or instrumentalities by means of which the work is to be done. 5. SAME-APPLIANCES OR TEMPORARY STRUCTURES.

When, by the express or implied contract between the master and seryant, the former undertakes to furnish the necessary tools or appliances, it is his duty to use ordinary care to see to it that such instrumentalities are safe and suitable; and as this duty, when it exists, is one of the absolute or personal duties, any servant to whom the master delegates it is pro hac vice a vice principal, for whose negligence the master is responsible. But where, by the express or implied contract, the master undertakes merely to furnish the materials needed for the construction of some appliance, which is to be constructed by the workmen themselves, as incident to the main work, the master's duty is performed if he furnishes suitable material and competent workmen, and the negligence of a foreman in charge of the construction by which a workman is injured is that of a fellow şervant, for which the master is not liable.

2. State laws as rules of decision in federal courts, see note to Griffin v. Wheel Co., 9 C. C. A, 518; Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.

A bridge company sent a force of men under a foreman to make repairs on a railroad bridge, consisting in part of replacing certain old parts with heavy steel girders. In doing this, it was necessary to construct on the spot wooden frames or bents to support the weight of the girders while they were being put in place, and they were made by the workmen as an incident to the work. Owing to the defective construction or condition of one of such frames, which had been erected three days before, a girder fell, and killed one of the workmen. Held that, in the absence of evidence that the materials furnished by the company were not in all respects suitable and sufficient to make a safe structure, it was not liable for the negligence of the foreman either in the construction of the frame or in failing to inspect it on the day of the accident. In Error to the Circuit Court of the United States for the District of South Carolina, at Charleston.

J. S. Muller, for plaintiff in error.
Stanyarne Wilson and J. Q. Marshall, for defendant in error.

Before GOFF, Circuit Judge, and BRAWLEY and McDOWELL, District Judges.

MCDOWELL, District Judge. S. J. Castleberry, an inhabitant of Spartanburg county, S. C., was, on August 26, 1901, killed while employed in repairing a bridge. His wife, Effie Castleberry, petitioned the probate court of Richland county (in which the decedent had no estate and of which he was not a resident) for letters of administration on August 29, 1901. Citation was issued by that court on the same day, and letters of administration were granted Effie Castleberry on September 19, 1901. On August 30, 1901, Jas. H. Castleberry, the father of the decedent, filed his petition for letters of administration in the probate court of Spartanburg county. Citation issued the same day, and letters of administration were granted on September 16, 1901. On September 17, 1901, Jas. H. Castleberry instituted the present action in a state court of South Carolina, which was removed to the federal court; and on September 21, 1901, Effie Castleberry, in the same state court, instituted her suit for the same cause of action against the plaintiff in error here. On December 4, 1902, Effie Castleberry applied for and obtained from the probate court of Richland county an order revoking the letters granted her by that court, in which order is a recital that the court had acted under a misapprehension, and had not had the right to issue letters of administration. And on December 9, 1902—the day the trial of the case at bar was commenced in the federal Circuit Court, and just before it was commenced-Effie Castleberry dismissed her action against the plaintiff in error here. The jury rendered a verdict for the plaintiff below and judgment was entered in accordance therewith.

It is contended for the plaintiff in error that the plaintiff below did not have title as administrator at the time of the institution of this action. The trial court decided this question against the plaintiff in error, and this is the first error assigned here. The statute law of South Carolina bearing on the question here presented is as follows (2 Code Civ. Proc.):

"Sec. 37. Every judge of probate in his county shall have jurisdiction in all matters, testamentary and of administration, in business appertaining to minors and the allotment of dower, in cases of idiocy and lunacy, and of persons non compotes mentis."

"Sec. 39. The probate of the will and the granting of administration of the estate of any person deceased shall belong to the judge of probate for the county in which such person was last an inhabitant; but if such person was not an inhabitant of this state, the same shall belong to the judge of probate in any county in which the greater part of his or her estate may be.

"Sec. 40. All proceedings in relation to the settlement of the estate of any person deceased shall be had in the probate court of the county in which his will was proved, or administration of estate was granted.”

“Sec. 48. When any probate court shall have first taken cognizance of the settlement of the estate of a deceased person, such court shall have jurisdiction of the deposition [disposition and settlement of all the personal estate of such deceased person to the exclusion of all other probate courts."

"Sec. 49. The jurisdiction assumed by any probate court in any case, so far as it depends on the place of residence or the location of the estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case, or when the want of jurisdiction appears on the record."

Rev. St. § 2027 (1901):

"The judge of probate shall grant administration in the following manner : After requiring the person or persons applying therefor to file a petition in writing, he shall issue a citation to the kindred or creditors of the intestate or person deceased, to show cause, if any they have, why administration shall not be granted to the person or persons applying therefor," etc.

The alleged invalidity of the grant of letters of administration to the plaintiff below by the Spartanburg court is founded on section 48 of volume 2, Code Civ. Proc., supra.

It is a settled rule of law of the state courts of South Carolina that the first grant of letters of administration by a domestic probate courteven when made by a court not having jurisdiction of the particular estate in question--cannot be collaterally attacked. Petigru v. Ferguson, 6 Rich. Eq. 380. See, also, Turner v. Malone, 21 S. C. 398; Ex parte Crafts, 28 S. C. 281, 5 S. E. 718. And this rule was followed by at least two of the subordinate federal courts in respect to a judgment of a probate court of the state in which these federal courts were sitting. Holmes v. Oregon & C. R. Co. (D. C.) 5 Fed. 523; Id. (C. C) 9 Fed. 229. But we regard these opinions as overruled by the Supreme Court in later cases cited herein below. However, the courts of the state in which a federal court sits are not domestic courts quoad the federal court. The two courts are created by and exist under different governments. Swift v. Meyers (C. C.) 31 Fed. +3; Hekking v. Pfaff, 91 Fed. 60, 33 C. C. A. 328, 43 L. R. A. 618; Pennover v. Neff, 95 U. S. 732, 21 L. Ed. 565. Hence the federal court sitting in South Carolina should, on collateral attack, examine the question of the jurisdiction of a South Carolina state court which rendered a judgment relied on in such federal court. That there is a right of collateral attack for want of jurisdiction on a judgment of a court of another sovereignty is the rule prevailing in the majority of the states, not excepting South Carolina. McCreery v. Davis, 44 S. C. 195, 22 S. E. 178, 28 L. R. A. 655, 51 Am. St. Rep. 794; 2 Black on Judgments (2d Ed.) $ 897; 12 Am. & Eng. Ency. (1st Ed.) 148 et seq. And beyond question this is the rule laid down by the Supreme Court of the United States, which we are required to follow. Thompson v. Whitman, 18 Wall. 457, 21

131 F.--12

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