Chapman, O. J.
The defendants were carriers of passengers upon their steamboat, and the plaintiff was a passenger paying fare and having the ordinary rights of passengers. The steward and some of the table waiters wrongfully knocked him down and maltreated him.
The case thus presented differs in one respect from that of Howe v. Newmarch, 12 Allen, 49, for in that case the plaintiff was a stranger both to the master and the servant. But here the plaintiff is entitled to all the rights which he deri ved fi om the contract of the defendants as carriers. The implied contract differs in some respects from that of carriers of goods. So far as this case is concerned, we have only to consider what it is in respect to the conduct of their servants. Nor do we deem it necessary to consider what it is in regard to selecting suitable persons as servants, or in regard to retaining incompetent servants after notice of their incompetency; for there is nothing in the bill of exceptions tending to show that they were in fault in this respect. We shall consider the matter on the assumption that they had not been negligent in selecting or retaining their servants.
As a general rule, the master is liable for what his servant does in the course of his employment; but in regard to matters wholly disconnected from the service to be rendered the master is under no responsibility for what the servant does or neglects to, do. The reason is, that in respect to such matters he is not a servant. Aldrich v. Boston & Worcester Railroad Co. 100 Mass. 31. If therefore any of the officers or men connected with the running of the defendants’ boat had met the plaintiff in the street or elsewhere, in a position wholly disconnected with their duties to the defendants, and committed an assault and battery upon him, it is clear that the defendants would not have been liable.
There are two views which may be taken in the present case, One is the view which was taken by the court in Philadelphia Reading Railroad Co. v. Derby, 14 How. 468. The plaintiff in that action was riding gratuitously; and the court held that the company were liable to him, not on the ground of a contract be [189]*189tween the parties, but because he was injured by their carelessness when he was where he had a lawful right to be. But as the plaintiff in this case was a passenger for hire, we think it better to consider what the contract was between them. This has been discussed in the following cases: Chamberlain v. Chandler, 3 Mason, 242; Nieto v. Clark, 1 Clifford, 145 ; Baltimore & Ohio Railroad Co. v. Blochei, 27 Maryl. 277; Pittsburg, Fort Wayne & Chicago Railroad Co. v. Hinds, 53 Penn. State, 512; Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co. 97 Mass. 361, and 100 Mass. 34; Milwaukee & Mississippi Railroad Co. v. Kinney, 10 Wisc. 388. It has also been thoroughly discussed in Goddard v. Grand Trunk Railway, 57 Maine, 202. These cases were cited by Clifford, J., in Pendleton v. Kinsley, Rhode Island Circuit, June 1870, not yet reported, and the terms of the contract for carriage by water are well stated by him in conformity with the authorities, as follows : “ Passengers do not contract merely for shiproom and transportation from one place to another; but they also contract for good treatment, and against personal rudeness and every wanton interference with their persons either by the carrier or his agents employed in the management of the ship or other conveyance.” In respect to such treatment of passengers, not merely the officers but the crew are the agents of the carriers. In Chamberlain v. Chandler, 3 Mason, 242, cited above, Story, J., says that kindness and decency of demeanor is a duty not limited to the officers, but extends to the crew.
The interpretation of the contract of the carrier which is given in the cases above cited is not unreasonable. It is not more extensive than the necessities of passengers require. Nor is it difficult to perform. The cases in which it is violated by servants, even of the lowest grade, on board a ship or engaged in the management of a railroad train, are rare, and the carrier rather than the passenger ought to take the risk of such exceptional cases, the passenger being necessarily placed so much within the power of the servants.
In this case, the servants who committed the wrong, being the steward and table waiters, were those who were engaged in pr> [190]*190viding meals, waiting on the tables and collecting the pay foi meals. They were treating the plaintiff’s relative with gross rudeness in connection with this business, and the plaintiff interfered only by a remark that was proper, whereupon the assault was committed. It was not as if a quarrel had occurred on shore and disconnected with the duties of these persons on shipboard. It violated the contract of the defendants as to how the plaintiff should be treated by their servants who were employed on board the ship and during the passage. For a violation of such a contract either by force or negligence, the plaintiff may bring an action of tort, or an action of contract.
There were many prayers for instructions, and many instruo tians were given to the jury in application to the various aspects of the case; but in our view many of them were immaterial. Some of them were too favorable to the defendants, and only one of them could have been injurious to them.
In answer to a request from a juror as to what was the scope of the respective duties of the employees on the steamer, the court replied, in substance, that the jury must exercise their own judgment— that it must depend on circumstances — there could be no law in the matter, and the jury were to use their own judgment. A correct answer would have been, to state the contract which the carriers had made, and instruct the jury that each of the hands employed on board the ship was bound to do faithfully the duty assigned to him in the performance of this contract, and not one- of them was at liberty to do an act in violation of it, and if he did so, the defendants were liable. But there is nothing in the bill of exceptions to show that it applied to any matter that is material; for the instructions already given had stated the liability of the defendants too narrowly.
Exceptions overruled.
After this decision, the defendants moved the superior court, in conformity with its rules, to set aside the verdict and grant a new trial on the ground that the damages were excessive. Before a hearing was had on this motion, those of the defendants who were citizens of Maine made and filed, in accordance with the [191]*191U. S. St. of 1867, c. 196, (14 U. S. Sts. at Large, 558,) an affidavi and a petition for the removal of the suit to the next circuit court of the United States to be held in this district, and offered good and sufficient surety for the entry in that court of copies of all proceedings, as required by that statute, and Sled such copies in that court. The plaintiff objected to such removal, on the ground that the petition was filed too late, and Pitman, J., on that ground declined to grant it; and the defendants alleged exceptions, which were argued in November 1871.
Morse, (Sweetser with him,) for the defendants.
Brackett, (Train with him,) for the plaintiff.
Gray, J.
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Chapman, O. J.
The defendants were carriers of passengers upon their steamboat, and the plaintiff was a passenger paying fare and having the ordinary rights of passengers. The steward and some of the table waiters wrongfully knocked him down and maltreated him.
The case thus presented differs in one respect from that of Howe v. Newmarch, 12 Allen, 49, for in that case the plaintiff was a stranger both to the master and the servant. But here the plaintiff is entitled to all the rights which he deri ved fi om the contract of the defendants as carriers. The implied contract differs in some respects from that of carriers of goods. So far as this case is concerned, we have only to consider what it is in respect to the conduct of their servants. Nor do we deem it necessary to consider what it is in regard to selecting suitable persons as servants, or in regard to retaining incompetent servants after notice of their incompetency; for there is nothing in the bill of exceptions tending to show that they were in fault in this respect. We shall consider the matter on the assumption that they had not been negligent in selecting or retaining their servants.
As a general rule, the master is liable for what his servant does in the course of his employment; but in regard to matters wholly disconnected from the service to be rendered the master is under no responsibility for what the servant does or neglects to, do. The reason is, that in respect to such matters he is not a servant. Aldrich v. Boston & Worcester Railroad Co. 100 Mass. 31. If therefore any of the officers or men connected with the running of the defendants’ boat had met the plaintiff in the street or elsewhere, in a position wholly disconnected with their duties to the defendants, and committed an assault and battery upon him, it is clear that the defendants would not have been liable.
There are two views which may be taken in the present case, One is the view which was taken by the court in Philadelphia Reading Railroad Co. v. Derby, 14 How. 468. The plaintiff in that action was riding gratuitously; and the court held that the company were liable to him, not on the ground of a contract be [189]*189tween the parties, but because he was injured by their carelessness when he was where he had a lawful right to be. But as the plaintiff in this case was a passenger for hire, we think it better to consider what the contract was between them. This has been discussed in the following cases: Chamberlain v. Chandler, 3 Mason, 242; Nieto v. Clark, 1 Clifford, 145 ; Baltimore & Ohio Railroad Co. v. Blochei, 27 Maryl. 277; Pittsburg, Fort Wayne & Chicago Railroad Co. v. Hinds, 53 Penn. State, 512; Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co. 97 Mass. 361, and 100 Mass. 34; Milwaukee & Mississippi Railroad Co. v. Kinney, 10 Wisc. 388. It has also been thoroughly discussed in Goddard v. Grand Trunk Railway, 57 Maine, 202. These cases were cited by Clifford, J., in Pendleton v. Kinsley, Rhode Island Circuit, June 1870, not yet reported, and the terms of the contract for carriage by water are well stated by him in conformity with the authorities, as follows : “ Passengers do not contract merely for shiproom and transportation from one place to another; but they also contract for good treatment, and against personal rudeness and every wanton interference with their persons either by the carrier or his agents employed in the management of the ship or other conveyance.” In respect to such treatment of passengers, not merely the officers but the crew are the agents of the carriers. In Chamberlain v. Chandler, 3 Mason, 242, cited above, Story, J., says that kindness and decency of demeanor is a duty not limited to the officers, but extends to the crew.
The interpretation of the contract of the carrier which is given in the cases above cited is not unreasonable. It is not more extensive than the necessities of passengers require. Nor is it difficult to perform. The cases in which it is violated by servants, even of the lowest grade, on board a ship or engaged in the management of a railroad train, are rare, and the carrier rather than the passenger ought to take the risk of such exceptional cases, the passenger being necessarily placed so much within the power of the servants.
In this case, the servants who committed the wrong, being the steward and table waiters, were those who were engaged in pr> [190]*190viding meals, waiting on the tables and collecting the pay foi meals. They were treating the plaintiff’s relative with gross rudeness in connection with this business, and the plaintiff interfered only by a remark that was proper, whereupon the assault was committed. It was not as if a quarrel had occurred on shore and disconnected with the duties of these persons on shipboard. It violated the contract of the defendants as to how the plaintiff should be treated by their servants who were employed on board the ship and during the passage. For a violation of such a contract either by force or negligence, the plaintiff may bring an action of tort, or an action of contract.
There were many prayers for instructions, and many instruo tians were given to the jury in application to the various aspects of the case; but in our view many of them were immaterial. Some of them were too favorable to the defendants, and only one of them could have been injurious to them.
In answer to a request from a juror as to what was the scope of the respective duties of the employees on the steamer, the court replied, in substance, that the jury must exercise their own judgment— that it must depend on circumstances — there could be no law in the matter, and the jury were to use their own judgment. A correct answer would have been, to state the contract which the carriers had made, and instruct the jury that each of the hands employed on board the ship was bound to do faithfully the duty assigned to him in the performance of this contract, and not one- of them was at liberty to do an act in violation of it, and if he did so, the defendants were liable. But there is nothing in the bill of exceptions to show that it applied to any matter that is material; for the instructions already given had stated the liability of the defendants too narrowly.
Exceptions overruled.
After this decision, the defendants moved the superior court, in conformity with its rules, to set aside the verdict and grant a new trial on the ground that the damages were excessive. Before a hearing was had on this motion, those of the defendants who were citizens of Maine made and filed, in accordance with the [191]*191U. S. St. of 1867, c. 196, (14 U. S. Sts. at Large, 558,) an affidavi and a petition for the removal of the suit to the next circuit court of the United States to be held in this district, and offered good and sufficient surety for the entry in that court of copies of all proceedings, as required by that statute, and Sled such copies in that court. The plaintiff objected to such removal, on the ground that the petition was filed too late, and Pitman, J., on that ground declined to grant it; and the defendants alleged exceptions, which were argued in November 1871.
Morse, (Sweetser with him,) for the defendants.
Brackett, (Train with him,) for the plaintiff.
Gray, J.
The objections to the granting of the petition for the removal of this case into the circuit court of the United States under the act of congress of 1867, c. 196, are manifold.
The act of congress provides that any suit in a state court, “ in which there is a controversy between the citizen of the state in which the suit is brought and a citizen of another state,” and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, may be removed into the circuit court of the United States upon a petition, filed in the state court “ at any time before the final hearing or trial of the suit,” by “ such citizen of another state, whether he be plaintiff or defendant,” accompanied by his affidavit “ that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court,” and by an offer of sufficient surety for the entry of the case and copies of the papers therein in the federal court; and “ it shall be thereupon the duty of the state court to accept the surety and proceed no further in the suit,” and, the copies having been entered in the United States court, “ the suit shall then proceed in the same manner as if it had been brought there by original process.”
1. The petition in this case is filed by three only out of nine defendants. We have much doubt whether, when the party in whose behalf the petition is filed consists of several persons, the petition can be supported unless all of them join therein. The ’onstruetion uniformly put upon the similar provision in the judiciary act of 1789, e. 20, § 12, has been that all must join in the [192]*192petition for removal. Ward v. Arredondo, 1 Paine, 410. Beardsley v. Torrey, 4 Wash. C. C. 286. Smith v. Rines, 2 Sumner, 338. Ex parte Girard, 3 Wallace, Jr., 263.
2. This is an action of tort, which may be maintained against all or any of the wrongdoers, jointly or severally. If it should be deemed to have been duly removed into the federal court so far as the petitioners for such removal are concerned, no reason has been shown why it should not proceed in the state courts as against those defendants who do not seek to remove it into another jurisdiction, and who are themselves each liable for the entire damages which may be finally recovered. Smith v. Rines, above cited.
3. Five of the nine defendants in this case, as well as the plaintiff, are citizens of this Commonwealth; and the courts of the United States are not authorized by the Constitution to take jurisdiction, so far as it depends upon the citizenship of the parties, of suits between citizens of the same state, but only of suits between citizens of different states or between a citizen and an alien, and can therefore have no jurisdiction ' (except when it grows out of the subject matter) of an action in which any of the plaintiffs and of the defendants, who are real parties in interest, by or against whom relief is sought, are citizens of the same state. Const. of U. S. art. 3, § 2. Strawbridge v. Curtiss, 3 Cranch, 267. New Orleans v. Winter, 1 Wheat. 91. Wood v. Davis, 18 How. 467. Tuckerman v. Bigelow, 21 Law Reporter, 208. Wilson v. Blodget, 4 McLean, 363. Cases already cited.
4. The words “ before final hearing or trial ” in the act of congress of 1867 would seem to be equivalent in meaning to the same words — “ trial or final hearing ” — as transposed in the similar act of 1866, c. 288 ; and it is at least doubtful whether a party, who has once taken the chance of a decision upon the merits by a a trial before the jury in an action at law, or a hearing before the court in a suit in equity, in the state court, can, even if the case stands open for a new trial or further hearing, remove it into another tribunal. It has been decided by the supreme court of Wisconsin in a very able judgment that he could not. Akerly v Vilas, 24 Wisc. 165. There have been decisions of single judges [193]*193of the federal courts within the same circuit to the contrary. S. O. 1 Abbott U. S. 284. Johnson v. Monell, Woolworth, 390. It cannot therefore be deemed to be authoritatively settled whether a case can be removed into the courts of the United States after one verdict has been returned and set aside in the state court. And it is not necessary for us now to decide that question.
5. In the present case, the verdict has not been set aside, the exceptions taken at the trial have been overruled by this court, and the only question remaining to be disposed of is upon the motion for a néw trial on the ground that the damages found by the jury were excessive. The 7th article of amendment of the Constitution of the United States declares that “ no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.” It was long ago decided by this court, and more recently by the supreme court of the United States, that an act of congress providing for the removal of an action into the courts of the United States for trial, after verdict and judgment in a state court, was a violation of this article of the Constitution. Wetherbee v. Johnson, 14 Mass. 412. Parsons v. Bedford, 3 Pet. 433. Justices v. Murray, 9 Wallace, 274. The reasons given for those decisions are equally applicable to a case in which a verdict has been rendered and has not been set aside, and no question of law remains open; for by the rules of the common law facts once tried by a jury cannot be reexamined except by a motion for a new trial, and that motion can only be granted by the court which ordered the trial and before which it was had. 14 Mass. 420. 3 Pet. 448. 9 Wallace, 277, 278. The act of congress cannot therefore be construed to authorize this action to be removed into the circuit court of the United States at the present stage, and the superior court rightly ruled that the petition for removal was filed too late. ‘ Exceptions overruled.