(— Tenn., 290 S. W. 33.) that I will support the Constitution of the United States." Every person handling the mail is required to take this oath, and same was subscribed by Jenks. Upon this state of facts, and under the authorities, it is manifest that the relationship of master and servant existed between Jenks and the company. Every element of that relationship present. Jenks was hired by the company; his compensation was fixed and paid by it; he was under its control; and could be discharged by it at pleasure. Master and servant-relation between mail contractor and truck driver. was The fact that the mail was to be transported under the supervision of the postmaster at Knoxville, or that he had a right to discharge Jenks, would not change the relationship. 39 C. J. p. 5, § 4, notes 26, 27. This question is fully discussed in the case of Sawyer v. Corse, 17 Gratt. 230, 94 Am. Dec. 445. In this situation, the universal rule is invoked by claimants, that, under the doctrine of respondeat superior, a master is liable for injury to person or property resulting from the acts of his servant done within the scope of his employment. On the other hand, counsel for the company insist that, even though Jenks be treated as its servant, he was engaged in handling mail, and was therefore an agency of the government, as were his employers, and the equally well-recognized rule is invoked which exempts a public officer from liability for the acts and defaults of his official subordinates. The doctrine is thus stated in 1 Am. Lead. Cas. 3d ed. 621: "With regard to the responsibility of a public officer for the misconduct or negligence of those employed by or under him, the distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately and paid by him, and responsible to him, or whether they are his official subordinates, nominated perhaps by him, but officers of the gov ernment; in other words, whether the situation of the inferior is a public officer or private service. In the former case the official superior is not liable for the inferior's acts; in the latter he is." The foregoing statement is approved by the following authorities: Shearm. & Redf. Neg. § 180; Sawyer v. Corse, supra; Central R. & Bkg. Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Raisler v. Oliver, 97 Ala. 710, 38 Am. St. Rep. 213, 12 So. 238; Barker v. Chicago, P. & St. L. R. Co. 243 Ill. 482, 26 L.R.A. (N.S.) 1058, 134 Am. St. Rep. 382, 90 N. E. 1057. In the last-named case it is said: "The exemption of public officers from responsibility for the negligence or positive wrongs of their subordinates in the discharge of their public duties arises from considerations of public policy. Competent persons would not be willing to accept positions which imposed upon them liability for torts and wrongs committed by subordinates whom they did not appoint and could not discharge These considerations do not apply to a corporation undertaking, by contract, to perform work or render service for the government for a compensation to be paid to it and with a view to its own profit, and where its subordinates are employed and paid by it and liable to be dismissed at its pleasure. It is said in Sawyer v. Corse, supra: 'Such a contractor is in no just and proper sense an officer of the government, and though he may be said to be in a certain sense an agent of the government because he is engaged in working for the government, yet the laborers and others whom he employs under him in the execution of his contract cannot be said to be agents of the government, which does not know them, and has nothing to do with them. He is not a public agent because he is working for his own profit by fulfilling a contract which he has bound himself to perform and for which he is to receive compensation.' Again, in Sawyer v. Corse, supra, it is said: or "The effort has been made both in England and the United States to extend the application of this principle of exemption so as to embrace every case of a municipal corporation clothed with authority charged with a duty for the accomplishment of objects of a public nature and for the public benefit. But it has been held that where the authority, though for the accomplishment of objects of a public nature and for the benefit of the public, is one from the exercise of which the corporation derives a profit, or where the duty, though of a public nature and for the public benefit, may fairly be presumed to have been enjoined upon the corporation in consideration of privileges granted to and accepted by it, the exemption does not apply. And the reason is, that in such cases the corporation is not acting merely as an agent of the public and with a view solely to the public benefit, but that in the former it is pursuing its own interest and profit, and in the latter is executing a contract for which it has received a consideration. Scott v. Manchester, 2 Hurlst. & N. 204, 157 Eng. Reprint, 85 Ex. Ch.; Weightman v. Washington, 1 Black, 39, 17 L. ed. 52.” On the other hand, the following cases hold that the mail contractor and his driver are agents of the government: Foster v. Metts, 55 Miss. 77, 30 Am. Rep. 506; Boston Ins. Co. v. Chicago, R. I. & P. R. Co. 118 Iowa, 423, 59 L.R.A. 796, 92 N. W. 88; Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. Ste. M. R. Co. 65 L.R.A. 397, 54 C. C. A. 608, 117 Fed. 434; Hutchins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248; Conwell v. Voorhees, 13 Ohio, 523, 42 Am. Dec. 206. employed and paid, and liable to be discharged at pleasure by the contractor, the rider or driver is not engaged in the private service of the contractor, but is employed in the public service. United States v. Belew, 2 Brock. 280, Fed. Cas. No. 14,563. "A carrier of the mail is required by law to be of a certain age, to take a prescribed oath, is exempted from militia and jury service, and is liable to certain penalties for violations of duty, as well as subject to be discharged from service by any postmaster in a certain contingency. He is a subordinate agent of the government, whose employment is contemplated and provided for by the government in contracting to have the mail carried. Ibid. "Contractors for carrying the mail are responsible for their own misfeasances, but not for those of their assistants. The assistants must answer for themselves. The only security for the safe transmission of packages by mail is the safeguards thrown around it by the regulations of the government, which announces that all valuables sent by mail shall be at the risk of the owner. All that the government promises in case of loss of money or other valuables from the mail is to endeavor to recover it and to punish the offender. "The duty of contractors to carry the mail is to carry it from place to place, subject to the regulations of the postoffice officials. Their obligation is to the government. They and their assistants are agents of the government, and subject to the rule of law applicable in such cases. Story, Agency, §§ 313, 319a, 321; Shearm. & Redf. Neg. §. 177. "It is well settled that postmasters are not liable for losses occasioned by the sub-agents, clerks and servants employed under them, unless they are guilty of negligence in not selecting persons of suitable skill, or in not exercising a reasonable superintendence and vigilance over their conduct." From the foregoing it will be ob (Tenn., 290 S. W. 33.) served that the authorities are divided upon the question as to whether a mail contractor and his carrier are officers of the government. But in all of the decisions cited, with one exception, the courts were dealing with cases of theft or loss of mail through the negligence of the carriers, and were not considering a case like the one here involved, where the instrumentality employed for transporting the mail was selected by the contractor, operated by one of his choosing in the manner directed by him and for his financial gain. The case may be likened to that of a railroad transporting mail under contract for a valuable consideration. In such case the company is generally held liable for injury to person or property due to the negligence of its servants. The fact that, at the time, it was the agent of the government, engaged in transporting mail, does not exempt it. This question was raised in Barker v. Chicago, P. & St. L. R. Co. supra, where a railway mail clerk was permitted to recover for injuries due to the negligence of the company's servants. In that case the court said: "The maxim of 'respondeat superior' is founded on the principle that he who expects to derive advantage from an act which is done by another for him must answer for any injury which another may sustain from it. We know of no reason why it should not apply here. The employees of the appellant were not public officers or in any official service or employment. They were not employed for the special service of transporting the mails, but were the private servants of appellant, engaged in the work of appellant in the general business of transportation for its benefit and profit, employed by appellant, and subject to be discharged at its pleasure. It does not appear that the servants of the appellant, by whose negligence the injury to appellee is claimed to have occurred, were even incidental ly engaged in any way in the transportation of the mails. "Several cases have been cited which have held that a mail contractor is not liable for the loss of property transmitted by mail and lost through the carelessness of the contractor's servants [citing authorities]. These cases proceed upon the theory that mail contractors are public agents, and not responsible for the omissions, negligence, or misfeasance of those employed by them. We think the cases which hold the contrary are supported by the sounder reason. No case has been cited holding that a railroad company is not liable for injury caused to a postal clerk by the negligence of its employees while in the mail car in the performance of his duties. There are numerous decisions that they are so liable to the same extent as to a passenger for hire." In the annotation, beginning on page 517, L.R.A.1918E, will be found numerous cases sustaining a recovery in favor of an injured mail clerk due to the negligence of the employees of the company. It is said in those cases that the company owes a higher degree of care to its passengers than to a mail clerk handling mail on the train. In all of those cases the railroad was actually engaged in transporting mail; and, according to the logic of the company in the instant case, it was not liable for injury resulting from the negligence of its employees operating the train, but the courts held otherwise. Without undertaking to draw a distinction between a case like the one involved and one where mail is lost or stolen, we are unwilling to extend the rule, relied upon by the company, to a case of this kind. These large trucks are instrumentalities of a dangerous character, as has been frequently held by the courts. Quite naturally the mail contractor will employ a carrier as cheaply as possible, since the wages of such employee come out of his pocket. If the contractor is not re sponsible for the negligent acts of his carrier, then the contractor will not be so careful in choosing his drivers. The reason for the rule exempt- Postoffice-liability of mail contractor for negligence of servant. cation in a case of this kind. The exemption set forth in the quotation from 1 Am. Lead. Cas. 3d ed. 621, supra, is logical, reasonable, and just, and fits a case like the present. It seems illogical to say that, where a company contracts with a merchant to transport goods from his place of business to the station, and likewise contracts with the government to transport mail from the postoffice to the station, and uses the same truck and the same driver in both undertakings, it is liable in the first case for the negligence of its driver, but not in the second. The following excerpt from the opinion in Sawyer v. Corse, 17 Gratt. 230, 94 Am. Dec. 445, with respect to the contract there involved, likewise applies to the contract in this case, to wit: "The terms of the contract between Sawyer and the department indicate clearly the understanding and intention of the parties to it, that the carriers whom Sawyer might employ would be his agents and servants, for whose acts he would be answerable." For the reasons indicated above, the judgments of the Court of Appeals will be reversed, and those of the Circuit Court affirmed. Counsel for the original plaintiffs also ask that the $3,500, remitted at the suggestion of the trial court, be restored. This is only done where it appears that the trial court has abused ing remittitur. his discretion, which Appeal-restor is not the case here. ANNOTATION. Responsibility of mail contractor to third person for negligence or other misconduct of an employee. [Postoffice, §§ 61, 9.] I. Scope and introduction, 198. II. In general, 199. III. Where the contractor is a corporation, 202. a. As affected by selection of employees, 203. b. As affected by character of service rendered, 204. 1. Scope and introduction. An extended search has not disclosed any case other than the reported case (PRYOR BROWN TRANSFER CO. v. GIBSON, ante, 193), and that of Barker v. Chicago, P. & St. L. R. Co. (1909) 243 Ill. 482, 26 L.R.A. (N.S.) 1058, 134 Am. St. Rep. 382, 90 N. E. 1057, referred to in the opinion, wherein the question was decided as to whether a mail contractor is a public officer or agent exempt from responsibility for personal injuries to a third person resulting from the negligence of an employee in carrying the mail. There are many cases involving the liability of a carrier for injury to a mail clerk in which it appears to have been assumed that the carrier could not have escaped responsibility for the negligence of its employees upon that ground, as the decisions turn upon some question involving the status or relation of the mail clerk to the carrier, or upon some other question not involving the point under annotation. The cases, other than those above referred to, which are cited in this annotation, involve the question as to the contractor's responsibility for loss or theft of the mail. It is not concerned with the question as to the responsibility of the contractor to the government, or his liability under bond. The exemption of public officers from responsibility for the acts and defaults of those employed by or under them in the discharge of their public duties is allowed, in a great measure, from considerations of publie policy. From like considerations it has been extended to the cases of persons acting in the capacity of public agents engaged in the service of the public, and acting solely for the public benefit, though not strictly filling the character of officers or agents of the government. Yet some courts hold that where the subordinate is employed in a private capacity by a public officer, and is in fact not himself an officer known to the law, his employer will be liable for his acts or omissions. This, in effect, is the case of a public officer employing private servants and employees of his own in the execution of his duties, for whose conduct he is liable under the principle of respondeat superior. 22 R. C. L. p. 488, § 166. In Sawyer v. Corse (1867) 17 Gratt. (Va.) 230, 94 Am. Dec. 445, the court, quoting from 1 Am. Lead. Cas. 3d ed. p. 621, states the rule thus: "With regard to the responsibility of a public officer for the misconduct or negligence of those employed by or under him, the distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately and paid by him, and responsible to him, or whether they are his official subordinates, nominated perhaps by him, but officers of the government; in other words, whether the situation of the inferior is a public officer or private service. In the former case, the official superior is not liable for the inferior's acts; in the latter, he is." The character of the service in which the agent is engaged must determine in each case whether the subordinate agent engaged in carrying the mail is, or is not, a public agent. Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. Ste. M. R. Co. (1902) 65 L.R.A. 397, 54 C. C. A. 608, 117 Fed. 434, writ of certiorari denied in (1902) 187 U. S. 648, 47 L. ed. 348, 23 Sup. Ct. Rep. 847, writ of error dismissed in (1904) 192 U. S. 371, 48 L. ed. 484, 24 Sup. Ct. Rep. 325. And in Foster v. Metts (1877) 55 Miss. 77, 30 Am. Rep. 504, it is held that the true test as to whether a contractor is liable for negligence of his employee in carrying the mail is not to be determined by who appoints or pays him, or may dismiss him, but by whether he is about a public employment or a private service. II. In general. It appears that the majority of courts hold that a mail contractor is not liable to third persons for the negligent acts of employees while engaged in carrying the mails, on the theory that the employee is an agent of the government, and not a mere servant of the contractor. Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. Ste. M. R. Co. (1902) 65 L.R.A. 397, 54 C. C. A. 608, 117 Fed. 434, writ of certiorari denied in (1904) 187 U. S. 648, 47 L. ed. 348, 23 Sup. Ct. Rep. 847, writ of error dismissed in (1904) 192 U. S. 371, 48 L. ed. 484, 24 Sup. Ct. Rep. 325; Boston Ins. Co. v. Chicago, R. I. & P. R. Co. 1902) 118 Iowa, 423, 59 L.R.A. 796, 92 N. W. 88; Foster v. Metts (1877) 55 Miss. 77, 30 Am. Rep. 504; Hutchins v. Brackett (1850) 22 N. H. 252, 53 Am. Dec. 248; Conwell v. Voorhees (1844) 13 Ohio, 523, 42 Am. Dec. 206. Thus, in Hutchins V. Brackett (1850) 22 N. H. 252, 53 Am. Dec. 248, where a letter was lost by a mail carrier, the court, in holding that the contractor employing the carrier was not liable for his negligence, said that the mail carrier was acting as a public agent, in the discharge of a public duty, and not as a mere servant of the contractor who employed him, as he took an oath for the faithful discharge of his duty, and was subject by law to various penalties for violation of it. In Conwell v. Voorhees (Ohio) supra, it was held that a mail contractor was not liable for the negligence or misfeasance of his drivers in losing or |