Schuyler v. Southern Pacific Co.

STKAITP, O. J. This is an action brought by the plaintiffs and respondents to recover damages for the death of Charles A. Schuyler, alleged to have been caused by the defendant’s negligence while a passenger on one of defendant’s trains. A verdict was rendered for the plaintiffs on the 20th day of August, 1908. It is not made to appear when the judgment was; entered. It is shown that the judgment was recorded on the 17th day of December, 1908. A notice of appeal was served and filed the 1st day of April, 1909. The statute provides that an appeal may be taken within six months from the entry of the judgment. While no motion is made to dismiss the appeal, it nevertheless is urged that we are without jurisdiction to entertain the appeal because it was not taken in time. It is assumed by the respondents .that the judgment was entered on the day the verdict was rendered, and it is claimed by them that it is not shown by the bill of exceptions that a motion for a new trial was made, or, if made, when it was overruled, and therefore it is not affiratively made to appear that the appeal was taken within six months from the entry of the judgment, or the overruling of the motion for a new trial, Thotigh the judgment was entered on the day the verdict was rendered, yet we think the appeal was in time, for it is sufficiently disclosed by the bill of exceptions that a motion for a new trial was made 1 within time, and that it was overruled on the 4th day of January, 1909, at which time the judgment became final. The appeal was taken within six months from that time. — 586 — It is alleged in the complaint that the defendant is a common carrier of passengers for hire and owned and operated a railroad from Ogden, Utah, to San Francisco, Cal.; that, in connection with the business of carrying passengers for hire, the defendant had entered into engagements with the government of the United States to transport and carry between the points named United States mail, mail clerks, and employees employed in the railway mail service, including the deceased, for which the defendant received compensation from the government of the United States; that it was necessary for the deceased, who was an assistant chief mail clerk, in the discharge of his duties, to be in and ride on the mail cars operated by the defendant in carrying mails, and while he was “necessarily in a certain mail cal'” operated by the defendant in one of its trains from Oakland to Ogden, and while he was being so transported by the defendant “for a consideration and under arrangements between it and the government of the United States,” the train between Grart-ney and Luein stations, in Utah, was derailed through the defendant’s negligence, and the deceased killed. A petition was filed by the defendant to remove the case to the Circuit Court of the United States in and for the District of Utah on the ground “that the suit herein is of a civil nature at law, arising under the Constitution and laws of the United States (Section.-8 of Article 1), declaring that Congress shall have power to ‘establish postoffices and post roads,’ also ‘to regulate commerce with foreign nations and among the several states.’ Also under the act of Congress of the United States approved June 13, 1898, and June 9, 1896, and acts amendatory thereof and supplemental thereto, relating to the transportation of railway mail clerks, and other officers of the postoffice department of the government of the United States; also- the act of March 3, 1897, pertaining to messenger service in connection with railroads, etc.; also act of Congress of the United States, approved February 4, 1887,. and acts amendatory thereof, including the act approved June 29, 1906.” The court denied the motion to remove. Complaint is made of this ruling. It is especially urged — 587 — by the appellant that plaintiffs’ ease necessarily involves a construction of section 1, par. 4, of the Hepburn act (Act June 29, 1906, c. 3591, 34 Stat. 584; Fed. Stat. Ann. Supp. 1907, p. 169 [U. S. Comp. St. Supp. 1909, p. 1151]), which prohibits common carriers engaged in interstate commerce from issuing or giving free interstate transportation for passengers, except the persons and classes therein specified. It is contended that the case involves the question as to whether under the statute a clerk in the railway mail service of the United States, when not engaged in the discharge of his duties as a mail clerk, and when traveling for his own convenience and purpose wholly unconnected with any official duty, can lawfully be given free interstate transportation as in the act provided for the free transportation of railway mail clerks. The appellant claims that the statute forbids free interstate transportation for mail clerks in such case, and that the deceased on his trip from San Francisco to Ogden, when the derailment occurred, was so traveling for his own convenience wholly unconnected with any official duty, and that he was therefore not a passenger, but a trespasser. It, however, is averred in the complaint that the deceased was transported by the defendant under arrangements between it and the government of the United States by which the defendant engaged for a consideration and upon compensation received by it from the government of the United States to safely transport the deceased between the points named, and that the defendant, under such arrangement, had undertaken to so carry and transport the deceased. On the face of the complaint, it is not made to appear that the deceased’s right to transportation was acquired by virtue of the federal law referred to, nor that the con- 2 struction of a. federal law is involved, nor that plaintiffs’ case is dependent upon a federal law. Nor is it alleged in the complaint that the deceased was not in the discharge of his public duties, nor that he was traveling for his own convenience. The allegations of the complaint show rather the contrary. To make a suit arise under a law of the United States, the plaintiff must claim some legal right under such — 588 — law to sustain bis cause of action, which legal right is controverted by the defendant; and to make a case removable from the state court to the Circuit Court of the United States, under the present general statute, on the ground that it arises under a law of the United States, it must appear from the plaintiff’s statement of his cause of action in the initial pleading that it does so arise. (Moon on Removal of Causes, sections 101, 104.) A case cannot be removed simply because in the progress of the litigation it may be necessary to give a construction to the Constitution or laws of the 3 United States. It not being made to appear by the plaintiffs’ complaint that a federal law is involved, the court did not err in denying the motion for removal. The suit was brought by Mary R. Schuyler, the deceased’s widow, and his minor children by a guardian ad litem. The appointment of the guardian was alleged in the complaint. When the plaintiffs offered in evidence the order of the appointment, the defendant objected on the grounds that the statute only provides for the appointment of a guardian ad litem in a pending action, and then only for non-resident minor defendants; that the minor plaintiffs were non-residents, and that no action was pend- 4 ing when the order appointing the guardian was made. We think the statute (Sections 2907-8, Comp. Laws 1907) contemplates and provides for the appointment of a guardian ad litem for resident and non-resident minor plaintiffs as well as resident and non-resident minor defendants. In the defendant’s answer, it was admitted that the deceased was in the employ of the government of the United States as a railway mail clerk, and that the defendant was a common carrier for the transportation of property and passengers for hire, as averred in the complaint, and “that contractual relations existed between the defendant and the government of the United States with respect to the carrying of certain United States mail and certain employees of said government to whom was intrusted the supervision and care — 589 — of such mails as were by defendant transported under the agreement aforesaid, and that the defendant received compensation therefor.” It denied the alleged negligence, and pleaded that the deceased was only entitled to be upon the mail cars when he was in the discharge of his duties as a mail clerk, and that he, without the consent and knowledge of the government of the United States or the defendant, and in violation of the agreement existing between the defendant and the government, and with the intent, and for the purpose of deceiving the government and the defendant and avoiding the payment of fare, entered the mail car, and wrongfully, fraudulently, and in violation of law, and without the consent and knowledge of the defendant, remained in the car, and attempted to secure transportation therein, and, while he was so wrongfully and fraudulently upon the car, he received the injuries which resulted in his death. Upon these issues, the court instructed the jury that if they found from the evidence that the deceased was traveling on the defendant’s train, and was not performing duties relating to the mail service, but was traveling “simply for his own purpose unconnected with any official duties,” he was not a passenger for hire, but a trespasser to whom the defendant would not be liable for the alleged negligence and resulting injury. The appellant contends that' the evidence without dispute shows that the deceased was traveling on the defendant’s train “simply for his own purpose unconnected with official duties,” and that the verdict which was rendered by the jury was therefore contrary to the evidence and against the charge. The evidence without dispute shows the following facts: In November, 1906, the deceased, who then lived at Oakland, Cal., and who was in the employ of the United States mail service at San Francisco, was appointed an assistant chief clerk of the railway mail service with headquarters at Ogden, Utah. The Postmaster General issued to him the following commission: “Post-Office Department, Washington, D. 0. To Whom Concerned: The hearer hereof, Charles Albert Schuyler, has been appointed an assistant chief clerk, railway — 590 — mail service, with, headquaters Ogden, Utah, and will be obeyed and respected accordingly. Railroad companies are requested to extend to the holder of this commission the facilities of free transportation on the lines named on opposite page. If fare is charged receipt should be given. Valid only when issued through the office of the Second Assistant Postmaster General and countersigned by James E. White.” This was signed by G. B. Cortelyou, the Postmaster General, and countersigned by James E. White, general superintendent. On the opposite page were the words: “Good between all stations Utah, Idaho, Nevada, California, Montana and Colorado.” The position to which the deceased was appointed embraced the territory of Utah, a portion of Montana and Idaho, and a small portion of Nevada and Colorado. It did not include any portion of California. The chief clerk at Ogden, the assistant chief clerk, and all mail clerks running between San Francisco and Ogden, were under the supervision of the general superintendent at San Francisco. The superintendent testified1 that the deceased was required to perform “all of the duties assigned to him (by the chief clerk at Ogden), office duties assigned to him by the chief clerk, in addition to that, took the place of the chief clerk in the chief clerk’s absence, and became the acting chief clerk, with all of the powers of chief clerk; performed all the duties of the chief clerk, had the general duties assigned him of overseeing the service. . . . “The chief clerk, or assistant chief clerk” was required to “pay particular attention to the service, if he is properly performing his duties, whenever he is around a mail car, whenever he is at a transfer station or comes in contact with' railway postal clerks, in other words, anything that pertains to the transportation of mail is under his care, and carried with it the responsibility to all officials of the service. . . . All officials of the service are expected and are instructed to pay particular attention to the service, whether or not it comes within his particular scope. . . . We have general unwritten laws or regulations requiring every official of the service to be on watch regarding the service. . . . The chief clerk at — 591 — Ogden, bad jurisdiction only over tbe helpers running west on tbe line on wbicb tbe accident happened. . . . All postal clerks work directly under the chief clerk of tbe local district. Tbe chief clerk is reuired to report at tbe end of tbe probationary term of tbe clerk, as to bis fitness for permanent employment. On that report I base by recommendation to the department at Washington, and tbe report of tbe chief clerk determines, in a large measure, whether or not tbe clerk shall be retained. Tbe duty of tbe assistant chief clerk, if be comes in contact with tbe postal clerks, whether or not be finds an irregularity, is to make a report to bis chief clerk immediately upon bis return. Blank forms are furnished to all offices for such purposes.” Tbe chief clerk at Ogden testified: “The duties of an assistant chief clerk were an assistant to the chief clerk in tbe performance of tbe duties and attending to any matters that might be assigned to him by tbe chief clerk. At any time be would be on tbe road be would be expected to ride in tbe mail car and take notice of anything that would be for tbe improvement or betterment of the service, either in tbe plan of work pursued by tbe clerks or tbe distribution.” Tbe deceased, at Ogden, received a telegram from Oakland announcing tbe death of bis child. With tbe permission of tbe chief clerk at Ogden, be took tbe first fast mail train for California. Tbe chief clerk furnished him a portable cot, blankets, and bedding to occupy quarters in a mail car. 'When be left Ogden for Oakland there was no official businéss requiring him to make such a trip. No instructions were given him in respect of any business or duties pertaining to tbe service. Tbe chief clerk at Ogden in supervising tbe business of bis territory was required, from time to time, to go on tbe road on official business. But be bad always performed such duties himself. Tbe performance thereof bad at no time been required of tbe deceased. When tbe deceased arrived at San Francisco, be there called on tbe general superintendent, and informed him of tbe death of tbe deceased’s child. No 'matters were discussed, and no transactions were bad relating to tbe mail service. Nothing was talked about between them except tbe deceased’s misfortune and bereavement. Tbe superintendent inquired — 592 — of him when be intended to return to Ogden. He answered’ the following day. They discussed the train which he would take and the time he would reach Ogden. On the 12th day of January, 190Y, the deceased, on his return trip, at Oakland, in the presence of the train agent and the conductor in charge of the train about to leave for Ogden, entered a mail car with his grips. The evidence of his right to transportation on the defendant’s train was the commission issued by the Postmaster General. There were some mail clerks in the car. He, however, had no supervision or direction over them. While it is made to’appear that in going from Ogden to Oakland and in returning from Oakland to the place of the derailment the deceased traveled in a mail car, yet it is not made to appear what, if anything, he did in the mail car, or that he rendered any service, or performed any duties pertaining to the railway mail service. We think the only conclusion authorized from the evidence is that he was traveling in the mail car on account of matters personal to himself and wholly unconnected with his service to the government. We do not say that the commission issued to the deceased, if recognized and accepted by the defendant, did not entitle him in such case to the transportation in question, or if the commission was recognized and accepted by the defendant, and by virtue of it the defendant assumed and undertook to carry and transport the deceased, and he in good faith believed the commission entitled him h> the transportation, that the deceased was a trespasser • on the defendant’s train, or that it was not liable to the plaintiffs for the consequences of its alleged negligence, though under the Hepburn act the defendant could not lawfully give him free transportation, except when he was on duty. But in the complaint it is in effect alleged’ that the defendant had agreed and received compensation to carry the deceased when he was in the discharge of duties as clerk of the railway mail service, and that the deceased was in the mail car in the discharge of such duties. The defendant admitted that it had entered into arrangements with the United States government to carry the deceased in such case, but alleged that he was not — 593 — in tbe discharge of duties, and had not entered the car for any such purpose, but, on the contrary, had entered the car, and knowingly and fraudulently and without the knowledge or consent of the defendant attempted to ride therein in violation of the defendant’s agreement with the government to carry mail clerks. The court gave the jury binding instructions to render a verdict for the defendant if they found that the deceased was traveling in the mail car, and was “not performing any of his duties as such assistant chief clerk on said train,” but was traveling “simply for his own purposes unconnected with any official duties.” The court conditioned the right of recovery upon the performance of such duties on the train by the deceased, regardless of all other questions. It was the duty of the court to instruct the jury in matters of law; and the jury, as matter of duty, were bound to follow the instructions. Night or 5 wrong, they were the law of the case for the jury to obey and follow. This they did not do. We find no evidence to warrant a finding of the condition upon which the court instructed the jury the plaintiffs could recover. In this connection, the court also charged the jury that it was undisputed that the deceased was an employee of the railway mail service, and that at the time of the injury he was in a mail car “on the defendant’s line of road, and I charge you the presumption is that he was there lawfully and rightfully in the discharge of his official duties as such employee, and the burden is upon the defendant to overcome that presumption by affirmative proof and by a preponderance of all the evidence;” but that the presumption would be overcome if it was shown by affirmative proof and by a preponderance of the evidence that he was not in the discharge of his official duties. The relation of carrier and passenger for hire between the defendant and deceased was in effect alleged by the plaintiffs, or such a relation as gave the deceased rights of a passenger, and imposed upon the defendant corresponding duties and obligations of a carrier of passengers. Such a relation was denied by the defendant. The 6, 7 — 594 — burden was upon the plaintiffs, not the defendant, 'to establish it. That burden did not shift, but rested upon the' plaintiffs througout the case. And, if upon all the evidence it was not established by a fair preponderance, the plaintiffs, and not the defendant, must fail. The charge of the court is not only in conflict with these well-recognized principles, but also invaded the province of the jury on the weight to be given a mere inference of fact. It in effect told the jury that, a certain presumption of law arose; that is, that a definite probative weight in law attached by reason of certain undisputed facts, and that the burden was cast on the defendant to overcome it by affirmative proof and by a preponderance of the evidence. What the court thus incorrectly characterized a presumption of law by instructing the jury to give it a definite probative effect was, at most, a mere inference of fact, and a fact, too-, which, under the charge of the comt and the law of the case as given the jury, was essential to plaintiffs’ right of recovery. That is to say, the court, in other portions of the charge bound the jury to find that the deceased was in the discharge of his duties as a mail clerk before they could properly render a verdict for the plaintiffs, and here told them that such fact was established as matter of law by the undisputed proof of certain other facts, and then cast the burden on the defendant to overcome such presumption by affirmative proof, and by a preponderance of the evidence that the deceased was not in the discharge of his duties. An evidentiary showing, however strong, made by a party having the affirmative of an issue, whether by direct evidence of the testimony of witnesses or indirect evidence of inferences and pre- 8 sumptions, does not cast the burden on the other party to prove the negative, but the onus probandi in either case remains throughout with him who has the affirmative. The court, therefore, in directing the jury to give a definite probative effect to the admitted facts, and in casting on the defendant the burden of proving the negative to overcome such effect, committed error. — 595 — It is not necessary to express an opinion on the question presented as to whether the Hepburn act permits an interstate carrier to give free intrestate transportation to railway mail clerks when not on duty, for the reason that it is alleged in the complaint and admitted in the answer that the arrangement existing between the defendant and the government of the United States for the transportation of the deceased was for hire and when he was in the discharge of duties in the railway mail service. It was alleged in the complaint, and denied in the answer, that he was in the discharge of such duties. With respect to the relation between the defendant and the deceased that was the only issue submitted to the jury. And, as already held by us, we do not find sufficient evidence to support the verdict which was rendered thereon. Por the reasons given, the judgment is therefore reversed, and the case remanded for a new trial, costs to appellant. ERICH and McOARTY, JJ., concur.