SCHUYLER et al. v. SOUTHERN PACIFIC COMPANY.

No. 2034. Decided August 28, 1909. On Rehearing June 2, 1910 (109 Pac. 458).

1. APPEAL AND ERROR-TIME FOR TAKING APPEAL-COMPUTATION. Though the verdict was rendered more than six months before the perfection of an appeal, the appeal will not be dismissed on the ground that it was not taken in time, where it sufficiently appears from the record that it was taken within the statutory period from the date of the order overruling a motion for a new trial. (Page 585.)

2. REMOVAL OF CAUSES-GROUNDS FOR REMOVAL-CASES ARISING UNDER CONSTITUTION AND LAW OF UNITED STATES-ALLEGATIONS OF PLEADINGS. In an action against a carrier for the death of an assistant chief mail clerk, the complaint alleged that deceased, while not on duty, was riding on defendant's train, under an engagement between defendant and the United States government to transport the mail, together with the mail clerks and employees in the railway mail service, and that it was necessary for deceased in the discharge of his duties to ride in the mail cars, and that while he was "necessarily in a certain mail car" operated by defendant, and while he was being so transported by defendant "for a consideration" and under arrangements between defendant and the "government of the United States," the train was derailed, and deceased was killed. Held, that the complaint did not present a case of a civil nature at law, arising under the Constitution and laws of the United States within the meaning of the removal act, in that it involved the question as to whether under Const. U. S. art. 1, sec. 8, declaring that Congress shall have power to establish post offices and post roads, Act Cong. March 3, 1897, c. 385, 29 Stat. 644, pertaining to the messenger service in connection with railroads, Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), and acts amendatory thereof, including Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), Act Cong. June 13, 1898, c. 446, 30 Stat. 440, and Act Cong. June 9, 1896, c. 386, 29 Stat. 313 (U. S. Comp. St. 1901, p. 2724), and acts amendatory thereof and supplemental thereto, relating to the transportation of railway mail clerks, and the Hepburn Act (Act June 29, 1906, c. 3591, sec. 1, par. 4, 34 Stat. 584 [U. S. Comp. St. Supp. 1909, p. 1151]), prohibiting common carriers engaged in interstate commerce from issuing or giving free interstate transportation for passengers, a mail 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, can lawfully be given free interstate transportation, since

the complaint did not show on its face that deceased's right to transportation was derived from the federal statutes, or that his cause of action was based on such statutes. (Page 587.)

3. REMOVAL OF CAUSES-GROUNDS CASES ARISING UNDER CONSTITUTION AND LAWS OF THE UNITED STATES. 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 United States. (Page 588.)

4. INFANTS-ACTIONS BY-APPOINTMENT OF GUARDIAN AD LITEM. Comp. Laws 1907, sec. 2907, 2908, providing that, when an infant is a party, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending, and that a guardian ad litem may be appointed in any case when it is deemed by the court in which the action is prosecuted expedient to represent the infant, though he may have a general guardian and may have appeared by him, authorizes the appointment of a guardian ad litem for resident and nonresident minor plaintiffs as well as resident and nonresident minor defendants. (Page 588.)

5. TRIAL-INSTRUCTIONS-DUTY OF JURY TO OBEY. The jury is bound to follow instructions of the court, whether such instructions are right or wrong. (Page 593.)

6. CARRIERS-WHO ARE PASSENGERS-BURDEN OF PROOF. In an action for the death of a railway mail clerk, the burden of proving that deceased was in the discharge of his official duties at the time of the accident in which he was killed is on plaintiff. (Page 593.)

7. TRIAL

INSTRUCTIONS-WEIGHT OF EVIDENCE. In an action against a carrier for the death of a railway mail clerk, an instruction that it is to presumed that deceased was in the railway car lawfully and rightly in the discharge of his official duties as such mail clerk, and the burden is on defendant to overcome that presumption by affirmative proof and by a preponderance of evidence, but that presumption would be overcome if it was shown by affirmative proof and by preponderance of the evidence that he was not in the discharge of his official duties, was erroneous, as invading the province of the jury on the weight to be given a mere inference of fact. (Page 593.)

8. EVIDENCE-BURDEN OF PROOF. An evidentiary showing, however strong, made by a party having the affirmative of an issue, whether by direct evidence of the witnesses or indirect evidence of inferences and presumptions, does not cast the burden on the other party to prove the negative, but the burden of proof in either case remains throughout with him who has the affirmative. (Page 594.)

ON REHEARING.

9. CARRIERS WHO ARE PASSENGERS EVIDENCE. In an action against a carrier to recover for the death of a railway mail clerk, evidence held insufficient to support a finding that at the time of the acciIdent in which decedent was killed decedent was on defendant's train in the discharge of duties pertaining to the railway mail service. (Page 595.)

In an

10. CARRIERS-INJURIES TO PASSENGERS-PLEADING-VARIANCE. action against a carrier to recover for the death of one alleged to have been a passenger, there can be no recovery on the ground of ordinary negligence of defendant in injuring a person not a passenger. (Page 597.)

11. CARRIERS-INJURIES TO PASSENGERS-PLEADING AND PROOF-"MATERIAL VARIANCE." Where a complaint alleged that plaintiff's decedent at the time of his negligent killing by defendant carrier was in the discharge of his duties as a railway mail clerk, a recovery may be had, though the evidence establishes that decedent at the time of the fatal accident was not in the discharge of his duties as a mail clerk, but was a gratuitous passenger, as a carrier owes the same degree of care in the transportation of a gratuitous passenger as in the case of a passenger for hire; and hence the variance was not material within the meaning of Comp. Laws 1907, secs. 3001-3003, providing that no variance between the allegations and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice. (Page 597.)

12. CARRIERS-INJURIES TO PASSENGERS-QUESTION FOR JURY. In an action against a carrier to recover for the death of railway mail clerk, evidence held to conclusively show that decedent at the time of his death was rightfully on defendant's train so as to warrant the direction of a verdict in favor of plaintiff on the issue as to whether or not he was a trespasser on the train. (Page 600.)

13. STATUTES-CONSTRUCTION-EXECUTIVE CONSTRUCTION. While the rulings of the Interstate Commerce Commission as to the construction to be given to federal statutes relating to interstate commerce will be given great weight by the courts in determining the meaning of such statutes, such weight is not to be accorded to such rulings where they are given in a non-official character and in response to private inquiry. (Page 604.)

14. CARRIERS-REGULATION-FREE TRANSPORTATION. Congress may in prohibiting interstate carriers from issuing free transportation except such persons from the operation of the general prohibition as it may see fit. (Page 604.)

15. STATUTES-CONSTRUCTION-EXCEPTIONS. An exception of a particular thing from the operation of the general words of a statute tends to show that it was the opinion of the lawmakers that

the thing excepted would have been within the general words had not the exception been made. (Page 604.)

16. CARRIERS-WHO ARE PASSENGERS-FREE TRANSPORTATION-"PASSENGERS FOR HIRE." Employees of the railway mail service, traveling in the postal or mail cars in charge of the mails under a contract between the government and the carrier for the carriage of mail and the mail clerks, are "passengers for hire" to whom the carrier owes the same duty that it owes to the passengers riding upon the train in so far as its liability for personal injuries arising from its negligence is concerned. (Page 604.)

17. STATUTES-CONSTRUCTION-EXCEPTIONS IN PENAL STATUTES. Exceptions in penal statutes ought to be liberally construed in favor of him who is charged with a violation of the statute. (Page 606.) The Hepburn

18. CARRIERS-INTERSTATE TRANSPORTATION-PASSES.

act (Act June 29, 1906, c. 3591, sec. 1, par. 4, 34 Stat. 584 [U. S. Comp. St. Supp. 1909, p. 1151]), providing that no carrier subject to the provisions of the act shall issue in interstate commerce free transportation, except to railway mail service employees, cannot be construed to prohibit the issuance of a free pass to an employee of the railway mail service for transportation of such employee while not in the actual discharge of his official duties. (Page 606.)

19. CARRIERS-INJURIES TO PASSENGER-FREE TRANSPORTATION-VIOLATION OF STATUTE. Where an interstate carrier issued free transportation to an employee of the railway mail service for use by such employee while not on duty, it could not avoid liability to the personal representatives of such employee for its negligence in causing his death by alleging that such transportation was issued in violation of the Hepburn act (Act June 29, 1906, c. 3591, sec. 1, par. 4, 34 Stat. 584 [U. S. Comp. St. Supp. 1909, p. 1151]). (Page 606,)

20. CARRIERS-WHO ARE PASSENGERS-CONTRACT OF TRANSPORTATION. The relation of carrier and passenger may exist independent of any contract between the parties for transportation. (Page 607.)

21. CARRIERS WHO ARE "PASSENGERS." The test in determining who are passengers is whether the person desiring passage in good faith offered himself for the purpose of being carried as a passenger, and that he was as such accepted and received by the carrier, who undertook to transport him. (Page 611.)

Appeal from District Court, Second District; Hon. J. A. Howell, Judge.

Action by Mary R. Schuyler and others against the Southern Pacific Company.

From a judgment for plaintiffs and an order overruling a motion for a new trial, defendant appeals.

AFFIRMED.

P. L. Williams, George H. Smith and John G. Willis for appellant.

Agee & McCracken for respondents.

STRAUP, C. 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. Though 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 within time, and that it was overruled on the 4th day

1

of January, 1909, at which time the judgment became final. The appeal was taken within six months from that time.