Thiel v. Southern Pac. Co., 10681.

• Decision Date: 08 June 1945
• Docket Number: No. 10681.,10681.
• Citation: 149 F.2d 783
• Parties: THIEL v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

149 F.2d 783 (1945)

THIEL v. SOUTHERN PAC. CO.

No. 10681.

Circuit Court of Appeals, Ninth Circuit.

May 15, 1945.

Rehearing Denied June 8, 1945.

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Allen Spivock, of San Francisco, Cal., for appellant.

Arthur B. Dunne and Dunne & Dunne, all of San Francisco, Cal., for appellee.

Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.

MATHEWS, Circuit Judge.

Appellee, Southern Pacific Company, a Kentucky corporation, was at all pertinent times a common carrier engaged in the business of operating railroads and railroad trains and transporting freight and passengers for hire. Two places between which appellee operated trains and transported passengers were Reno, Nevada, and San Francisco, California. One of the trains operated by appellee between Reno and San Francisco was train No. 9.

On February 25, 1940, appellant, Gilbert E. Thiel, a citizen of California, was a passenger on appellee's train No. 9, having boarded it at Reno to go to San Francisco. Appellant seated himself by a window in one of the day coaches — the one called the smoker. The train left Reno at 8:50 P. M. Twenty-five minutes later, at a point in Nevada between Verdi, Nevada, and Truckee, California, while the train was traveling at a speed of about 35 miles an hour, appellant opened the window, leaped out, fell to the ground and was injured.

The train was stopped and was backed to the place where appellant had fallen. Appellant was put on a stretcher and put aboard the train — in the baggage car. The train then proceeded to Truckee. There appellant was removed from the train and was treated by appellee's district surgeon, Dr. J. H. Bernard, after which, on February 25, 1940, he was taken in an ambulance to a hospital in Reno, where he remained under treatment for several months.

On December 30, 1940, appellant brought an action against appellee for damages in the sum of $250,000 for the injuries resulting from his leap from the train. The complaint, in substance and effect, alleged that appellant was "out of his normal mind" on February 25, 1940; that, before accepting appellant as a passenger, appellee was informed that he was "out of his normal mind" and therefore should not be accepted as a passenger or else should be guarded; that appellee nevertheless accepted appellant as a passenger, left him unguarded and, when he leaped, failed to stop the train before he fell to the ground; and that appellee's said conduct constituted negligence and caused appellant's injuries.

The action was brought in the Superior Court of the State of California in and for the City and County of San Francisco, but, on petition of appellee, was removed from that court to the District Court of the United States for the Northern District of California. There, on February 24, 1941, appellee answered. The answer, in substance and effect, denied that appellant was "out of his normal mind" on February 25, 1940; denied that appellee was informed that appellant was "out of his normal mind" and therefore should not be accepted as a passenger or else should be guarded; denied that appellee was guilty of any negligence; alleged that appellant's injuries were caused by his own negligence; and, as a separate defense, alleged that his injuries were contributed to by his own negligence.

On March 5, 1941, appellant filed in the District Court a written demand for a jury trial. Two months later he moved the District Court to remand the action to the Superior Court. The motion was denied. Thereafter, disregarding the removal and the refusal to remand, appellant attempted to prosecute the action in the Superior Court. Appellee thereupon applied for and, after a hearing, obtained from the District Court a judgment enjoining such prosecution. That judgment was affirmed by us on March 20, 1942.¹ Certiorari to review our decision was denied on June 1, 1942.²

On October 12, 1942, the action was assigned for trial on November 24, 1942. Prior to November 5, 1942, a panel of prospective jurors was drawn — the panel from which a trial jury was to be and was thereafter empaneled. On November 5, 1942, appellant challenged the array — the panel of prospective jurors drawn as aforesaid.³ The challenge was overruled.

On November 19, 1942, appellant amended his complaint by adding thereto paragraph VIIa, which, in substance and effect, alleged that appellee was negligent in failing to give appellant first aid treatment before taking him to Truckee and in failing to give him proper medical attention at Truckee, and that said negligence aggravated appellant's injuries. These allegations were denied by appellee.

On November 21, 1942, appellant moved the court to strike his demand for a jury trial. The motion was denied. Trial of the action was commenced on November 24, 1942. After a jury was empaneled and sworn, appellant challenged the twelve jurors comprising it.⁴ The challenge was overruled and the trial proceeded. At the close of all the evidence, appellant moved the court for a directed verdict in his favor. The motion was denied. The jury returned a verdict for appellee. Appellant moved for a new trial and, in connection therewith, moved for leave to take depositions. Both motions were denied, and judgment was entered for appellee. From that judgment this appeal is prosecuted.

Appellant specifies as error the overruling of his challenge to the array — the panel of prospective jurors drawn as aforesaid. The challenge was based on eight stated grounds. Ground 1 was that the judges of the District Court "failed to prescribe any rules of qualifications or otherwise for the selection of said jury panel." The judges were not required to prescribe such rules.

Ground 2 was that "mostly business executives or those having the employer's viewpoint were purposely selected on said panel." Actually, no one was "selected on said panel," purposely or otherwise. The panel was not selected, but was drawn, as required by § 276 of the Judicial Code, 28 U.S.C.A. § 412, from a box containing the names of not less than 300 persons possessing the qualifications prescribed in § 275 of the Judicial Code, 28 U.S.C.A. § 411, which names had been placed in the box by the clerk of the District Court, or a duly qualified deputy clerk, and a duly appointed jury commissioner. There was no evidence that the persons whose names were in the box, or the persons whose names were drawn therefrom and who thus became members of the panel, were "mostly business executives or those having the employer's viewpoint."

Ground 3 was that "a larger proportion of men jurors were purposely selected, thus discriminating against women jurors." Actually, neither men nor women were selected as members of the panel; for, as said before, the panel was not selected, but was drawn from a box containing the names of not less than 300 persons. There was no evidence that women were discriminated against in placing names in the box or in drawing names therefrom. Many of the persons whose names were in the box, and many of the persons whose names were drawn therefrom and who thus became members of the panel, were women. The fact, if it be a fact, that a majority were men is immaterial.

Ground 4 was that "no examination whatever was made of said jurors before they were put on said panel to ascertain their qualifications or particularly their unfitness by reason of business or other connections with or prejudice in favor of such gigantic corporations as appellee." No such examination was required.

Ground 5⁵ was that the judges of the District Court "failed to provide the necessary facilities or funds to permit proper investigation of prospective jurors." The judges were not required to provide such facilities or funds.

Ground 6 was that "no effort was made to proportionately or fairly represent citizens of all races on said panel, thus systematically excluding Negroes and Chinese." Proportional representation of "citizens of all races on said panel" was not required. The box from which the panel was drawn contained the names of citizens of the Negro race and of the Chinese race. Citizens of these races were not excluded, systematically or otherwise.

Ground 7 was that "no effort was made to apportion jurors by districts when selecting them." No such apportionment was required.

Ground 8 was that appellee had "been able to prevail in every personal injury action against it, tried by a jury in the District Court," in the nine years next preceding the date of the challenge to the array. This, if true, is immaterial.

The challenge to the array was properly overruled.

Appellant specifies as error the denial of his motion to strike his demand for a jury trial. The motion was, in effect, an attempt to withdraw the demand, which appellant could not do without appellee's consent.⁶ Appellee did not consent to, but opposed, the attempted...