Schuyler v. Southern Pacific Co.

• Decision Date: 28 August 1909
• Docket Number: 2034
• Citation: 37 Utah 581,109 P. 458
• Court: Utah Supreme Court
• Parties: SCHUYLER et al. v. SOUTHERN PACIFIC COMPANY

109 P. 458

37 Utah 581

SCHUYLER et al. v. SOUTHERN PACIFIC COMPANY

No. 2034

Supreme Court of Utah

August 28, 1909

On Rehearing June 2, 1910.

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 &amp McCracken for respondents.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

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

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 car" 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 Gartney and Lucin 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 by the appellant that plaintiffs' case necessarily involves a construction of section 1, par. 4, of the Hepburn act (Act June 29, 1906, c. 3591, 34 Stat. 584; F. 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 construction 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 law to sustain his 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 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 pending 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 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,...