ON REHEARING ON RESPONDENTS* APPLICATION.
STRAUP, C. J.A petition for rehearing was filed on behalf of respondents. They urged that we had overlooked evidence tending to show that the deceased was traveling in the mail oar in the discharge of duties. They further urged that, though he was not in the discharge of duties, nevertheless, upon the undisputed evidence showing that the appellant received him as a passenger and as such undertook to carry and convey him and that his death was caused by its negligence, the respondents were entitled to recover as matter of law. A rehearing was granted, and the case reargued and resubmitted.
We have reread the record, and again reached the conclusion that there is no evidence to support a finding that the deceased was traveling on appellant’s train in the discharge or in pursuance, of duties pertaining to the railway mail service. Upon the evidence adduced the only 9 permissible inference is that he left Ogden and went *596to Oakland solely on account of tbe death of his child, and that he was on the return journey of such a mission when the train was derailed. Whatever presumption might be indulged under other circumstances that he was in the discharge of railway mail duties from the facts that he was a railway mail clerk and was in a mail car is entirely overcome by the affirmative and direct showing that there was no business or engagement relating to his service which occasioned or required the trip to be made by him; that no directions, instructions, or requests were given to or made of him in respect thereof; that duties on the road had theretofore always been performed by his chief and not by the deceased; and that the trip was occasioned solely on account of the death of his child.
The other proposition is more difficult. The claims made by the respondents in that regard are: (1) That under the Hepburn act the appellant could lawfully give, and the deceased receive, free transportation, it being conceded that he was a railway mail service employee, though he was not on duty and was traveling on account of mere personal matters; and (2) though the act did not permit the giving of free transportation in such case, and though the appellant could not lawfully permit the deceased to be carried on its train by virtue of the commission which was issued to him unless he was on duty, nevertheless the appellant, having received the deceased upon its train and permitted him to ride in the mail car, and by virtue of the commission undertook to transport him as a passenger regardless of the question whether he'was or was not on duty, must be held responsible for the breach of duty so assumed and undertaken by it, to the same extent that it is liable to passengers for hire. On the other hand, it is asserted by the appellant that the respondents, having alleged in the complaint that the deceased was in effect a passenger for hire arising out of particular alleged facts — a contract between the government and the appellant to carry mails and mail clerks, including the deceased, for which appellant received and was paid compensation, and that under such arrangement, and for *597snob consideration, tbe appellant bad undertaken to carry tbe deceased from Oakland to Ogden, that tbe deceased in tbe discharge of duties as a railway mail clerk was required to be in tbe mail cars operated by tbe appellant, and “was in said ear with tbe knowledge and consent of tbe said defendant, its agents and servants, as such clerk, and in tbe discharge of duties as such” a.t the time of tbe derailment— must recover, if at all, upon proof of tbe particular relation of passenger and carrier as alleged, and that they cannot be permitted to recover on tbe theory that tbe deceased was a gratuitous or other passenger; that under tbe Hepburn act neither tbe appellant nor its agents, in charge of its train could lawfully permit tbe deceased to ride on bis commission when be was not on duty, nor could it or its agents otherwise lawfully permit him to ride gratuitously, and, since tbe deceased was riding on appellant’s train by virtue of bis commission when not on duty, be was engaged in tbe commission of an act in violation of law, and was hence a trespasser to whom appellant owed no duty except to refrain from willfully injuring him.
It undoubtedly is true that a plaintiff may not declare on one theory and recover on tbe proof of anoth- 10 er. He may not for instance declare on one or several alleged acts of negligence, and recover on tbe proof of another or others. So, in a complaint, a plaintiff seeking to recover from a carrier for tbe negligent, killing of a passenger, no recovery can be bad unless tbe relation of carrier and passenger is shown, although tbe facts are such as to warrant a recovery in tbe absence of such relation for ordinary negligence in injuring a person not a passenger. Tbe duty owing, tbe measure of liability, and tbe degree of care required are different. (Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478, 60 N. E. 818, 54 L. R. A. 827.) If therefore, in tbe complaint a particular kind of passenger is alleged, may recovery be bad on tbe proof of a different kind ? That is, if in tbe complaint it is alleged that tbe passenger was one for hire, may -recovery be bad if tbe proof 11 shows that be was a gratuitous passenger ? Tbe rule *598at common law obtained, and, as stated in 1 Chitty on Pleadings, p. 392, that “if the plaintiff, though needlessly, describe a tort and the means adopted in effecting it with minuteness and particularity, and the proof substantially vary from the statement, there will be at fatal variance which will occasion a nonsuit.” But by sections 3001, 3002, 3003, Comp. Laws 1907, it is by our Code provided:
“No variance between tbe allegations in a pleading and tbe proof is to be deemed material, unless it bas actually misled the adverse party to his prejudice in maintaining bis action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended, upon such terms as may be just.
“Where the variance is not material, as provided in the next preceding section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.
“Where, however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections but a failure of proof.”
In speaking of such codes, Mr. Bates, in his work on Pleading and Practice (volume 1, p; 512), says:
“Under the Code no variance is material unless it has actually misled the adverse party to his prejudice on the merits, and no allegation is material unless essential to the claim or defense. The evident object of the Code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case on the evidence outside of the pleadings, and if objection be made to allow the pleadings to be conformed to the evidence at once and without terms, and where there is no objection to refuse to reverse on account of the variance.”
Had respondents merely averred that the appellant was a common carrier of passengers, that the deceased was a passenger on one of its trains, and that it had assumed and undertaken to transport him as such, such allegations would have been sufficient to show the relation of passenger and carrier and the duties of a carrier owing by it to him, and any evidence would have been permissible thereunder which tended to show the relation of carrier and passenger, whether for hire or that of a gratuitous passenger. (Birmingham Ry. Lt. & P. Co. v. Adams, 146 Ala. 267, 40 South. 385, *599119 Am. St. Rep. 27; Lemon v. Chanslor, 68 Mo. 340, 30 Am. Rep. 799; Ohio & M. R. Co. v. Craucher, 132 Ind. 275, 31 N. E. 941; Gulf, Colo. & 3. Fe. R. Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345; 2 Bates, Pl. & Pr. p. 1174.) In tbe case of Gulf, Colo, & S. Fe R. Co. v. Wilson, supra, it was held tbat proof tbat plaintiff was a United States mail agent on defendant’s car in charge of mail under an allegation tbat be was a passenger does not constitute a variance. Nor are sucb general averments of tbe relation of carrier and passenger, as stated, open to tbe objection tbat they are statements of mere conclusions. (Ohio & M. R. Co. v. Craucher, supra.) If tbe duties imposed by law for tbe carriage of a passenger for hire were other than or different from those imposed for tbe carriage of a gratuitous passenger, or if a different or higher degree of care was required in tbe one than in the other, it can readily be seen tbat no recovery could be had under an averment tbat tbe injured person was a passenger for hire on proof tbat be was a mere gratuitous passenger. But it is now well settled tbat there is no difference in tbe degree of care required of carriers, nor in tbe measure of liability, in tbe transportation of passengers for hire and gratuitous passengers. It was wholly unnecessary for respondents to aver with minuteness tbe particular facts as was done, upon or out of which tbe relation of carrier and passenger was based or grew. There must, of course, be sufficient averments and evidence to support a finding of tbe relation of carrier and passenger, else no recovery can be bad. Tbe essential in its general scope and meaning is 'the averment and proof of tbat relation. It undoubtedly was sufficiently averred in tbe complaint, and, though the evidence does not support tbe averment tbat tbe deceased was on tbe defendant’s train in tbe discharge of duties pertaining to tbe railway mail service, and hence does not show tbat be was a passenger for hire, as was in effect averred, nevertheless it does suppport a finding of the relation of carrier and passenger; tbat is, tbe evidence does support a finding tbat tbe appellant received and accepted tbe deceased for tbe pur*600pose of being conveyed in the mail car from Ogden to Oakland and from Oakland to Ogden, and that it undertook to so transport him in virtue or by reason of the commission held by him.
The further question to be determined is whether such relation and appellant’s undertaking to transport the deceased, and its alleged breach of duty resulting in his death, are so conclusively made to appear as to entitle the respondents to ai directed verdict on such issues. If they were entitled to such a direction, then the errors committed by the trial court, and referred to in our opinion on the former hearing, are harmless. That the car was de- 12 railed through the negligence of appellant as alleged in the complaint, and that the deceased was killed by reason of such derailment, is, upon the record, not open to controversy. No substantial conflict is presented by the evidence on that subject. The serious question is: Does the evidence conclusively show the relation of carrier and passenger ? On such question we think the following facts are conclusively made to appear: The deceased, who was a railway mail clerk in the service of the government of the United States, left Ogden and went to Oakland solely on account of the death of his child. He remained at Oakland a few days. When there, he went on board appellant’s train on his return trip. When he left Ogden, he entered a mail car in appellant’s train. The evidence of his right to enter the mail car and be carried by appellant was the commission issued to him, which, on its face, entitled him to transportation between all stations in Utah, Nevada, and California. The commission on its face granted “the facilities of free transportation on the lines named,” regardless of the question whether he was or was not in the discharge of public duties. It was issued to him before the Hepburn act took effect. • The derailment and the deceased’s death occurred fourteen days after the act took effect. It was admitted by the parties on the trial that the deceased used the commission on the trip- “as the evidence of his right to ride — the evidence of his right of transportation” — and that no question would *601be raised witb respect to the exhibition of the commission to the conductor in charge of the train. The deceased at Oakland, in the presence of the conductor and train agent, and with their knowledge, entered a mail car in a train about to leave for Ogden, and impliedly with their consent, at least without their objection. In view of the stipulation, and upon the whole record, we think the only permissible inferences are that the deceased, both in going to and in returning from Oakland, rode in the mail car with the knowledge and consent of appellant’s conductors in charge of the train; that the appellant, its conductors and agents in charge of the train, and the deceased, in good faith, assumed and believed that the commission entitled him to so ride and to be transported in the mail car regardless of the fact whether he was or was not on duty, and that the commission was so treated and so recognized by them, and as “the evidence of his right of transportation.” There is nothing in the record to support the allegations in the answer that the deceased entered the mail car without appellant’s knowledge or consent, or against its will, or with the intent, or for the purpose, of deceiving or defrauding the appellant or the government, or that he otherwise entered the car clandestinely or fraudulently, or in bad faith, or with any wrongful design or purpose. The evidence, quite conclusively, shows the contrary. The deceased was therefore not a trespasser. To be a trespasser, it was essential that his presence on appellant’s train was without its knowledge or consent, or was gained or obtained through fraud or deceit.
Now, what legal liability attaches for an injury inflicted upon one through the carrier’s negligence in being transported under such circumstances ? The appellant asserts not any, for the Hepburn act forbids such a transportation when the deceased was not on duty. Section 1, par. 4, of the act (34 Stat. 584; Fed. Stat. Ann. Supp. 1907, p. 169), is as follows: “No common carrier subject to the provisions of this act, shall, after January 1, 1907, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and *602tbeir families, its officers, agents, surgeons, physicians, attorneys at law; to minister of religion, traveling secretaries of railroad Young Men’s Christian Associations, inmates of hospitals, and charitable and eleemosynary institutions, and persons exclusively engaged in charitable and eleemosynary work; to indigent, destitute, and homeless-persons and to such persons when transported by charitable societies or hospitals, and the necessary agents employed in such transportation; to inmates of the national homes or state homes for disabled volunteer soldiers, and of soldiers’ and sailors’ homes, including those about to enter and those returning home after discharge, and boards of managers of such homes; to necessary caretakers of live stock, poultry, and fruit; to employees on sleeping cars, express cars, and to linemen of telegraph and telephone companies; to railway mail service employees, postoffice inspectors, customs inspectors, and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested, persons injured in wrecks, and physicians and nurses attending such persons: Provided, that this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families; nor to prohibit any commob. carrier from carrying passengers free with the object of providing relief in cases of general epidemic, pestilence, or other calamitous visitation. Any common carrier violating this provision shall be deemed guilty of a misdemeanor, and for such offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass or free transportation shall be subject to a like penalty.” Before the passage of this act, it, of course, was lawful for a carrier to give free interstate transportation for passengers; and, while there is no direct evidence of it in the ease, we think from what was made to appear in argument we may assume that, before this act took effect, commissions to railway mail service employees were *603honored by carriers on the lines designated thereon, and such employees given the facilities of free transportation, whether on duty or not. And upon the record we think we are justified in assuming that after the act took effect, and at the time of the transportation in question, the appellant and the deceased in good faith believed that the provisions of the Hepburn act did not forbid a carrier from transporting a railway mail service employee, on his commision issued to him, and over the lines designated thereon, though he was not on duty. This assumption, of course, is wholly immaterial to the construction of the act, but it is important as bearing on the question whether the deceased was riding on the mail car with appellant’s consent or against its will. In June, 1907, about five months after the derailment, in response to an inquiry made of them, the members of the Interstate Commerce Commission expressed their views that under the Hepburn act a carrier who knowingly permitted railway mail service employees to use, and that such employees who accepted, free transportation when not in the discharge of their public duties, and when traveling unofficially, and for their personal benefit or pleasure, would subject themselves to the penalties of that act. This conclusion was reached upon a classification of the persons enumerated in the exceptions of the act, and who might receive free transportation, into three groups: (1) The “persons actively connected with the operation of railroads or with the administration in various capacities of their affairs;” (2) the “persons who are either engaged in administering charities or are the object of charitable aid;” and (3) persons “who have to do with the affairs of .persons, firms, or corporations, engaged in business along the line of railroads . . . and not in the employ of the railway companies.” To those classified in the first and second groups, it is held by them, free interstate transportation may be given without offending the provisions of the act, though the transportation is wholly for their personal pleasure and benefit; but to those classified in the third group, free interstate transportation cannot lawfully be given to or received by them “except in connection *604with the actual performance of duties, or on the return journey.” Had tbis ruling been made as the result of some hearing or proceeding before the commission 13 involving the question, we might be inclined, though not required, to accept such a construction, even though it was not in accord with our own views. However, since it was a mere response in reply to a letter seeking the views of the members of the commission, apparently not upon an actual but a moot case, the ruling ought not be given the weight that otherwise should be given it had it been made under other circumstances. Notwithstanding the high regard entertained by us for the judgment of the members of the commission, we nevertheless are of the opinion that the construction placed by them on the Hepburn act in this regard is not the correct one. Congress, of course, could expect any persons it desired from the operation of the general provisions of the act forbidding the giving of 14, 15 free interstate transportation for passengers. It made such exceptions. It is generally recognized that an exception of a particular thing from the operation of the general words of a statute shows that in the opinion of the lawmaker the thing excepted would be within the general words had not the exception been made. Tested by this principle, had the exception in respect of railway mail service employees not been made, would the carriage of such employees on mail cars in the discharge of duties pertaining to the railway mail service be in violation of the general provisions of the act? We think not. It is generally held by the courts that “a mail agent or postal clerk employed and engaged in the service of the government and traveling in the postal or mail car, in charge of the mails, under a contract between the government and the carrier for the carriage of mail and the mail clerks having lawful custody thereof, is a passenger for hire to whom the carrier owes the same duty that it does to passengers riding upon the train, in so far as its liability for personal injuries arising from its negligence is concerned. The compensation for the carriage of such 16 agents or clerks must be regarded as included in that *605paid by tbe government for tbe carriage of mails.” (Moore on Carriers, p. 577.) Sucb carriage, under sucb circumstances, in no sense would be free transportation, but transportation for bire, paid for by tbe government. We cannot believe it was thought by Congress that, if tbe exception relating to railway mail service employees was not made, tbe carriage of sucb persons in charge of tbe mails in mail cars or engaged in duties pertaining to tbe railway mail service under a contract between tbe government and tbe carrier for tbe carriage of mails and mail clerks would, in any sense, be free transportation within tbe general words, and in violation of the general provision, of tbe act forbidding free interstate transportation. We think it manifest that something more and other than that was intended by sucb exception.
In tbe act is contained a number of exceptions. Some are without limitation or restriction; others are limited and restricted. Thus, “necessary caretakers of live stock,” etc., “employees on sleeping cars,” “newsboys on trains,” and other exceptions specified in tbe act, having in themselves restrictive or qualifying terms. But in tbe exception “its (tbe carrier’s) employees and their families, its officers, agents,” etc., “ministers of religion,” indigent persons, inmates of national or state homes, etc., are without terms of restriction or limitation. So is tbe exception as to “railway mail service employees, postoffice inspectors, custom inspectors, and immigration inspectors.” We see no more license to read into this exception words of restriction or limitation than into tbe first, second, third, or fourth exceptions specified in tbe act. Because sucb words are more easily read into this exception than into tbe second, third, or fourth is no reason why they should be read into it. They can as readily be read into tbe first as into this exception. That is, tbe words “when on duty” can as readily be read into tbe exception pertaining to tbe carrier’s employees as in tbe exception pertaining to railway mail service employees. Tbe fact that tbe exception pertaining to “tbe employees on sleeping cars, express cars,” is restricted and limited, and that tbe exception to “railway mail service employees” is not *606restricted or limited, is, we think, significant, as bearing upon tbe intention that the former was intended to be restricted, and the latter not. If Congress intended the limitation or restriction to apply to both, such an intention could very easily have, been expressed. We can see good reason why it was desired to restrict the one and not the other. We need not, however, speculate on that, for the intention to restrict the one and not the other is, we think, made manifest by the language employed. Furthermore, exceptions in penal statutes ought to be liberally construed in 17, 18 favor of him who' is charged with the violation of the provisions of the statute. We are therefore of the opinion that the Hepburn act does not forbid a carrier from giving railway mail service employees free interstate transportation when not on duty and when traveling for their own benefit or pleasure.
Though the construction which we have given the Hepburn act should not be correct, and though it was unlawful for the appellant to give, and the deceased to receive, free transportation on his commission, when he was not on duty, yet we are also of the opinion that under all the circumstances of the case the appellant, having undertaken and assumed to carry and transport the deceased as a . passenger by reason of the commission, cannot escape 19 liability for the consequences of its negligence on that ground. Moore, in his work on Carriers (page 570), says: “A person who travels upon a pass unlawfully issued to him in violation of a law prohibiting the issuing of free passes is not a trespasser, but is entitled to the rights of a passenger.” The same principle is stated in 5 A. and E. Ency. Law (2d Ed.), p. 508. And to that effect are the following cases: Bradburn v. Whatcom Co. Ry. & L. Co., 45 Wash. 583, 88 Pac. 1020, 14 L. R. A. [N. S.] 526; Buffalo, etc., R. Co. v. O’Hara, 3 Penny [Pa.] 190; McNeill v. Durham & C. R. Co., 135 N. C. 682, 47 S. E. 765, 67 L. R. A. 227. In the last-named case numerous cases bearing on the subject are cited and reviewed. These cases proceed upon the theory, and, as stated by the court in the case of Delaware, Lacka*607wanna & Western R. Co. v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St. Rep. 442, “that a railroad company having accepted a passenger is under an obligation to take due and reasonable care ' 20 for bis safety, and that that obligation arises by implication of law, independent of contract. To give the plaintiff a standing in court to sue for the injury, she has no need of the aid of a contract wbicb was illegal,” and that the act of traveling on a pass forbidden by law is not the contributing cause of the injury. The principle involved is analogous to that applied where, by the weight of authority, it has been held that a carrier, having accepted one as a passenger violating a statute prohibiting travel on Sunday, owes to him “the same duty as if he were lawfully traveling, .and is responsible for a failure to perform it, the same in the one case as in the other,” and that “the gravamen of the action is the breach of the duty imposed by law upon the carrier of passengers to carry safely, so far as human skill and foresight can go, the persons it undertakes to carry. This duty exists independently of contract, and although there is no contract in a legal sense between the parties. Whether there is a contract to carry, or the service undertaken is gratuitous, an action on the case lies against the carrier for a negligent injury to a passenger. The law raises the duty out of regard for human life, and for the purpose of securing the utmost vigilance by carriers, in protecting those who have committed themselves to their hands.” (Carroll v. Staten Island R. Co., 58 N. Y. 126, 17 Am. Rep. 221.)
We are. aware some courts have held that “the relation between carrier and passenger is coutractual and is created only by contract, express or implied” (Farley v. Cincinnatti H. & D. Co., 108 Fed. 14, 47 C. C. A. 156), upon which the conclusion may be based that if there is no valid contract of carriage, either express or implied, no relation of carrier and passenger is shown; and since the tort cannot be made to appear without proof of the illegal contract or transaction, on principle of public policy, a plaintiff who requires aid from an illegal transaction or contract to establish his de-*608maud must fail. Ordinarily the relation of carrier and passenger is created by contract, either express or implied. But the relation may exist independent of any contract between the parties themselves. We think this is clearly shown by Mr. Justice Douglas in the case of McNeill v. Durham & C. R. Co., supra. We think his conclusion is supported by the weight of authority that “the law imposes upon a common carrier certain duties and liabilities which adhere to the nature of his calling. We prefer to adopt the more direct expression, and say that those duties and liabilities are imposed by law upon common carriers upon consideration of public policy independent of contract, and arise from the nature of their public employment.” The same principle is stated by the Maryland court in Stale, bo Use of Abell, v. Western Maryland R. Co., 63 Md. 433, that “the duty of the carrier to convey safely does not result from the consideration paid, but is imposed .by law,” and that “a common carrier who accepts a party to be carried owes to that party a duty to be careful, irrespective of contract.” Moore, in his work on Carriers (page 568), says: “Although it was for a long time urged on behalf of the carrier that it was liable only on its contract, and consequently that the law imposed no duty upon it in the case of a gratuitous undertaking to carry a passenger, there being no consideration, and therefore no legal contract, express or implied, the courts finally held otherwise, and it is now well settled that the carrier owes a duty to all upon its vehicle, independent of contract, even when the service is gratuitous, and that the breach of this duty is negligence, for which it is liable to the same extent that it is liable to passengers who pay fare. The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.” In Fetter on Carriers of Passengers, sec. 220, it is said: “It is now well settled that a carrier by its acceptance of a passenger as a passenger comes under an obligation to take due and reasonable care for his safety, which obligation arises by implication of law, and independent of contract, so that it may exist though the contract of *609carriage is illegal, or though there is no express contract of carriage.” In Wharton’s Law of Negligence, secs. 354, 355, it is said: “But there is now an almost'uniform acquiescence in the true view that a person who undertakes to do a service for another is liable to such other person for want of due care and attention — the diligentia, of the bonus et dilir gens paterfamilias — in the performance of the service, even though there is no consideration for such undertaking. . . . The carrier is bound from the time he assents thus to carry-such person to exercise towards him the diligence, prudence, and skill of a good carrier in that particular kind of transport.” The rule is stated bj the English court in Austin v. Great Western R. Co., L. R 2 Q. B. 442, that “the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely.”
It is unnecesary to further refer to the authorities or cases. We are of the opinion that, when a common carrier accepts a person as a passenger, he is not permitted to deny that he owes to him the duty of diligence, prudence, and skill, which as carrying on a public employment he owes to all his passengers, and that he cannot escape liability for a negligent performance of that duty resulting in injury by urging that the pass or commission was issued, or the gratuitous carriage permitted by him in violation of law. Though the gratuitous carriage of the deceased by the appellant should under all the circumstances be held to have been in violation of the Hepburn act, in the commission of which both the deceased and the appellant were in pari delicto, and alike subject to the penalties of that act, yet that wrong in no-sense influenced, nor was it a contributing cause of the wrong or negligence of appellant resulting from its breach of duty imposed upon it by law and arising from the facts of its acceptance of the deceased as a passenger and its undertaking to carry him as such. Such duties were not dependent upon the particular kind of contract of carriage existing between *610itself and the deceased, but upon the facts that it had accepted him as a passenger, and as such undertook to convey him. And we say here, as was said in the case of Carroll v. Staten Islan R. Co., supra, “this case, therefore, is not within the principle of many of the cases cited, which forbid recovery upon a contract made in respect to a matter prohibited by law, or for a cause of action which requires the proof of an illegal contract to support it.” Mr. Justice Dixon, in the case of Sutton v. Town of Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534, stated the proposition well when he said that “one party to the action, when called upon to answer for the consequences of his own wrongful act done to the other, cannot allege or reply the separate or distinct wrongful act of the other, done not to himself nor to his injury, and not necessarily connected with, or leading to> or causing or producing the wrongful act complained of,” and that “himself guilty of a wrong, not dependent on nor caused by that charged against the plaintiff, but arising from his own voluntary act or his neglect, the defendant cannot assume the championship of public rights nor to prosecute the plaintiff as an offender against the laws of the state and thus to impose upon him a penalty many times greater than what those laws prescribe. Neither justice nor sound morals require this and it seems contrary to the dictates of both that such a defense should be allowed to prevail.” For much stronger reasons should such principles be applied, when, as here, the defendant itself participated in the wrong charged against the deceased, the gratuitous carriage in violation of law. To permit the defense in such case is to allow the appellant to excuse itself or claim immunity from the consequences of its own tortious acts, negligently done to the deceased," on the ground that it and the deceased had been guilty of some other independent wrong, or violation of law, which in no sense influenced nor caused the tortious act of the appellant, and was not a contributing cause thereof, or of the injury, and bore no relation to either the cause or effect produced by it. We do not mean to say, and do not hold, that if it were only lawful for the deceased to have traveled on his *611commision when be was in the discharge of bis public duties, and unlawful for bim to do so when be was not on duty, and if bé, without the knowledge or consent of appellant or its agents in charge of the train, bad made an unauthorized use of the commission by traveling thereon when be was not on duty, that the relation of carrier and passenger would have been created rendering the appellant liable as in the case of a breach of duty in negligently transporting a passenger. A mere intruder or trespasser, of course, cannot create the relation of carrier and passenger by bis own act. Nor can one create such relation by fraudulently or deceitfully making an unauthorized use of a commission, pass, ticket, or the like, nor by otherwise gaining bis presence on the train by fraud or deceit, or through collusion or connivance with mere train crews. The test is: Did the person desiring passage in good faith offer himself for the purpose of being carried as a pássenger, and was 21 he as such accepted and received by the carrier and undertaken to be transported by it ? If so, then the relation of carrier and pasenger arises, and the law casts the duty on the carrier to convey him safely, and to exercise toward him “the diligence, prudence, and • skill of a good carrier in that particular kind of transport,” regardless or independent of any contract existing between them. Now, while it was alleged in the answer that the deceased wrongfully and fraudulently, and with the intent, and for the purpose, of deceiving the appellant, and without its knowledge or consent, and against its will, entered and remained in the mail car, there is no evidence justifying a finding of any such facts. Upon the record the case is reduced to the simple facts where the deceased, with the full knowledge and consent of the appellant, was permitted to travel in the mail car on the commission issued to and held by him. The commission was “the evidence of his right of transportation.” Upon that the deceased offered himself to be carried, and upon that the appellant accepted and received him, and undertook to transport him. There are, therefore, no facts nor inferences to support the averments contained in the an*612swer, or to justify the submission of the case to the jury on such issues or theory. Upon the whole record, we are persuaded that on. the question of appellant’s liability the respondents were entitled to recover as a matter of law, and hence the errors referred to on the former hearing were nonprejudicial to the appellant. (Madsen v. Utah Light & Ry. Co., 36 Utah, 528, 105 Pac. 709.)
Our former ruling reversing the judgment of the court below, and remanding the case for a new trial, is therefore set aside, and the judgment of the court below is now affirmed, with costs to respondents. It is so ordered.
PRICK and McOARTT, JJ., concur.