Roberts v. Pacific & A. Ry. & Nav. Co.

• Decision Date: 02 February 1903
• Docket Number: 840.
• Citation: 121 F. 785
• Parties: ROBERTS v. PACIFIC & A. RY. & NAVIGATION CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 785

ROBERTS v. PACIFIC & A. RY. & NAVIGATION CO. et al.

No. 840.

United States Court of Appeals, Ninth Circuit.

February 2, 1903

Ballinger Ronald & Battle and J. D. Jones, for plaintiff in error.

John P Hartman, for defendants in error.

The plaintiff in error, a citizen and resident of the state of Washington, brought an action against the defendants in error, one of which is a corporation of the state of West Virginia, and the other a corporation of British Columbia, to recover damages for breach of a contract alleged to have been made and entered into on December 16, 1898, by the terms of which the plaintiff in error had agreed to haul freight from the summit of White Pass to Lake Bennett, Alaska. The action was commenced in the superior court of the state of Washington for King county, and was thence removed to the Circuit Court. A motion was made to remand on the ground that the case was not removable. The motion was denied. 104 F 577. Thereafter the cause was tried before a jury, and a judgment was rendered upon their verdict in favor of the defendants in error. The defendants in error had denied in their answer that they had entered into a contract with the plaintiff in error. Concerning that issue the following correspondence which passed between the plaintiff in error and the manager of the defendants in error, which was all the correspondence between the parties, was offered and admitted in evidence:

'Seattle, Wash., Dec. 14, 1898.

'Pacific & Arctic Railway and Navigation Co., British Columbia-Yukon Railway Co., Dexter Horton Bldg., Seattle, Wash.-- Gentlemen: In keeping with my conversation of yesterday with your general traffic manager, Mr. L. H. Gray, in reference to freighting goods for you from the White Pass, or summit of the mountain, to Lake Bennett in the Northwest Territory, I wish to say that if you will guarantee to furnish me at least one hundred tons per month commencing Jan. 15, 1899, and extending to about April 15, 1899, or until the roads break up in the spring, and pay me therefor at the rate of four and one-half cents per pound on delivery of goods at Lake Bennett, and haul my feed and supplies from Skagway to the summit of the mountains for one and one-half cents per pound, and give me a free pass over your road during the time of said work, I will agree to put on sufficient teams to handle, with expedition, the amount above stated or more, when we find that there will be more to haul, you, of course, giving me sufficient notice to procure the extra teams, and will endeavor to work to your interest in the handling of said freight and protect you from any combination that might be formed for the purpose of advancing rates; any piece of machinery or other freight, weighing more than five hundred pounds, to be paid for extra, as may be agreed upon hereafter. An early reply will greatly oblige,

'Yours truly,

G. W. Roberts, 'Room 622, New York Block, Seattle. ' 'Seattle, Wash., December 16th, 1898.

'Mr. G. W. Roberts, Room No. 622, N.Y. Bldg., City-- Dear Sir: Referring to your favor of December 14th, 1898, my file No. 74, will say that we expect to haul from Skaguay to the summit of White Pass about 4,000 tons of freight, between January 15th and April 15th. We accept your rate of 4 1/2 cents per pound from Summit of White Pass (International Boundary) to Lake Bennett, but we cannot agree to give you any special amount in a specified time, as the elements are beyond our control, and there is a possibility of the steamers being delayed in reaching Skaguay. We do agree, however, to treat you fairly by dividing the freight with you and other parties in proportion to their carrying capacity. You can depend upon the White Pass & Yukon Route acting fairly and squarely with you; and, it is my opinion that you will be offered at least 25 or 30 tons of freight per day. We will agree to allow your sleds and harness repaired and horses shod at our blacksmith shops along the trial, at actual cost.

'I consider the above a fair proposition and await your acceptance.

'Yours truly,

L. H. Gray, 'L.H.G.-M. G.T.M.'

'Seattle, Wash., Dec. 17th, 1898.

'White Pass & Yukon Route, L. H. Gray, G.T.M., Seattle, Wash.-- Dear Sir: Referring to your favor of Dec. 16th in reference to carrying your freight from the summit of White Pass to Lake Bennett, I have considered your proposal to give me a rate of 4 1/2 cts. per lb. and hereby accept the same.

'Very truly yours,

G. W. Roberts.'

It was proven, also, over the objection of the plaintiff in error that on February 15, 1899, the plaintiff in error signed, at the instance of the defendants in error, the following paper, known as 'Defendants' Exhibit No. 2':

'Skaguay, Alaska, February 15th, 1899.

'Mr. L. H. Gray, G.T.M., W.P. & Y.R., Seattle, Washington-- Dear Sir: We the undersigned, hereby agree to protect the following freighters' rates during good sledding:

Between Heney and Summit ............ 1c. per pound

Between Summit and Log Cabin ........ 1c. per pound

Between Summit and Lake Bennett ..... 2c. per pound

Between Log Cabin and Lake Bennett .. 1c. per pound

'If absolutely necessary to protect Dyea competition and Packers' rates from Skaguay, we will confer with you and arrange some satisfactory basis of rates.

'Yours truly,

G. W. Roberts.'

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

It is assigned as error that the court denied the motion to remand the cause to the state court. It is argued that since the plaintiff in error was a citizen of the state of Washington, and one of the defendants in error was a citizen of West Virginia, and the other an alien, no cause was made for removal under the removal act of 1887 (24 Stat. 552 (U.S. Comp. St. 1901, p. 507)), and under the doctrine as stated in Black's Dillon on Removal of Causes, Sections 68, 84, in the latter of which sections it is said:

'But a different question is presented when a plaintiff, citizen of the state where the suit is brought, sues two defendants, one of whom is a citizen of another state, and the other an alien. Here there is no community of citizenship between any of the parties. Yet the cause is not removable, because it does not come within any of the provisions of the statutes. It is casus omissus. It cannot be said to be a controversy between citizens of different states, because one of the parties is not a citizen; and it cannot be described as a controversy between citizens of a state and foreign citizens or subjects, because one of the defendants is not a foreigner.'

According to this doctrine, an action brought by a citizen of a state against a citizen of another state and an alien is not removable, although, if two actions had been brought by the same plaintiff-- the one against the alien and the other against the citizen-- both would have been removable. The act of March 3, 1887, as corrected by the act of August 13, 1888, Section 2, 25 Stat. 434 (U.S. Comp. St. 1901, p. 509), provides for removing to the Circuit Court of the United States 'cases that might have been originally commenced therein. ' The first section defines the original jurisdiction of the Circuit Courts, and declares that they shall have jurisdiction of cases involving the prescribed jurisdictional amount, 'in which there shall be a controversy between citizens of different states * * * or a controversy between citizens of a state and foreign states, citizens and subjects. ' It is true that the present case does not present a controversy which is wholly between citizens of different states, nor does it present one which is wholly between a citizen and subjects of a foreign state; but can it be said, in view of the fair intendment of the statute, that it is not a case in which there is a controversy between citizens of different states, or a controversy between a citizen of a state and a foreign subject? Considering the purpose of the act and the general scope of its provisions, we think its language should be construed as comprehending the present case. There is here presented a controversy between the plaintiff in error and each of the defendants in error. It is true that the latter are sued jointly, but notwithstanding that fact a controversy exists as to each. The act does not declare that the controversy shall be one wholly between citizens of different states. That fact is of important significance when it is observed that in the second section, providing for removal of causes, it is declared:

'And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states and which can be fully determined as between them, then either one or more of the defendants

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