« SebelumnyaLanjutkan »
which there is any testimony, and of which the plaintiff complains, such as the failure to raise the timber to a sufficient height, the failure to give Walquist warning of its approach, the failure to station a person near him to inform him of its movements, were acts or omissions in the operation of the work for which the foreman or the other fellow servants of Mr. Walquist were responsible, and the Bridge Company was not. The conclusion is that there was no substantial evidence in this case of any causal negligence of the Bridge Company, and the court should have instructed the jury to return a verdict in its favor.
Counsel for the plaintiff below cite Kreigh v. Westinghouse & Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984, in opposition to this conclusion. The citation does not appear to be helpful to them. In that case the employer furnished a derrick with only one guide rope, which was attached to the end of the boom, so that when the rope was slack the boom could not be steadied or controlled. To prove that the defendant did not exercise reasonable care to furnish a reasonably safe boom, the plaintiff introduced testimony that the usual method of constructing such booms was to provide them with two ropes, one attached on either side of the boom, to be used to haul it back and forth, and for the purpose of steadying its operation, the very method of construction of the boom furnished by the Bridge Company in the case at bar, and the court held that this testimony presented the question for the jury whether the failure of Westinghouse & Co. to furnish such a derrick and boom as the Bridge Company provided in this case was not negligence; and the court in that case, after stating the rule that an employé may assume, in the absence of notice, that reasonable care has been exercised by the employer in furnishing appliances requisite to carry on the business, set forth the principle that is decisive of the case at bar, in these words:
“But, while this duty is imposed upon the master, and he cannot delegate it to another and escape liability on his part, nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his primary duty of providing a reasonably safe appliance and place for his employés to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellow workmen. Armour v. Hahn, 111 U. S. 313 [4 Sup. Ct. 433, 28 L. Ed. 440]; Perry v. Rogers, 157 N. Y. 251 [51 N. E. 1021).” Kreigh v. Westinghouse & Co., 214 U. S. 249, 256, 29 Sup. Ct. 619, 622 [53 L. Ed. 984).
There are other assignments of alleged errors; but as, if errors were made, the questions of law to which they refer are not likely to arise upon a second trial of this case, their discussion is omitted.
Let the judgment below be reversed, and let the case be remanded to the court below for a new trial.
YEE CHUNG v. UNITED STATES.
(Circuit Court of Appeals, Ninth Circuit. May 28, 1917.)
1. ALIENS Omw 32(8)-PROCEEDINGS TO DEPORT-WEIGHT AND SUFFICIENCY OF
In a proceeding to deport a person of Chinese descent, evidence held sufficient to support his claim that he was a native-born citizen of the United States.
[Ed. Note.-For other cases, see Aliens, Cent. Dig. $ 84.] 2. ALIENS Om32(8)—PROCEEDINGS TO DEPORT-WEIGHT AND SUFFICIENCY OF
In a proceeding to deport a Chinese person, the court could not arbitrarily and without reason reject or discredit the testimony of witnesses favorable to the defendant, on the ground that they were Chinese persons and unworthy of credit.
[Ed. Note.-For other cases, see Aliens, Cent. Dig. $ 84.] Appeal from the District Court of the United States for the Southern Division of the Southern District of California ; Benj. F. Bledsoe, Judge.
Proceeding by the United States to deport Yee Chung. From an order affirming an order of deportation, the defendant appeals. Reversed and remanded, with directions.
John L. McNab, of San Francisco, Cal., and Isidore B. Dockweiler, of Los Angeles, Cal., for appellant.
Albert Schoonover, U. S. Atty., and J. Robert O'Connor and Clyde R. Moody, Asst. U. S. Attys., all of Los Angeles, Cal.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
ROSS, Circuit Judge. The appellant was found by a commissioner of the United States to be unlawfully in this country and ordered deported to China, which order was, on hearing upon a writ of habeas corpus, affirmed by the court below. He claims to have been born in the United States of parents of Chinese descent, who, at the time of his birth, were subjects of the emperor of China, having a permanent domicile here and being engaged in business, and, therefore, that he is a citizen of the United States. It was said by Judge Holt in the case of United States v. Leu Jin (D. C.) 192 Fed. 580, that it is impossible in such cases “to be sure what the truth is,” in which case, nevertheless, he reversed the order of deportation made by the commissioner, pointing out the insufficiency of the various inconsistencies relied upon by the government to overcome the evidence given that the defendant was born in this country. In the case of Pang Sho Yin v. United States, 154 Fed. 660, 83 C. C. A. 484, the Circuit Court of Appeals for the Sixth Circuit reversed the judgment of the District Court, which had affirmed an order of deportation made in a similar case by the commissioner, based on the immigration inspector's examination of the respondent, his answers to questions put to him on such examination, "and the testimony of the inspectors that at the Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
* Rehearing denied October 8, 1917.
time they seized the respondent at Ecorse he was coming from the direction of the Detroit river, in company with three other persons, one of whom was a Chinese person, and the other two white men.” In the inspector's examination, said the court:
"The respondent stated that he was 34 years old; that he was born in San Francisco; that his father's name was San Foy, and his father died when the respondent was quite young; that he went to China when he was 4 years old: that he had lived there until his recent return to this country; that his occupation there was farming; that when he returned he landed in Vancourer, British Columbia, and paid a head tax there of $500 ; that he had been in various parts of Canada; that he left Windsor at 10 o'clock the erening before his arrest by the inspectors, and came across the Detroit river in company with the other three persons mentioned by the inspectors; and that he was then on his way to Paducah, Ky., where he had a relative. This account might fairly excite suspicion, but it was not irreconcilable with the supposition that on his return to America he had no clear ground for expecting that he could prove his birth in the United States, and establish his identity and right to entrance here, and that be did not intend to rely upon the fact of his birth in the United States. But several persons have been found and produced as witnesses whose veracity is vouched for by their neighbors, who swear to the circum'stances of his nativity in San Francisco and his going to China when quite young, all as stated by him.' One of these states the name of the street in San Francisco where the father lived and the respondent was born, and the month and year of the event, and he then knew the father and son ; that he (the witness) afterwards saw the respondent in China, when the latter was 10 years old, and now recognizes him as the same person. The identification of the appellant by the witness as the child of their acquaintance in San Francisco is so positive that we cannot feel justified in disregarding it when the consequences are so serious as the possible (and we think probable) expulsion from his native country of one who is entitled to share the irthright of citizenship. We think the judgment and order of the District Court should be rerersed, and the appellant discharged.”
See, also, United States v. Chin Len, 187 Fed. 544, 109 C. C. A. 310; Woo Jew Dip v. United States, 192 Fed. 471, 112 C. C. A. 609.
 In the present case the appellant claims to have been born February 17, 1880, at 728 Sacramento street, San Francisco, where his father and mother at the time resided, the former being then bookkeeper for and a member of the firm of Quong Woh Chong; that in 1881 his father took his mother and himself (then about 2 years old) to China, where his father remained several months, and then returned to San Francisco, leaving the appellant in China with his mother; that appellant remained there until he was about 18 years old; that he married in China, and had one son born to him there July 5, 1897, and another born there after his return to this country; that in the latter part of December, 1897, he came back to the United States by way of Vancouver, British Columbia, going thence to Montreal, and from there to Burlington, Vt., where he was arrested on the charge of being unlawfully in this country, and after examination by a United States commissioner was discharged by that officer; that his father, some time after his return to the United States, sold his business interest in San Francisco and went to Boston, where he entered the merchandise store of Sam Sing; that when the appellant was arrested in Burlington his father went from Boston to Burlington and was a witness at his examination, and after his discharge appellant went to Boston with his father, where he remained a few days, when the latter
sent him to a laundryman named Yee Lee at Carnegie, Pa., for whom he worked about 10 years; that at the end of that time appellant went back to China, sailing from Seattle some time in February, 1907; that before leaving Carnegie for Seattle he procured a copy of the proceedings had before the commissioner at Burlington, to which he annexed his affidavit, containing his photograph, which affidavit stated the time and place of his birth in San Francisco, the names of his Chinese parents, the place of his then residence in Allegheny county, Pa., and his discharge by the commissioner at Burlington, Vt., on the ground that he was a native-born citizen of the United States, and which affidavit has this indorsement:
"We, the undersigned, citizens of Allegheny county, Pa., other than Chinese, are acquainted with the above-described affiant, Yee Chung, and believe his statement as herein set forth to be true.
"E. R. Donehoo, Presbyterian Minister.
"Herbert F. Johns, Banker." The foregoing papers the appellant testified he submitted to the government official at Seattle before sailing for China, and upon which papers the latter indorsed the following: "Identified on departure, this Feb. 17, 1907.
"J. V. Stewart, Chinese Inspector." The appellant further testified, among other things, that he is the same Yee Chung named in those papers, and that when he landed in Hong Kong he went back to the village of Chung Doey, in the Sun Ning district, where his home was; that he remained in China until about October, 1909, when he returned to the United States by the steamship Manchuria, arriving at the port of San Francisco November 12, 1909. It is significant that upon this second return of the appellant to this country, and while his right to enter the United States was under consideration, his application was thus reported on:
"December 13, 1909. "Inspector in Charge, C. D. I. S., San Francisco, Cal.:
"In re Yee Chung, native, C. R. 47 Manchuria, 11/12/09, I have to report as follows:
“This applicant presents a transcript of a record of Commissioner Johnson, district of Vermont, without a photograph attached, showing that a Chinaman by the same name was discharged by said commissioner January 19, 1897. The ground of the discharge is not shown, but in view of the fact that it appears that the respondent in that case entered the United States at Richford, Vt., and was subsequently taken to Burlington, where he was discharged by Commissioner Johnson, I am satisfied that he was discharged on the ground of birth in the United States, because, had he set up any other claim, such claim would have been investigated at the port of Richford.
"According to the report of the inspector in charge at Richford, dated November 26, 1909, there is no testimony in Commissioner Johnson's records of the cases at the time of the discharge of said respondent, and the commissioner's records consist simply of the docket entries, complaint, warrant, etc. By the telegram of the inspector in charge at Richford, dated December 19, 1909, in reply to telegram of this office of December 7, 1909, it appears that the transcript of the record presented by this applicant is genuine.
"Considering the lapse of time the applicant claims to have been arrested and discharged by Commissioner Johnson, I am reasonably satistied from his examination that he is the respondent, Yee Chung, discharged by Commissioner Johnson, January 19, 1897. Although he claims that he distinctly re
members the commissioner who discharged him, and the description he has given of said commissioner by no means shows him to have been Commissioner Johnson, I think it would be unreasonable to hold the applicant too strictly to this description, in view of the 12 years that have elapsed since his alleged discharge. "In view of the foregoing, I recommend landing. All papers herewith. "Respectfully,
Chas. D. Mayer, Chinese Inspector." The appellant being admitted, he further testified that from San Francisco he went to Homestead, Pa.; that in 1913 he had his two sons, the name of the elder of whom is Yee Wah, and the younger Lee Lai, brought to this country, entering at San Francisco, having sent them “a paper for him to come.” Certificates of identity of these two boys, each containing a photograph and the certificate of his admission, were introduced in evidence; that of Yee Wah having also this indorsement: “12720/8–17.
“Memo. for the Commissioner. “In re Yee Wah, alleged Son of a Native..
“July 1, 1913. The alleged father claims to have returned to the United States from China by Vancouver, B. C., ex SS. Empress of China, K. S. 23-11 (November or December, 1897), and to have immediately proceeded to the United States via Montreal and Richford, Vt. He presents court record of discharge No. 121, issued in his name, by the District Court of Vermont. The alleged father, it will be noted, was landed at this port No. 47 Manchuria, November 12, 1909, by virtue of his previous landing by Commissioner Johnson January 19, 1897. Manifestly the examining inspector is not satisfied that the essential trip has been absolutely verified, but in my opinion the prior landing record No. 47 contains sufficient evidence to show that the alleged father in the present case is the identical person landed by the court in 1897. Accordingly, the essential trip is verified and I recommend admission.
"A. W. Long, Inspector, Law Division, Pittsburg, Pa.
The alleged father Yee Chung, of his coming and now detained alleged son, Yee Wah, stated his testiniony in a candid and frank way, corroborating all of his alleged son's statements in a most minute manner, so that I feel impressed that the truth was told. The witness Yee Wing also made a statement which corresponds in its entirety to all testimony given by Yee Wah. On account that all testimonies were given in such a frank way and corroboratively implying the truth, I think I feel justified to ask a favorable consideration concerning the admission of Yee Wah.
“[Signed] B. B. Marheineke, Investigating Interpreter." The appellant further testified that after his sons arrived in San Francisco he put them in school in Pittsburg, where they still were at the time of his testimony.
The claim of the appellant to birth in the United States is corroborated by the testimony of seven other witnesses, one of whom is a white man and six Chinese persons. Of the latter, one was for about 25 years in the personal service of a Commissioner of Immigration of the United States, and the other five have been for many years prominent Chinese merchants of the city of San Francisco. In their testimony they specify various incidents in the appellant's life, both in the United States and in China, which, if true, leave no doubt whatever respecting appellant's birth as claimed. In rejecting the testimony of all the Chinese witnesses, the trial judge, in the opinion filed by him in the court below, said:
"I had occasion, in an oral opinion delivered in this court, late in January of last year, in the case of United States v. Jee Jan, to indicate my views as