A federal question which is first set up and asserted in a
petition for rehearing in the highest court of the state which was
not entertained but denied without passing upon the federal
question is not open to consideration here.
In an action for damages for unreasonable delay in transporting
a shipment of cattle in interstate commerce where the question in
dispute was whether the transportation could have reasonably been
completed within the thirty-six hours maximum limit under the
federal statute, the court charged the jury that the carrier could
not keep the stock in the cars longer than such period, and that,
if it was not reasonably possible to complete the journey within
that time, the carrier was not responsible for delay caused by
unloading the stock for rest, water and feed, and, no exceptions
having been reserved or modifications suggested, or other
instructions requested,
held that assignments of error
based on failure to give due effect to tho federal statute are so
devoid of merit as to be frivolous, and the writ of error should be
dismissed.
Writ of error to review 40 Okl. 589 dismissed.
The facts, which involve the jurisdiction of this Court under §
237, Jud.Code, are stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action for damages resulting, as was alleged, from
unreasonable delay in transporting cattle from Fort
Page 240 U. S. 241
Worth, Texas, to Kansas City, Missouri, in May, 1909. The
plaintiff had a verdict and judgment, and the latter was affirmed.
40 Okl. 589. The errors assigned are that due effect was not given
to certain provisions of the Carmack Amendment to the Interstate
Commerce Act (§ 7, c. 3591, 34 Stat. 584, 595), or to the act
limiting the time that cattle in interstate transit may be confined
in cars without being unloaded for rest, water, and feed, June 29,
1906, c. 3594, 34 Stat. 607.
The claim under the Carmack Amendment was first set up and
asserted in a petition for rehearing after the judgment in the
trial court was affirmed by the supreme court of the state. The
petition was not entertained, but was denied without passing upon
the federal question thus tardily raised. That question therefore
is not open to consideration here.
Pim v. St. Louis,
165 U. S. 273;
Mutual Life Ins. Co. v. McGrew, 188 U.
S. 291,
188 U. S. 308;
McCorquodale v. Texas, 211 U. S. 432,
211 U. S. 437;
Forbes v. State Council of Virginia, 216 U.
S. 396,
216 U. S. 399;
Consolidated Turnpike Co. v. Norfolk &c. Ry.,
228 U. S. 326,
228 U. S.
334.
The claim made under the other act was that part of the delay
was excusable because the transportation reasonably could not have
been completed within the maximum time -- thirty-six hours --
during which the cattle could be confined in the cars, and it
therefore became necessary under the act to unload them for rest,
water, and feed for at least five hours, as was done. Whether the
transportation reasonably could have been completed within
thirty-six hours was the subject of direct and conflicting
testimony, and was committed to the jury as a question of fact. In
that connection, the court said to the jury:
"You are instructed that, under the laws of the United States,
the defendant company could not keep the stock in this shipment in
the cars longer than thirty-six hours, and if you find from the
evidence that it was not reasonably possible that the shipment
should reach Kansas City
Page 240 U. S. 242
within the thirty-six-hour limit, then it is not liable for the
delay caused by the unloading of the stock."
No exception was reserved to this instruction, no modification
of it was suggested, and no other instruction upon the subject was
requested. It therefore is apparent that the assignments based upon
this statute are so devoid of merit as to be frivolous.
Writ of error dismissed.
