CHICAGO, B. & Q. RY. CO. v. FRYE BRUHN CO., 184 F. 15

REED, District Judge. The Frye-Bruhn Company, a Washington corporation (which will be called the “plaintiff”), sued the Chicago, Burlington & Quincy Railway Company, an Iowa corporation (which will be called the “defendant”), to recover from it as a common carrier and forwarder of freight and property from Kansas City, Mo., destined to Seattle, Wash., damages because of its refusal to receive from the Missouri, Kansas & Texas Railway Company (which will be called the “M., K. & T.

Co.”), at said Kansas City, 21 carloads of cattle, aggregating. 508 head, owned by the plaintiff and shipped by it from points near Lorena, Tex., over the M., K. & T. Co., consigned to itself at Seattle. For answer the defendant alleged, among other things, that when the cattle were offered to it by the M., K. & T. Co. at Kansas City they were infested with cattle “tick,” which communicates splenetic or Texas fever to cattle not immune from such disease, and were brought-to Kansas City by the M., K. & T.

Co. from points in Texas within a quarantined district or area established by the Board of Animal Industry of the Department of Agriculture of the United States as authorized by a law of Congress, and in violation of that law and of the regulations of said Board of Animal Industry made pursuant thereto; that defendant had no separate pens or facilities for handling or caring for cattle so infested to be transported to Washington points, as required by the laws of the United States, and was not a common carrier of such cattle from Kansas City to points in Washington, or other far Western points; and that it refused for such reasons to receive or transport such cattle.

It further answered that its alleged agreement to carry the cattle at $840 per car was less than its published rate, required by the acts of Congress, for carrying cattle in interstate commerce, and was, therefore, void. A jury was waived in writing, and the cause tried to the court, which resulted in a judgment for the plaintiff, and the defendant brings error.

The court made special findings of facts, upon which it based its judgment against the defendant, which in substance are: That plaintiff in 1903 was engaged in the business of buying and slaughtering cattle and packing meat at Seattle, in the state of Washington; that the defendant was at such time a common carrier of cattle and other property from Kansas City, Mo., through connecting lines, to points in the state of Washington, and that its lines connected with the M., K. & T.

Co., at Kansas City, Mo.; that in the latter part of April,- 1903, the plaintiff sent its cattle buyer, one Kennedy, to Eorena, Tex., with instructions to purchase for it a lot of cattle at that and nearby places, provided he could get a rate of $240 per car for transporting them to Seattle; that, upon his arrival at Eorena, Kennedy took up the question of shipping the cattle with the M., K. & T. Co., which'operated its line of road from, that vicinity to Kansas City; that telegraphic communications then ensued between the proper officers of the defendant company and the M., K. & T.

Co., whereby it was finally arranged that a rate of $240 per 36-foot car was given by the defendant to the plaintiff for the transportation of some 22 carloads of cattle from Lorena, Tex., by the M., K. & T. Co. to Kansas City, where they were to be delivered to the defendant, and it was to transport them through its connecting lines to Seattle; that the M., K. & T. Co. was to have $55 of the agreed rate per car for transporting the cattle to Kansas City, and the defendant the remainder for transporting them to Seattle; that pursuant to such arrangement Kennedy on May 6th delivered to the M., K. & T.

Co., at stations on its line near Lorena, 21 carloads of cattle consigned to plaintiff at Seattle at a through rate of $240 per 36-foot car, upon bills of lading which provided that the M., K. & T. Co. should carry the cattle to Kansas City and there deliver them to the defendant as its connecting carrier, and across the face of each was stamped the words- “Southern Cattle, Subject to Quarantine Regulations.” The cattle were intended for immediate slaughter at Seattle, their destination, were shipped as such by plaintiff, and the M., K. & T. Co. was advised to that effect.

The cattle arrived at Kansas City on May 8th, were unloaded by the M., K. & T. Co. into quarantine pens, and on the following day tendered to the defendant for forwarding, and their transportation demanded by the M., K. & T. Co. and by plaintiff’s agent Kennedy; but defendant refused to receive or transport them. As the result of defendant’s refusal, the cattle remained in the quarantine pens in Kansas City until May 15th, when they were sold for plaintiff’s account, and at a loss to it of the amount for which the judgment was rendered.

Upon the arrival of the cattle in Kansas City, more than half of them were actually infested with the Texas cattle tick; that the disease known as Texas fever is communicated solely by the bite of such tick, which, however, can travel but a few feet; that cattle from an infected area are immune from the disease, and their meat is healthy; but the disease, if contracted by Northern cattle which have never had it, is almost always fatal; that the fact that these cattle were actually infested with ticks was learned by defendant through an examination made by the United States inspector on May litli; that defendant had no separate quarantine pens at Kansas City, in which to unload the cattle for food, water, and rest; that at and prior to the date in question defendant regularly received at, and transported from, Kansas City cattle which had been shipped to that place from the quarantine area, consigned to Chicago, Omaha, and St.

Louis, but did not so receive or transport them if consigned to Seattle or other Western points. Order No. 107 of the Board of Animal Industry is set out in the findings, from which it appears that Lorena and nearby stations in Texas are within the quarantine district or area described in said order, and that cattle are not to be shipped by any railroad company from such quarantine district, except under certain conditions, which the court found were not complied with by plaintiff’s agent, Kennedy, nor by the M., K. & T. Co., in the shipment of these-cattle from Texas to Kansas City.

The eighth paragraph of the court’s findings reads as follows: “

(8) Lorena, Temple, and Taylor, Tex., from where the cattle were shipped, are south of the quarantine line described ini order No. 107 of the Board of Animal Industry of the United States and amendments thereto, and within, the area designated by said order in which cattle were infected with the disease known as splenetic or Texas fever. This fad, was known to defendant at the time it solicited this shipment from the M., K. & T. Co.

There was no-provision made by the government authorities for inspection of cattle coming from these points, and no government inspection could have been had.” The defendant contends in argument that paragraph 8 and others of the findings of fact are without any support in the testimony ; also that the court erred in all of its findings of fact, and in refusing to find certain facts, and declare the law as requested by it.

But we are precluded from considering or determining any of these questions, for the record before us fails to show that any exceptions were taken to any of the findings, or to the refusal to find the. facts, or declare the law, as the defendant claims to have requested. The judgment was rendered June 16, 1908, and the findings of fact filed on that date. On September 18th following the defendant filed its petition for a writ of error, together 'with an assignment of errors, as required by the rules of this court.

In the assignment of errors then filed the defendant states that it excepted to paragraph No. 8 of the findings of fact as being without any support in the testimony, and that other findings were contrary to the testimony of the plaintiff; that defendant requested the court to find certain facts and make certain declarations of law, which it refused to do; and that it duly excepted to such re-' fusal at the time thereof.

These statements so made are without support in the record; for, aside from the assignment of errors, it nowhere appears that defendant requested the court to find any fact, malee any declaration of law, that it refused to do* so, or that defendant excepted to any such refusal.

The office of an exception, in .practice, is to challenge the correctness of any ruling made by the trial court during the progress of the trial, to the end that it may be corrected by the court itself, if, .upon its attention being called thereto, it deems it to be erroneous, and to lay the foundation for its review, if necessary, by the proper appellate tribunal. In the courts of the United States such an exception, taken immediately upon the ruling being made, is indispensable to a review of the ruling by the appellate court. Railway Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58; Newport News, etc., Ry. Co. v.

Pace, 158 U. S. 36, 37, 15 Sup. Ct. 743, 39 L. Ed. 887; Potter v. United States, 58 C. C. A. 231, 122 Fed. 49, 55. There might be difficulty in finding in the bill of exceptions sufficient evidence to support the eighth paragraph, and perhaps others, of the findings of fact, if we were at liberty to review the evidence upon which they are based; but for the reasons stated we are precluded from so doing.

It is not disputed that the facts as found warrant a judgment against the defendant; but it is contended that it should have been allowed to offset against the damages found for plaintiff the full amount of its published rate of $240 per car for transporting cattle from Kansas City to Seattle, instead of $185, for which it had agreed to transport them, and which the trial court found was the reasonable cost of such transportation.

This contention is upon the theory that defendant’s agreement to transport the cattle for $185 per car was in effect an agreement for a rebate, therefore a violation of the interstate commerce law, and void, and that, notwithstanding such agreement, it is entitled to recover the full published rate for transporting the cattle. The difficulty with this contention is that defendant did not transport the cattle, but refused to do so. It is not, therefore, entitled to recover anything for their transportation, and no question of an unlawful rebate is involved.

The court, in finding the value of the cattle in Seattle, fixed $185 per car as the reasonable cost of transporting them from Kansas City. There is no evidence that this was not the reasonable cost of their transportation; nor is there any evidence or finding as to what defendant's published rate per car, or otherwise, was for the transportation of cattle from Kansas City to Seattle, or the joint rate from Texas common points to Seattle.

There is testimony tending to show that the rate at which defendant agreed to carry the cattle would have gone into effect in three days, if it had been filed with the Interstate Commerce Commission, and would have been a legal rate. If defendant had filed such rate, or caused it to be filed by the M., K. & T. Co., it would have been one for which the plaintiff could have legally procured the transportation of its cattle from Kansas City to Seattle, and therefore the reasonable cost of the transportation.

It is further contended that the laws of Montana, Wyoming, and Washington, through which -it wrould be necessary for the defendant to car 17- the cattle to their destination, forbade under heavy penalties the transportaron through such states of cattle from a quarantined area, except upon certain conditions with which it was unable to comply, and that it was, therefore, justified in refusing to receive-them.

But if defendant solicited their shipment, knowing the cattle were from the quarantined area, as found by the court, and agreed to transport them to Seattle through said states, it was its duty to be prepared to comply with the conditions upon which it might lawfully carry them, and it cannot justify its refusal to accept them for such carriage upon the ground that it was not prepared to comply with such conditions. The conclusion therefore is that the judgment must be affirmed; and it is accordingly so ordered. Affirmed.