Opinion
No. 4280.
July 3, 1925.
In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.
At Law. Action by the Imperial Coal Sales Company against the Borderland Coal Sales Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Charles J. Hunt, of Cincinnati, Ohio (Hunt, Bennett Utter, of Cincinnati, Ohio, on the brief), for plaintiff in error.
Edgar M. Powers, of Cincinnati, Ohio (Frank E. Wood, of Cincinnati, Ohio, on the brief), for defendant in error.
Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
The Imperial Coal Sales Company brought action against the Borderland Coal Sales Company to recover damages for breach of two contracts — one for the purchase of 15 carloads of New River Sewell seam coal from Quinwood, W. Va., to be shipped to the Chicago By-Products Coke Corporation at Hawthorne, Ill., the other for the purchase of 50 carloads of New River smokeless coal, to be shipped to the same consignee. Fourteen cars were shipped upon the first contract and 32 on the second. All this coal was rejected by the By-Products Company, and the defendant refused to accept or pay for the same. The defendant denies that it entered into either of these contracts, and further avers that, if any contracts were made, they were each verbal contracts for merchandise in excess of $2,500 in value, and void under the provisions of section 8381(1) of the General Code of Ohio. At the close of all the evidence defendant moved for a directed verdict, which motion was overruled by the court, but no exceptions were taken. It is claimed upon behalf of the plaintiff in error that the refusal of the court to direct a verdict for defendant embodies all of the 12 errors assigned, and is the logical result of the errors assigned as to the charge given and special charges refused.
This record, however presents no such question. An appellate court can consider only errors to which objections have been made and exceptions taken in the trial court. The only exception to this general rule is in criminal cases, where federal courts of review may sometimes, in the exercise of sound judicial discretion, and to prevent miscarriage of justice, notice error in the trial to which no exceptions or objections have been taken. Wiborg v. U.S., 163 U.S. 632, 659, 16 S. Ct. 1127, 1197, 41 L. Ed. 289; Robilio v. U.S. (C.C.A. 6) 291 F. 975, 980; Wilkes et al. v. U.S. (C.C.A. 6) 291 F. 988, 994; Goldfarb v. Keener, (C.C.A.) 263 F. 357.
No exceptions were taken to the general charge of the court, nor was any separate exception taken as to the refusal to charge any one request, but there was a general exception to the refusal of the court to give all of these requests, and only requests 3, 4, and 5 are exhibited by the record.
For the reasons stated in the authorities above cited, and in Hindman v. U.S. (C.C.A. 6) 292 F. 679, 682, alleged errors in the charge and this general exception to the refusal to give defendant's requests cannot be considered, and especially in this case where it appears from the record that counsel admitted that these requests are all covered "in a way" in the general charge and, upon invitation of the court, refused to specify wherein any one of these charges was not covered, and wherein the general charge misstated any proposition of law applicable to the facts in this case, and for the further reason that all the requests to which this general exception is directed do not appear in this record. Notwithstanding the absence of exceptions, we have carefully examined this record, and are of the opinion that no errors are exhibited therein to the prejudice of the plaintiff in error.
The judgment of the District Court is affirmed.