holding that a party who proceeds under a state cause of action may not for the first time on appeal advance a federal cause of action that was not considered by the courts below
How later courts described this case
- holding that a party who proceeds under a state cause of action may not for the first time on appeal advance a federal cause of action that was not considered by the courts below
- An appellate court “will not consider a question not presented, considered or decided by a lower court.”
- Appellate courts “will not consider a question not presented, considered, or decided by a lower court.”
Written by the judges who cited it.
The opinion
Herbert, J.,
dissenting. It seems to me that where a common carrier deliberately oversells its capacity and still represents to a ticket purchaser that he has a confirmed reservation, the carrier has consciously acted in reckless disregard of the purchaser’s rights.
The instant appellee at no time warned appellant that he might not really have a confirmed reservation, all the while expressly leading him to believe that he did. This situation persisted even to the point that his baggage was put aboard while he waited to receive his seat allocation.
At the time of this occurrence, most travelers would have agreed that a confirmed reservation meant space on the carrier, for both passenger and baggage. The unannounced first-come-first-served policy practiced by the carrier was directly contrary to the accepted import of its entire approach to selling tickets. Purchasers were constantly urged to seek confirmed reservations, the longer before flight-time the better. The ominous specter of being *80 left at the gate was the represented alternative. In no way was any warning ever given that a confirmed reservation was not only no protection whatsoever against being- left at the same gate, it actually was an invitation to added discomfiture since, with a reservation, the ticket-holder’s baggage would be sent on without him.
The facts of this case, plus the legal posture concerning the federal statute, may not present the most appropriate vehicle for resolution of the important basic issue involved. However, I disagree that an appellate court may never consider the application of a federal statute first raised'before it, and disagree with the majority’s'apparent conclusion that appellant had no valid cause of action for any damages other than the expense of a night’s lodging in a motel.
P. Browe, J., concurs in the foregoing dissenting opinion.