Krauss Bros. Lumber Co. v. Mellon

• Decision Date: 07 April 1927
• Docket Number: No. 4910.,4910.
• Parties: KRAUSS BROS. LUMBER CO. v. MELLON, Director General of Railroads, et al.
• Court: U.S. Court of Appeals — Fifth Circuit

18 F.2d 369 (1927)

KRAUSS BROS. LUMBER CO. v. MELLON, Director General of Railroads, et al.^*

No. 4910.

Circuit Court of Appeals, Fifth Circuit.

April 7, 1927.

Brenton K. Fisk, of Washington, D. C. (Harry S. Elkins, of Washington, D. C., and J. P. Mudd, of Birmingham, Ala., on the brief), for plaintiff in error.

Sidney P. Smith, of Birmingham, Ala., and Alexander M. Bull, of Washington, D. C. (Stokely, Scrivner, Dominick & Smith, of Birmingham, Ala., and Sidney F. Andrews, of Washington, D. C., on the brief), for defendants in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Plaintiff in error, plaintiff below, filed suit to recover $10,356, based on a reparation order of the Interstate Commerce Commission. The order annexed to the pleadings shows that plaintiff shipped certain carloads of lumber from various points in Mississippi, Alabama, Louisiana and Texas, where it had mills, consigned to designated stations on the lines of defendants' railroads; some shipments being made before and some during federal control. The lumber had not been sold when shipped, but before or after arrival at the initial destinations plaintiff sent reconsignment orders to defendants. In each instance there was an embargo in force against the point to which reconsignment was asked and compliance with the orders was refused. In consequence of delay, demurrage and other charges accrued and were collected. The Interstate Commerce Commission held that demurrage and other charges accruing at reconsignment points were not collectible unless set out in the tariffs filed, and made the reparation order accordingly.

At the close of all the evidence each side moved the court for a directed verdict and did nothing more. The court denied the motion of plaintiff, and granted that of defendants without stating his reasons. Error is assigned to the action of the court just noted. No other errors are assigned or suggested.

While an order of the Interstate Commerce Commission is necessary in most instances before a recovery of overcharges may be had, it is not conclusive. The order of the Commission is prima facie evidence of the facts therein stated, but it establishes only a rebuttable presumption, and all the issues are open before the court and the jury as in other cases. And in the appellate court the evidence adduced before the Commission, if offered on the trial in the District Court, and any additional evidence properly received, may be considered in support of or to correct the findings stated in the order. Meeker v. Lehigh Valley R. Co., 236 U. S. 412, 430, 35 S. Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B, 691; Pennsylvania R. Co. v. W. F. Jacoby & Co., 242 U. S. 89, 37 S. Ct. 49, 61 L. Ed. 165; Pennsylvania R. Co. v. Weber, 257 U. S. 85, 42 S. Ct. 18, 66 L. Ed. 141.

It is well settled that, where both parties ask the court for an instructed verdict without more, and error is assigned only to the rulings of the court on the motions, the appellate court must affirm if there is any evidence to support the verdict. Beuttell v. Magone, 157 U. S. 154, 15 S. Ct. 566, 39 L. Ed. 654.

Turning to the record in this case, the bill of exceptions shows that the plaintiff offered in evidence what were denominated as Exhibits 1, 2, 3, 4, 5, and 6, while defendants offered Exhibits 7, 8, 9, 10, 11, and 12. The exhibits offered by plaintiff, speaking generally, were certified copies of orders made by the Interstate Commerce Commission and a copy of a certain rule of that Commission. The exhibits offered by the defendant consisted of the pleadings, some 200 pages of testimony, and copies of tariffs and other documents, all of which were before the Commission at the hearing from which the reparation order resulted, and certain correspondence and an affidavit from a witness, Tracey, introduced in the District Court. The bill of exceptions concludes with this statement:

"The plaintiff's exhibits, referred to as Exhibit No. 1, Exhibit No. 2, Exhibit No. 3, Exhibit No. 4, Exhibit No. 5, and the Defendants' Exhibit No. 12 are hereinafter set forth fully as a part of this bill of exceptions. By virtue of an order of the presiding judge, W. I. Grubb, Plaintiff's Exhibit No. 6 and the Defendants' Exhibit Nos. 7, 8, 9, 10, and 11, respectively, are omitted from this bill of exceptions in order that they may be sent by the clerk of the lower court, in compliance with the said order of the presiding judge, direct to the Court of Appeals."

Following this in the transcript appears an order of court and a stipulation signed by attorneys for both plaintiffs and defendants, as quoted below:

"It appearing to the court that in this cause it is necessary and proper, in the opinion of the court, that certain original papers and documents should be inspected in the Circuit Court of Appeals upon writ of error by said court: It is therefore ordered that the following papers, to wit: Exhibits 6 to 11, inclusive,...