Krauss Bros Lumber Co v. Mellon

• Decision Date: 09 April 1928
• Docket Number: No. 342,342
• Parties: KRAUSS BROS. LUMBER CO. v. MELLON, Director General of Railroads, et al
• Court: U.S. Supreme Court

276 U.S. 386

48 S.Ct. 358

72 L.Ed. 620

KRAUSS BROS. LUMBER CO.

v MELLON, Director General of Railroads, et al.

No. 342.

Argued March 7, 1928.

Decided April 9, 1928.

Mr. Brenton K. Fisk, of Washington, D. C., for petitioner.

Mr. Alex M. Bull, of Washington, D. C., for respondents.

Mr. Chief Justice TAFT delivered and opinion of the Court.

Krauss Bros. Lumber Company is a corporation engaged in the wholesale lumber business, to whom the Interstate Commerce Commission, on the complaint of the company, ordered the respondent railroad companies, the Mobile & Ohio Railroad and the Alabama Great Southern Railroad Company, to pay reparation in the amount of $10,356 because of unlawful demurrage charges illegally collected. The sole issue was whether any such power had been vested in the Commission as would give it juris- diction to decide that the charges should be refunded. Upon the Commission's decision that it had such power, the parties, following its suggestion, filed formal stipulations under Rule V of the Commission's practice admitting the amounts of the charges, the illegality of which had been declared by the Commission, and thereupon the reparation order was made.

The view of the defendants was that the Commission had no power to order a return of these demurrage charges, since by the common law, quite outside the functions and powers of the Commission, a carrier could reject a tender of goods for initial transportation while there were existing embargoes, and in the same way could reject a demand for reconsignment to points embargoed at the time of initial acceptance for shipment, and so demurrage had accrued until the consignees accepted actual delivery of the goods. Payment not having been made on or before December 28, 1922, as directed by the Commission the present suit was filed by the petitioner as plaintiff against the respondents as defendants on March 20, 1923, in the United States District Court for the Northern District of Alabama. The complaint conformed to the provisions of section 16, of the Interstate Commerce Act (49 USCA § 16; Comp. St. § 8584), and contained the findings and order of the Commission as a part thereof.

The case came on for trial, demurrers to the complaint were overruled, additional counts were inserted by amendment and a demurrer to them was also overruled. Thereupon the shipper, as plaintiff, duly introduced into the evidence the Commission's original finding and other Commission proceedings and closed its case. The respondents, over the shipper's objection that the same were incompetent, were permitted to put in evidence the original pleadings before the Commission, and the testimony and other exhibits taken and filed in the Commis- sion's proceedings. Thereupon the respondents closed their case, and the shipper duly moved for a directed verdict, which motion was overruled by the District Court and an exception noted. The respondents thereupon moved for a directed verdict, which motion was granted, and the shipper duly excepted.

A writ of error to the Circuit Court of Appeals for the Fifth Circuit was then duly taken. The exhibits filed by the respondents were exceedingly voluminous, there being, among other things, a complete file of embargo circulars included as a part of the evidence which had been placed before the Commission in the hearings before it. The defeated party was anxious to avoid the printing of exhibits which it did not deem of use to the reviewing court in passing on what it considered the only issue in the case and attempted to secure this through stipulation of counsel and by an order of court. When the case reached the Circuit Court of Appeals, it declined to pass upon the merits of the case, for the following reason:

'From the above it is plain that all of the evidence upon which the case was tried is not in the bill of exceptions. The order of court sending up the documents in the original does not purport to make them a part of the bill of exceptions, the rule of this court could not incorporate them therein, and the agreement of counsel expressly excludes them.

'As applicable to the deficiency of the record here shown, the well-settled rule is this. Depositions, exhibits, or certificates not contained in the bill of exceptions cannot be considered even though found in the printed transcript. The parties by their affidavits or agreements cannot cause that to become a bill of exceptions which is not such in a legal sense Where instructions of the court are assigned as error on a motion to direct a verdict or otherwise, unless the entire evidence pertinent to the question is in the bill, the appellate court must presume that the omitted evidence justified the instruction.'

Except as modified by statute, the rules as to bills of exceptions in the federal courts are the same as they were at common law. By section 17 of the Judiciary Act of 1789 (chapter 20, 1 Stat. 73, 83 (28 USCA § 391)), all the courts of the United State were given power to grant new trials in cases where there had been a trial by jury, for reasons for which new trials had usually been granted in the courts of law. This was held to adopt the common-law rule on the subject. Parsons v. Bedford, 3 Pet. 433, 7 L. Ed. 732. Prior to the statute of Westminster, II (13th Edw. I, c. 31), a writ of error at common law could be had only for an error apparent on the face of the record or for an error in fact, such as the death of a party before judgment, but by that old statute, which is now to be treated as common law, it was provided that exceptions might, by bills of exceptions, be made a part thereof and so be reached by the writ of error. In this way so much of the facts of the case as were necessary to make plain the question of law on which the exception was founded were incorporated in the record, but the trial justice, as a witness to the bill, had to put his seal to the instrument and in the reviewing court might be commanded to appear at a certain date either to confess or deny his seal, and then, if he could not deny his seal, the court of review proceeded to judgment according to the same exception as it ought to be allowed or disallowed. Nalle v. Oyster, 230 U. S. 165, 176, 177, 33 S. Ct. 1043, 57 L. Ed. 1439; Duncan v. Landis (C. C. A.) 106 F. 839, 844; Defiance Fruit Co. v. Fox, 76 N. J. Law, 482, 489, 70 A. 460.

By the Act of June 1, 1872 (chapter 255, 17 Stat. 196, 197), it was provided that a bill of exceptions allowed in any cause should be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried or by the presiding judge thereof, if more than one judge sat at the trial of the cause, without any seal of the court annexed thereto, and this became section 953 of the Revised Statutes (28 USCA § 776; Comp. St. § 1590). Since the passage of that act, it is not necessary to seal a bill of exceptions (Herbert v. Butler, 97 U. S. 319, 320, 24 L. Ed. 958; Malony v. Adsit, 175 U. S. 281, 285, 20 S. Ct. 115, 44 L. Ed 163), but the signature is still necessary (Origet v. United States, 125 U. S. 240, 8 S. Ct. 846, 31 L. Ed. 743. United States ex rel. Kinney v. United States Fidelity & Guaranty Co., 222 U. S. 283, 32 S. Ct. 101, 56 L. Ed. 200)

Strict requirements are thus insisted on so as to make certain that the reviewing court shall have before it an accurate account of the evidence or exhibits, which were before the trial court in the original hearing of the issues of the case, properly certified.

The same strictness prevails as to including in the bill the evidence upon which reliance is had to justify the exception, if not included in the original record. In many cases the error complained of rests on a negative showing that there was no evidence adduced at the trial upon which the ruling of the court complained of could be predicated. If a motion is made in the trial court to take the case from a jury, or other fact-finding tribunal, and direct a verdict or give judgment on the ground that, as a matter of law, only one verdict or judgment can be reached, it must appear that in the bill of exceptions is contained all the evidence actually adduced before the trial court. It has always been ruled in such a case that, if the bill of exceptions does not contain all the evidence, it will be presumed that the evidence omitted was sufficient to justify a refusal to grant the motion. Russell v. Ely, 2 Black, 575, 580, 17 L. Ed. 258; City of Providence v. Babcock, 3 Wall. 240, 244, 18 L. Ed. 31; Grand Trunk Railway Co. v. Cummings, 106 U. S. 700, 701, 1 S. Ct. 493, 27 L. Ed. 266; Texas & Pacific Railway Co. v. Cox, 145 U. S. 593, 606, 12 S. Ct. 905, 36 L. Ed. 829; Hansen v. Boyd, 161 U. S. 397, 403, 16 S. Ct. 571, 40 L. Ed. 746; United States v. Copper Queen Mining Co., 185 U. S. 495, 498, 22 S. Ct. 761, 46 L....