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 jurisdiction 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.
3

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 Commission'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.'
7

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.
10

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.
Ed. 1008; Nashua Savings Bank v. Anglo-American Co., 189 U. S. 221, 231,
23 S. Ct. 517, 47 L. Ed. 782. By this it is not meant that the evidence shall be
set forth at length in the words of the witnesses, and of the writings and
documents admitted, but only that the purport and substance of all of it be
included. In setting it forth, regard should be had to the requirements of
paragraph 2 of Rule 7 of the Rules prescribed by this court. 266 U. S. 653.
Lincoln v. Claflin, 7 Wall. 132, 136, 19 L. Ed. 106; Zellers' Lessee v. Eckert, 4
How. 289, 297, 298, 11 L. Ed. 979.

11

The question here arises because of the alleged omission of certain exhibits
from the bill of exceptions, which the petitioner contended were not relevant to
the issue between them. Because of this, the Circuit Court of Appeals, of its
own motion, and not by request or consent of either party, applied the rule
above stated. We do not think, however, that the bill of exceptions can be said
to have omitted these exhibits or to have prevented the Circuit Court of Appeals
from considering them with all the evidence. The bill of exceptions recites that
in the trial both parties appeared by counsel, the jury was impaneled, and that
there were introduced in evidence by the plaintiff Exhibits 1, 2, 3, 4, 5, and 6,
all as described; that they were admitted subject to objection and exception as
irrelevant, and the objection was overruled, and that the defendants offered
Exhibits No. 7, No. 8, No. 9, No. 10, No. 11, and No. 12, all as described, and
as containing all the testimony and also exhibits offered at the hearing before

the Interstate Commerce Commission, and that the plaintiff objected to the
introduction of all those exhibits from No. 7 to No. 12, and that this objection
was overruled and an exception noted. The bill of exceptions then concluded as
follows:
12

'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' Exhibits 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.

13

'This was all the evidence in the case.

14

'(Signed) W. I. Grubb.'

15

This was followed by the stipulation signed by the attorneys for both plaintiff
and defendants, and the order of the court; the latter being that referred to in the
bill of exceptions, as follows:

16

'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:

17

'It is therefore ordered that the following papers, to wit, Exhibits 6 to 11,
inclusive, referred to and described in the bills of exceptions, be transmitted by
the clerk of this court to the clerk of the Circuit Court of Appeals at New
Orleans, La., and returned after the disposition of the writ of error to the clerk
of this court.

18

'The parties to this cause by their respective counsel do hereby stipulate and
agree as follows:

19

'That the Plaintiff Exhibit No. 6 and that the Defendants' Exhibits 7, 8, 9, 10,
and 11, may be omitted from the bill of exceptions, and sent by the clerk of the
trial court direct to the Court of Appeals in their original form, and further that
the exhibits need not be printed in the record. This agreement is made in
conformity with an order of the trial court by the presiding judge that said

exhibits, viz. 6, 7, 8, 9, 10, and 11, shall be omitted from the record, and sent
directed by the clerk of the trial court to the Court of Appeals.'
20

While the rule as we have shown by its history in respect to the inclusion of all
the evidence in the bill of exceptions must be respected, we must give the
recitals of the bill a reasonable construction. Kleinschmidt v. McAndrews, 117
U. S. 282, 286, 6 S. Ct. 761, 29 L. Ed. 905; Waldron v. Waldron, 156 U. S.
361, 15 S. Ct. 383, 39 L. Ed. 453. While it may be said that the form in which
this bill of exceptions is sent up is in its parts slightly inconsistent in itself and
apparently self-contradictory, it is clear that the bill as signed by the trial court,
and read in the light of the order which is referred to and identified in the bill,
brought and was intended to bring to the appellate court all of the evidence
heard in the court below, and all the exhibits, even those said in it to be omitted
therefrom which were ex industrial sent by order of the court to the court above
for that court's examination. We think the references in the bill to the exhibits
separately sent by order of the trial court to the Circuit Court of Appeals are
sufficiently identified as part of the bill. They were omitted from the bill in the
sense only that they were to be sent separately from the rest of the bill to the
reviewing court, perhaps with a view, rightly or wrongly, to avoiding the
necessity of printing them. But the certificate of the judge certainly included
them in the bill when, after expressly referring to them, he said, 'This was all
the evidence in the case.' To be sure, it is well settled that exhibits found in the
record or even annexed to a bill of exceptions when not attached to it by way of
identifying them as intended to be part of it, cannot be treated as such. National
Bank v. Kennedy, 17 Wall. 19, 29, 21 L. Ed. 554; Reed v. Gardner, 17 Wall.
409, 411, 21 L. Ed. 665; Jones v. Buckell, 104 U. S. 554, 26 L. Ed. 841; Hanna
v. Maas, 122 U. S. 24, 7 S. Ct. 1055, 30 L. Ed. 1117.

21

But in Leftwitch v. Lecanu, 4 Wall. 187, on page 189, 18 L. Ed. 388, Mr.
Justice Miller, while exemplifying this principle, said, in rejecting a bill of
exceptions:

22

'If a paper which is to constitute a part of a bill of exceptions, is not

incorporated into the body of the bill, it must be annexed to it, or so marked by
letter, number, or other means of identification mentioned in the bill, as to leave
no doubt, when found in the record, that it is the one referred to in the bill of
exceptions.

23

And again, in Jones v. Buckell, supra, at 556, 26 L. Ed. 841, Chief Justice
Waite, in making a similar ruling, said:

24

'Of course, evidence may be included in a bill of exceptions by appropriate

24

'Of course, evidence may be included in a bill of exceptions by appropriate

reference to other parts of the record, and, if that had been done here, it might
have been enough.'

25

As we have said, we think the identifying references, in the bill, to the exhibits
are sufficient.

26

The result is that the Circuit Court of Appeals should have considered the
issues before it on the bill of exceptions as containing all the evidence below,
and that the dismissal for lack of it was erroneous.

27

The judgment is reversed, and the cause is remanded to the Circuit Court of
Appeals for further proceedings.