American Chemical Paint Co. v. Dow Chemical Co.

• Decision Date: 17 November 1947
• Docket Number: No. 10375.,10375.
• Citation: 164 F.2d 208
• Parties: AMERICAN CHEMICAL PAINT CO. v. DOW CHEMICAL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

164 F.2d 208 (1947)

AMERICAN CHEMICAL PAINT CO. v. DOW CHEMICAL CO.

No. 10375.

Circuit Court of Appeals, Sixth Circuit.

November 17, 1947.

Charles W. Rivise and Abraham D. Caesar, both of Philadelphia, Pa. (Robert S. Marx and Nichols, Wood, Marx & Ginter, all of Cincinnati, Ohio, Caesar & Rivise, C. W. Rivise, and A. D. Caesar, all of Philadelphia, Pa., and Alan N. Brown, of Detroit, Mich., on the brief), for appellant.

Bernard A. Schroeder, of Chicago, 111. (Bernard A. Schroeder, Charles J. Merriam, and Chritton, Schroeder, Merriam & Hofgren, all of Chicago, Ill., Calvin A. Campbell and Donald L. Conner, both of Midland, Mich., and Harness, Dickey & Pierce, of Detroit, Mich., on the brief), for appellee.

Before HICKS, SIMONS and MILLER, Circuit judges.

MILLER, Circuit Judge.

In our original opinion in this case, reported at 6 Cir., 161 F.2d 956, to which reference is made for a statement of the facts, we held that the venue of the action, controlled by Section 51 of the judicial Code, 28 U.S.C.A. § 112, was improper and that the ruling in Neirbo Company v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437, dealing with waiver of venue, was not applicable. Appellee contends in its petition for rehearing that appellant waived the question of improper venue by the admission of its counsel in his oral argument during the trial of this action in the District Court that if the action was controlled by Section 51 of the judicial Code, instead of by Section 48, 28 U.S.C.A. § 109, as then claimed by him, the ruling in the Neirbo case would apply. The argument referred to was not a part of the original transcript of record when this appeal was considered, due to the fact that the parties stipulated in preparing the record on appeal that it be omitted. In view of appellee's reliance upon this oral waiver, an order was entered by this Court, subsequent to our decision and opinion in the case, that said oral argument appeared material to the disposition of this appeal and that "Pursuant to the provisions of Rule 75(h), Rules of Civil Procedure 28 U.S.C.A. following section 723c," a supplemental record containing a transcript of the argument be certified and transmitted by the Clerk of the District Court to the Clerk of this Court. Such supplemental record is now before us and discloses that appellant's counsel conceded in his argument to the District judge that if the action was controlled by Section 51 of the judicial Code the Neirbo case applied and the question of venue was waived. Appellant now contends, however, that this supplemental record is not properly before this Court, and in any event such an admission or waiver is not controlling. It is pointed out that Rule 75(h) permits the Appellate Court to order a supplemental record if anything material to either party "is omitted from the record on appeal by error or accident or is misstated therein," and that none of those conditions exist in that the omission of the transcript of argument was deliberate and by agreement. We believe that the rule is broad enough to cover a case of this kind, and that when the parties, acting in good faith in an attempt to eliminate portions of the record erroneously believed at the time to be irrelevant, have omitted a portion of the record considered by the appellate court to be material to a proper disposition of the appeal, the Court may direct that the omitted portion be supplied in order to make a proper disposition of the question presented. Compare Drybrough v. Ware, 6 Cir., 111 F.2d 548, 550. However, we are of the further opinion that the alleged waiver, as shown by the supplemental record, is not effective. A stipulation by counsel made for the purpose of expediting the trial of an action, relating to facts or procedure, is usually binding on the litigant whom he represents; but the Court is not controlled or bound by the agreement of counsel on a question of law. Estate of Sanford v. Commissioner, 308 U.S. 39, 51, 60 S.Ct. 51, 84 L.Ed. 20; Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 61 L.Ed. 722; McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12, 13. The case of Lenox Clothes Shops v. Commissioner, 6 Cir., 139 F.2d 56, relied on by appellee, dealt with a question of fact.

Appellee further contends that the Court erred in holding that the rule in the Neirbo case did not apply because it was restricted to cases involving diversity of citizenship. It relies upon Oklahoma Packing Company v. Oklahoma Gas & Electric Company, 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 537, in support of this contention. Although diversity of citizenship existed in that...