Chernack v. Radlo
| Decision Date | 28 April 1964 |
| Docket Number | No. 6197.,6197. |
| Parties | David CHERNACK et al., Defendants, Appellants, v. Gilbert RADLO, Plaintiff, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Samuel A. Olevson, Providence, R. I., with whom Jacob S. Temkin, Providence, R. I., was on the brief, for appellants.
Harold Lavien, Boston, Mass., with whom Nathan H. David, Boston, Mass., was on the brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
This is an appeal by the defendants following jury verdicts for the plaintiff in two causes of action for breaches of contract tried together in the district court for the District of Rhode Island. The plaintiff, Radlo, is a citizen of Massachusetts and the defendant Chernack, his brother-in-law, a citizen of Rhode Island. The defendant Overseas Commodities Corporation, by whom they were both employed, is a Rhode Island corporation of which each owns one half of the stock. Defendants assert various errors occurring during the trial. Each, in addition, seeks a new trial because the verdict was against the weight of the evidence, and Overseas alleges that there was no evidence warranting a verdict against it.
We must start with a procedural matter. The record appendix filed by appellants is incomplete on its face, and hence inadequate to present questions of the sufficiency of the evidence. When appellee, in his brief, pointed this out, instead of attempting to correct the defects1 appellants filed a reply brief discussing our decisions and arguing that appellee's "contention is frivolous at best". We do not agree. Our rule, presently numbered 23, requires an appellant, unless excused, to print all parts of the record which he "deems it essential for the judges of the court to read." This includes the exhibits. Pioneer Credit Corp. v. Bloomberg, 1 Cir., 1963, 323 F.2d 992. The word "deems" does not leave it to the appellant to pick and choose what he would like to see, but imposes a burden upon him to print all of the evidence, good and bad, material to the point he wishes to raise. In Haddad v. Border Express, Inc., 1 Cir., 1962, 303 F.2d 134, at 136, we pointed out, in language peculiarly applicable to the case at bar, "If a defendant-appellant claims, for example, that the evidence did not warrant a finding for the plaintiff, he must (a) print all of the evidence in the case on liability, or (b) obtain, and print, a stipulation from appellee that appellant's appendix is adequate, or (c) file an agreed joint appendix with appellee." In further explanation we stated that the burden falls upon the appellant to prepare "a prima facie complete record." Ibid. In the present appendix there appear constantly throughout the testimony of the various witnesses asterisks indicating omissions. In other words, the record is prima facie incomplete.2 The bracketed page numbering of the original transcript (very properly included in the appendix) reveals that omitted material sometimes covers several pages. None of the exhibits is separately printed, and they are very apparently only partially reproduced. There is no stipulation (which must, in any event, be approved by the court) that the exhibits need not be printed. There is no stipulation by appellee that the appendix is "adequate." The record appendix is not a joint one.
In the face of this failure to meet any of the alternatives set forth in Haddad v. Border Express, Inc., supra, appellants assert in their reply brief that "all relevant portions" of the exhibits were read into the record. They further point out that the appendix is "substantial," and say that for this reason it "should be assumed to be a prima facie complete record." Further, after acknowledging that testimony was deliberately omitted, they invite "comparison with the actual record on file in the office of the Clerk" to show that no omissions were material. We cannot reread our opinion in Haddad without believing that we made it wholly clear that the purpose of the rule was to avoid just such assumptions, and the necessity of just such an undertaking.3
Although we will not, accordingly, review the evidence in detail, we do observe that there is no readily apparent miscarriage of justice. It is true that not only was there a wide variance between Radlo's account and Chernack's, but Radlo was self-contradictory and inconsistent to an extraordinary degree. Had Chernack been reasonably consistent we might find ourselves sympathetic. He was not, however. Even though we might think the other blacker we are little tempted to disturb a jury's choice between the pot and the kettle.
Appellants assert that the trial was unfair in that the plaintiff was allowed to appeal to the jury's sympathy and prejudice. Not only was much of what is now complained of not objected to at the time, but none of it was so serious as to call for appellate action. Appellants' further complaint that the court failed to charge that certain...
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