Hastings v. Reynolds Metals Co., 9417.

• Decision Date: 13 November 1947
• Docket Number: No. 9417.,9417.
• Citation: 165 F.2d 484
• Parties: HASTINGS v. REYNOLDS METALS CO.
• Court: U.S. Court of Appeals — Seventh Circuit

165 F.2d 484 (1947)

HASTINGS v. REYNOLDS METALS CO.

No. 9417.

Circuit Court of Appeals, Seventh Circuit.

November 13, 1947.

Leo J. Hassenauer and Everett L. Gordon, both of Chicago, Ill., for appellant.

Leo F. Tierney and Durmont W. McGraw, both of Chicago, Ill., and Fred R. Edney and Clay A. Copeland, both of Louisville, Ky. (Mayer, Meyer, Austrian & Platt, of Chicago, Ill., of counsel), for appellee.

Before EVANS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.

BRIGGLE, District Judge.

Appellant as petitioner in the district court sought to compel appellee to re-employ him as an assistant plant manager of one of its industrial properties. He relies upon the provisions of the Selective Training and Service Act of 1940.¹ The question involved on this appeal is whether the District Court erred in holding appellee was under no duty under the facts of this case to restore appellant to said position.

In connection with the determination of the facts questions of evidence and practice have arisen and will be first considered. A written contract of employment, dated January 24, 1946, was produced at the hearing by appellee and was identified as "Defendant's Exhibit 1." Appellant testified that his signature appeared thereon and asked permission to read paragraph 2 thereof. Counsel for appellee stated that he would like to file the document as defendant's exhibit, and asked leave to file a photostatic copy. The presiding judge stated that he could read the document, asked to see it, recessed momentarily to read it, and granted leave to file "a photostatic copy of this document." The original contract was not made a part of the record nor was a photostatic copy filed until the appeal to this court.

The hearing was on March 26, 1947, before the court without a jury, and on the same day written findings of fact and law were made and final order entered. On April 21, 1947, notice of appeal was filed. The original transcript with said document omitted therefrom was filed in this court on July 8, 1947. On September 12, 1947, appellee petitioned the District Court that the said document be received in evidence, for the substitution of a photostatic copy for the original, and for an order of transmittal to this court. The petition was allowed and the Clerk of the District Court was ordered to transmit said exhibit to this court for inclusion in the record on this appeal.

Motion is here made by appellant to strike the supplemental record which is limited to said exhibit, upon the ground that appellee was served with designation of record on June 19, 1947, and failed in apt time to suggest any additional record and that said exhibit never was properly offered and admitted in evidence at the trial or before the final order in the case. Appellant designated for the record the typewritten "transcript of proceedings had on March 26, 1947," and other items. The said typewritten transcript shows the identification, request for filing, reading by the court, and leave to file photostatic copy of the exhibit, and other proceedings thereon. No objection was made by appellant to its receipt or consideration. The document was in fact in evidence and was so considered by the parties and the court. The findings of the court were in part predicated upon the document, which is referred to therein. The transcript was incomplete without the photostatic copy of the exhibit. Appellant's designation, therefore, covered the document, and the record was incomplete without the supplemental transcript.

It is not indispensable that an exhibit be offered and admitted in evidence by any precise words. If it is clear, as it is in this case, that the exhibit is being offered for consideration as evidence and is received and considered as such, it is evidence and is a part of the trial proceedings. Appellee need not have later petitioned the District Court that the exhibit be received in evidence. It was already in evidence and leave had already been granted to file a photostatic copy. The petition for an order of transmittal of the photostatic copy of the exhibit as an omitted part of the transcript sufficed. Appellant's motion to strike the supplemental transcript is denied.

Upon the merits the facts disclosed by the complete record are not seriously controverted. Appellant was employed as assistant plant manager of Aluminum Products Company, and held the offices of director and president of the company, of which his father was the controlling shareholder, when petitioner was inducted into the military service on February 24, 1941. This company owned manufacturing plants at LaGrange and Lemont, Illinois, and had other substantial assets when, on December 7, 1945, appellee purchased these plants. While in the service, appellant signed the instruments of sale as president of Aluminum. It should be noted that while appellee purchased the two plants, Aluminum Company...