# Petition for Writ of Certiorari — Wray Equipment Corp. v. Westinghouse Electric Corp. (No. 885) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0947%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text Iu the - , ‘ ’ ! (ach ( ‘ = ’ ore e soi Bn ( da oa. ‘14h \ : - e ; - - PETITION’ FOR A WRIT: OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE’FIRST CIRCUIT se Cen CAR we SRR Oe oO PRE eM CEE eke eee ee ee “7. 1940) 111 F.2d 63 ' Page > . Upinions Below ...... CE ee a Said’ “Y. Jurisdiction ..... ES ROG AS eh ee Ee RO NN INN ui cub cosa dv sssave'esvsh odes 3 Statutes Involved ......... Zt bepoe it ALY ES OEE i Statement of the Case ............. bh waite ceaaice 8 1. Proceedings Below ..... Kanth NRE Ree Ries ne ee 3 II. Summary of Findings of Fact and ( ‘onclusions * _of-Law of the Distriet Court: .720 22.00... 5 IIL. Summary of Opinion of the Court of a = & Reasons for Granting the Writ ..................... 1 ‘1. The failure of respondents to raise the issue of prejudice: at trial ............ PC sieesGh ne wien end 10. _Il. The harmless effeet of the Hoyt deposition testi- PE . NaNpanatceune eh apn thous 6b eb neecasewews I > IIL. Phe harmless effect of the failure of petitioner to introduce related parts of a deposition on "© consecutive pages of a transcript ............ lo [V. The failure of the Court of Appeals to find a _ single demonstration of prejudice by the trial ee ir cee e Cask aetetae hin hie Sas gee ae Conclusion mr “\ ae kauks = Sapsnetceeeen tiariieta we 17 I ee ee adie wae wins 18 RR ae A Citations — ~~~ Cases Assoctated Press vy. United States, 326 U.S.1 0.0... Is . Baker v. Mueller (CA. 7, 1955) 222, F.2d 186, 183 .. 11, 12 Becker Steel Company of America v..Cummings, 296 » ~Cloeago, M. & St. Paul Ry. Co. ¥. Harrelson, (CLA. &, 15 Northern Pacific Railway v. United States, 356 U.S. |, i Index Page Dowell, Inc. v. Jowers (CA. 5, 1950) 182 F.2d 76, International Salt ( 'o. v. United States, 332°U.S. 392. el ee ena els nc See Kobe, Inc. v. ‘Dempsey. reas Co., (C.A. 10, 1952) 16 F.2d 416, 423, cert. dem..344 U.S. 837°. ............. l4 New Arcade Co. v. Owens (C.A.D.C. 1919) 258 F. 965 .. 15 EE ci dedtecinvkanecheeheenekas 4nd seuss 1304- Osborn v. Sinclair Refining Co., (C.A. 4, 1960) 1960 Trade Cases p. T7080 ....ccccccesecccccceccceuss 14 Oxford Varnish Corp. v. Ault & rane Corp. (C.A. 6, A Eo iin bing cD tnd cesicesscess: Be Ralston Purina Co. v. Novak (CA. 8,1940) 111 F.2d 65) 15 Scott v. Beams (C.A.10, 1941) 122 F. 2d 77, 782, TR, cert. den. 315 U.S.809 ... - ee ero ere os i aa Slattery v. Marra Bros, (U.A. 2,°1951) 186 F.2d 154, 137, cert. den. 341-U.S. 915 ................ M1, 12, Ie Socony-Vacuum OW'Co. v. t "nited-States, 310 U.S. 150.5 LV ae ti cna AKER awe ORK TET ae Standard Oil Co. v. United States, 337 U.S. 293 ...... Suburban Transit Corp. v. Malone, (C.A. 4, es) 156i cg ere r rere rrr yr rer rT er verry pre 1] Texas Pacific Ry. Co. v. Watson, 190 U.S. 287, 291. 1) ' United States v. Griffith, 334 U.S. 100, 107, 108 ae 14 United States v. Yellow Cab Co., 332 U.S. 218 .7...... 14 Statutes Sherman Act, 26 Stat. 209 r Section 1, 15 U.S.C. §1 ... ri... ee Section 2, 15 U.S.C. §2 .............. Munareee (‘layton Act, 38 Stat. 731 Section: 3, 15 U.S.C. §14-...... Pedaon tae ee Section -4,.15 U.S.C. 615 .......... PO RR ster ° “A ° * ‘ " Fu the ; ' Supreme Court of the Ruited States ‘Octone n TeRM, ° 1960 No. ty W RAY EQUIPMENT. CORPOR ATION, PETITIONER, vr. W ESTINGHOUSE Ki BCTRIC CORPORATION AND " ALD NEW YORK INC., RESPONDENTS. ai ? PETITION FOR A WRIT OF CERTIORARI TO THE ED STATES COURT OF APPEALS FO To THe HonoraBLeE THE CHIEF JUSTICE AND THE ASSOCIATE JUSTICES OF THE SuPREME C'ouRT OF THE UNITED STATES: Petitioner prays that a writ of certiorari issue to review _ the judgment of the United States ( oat of Appeals for the First Ci * : st Cireuit. SPS ; ‘a Opinions Below The opinion of the United States Court of Appeals for the First Cireuit is not yet reported but is printed in Ap- a : 2 ) a pendix A to this petition.’ The District Court did not file an opinion. The District (ourt’s Findings of Fact an Conclusions of Law are found in the Consolidated Recor Appendix beginning at p. 1623. 7 | ‘Jurisdiction Question mae ‘In wv seven-year-old antitrust case tried without a jury. where defendants contended that the trial judge displayed ° prejudice against them throughout a 28-day trial but where defendants raised the niatter of prejudice for the first time on appeal, whether a court of appeals is justified in va eating a judgment for plaintiff and remanding the case for re-trial béfore another judge on the ground of the origina’ trial judge’s prejudice: [ay (a) without any specification of the prejudice al- legedly shown by the trial judge except for the possible commission of harmless error in the admission of evi dence; and Rn ~ ‘ 1 (App. A). as used hereinafter refers to the opinion of the Court o/ Appeals ‘as printed in Appendix A...” 2 Both respondents appealed from the judgment of the District Court. The appeal of respondent Westinghouse Electric Corporation ,¥2 docketed in the Court of Appeals as No. 5682 and that of respondent ALD, New York, Inc. as No. 5683. The record in both appeals w consolidated and consists of three volumes. Volumes I and II contain pleadings and testimony. Volume III contains exhibits and Proceeding» in Court of Appeals. This consolidated record will be referred tv het inafter as R.A. rerven by the appropriate page number. 3 (b) without. any consideration of the merits of the case. Statutes Involved The statutes involved are Sections 1 and 2 of the Sher- nan Act, 26 Stat. 209, 14 U.S.C. Sections 1 and 2 ‘und Sections 3 and“4 of the Clayton Act, 38 Stat. 731, 14 U.S.C. - Sections 14and 15, all.of which are set forth in Appendix B «- ‘to this petitions pp. 25 and 26, — bac? Statement of the Case _ ~~ Procrepixes BeLow vb Petitioner, a Massachusetts corporation, was at all perti- nent times engaged in selling machinery aud equipment to Operators of so-called automatic half-hour laundries. Re- spondent ALD New York, Ine.,.a New York corporation (héreinafter ALD), was engaged: in the same business as petitioner. Respondent Westinghouse Electrie Corporation a Pennsylvania corporation (hereinafter Westinghouse), “was engaged, among other things, in manufacturing and selling 9-pound washing machines, for use in half-hour laun- dries, : On February 4, 1954, petitioner filed a complaint in the ‘United States District Court for the District of Massachiu- setts (R.A. 13). In substance the complaint alleged. that .'the respondents combined and conspired to restrain and monopolize, and entered into unlawful agreements with re- spect .to, interstate commerce in half-hour laundry ma- chinery, in. violation of Sections 1 and 2 ef the Sherman Act and Section 3 of*the Clayton Act. It was further alleged that the unlawful conduct of respondents consisted, in part, of their exclusive dealing arrangetients as to the grea _ Westinghouse 9-pound washing machine accompanied |. tie-in sales of other laundry equipment; of their refusal . to deal with petitione?; and of threats to other makers of, laundry machines to prevent their dealing with petitioner: - ‘As a result, according to the complaint, petitioner way in. jured in its business. Respondents’ answers denied most of the munteeia! alle. gations of the complaint. Trial of-the case commenced on October 8, 1958. Testi. - mony was taken intermittently on 28-days,. concluding on January 13, 1959. Both respondents filed motions to di-- miss (R.A. 1581) and motions to strike certain evidence (R.A. 1585, 1614). All parties submitted requests for find: ~ ings of- fact, conclusions of law and briefs and presented oral arguinent. On February 18, 1960, the District Cour filed its Findings of Fact and Conclusions-of_Law in whiel’. it was ruled that, through their violations of the antitras— laws, respondents had injured petitioner to the extent of $55,000.00_(R.A. 1623-1632). | Thereafter, petitioner applied for the allowance of cou sel fees and costs and for the entry of a judgment, fo _ treble the amount of the damages found, plus any cost and ‘counsel’ fees which might be awarded. This matte! was briefed and argued orally by the parties. On March 25, 1960, thé District Court entered a judgment totalling $198,102.84 in faver~of petitioner and» against hot h I spondents.{R.A. 1633-1634). Westinghouse filed its notice of appeal on April 5, 16 and ALD followed with its notice on _— 8. 1960). (R.A: 1634). | It should be noted that at no stage of the pre-trial and trial proceedings, all of which were administered by the same judge and which encompassed the period betweew February 4, 1954 and April 5, 1960, did respondents bring to the judge’s notice any claim that a single ruling was . od ‘prompted by bias. or “prejudice. Respondents raised the question of prejudice for the first time on appeal. On February 2, 1961, the Court of Appeals filed its ‘ opinion and entered its judgment vacating the judgment of the District Court and remanding the cause for a new trial before a different judge. As will be stated more fully below, the Court of Appeals based its action upon its find- ing of a prejudicial attitude on. the part of the trial judge. Hl. SumMaky of Finpines oF Fact anp Conciusions oF Law | oF THE District Court The Findings of Fact and Conclusions of Law of the Dis- trict Court (R.A. pp. 1623-1632), may be summarized: a- follows: | de o The District Court found that Westinghouse had granted . respondent ALD and ‘its parent ALD, Inc. the exclusive right to buy and re-sell the commercial Westinghouse: 9)- pound washing machine (known as a Laundromat ) to half- hour laundries. This exclusive arrangement also delegated solely to the ALD companies the authority to permit. the half-hour laundries to advertise themselves .as Westing- | house stores. The ALD companies reciprocated by agree- ing to buy and re-sell no 9-pound washers except the West- _ inghouse Laundromat. | According to the District Court’s findings the commercial Laundromat, in construction and performance, is a uniqae and superior 9-pound waslier for use in half-hour laundries.. This cireumstance resulted in such expansion of the sales of commercial Laundromats that during the period of the case more of those machines were sold to half-honr lani- dries than all other makes combined. Similarly, the Laun- dromat outstripped all competitive produets i in sales in the New England grea. The casi Court also found that, although the primary ‘ .: . concern of the half-hour laundry operators was to obtain commercial Laundromats, the operator also needed asso- ‘ciated equipment: such.as driers, extractors, boilers and the like. Westinghouse -did not manufacture this associated equipment. Nevertheless, Westinghouse permitted the oper- _ ator. to advertise his store as an ‘‘Authorized Westing- -house Laundromat Equipped Half-Hour Laundry" with the knowledge that it contained much of this non-W esting- house machinery. The ev idence also demonstrated, aeons to the Dis- ‘ trict ‘Court, that the ALD organization instructed its sales” ‘men and announced to the trade that if the half-hour laundry operator wanted to obtain the commercial | aun. dromat, he would also have to buy all needed non-Westing: house equipment from ALD. W estinghouse was found to - have acquiesced in this practice. - In-its early days, petitioner, which the Distriet Court found to be comparable to ALD in ability to serve the trade, made purchases of Laundromats from ALD for re- sale to new half-hour laundries. ALD was found to have known of petitioner’s intended use of these machines. Ilow- ever, upon‘a subsequent order from petitioner and there. -after both ALD and W estinghouse refused to furnish |.aun- dromats to petitioner. ‘This refusal was determined to be without justification by the District Court. The District Court also found that ALD tortiously inter- fered with petitioner’s business relationships with sup. - pliers of equipment. In that connection, the District Court mentioned two such suppliers, Hoyt Manufacturing Corpe- ration and Cook Machinery Company. . . As to the Cook company, the District ( ourt found that it had been acquired by respondent ALD’s parent, AL AD. Ine., and that thereupon petitioner had been denied its previously exercised right to purchase 25-pound: Washing v machines made by Cook. The Court of Appeals ‘made no mention of this Cook incident in its opinion. The District Court also found that, because of the co- ercion of ALD, the Hoyt company refused to sell a dryer to petitioner to fill a particular order. In making the find- ‘ing, the District Court quoted this statement of ‘Hoyt, the company president, as to the pressure exerted by ALD: I tried to exercise a certain amountof prudence. If a man is going to hold me up, I am not going to find out whether he has a bullet in his gun. As will be explained below, the Court of Appeals singled out the Disiriet Court's reception and use of the quoted ' statement as the primary facts hearing upon the District-— Court's so-called prejudice. As the result of the above-summarized and other acts of respondents, the Distriet Court found that petitioner was not ouly prevented from selling Westinghouse Laundro- Mats but was also’ prevented from selling other laundry machines not made by Westinghouse. Petitioner's damages were determined to be $55,000. From its faet- findings, the District Court drew a number of lvgal conclusions. Its basic conclusions were three, First, it held that’ respondents injured petitioner in its business by combining to restrain a ‘‘not insubstantial’? amount of iiterstate commerce in automatic, laundry machines in vio- lation of Section 1 of the Sherman Act. Seconfly, the Dis- trict Court concluded that respondents had. damaged. jieti- tioher by monopolizing and attempting to monopolize an . appreciable segment of the laundry machine trade in viy- lation of Section 2 of the Sherman Act. Finally, the District Court ruled that the tie-in sales of Westinghouse and non- Westinghouse equipment.impesed on half-hour laundrie~ by respondents injured petitioner and wrought a substan- 8 tial lessening of competition in ehohation of Section 3 of the Clayton Act. Accordingiy, the District Court conc luded — as a matter of law that respondents’ violations of the anti. trust laws resulted in damages to ew to the extent of $55,000.00. Il. Summary oF OPINION OF THE C‘ouRT oF APPEAL ~ . The opinion of the Court of Appeals specifies that the - District Court committed prejudicial error in receiving ouw piece of evidence and that’the District Court departed from orderly procedure in treating with deposition testi. mony. Without identifying any portion of the record to support the charge, the opinion also concludes wit! the statement that a reading of the record shows that the Dis- trict Court was prejudiced in favor of petitioner. The Ogurt of Appeals assigned as prejudicial error tle District Court’s reception in evidence and use in findings of the colorful ‘‘gun’’ statement of the Hoyt president referred to in the summary of the District Court's findings (App. A. 20-23). As appears from the Court of Appeals opinion, Hoyt, inade the statement at a deposition given -a. few mon'li- after the incident took place, but more than four years before trial. As his memory was somewhat: hazy whien a witness. at trial, petitioner’s counsel read the quotation in question to him for two pufposes, to refresh his: reco! lection or to.show a prior inconsistent statement. The Court of Appeals concluded that Hoyt’s mc inory was not refreshed ‘by the reading of the deposition; that, he did not adopt the deposition statement as his present recollection; that a majority of eases do not allow a prior statement to be received in evidence as a prior incon~:-teu! statement and that it was prejudicial error to receive that particular statement on any theory (App. A. 22, 23). a a ~ support the legal conclusions reached. It would Jw i equitable to subject petitioner to another long trial, sagen 17 years after this case was filed, without a determination as to whether it should have prevailed on-the merits.” Conclusion For the foregoing reasons, petitioner requests that the writ of ‘certiorari issue and that this Court either decide the case on the merits or, in the alternative, remand the — ease to the Court of Appeals for a consideration of the merits. | Respectfully submitted, James M. Matioy RaLtpo WarkEN SuLiivan 10 State Street | - Boston 9, Massachusetts Attorneys for Petitioner Mautoy, SuLtuivan & Myerson | of Counsel ; 18. APPENDIX A United States Cc Court of Appeal _ -For the First Circuit No. 5682. _ WESTINGHOUSE ELECTRIC CORPORATION, DEFENDANT, “APPELLANT, v. ae WRAY EQUIPMENT cone. PLAINTIFF, APPELLEE; "No. 5683. ALD NEW YORK, INC., DEFENDANT, APPELLANT, v. WRAY EQUIPMENT CORP., PLAINTIFF, APPELLEE. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR TRE DISTRICT OF MASSAC HUSSTTS Before Woopsury, Chief Judge, Hartican, Circuit Jutge, and Juan, District Judge. John M. Hall, with whom Rhodes G. Lockwood and Choate, Hall & Stewart were on brief, for appellant in No. 5682. Douglas L. Ley, with-whom Elliott V. Grabill, Nathaniel J. 7 ‘4, Jr., and Grabill, Ley & Mason were on brief, for appellant in No. 5083. — James M. Malloy, with whom Ralph Warren Sullivan and Morton | Myerson were on brief, for appellee. OPINION OF THE COURT February 2, 1961 HaaricaN; Circuit Judge. These are appeals from a judg- ment of the United States District Court for the District of Massachusetts entered for plaintiff on March 25, 1960. —_ 4g Plaintiff-appellee, Wray Equipment Corp., sued West- © inghouse, Electric Corporation (Westinghouse) and ALD New York, Inc. (ALD) for treble damages under the ‘Sherman and (layton Acts, 15 U.S.C. §1. et seq., alleging that the defendants and various co-conspirators. had con- ___spired-and-—were conspiring to monopolize and unreason- ably restrain interstate trade and commerce in half-hour launderette machinery and equipment, and that by various acts done in furtherance of this conspirdey plaintiff had been injured in its business: - The plaintiff alleged that the conspiracy and acts in furtherance of it included: (1) an agreement between West- inghouse and ‘ALD that Westinghouse would not sell its nine pound laundry machines to any launderette machinery distributor other than ALD and that ALD would purchase nine pound machines only from Westinghouse; (2) pur- suant to the agreement and with the approval of ALD, Westinghouse refused to sell its nine pound machines to 3 plaintiff at any price; (3) with the approtal of Westing- | house, ALD refused for several months to sell nine pound machines to plaintiff at a price lower than that charged.in- dividual launderette operators and subsequently ALD re- fused to sell nine pound machines to plaintiff at any price; (4) with the approval of. Westinghouse, ALD used its ex- elusive right to distribute Westinghouse nine pound ma- chines to cause prospective launderette operators desiring | these machines to purchase from ALD their entire re-. a of twenty-five pound laundry machines, dryers, : (5) with the approval of Westinghouse, ALD used sindbis right to distribute the Westinghouse. nine pound machine as the basis for threatening manufacturers of twenty-five pound machines, boilers, dryers, ete. with a boyeott if they did not discontinue making sales to the plaintiff. Plaintiff alleged, inter alia, tHat as a result of the conspiracy and the acts in furtherance of it, (1) plain. 20 tiff had been prevented from making sales of Westinghouse nine pound machines to launderette operators ; (2) plaintiff had been prevented from making sales of boilers, dryers, etc. to launderette operators who desire to use Westing- house nine pound machines; (3) manufacturers of the’ as- sociated equipment have refused to sell to-plaintiff and have refused to meet shipping commitments on machines al. — . ready sold to plaintiff. - The case was tried by the district court sitting without a jury. An unnecessarily protracted trial of twenty-cight days was held during which a great deal of evidence was re- ceived by the court over the objection of the defendants. The district judge announced several times that in order to conduct the trial expeditiously he would receive the evidence but that it was subject to a motion to strike to be made at the conclusion of the trial. Motions to strike were made by the defendants at the close of the evidence. In the preface to its findings of facts and conclusions of law the lower court stated: “Defendant ALD submitted a Motion. to Strike, whicl{ is denied.’’! The court. made findings of facts and conclusions of law ‘ that plaintiff was entitled to recover treble damages under the Sherman and Clayton Acts and entered judgment for the plaintiff. Defendants in their appeals specify numerous errors, hut we do not believe it is necessary to discuss all of them in the disposition which we make of this case. We -believe that the district court weed prejedicially by failing to grant defendants’ motions to strike certain evi- dence objected to by the defendants. The president of Hoyt Manufacturing Corp., Harry Hoyt, was called as a witness. 4 by the plaintiff io testify in connection with an alleged” a at-' iThe record dves not contain any disposition by the court of de- fendant-Westinghouse’s motion to strike certain evidence from the 21 tempt by ALD to have Hoyt Manufacturing Corp., a man- ufacturer of dryers, slow down delivery of a dryer to plain- tiff. When Hoyt was asked at the trial if defendant ALD’s | ‘employee Rowan had spoken to him about an order from plaintiff, Hoyt replied that he had no recollection of such a conversation. Plaintiff’s counsel then asked: ‘‘Do you recall testifying on deposition in this case .. .?’ Hoyt re- plied: ‘‘I recall making a deposition, yes, sir.’’ Plaintiff’s counsel then read from the deposition,’ stating he was so doing for two purposes, to refresh the witness’ recollec- tien and to indicate a prior inconsistent statement. At the conclusion of the reading, plaintiff’s counsel asked Hoyt: : | ~- **Q. Do you recall so testifying, Mr. Hoyt? A. If that is my deposition, I do. Q. The statements you made there are true? - A. They would be, yes, sir.’’ be. ~ On cross-examination Hoyt was asked : ‘XQ. Do you have any memory now of the conver- - sation you had with Mr. Rowan?. A..Other than what the deposition shows. [sic] XQ. Did Mr. Rowan make any suggestions to you that the shipment to Wray Equipment Company be delayed? A. I do not reeall.’’ Earlier in his testimony when Hoyt was questioned by plaintiff’s counsel in’ ne to the delay of shipment he . said: ‘*Q. You have no recollection of these transactions, independent of the documents I must show you? A. No, I haven’t. I haven’t had access to them. It has been, what. four or five years? 22 Q. You-do recall that’ you testified at some length about these transactions? A. Ido. The Court: You knew you were going to be a witness here? , The Witness: Yes, sir. The Court: You knew you had answ ered some questions by way of deposition? The Witness: Yes, sir. The Court: Did it occur to you it would have been a good idea to refresh your recollection on the ques- tions that you were asked in the deposition, at the time it was taken, when you knew you were going tw ‘ be here? ¢ 3 . The Witness: Mr. Malloy [counsel for’ plaintiff| ~ said that he woul! have the deposition here."’ In the deposition read during the trial Hoyt had stated: ‘*That was one of my reasons {for delaying the plaintiff's order}. I tried to. exercise a certain amount of prudence. If a man is going to hold me up, I am not going té find out whether he has a real bullet in his gun."’ The’ district judge in commenting on this testimony recognized that Hoyt was not testifying from his present recollection and said: ‘‘Figuratively speaking, someone put a gun to hi- head ... He [Hoyt] gave an answer four ang a half year- ago, and he very frankly and honestly said: ‘If I gave that answer under oath, my memory then was better than now, and ‘that is the answer’ ” and that is what I would ex- pect a good citizen to say . ‘The cases are clear, leeds that a deposition used in an attempt to refresh the witness’ recollection is not itself admissible as evidence. See U. S. v. Socony-Vacuum (il Co., 310 U.S. 150, 234 (1940); 5 Wigmore, Evidence (1415 (3d ed. 1940). When a witness is unable to recall a pas! . 23 transaction, the majority of the cases do not allow a_prior. statement of the witness concerning tliat transaction to be introdaced 4s a prior inconsistent statement. See Corsick v. Boston Elevated Ry., 218 Mass. 144, 105 N.E. 600 (1914); . 3Wigmore, Evidence §1043 (3d ed. 1940).? We believe that the district court erred in receiving the deposition of plain- tiff’s witness Hoyt. The incorporation of Hoyt’s gun figure of speech from his deposition in the court’s opinion.” as well as frequent references to it by the court during the trial indicates that defendants were prejudiced by the ad- mission into evidence of the deposition. | ; There is another matter which arose during the trial ‘that warrants cominent because it may be met again in a new trial. Parts of several oth® depositions were pro-_ perly admitted and read into evidence by plaintiff’s counsel. — When counsel for the defendants sought then to have ir troduced other parts of these*depositions relevant to those read into evidence, relying on F.R.Civ.P. 26(d) (4), the dis- triet court refused to allow such ere The court indicated that defendants could intre'uce the desired parts at a later time? ‘ We have been directed to no cases bearing directly on this point. Rule 26(d)(4) provides: ‘If only part of a deposition is offered in evidence by a party, an adverse party may require him tp in- ‘troduce all of it which is relevant to the part intro- duced, and any party may introduce any other parts.’’ _ _ 2 Wigmore states that the basis of this exclusion is the possibility of | improper testimonial effect being given to the prior statement. The instant case presents a forceful example of this danger. _- Toward the end of the trial the plaintiff's counsel offered the parts read by defendants’ counsel as part of plaintiff's case and the court so noted. We do not believe thag this step obviated the defect pointed out below. | ; 24 The rule provides a methfd for averting, so far as pos- sible, any misimpressions from selective use of deposition testimony. The opposing party is entitled under the rule to have’the context of any statement, or any qualifications made as a part of the deponent’s testimony also put into . v-evidence. We believe that the spirit of the rule dictates that the opposing party should be able to require the introduc. ‘tion of the relevant parts of the deposition testimony at least at the conclusion of the reading of the deposition. I the instant case the supplementary relevant testimony au. thorized by the rule was separated by more than 1,000 . _ pages of transcript from the deposition testimony intro. duced by thé plaintiff: Ipseems to us that such wide separa- tion of the relevant parts of a deposition unduly impedes the orderly consideration of the deposition testimony, even, in a non-jury case. We conclude from a careful reading of the record of “ip. proximately 2,000. pages that the trial judge was prejudice» in favor of the plaintiff. Several indications of this preju- dice are’ manifest in his ‘‘cross-examination’’ of certain of the defendant’s witnesses. Perhaps his’ prejudice wa- a result of Hoyt’s reference ‘to a gun in his deposition. which appears from the record to have made an extreme and unreasonable impression on the trial. judge. What ever the cause, the court’s prejudicial — warrants a new trial before another judge. We express no opinion on the merits of this case. ; Judgment wiil.be entered vacating the judgment of thr district court and remanding the case for anew trial con- ' sistent with this opinion. 29 APPENDIX B . Statutes Involved, Section 1 of the Sherman Act, 15 U.S.C. ‘J so far as - pertinent : cane