BLAKE

v.

TRAINER

PER CURIAM.

Appellant, defendant in the court below, has filed a motion in this court to tax costs of 'printing unnecessary portions of the record against appellee, plaintiff below.

An examination of the papers in the case convinces us that counsel on both sides have misapprehended the purpose of our rules. Since this is of frequent occurrence, we think it proper to make the following observations for the guidance of the bar. In a case where an appellant does not designate for inclusion the complete record bjit only a portion of the proceedings and evidence, Rule 75(d) of the Federal Rules of Civil Procedure1 requires him to serve with his designation a concise statement of the points on which he intends to rely. This was the situation here but appellant failed to file a statement of points with his designation. When appellee requested him to comply with the rules, appellant advised opposing counsel that, if dissatisfied with the designation, he could file a counter-designation of record. All o f this is true; but by his failure to file a statement of points, appellant placed upon appellee a burden which the rule was designed to avoid. As a result appellee designated the balance of the record not included in appellant’s original designation. This was permissible in view of appellant’s failure to designate his points on appeal. Obviously the underlying purpose of the rule is the elimination of unnecessary matter. But the rule also contemplates that appellant should designate enough of the record to permit full presentation of his points.

In the present case appellant’s first point is that the court should have directed a verdict at the conclusion of plaintiff’s case.2 This, of course, requires the printing of all the material evidence presented by plaintiff.3 And this was appellant’s obligation. Appellant, however, designated for printing only small segments of the testimony, which were clearly insufficient for the presentation of his point. Having failed to comply with the rule, appellant cannot complain if appellee caused portions of the record to be printed which later proved to be unnecessary.

This, however, does not mean that appellee is entirely relieved of the duty of shortening the printed record. He should see that obviously immaterial portions are omitted. For example, in this case appellee caused to be printed preliminary questions asked of witnesses, such as residence, age, citizenship, general background and experience, etc., which had nothing to do with any points raised on appeal. While no hard and fast rule can be laid down as to how much of the testimony should be printed, counsel should realize that the whole transcript is always available to the court in the hearing of a case. If, therefore, counsel in a genuine attempt to comply with the spirit of the rules fail to print matter which later proves to be material, the court can turn to the transcript in order that justice shall be done, or if necessary the court may require such omitted matter to be printed as a supplemental record or appendix. But it is expected that counsel on both sides will cooperate to omit from printing all matter not bearing ®n the points presented on appeal. The use of asterisks to indicate omissions should be encouraged.

In the present case the portions of the record pointed by appellee are too long, but we are inclined to permit the costs to rest largely upon appellant, who had the original responsibility for printing. However, we do not excuse appellee (after being notified of appellant’s points following the docketing of the appeal) from the more obvious violation of our rules in the following specific instances: (1) the printing by appellee of colloquy between court and counsel as to the method of introducing an exhibit — the exhibit later being admitted in evidence; (2) colloquy concerning the form of a question, which question was later withdrawn; (3) appellant’s objection to a question contained in interrogatories, which objection was overruled and as to which appellant did not complain on appeal; (4) appellant’s objections to the reading of defendant’s deposition at the trial, which objections were overruled and not questioned on this appeal; (S) colloquy between court and counsel over a question as to plaintiff’s reputation, which question was later withdrawn; and (6) printing of arguments of counsel on motion, for directed verdict at the close of plaintiff’s case and the argument on a similar motion at the conclusion of the case. The cost of printing this material (amounting to 20 pages) will be taxed against appellee.

The designations of record, being merely devices to get the record prepared, and orders extending time to file the record should not be printed; and since the statement of points must be set forth in appellant’s brief, it should not be printed.

We find that government counsel frequently err in following our printing rules, perhaps because the matter of expense is not of immediate concern to them. In any event, we will appreciate a more active cooperation in the future on the part of all counsel in avoiding unnecessary printing.

Motion granted in part.

Beremen v. Power Pub. Co., 1933, 93 Colo. 581, 27 P. 2d 749, 92 A.L.R. 1024; Burton v. Dickson, 1919, 104 Kan. 594, 180 P. 216; Wise v. Brotherhood of Locomotive Firemen, etc., 8 Cir., 1918, 252 P. 961. Cf. Caldwell v. Hayden, 1914, 42 App.D.C. 166.

Prosser on Torts (1941), § 94, pp. 831-2; 1 Cooley on Torts, 4th Ed., 1932, § 158!

See Prosser, supra note 2, pp. 846-47.

“ * * * the refusal of this request [a request for an instruction on the assumption of risk] appears plainly erroneous. But this does not result in a reversal of the judgment under review, because by specific findings of fact the jury negatived the hypothesis upon which alone the instruction was based.” Kanawha & M. R. Co. v. Kerse, 1916, 239 U.S. 576, 582, 36 S.Ct. 174, 175, 60 L.Ed. 448; Century Indemnity Co. v. Shakespeare, 10 Cir., 1934, 74 F. 2d 392.

White v. Nicholls, 1845, 3 How. 266, 11 L.Ed. 591, 602; Wise v. Brotherhood of Locomotive Firemen, etc., supra note 1; Newell, Slander and Libel, 4th Ed., 382.

28 U.S.C.A. following section 723c.

After the motion for a directed verdict at the close of plaintiff’s ease was overruled, defendant went forward and presented his defense. Having proceeded to put on his defense, defendant thereby waived his objection to the ruling denying his motion for a directed verdict at the close of plaintiff’s case.

0t Rule 39(b): “In all eases the appellant shall cause to he printed such parts of the record as may he material to the full presentation of the points presented, and in all cases shall include the matter required by subdivision (a) of Rule 17.”