Combs v. United States, 9515.

• Decision Date: 15 June 1933
• Docket Number: No. 9515.,9515.
• Citation: 65 F.2d 787
• Parties: COMBS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F.2d 787 (1933)

COMBS v. UNITED STATES.

No. 9515.

Circuit Court of Appeals, Eighth Circuit.

June 15, 1933.

Lawrence E. Goldman, of Kansas City, Mo. (Frank R. Daley and Goldman & Daley, all of Kansas City, Mo., on the brief), for appellant.

Vergil E. Willis, Chief Atty., Veterans' Administration, of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., Claude E. Curtis, Asst. U. S. Atty., and George S. Robinson, all of Kansas City, Mo., on the brief), for the United States.

Before GARDNER, SANBORN, and BOOTH, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment entered upon the verdict of a jury in favor of the government in the trial of an action to recover upon a policy of war risk insurance. The appellant, who was the insured, was in the army from December, 1917, until March 8, 1919, when he was discharged. His discharge papers and his own declaration in connection therewith stated that he was then suffering from no wounds or disease. He paid no premiums after his discharge, and his insurance, by its terms, lapsed on March 31, 1919. He subsequently demanded the benefits of his policy on the ground that he was totally and permanently disabled by reason of pulmonary tuberculosis while his policy was still in force. His claim was rejected by the government, and he brought this action. The government denied that his policy had ever matured. The case was tried to a jury. The appellant made no motion for a directed verdict. He now contends that the verdict of the jury was not justified by the evidence.

In actions at law this court is merely a court of error. It does not retry lawsuits. The verdict of the jury settled all issues of fact. In the absence of a motion for a directed verdict, this court cannot review the sufficiency of the evidence, and the assignments of error with reference thereto are clearly bad. Ayers v. United States (C. C. A. 8) 58 F.(2d) 607, 608.

The appellant complains of the admission of evidence to the effect that his mother had tuberculosis while he was living with her after his return from the army, that she subsequently died of that disease, and that other members of his family were or may have been tubercular. He also complains of the introduction of evidence as to his ratings for compensation and as to the amounts he has received from the government as compensation. His assignments of error with respect to the admission of the evidence complained of do not comply with Rule 11 of this court, which requires that the full substance of the evidence admitted or rejected be quoted, and they do not therefore properly present the questions which we are asked to determine.

This court, however, since it prefers to dispose of appeals upon their merits rather than on account of the failure of counsel to observe its rules, has frequently, in the absence of objection, disregarded this rule where the interests of justice seemed to require it.

We have considered the question of the admissibility of the evidence relating to the existence of tuberculosis among the members of the appellant's family. We think the admission of such evidence was not error. It does not appear that it was conclusively established that the appellant was tubercular when he was discharged. There was competent evidence to the...