Quinn v. United States
| Decision Date | 19 April 1932 |
| Docket Number | No. 4744.,4744. |
| Parties | QUINN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
Louis E. Graham, U. S. Atty., and W. J. Aiken, Asst. U. S. Atty., both of Pittsburgh, Pa., William Wolff Smith, Sp. Counsel, Veterans' Administration, and Annabel Hinderliter, Atty. Veterans' Administration, both of Washington, D. C.
William Kaufman, of Pittsburgh, Pa., for appellee.
Before BUFFINGTON and THOMPSON, Circuit Judges, and THOMSON, District Judge.
The petition of the appellee alleges that he is a citizen of the United States and a resident of the Western District of Pennsylvania; that in his military service he was granted a contract of war risk insurance, and that premiums were paid thereon during the term of his military service which expired on April 19, 1919, when he was honorably discharged.
The insurance policy in suit was in the sum of $5,000, payable, in the event of death or total and permanent disability, at the rate of $28.75 per month. By averments and admissions in the pleadings, it appears that appellee applied for payment of said insurance on the ground of total and permanent disability; and on May 28, 1929, the Veterans' Bureau disputed the claim and issued evidence of disagreement, thus giving appellee the right to sue.
The government, in its affidavit of defense, objected to the jurisdiction of the court, on the ground that the appellee is not a resident of the Western District of Pennsylvania. But appellant, instead of resting upon this objection, set up in its affidavit a full defense to the merits. Two trials were had in the case. In the first trial, resulting in a verdict for the appellee, the objection as to want of jurisdiction was not raised; a new trial being granted for other reasons. On the second trial, the former objection was put upon the record and overruled before testimony was taken. It was afterwards raised in the motion for compulsory nonsuit in the renewal of that motion and in the fourth assignment of error.
Under the authorities, the defendant in its affidavit of defense having raised the question of jurisdiction, but having gone to trial on the merits, such action must be held as a waiver of defense to the jurisdiction. United States v. Hvoslef, 237 U. S. 1, 35 S. Ct. 459, 59 L. Ed. 813, Ann. Cas. 1916A, 286; Thames & Mersey Marine Insurance Co. v. United States, 237 U. S. 19, 35 S. Ct. 496, 59 L. Ed. 821, Ann. Cas. 1915D, 1087; Christenson v. Christenson &...
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