United States v. Kiles

• Decision Date: 11 April 1934
• Docket Number: No. 9690.,9690.
• Citation: 70 F.2d 880
• Parties: UNITED STATES v. KILES.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 880 (1934)

UNITED STATES v. KILES.

No. 9690.

Circuit Court of Appeals, Eighth Circuit.

April 11, 1934.

William L. Vandeventer, U. S. Atty., and Claude E. Curtis, Asst. U. S. Atty., both of Kansas City, Mo., Will G. Beardslee, Sp. Asst. to Atty. Gen., and Wilbur C. Pickett, Atty., Department of Justice, of Washington, D. C., for the United States.

Goldman & Daley, of Kansas City, Mo., for appellee.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action brought to recover on a contract of war risk insurance. Right of recovery is asserted on the ground that the assured became permanently totally disabled November 1, 1928, during the life of the policy, and not on the ground that the insured died during the life of the policy. Insured died of pneumonia August 17, 1929. It is alleged that insured's total permanent disability resulted from "extreme nervousness, insanity, organic and functional nervous diseases, arthritis, and general debility." The answer is in the nature of a general denial.

At the close of all the testimony the government moved for a directed verdict on the grounds that "as a matter of law the plaintiff has not proved * * * insurance contract in force on the date alleged in the petition as amended, November 1, 1928, and * * * as a matter of law, he has not proved a prima facie case of permanent total disability on that date." This motion was denied and the case was sent to the jury, resulting in a verdict in favor of plaintiff, and from the judgment entered thereon this appeal has been perfected.

It is here contended that (1) there was no substantial evidence that the insurance was in force November 1, 1928; (2) there was no evidence of a valid disagreement between the United States veterans' bureau and the insured, or the person claiming under the contract of insurance; and (3) there was no substantial evidence of total permanent disability on November 1, 1928, or any other time while the contract of insurance was in effect.

It was conceded on the trial that the insurance premiums had been paid until May, 1927. On June 27, 1927, the insured converted his war risk insurance into a government life insurance policy, the amount of the policy being reduced from $10,000 to $5,000. Appellant urges that certain receipts or other similar evidence or records of payment that plaintiff introduced were ambiguous. Payment of the premiums from August, 1927, to October, 1928, are admitted, but appellant contends that there is no evidence that the premium for the month of July, 1927, was paid within the thirty-day grace period. A receipt was produced by plaintiff from the United States veterans' bureau, which bears the notation, "Payment received July 18, 1927, A. P. Carson, Insurance Cashier." Plaintiff, who is a brother of the insured, testified that he made payment of the premium in the usual regular manner for July, and that he received the receipt above referred to in recognition of that payment. There is no evidence in the record contradicting his testimony, and the court submitted to the jury the question as to whether or not payments of premiums were made so as to prevent the lapse of the policy. The jury by its verdict necessarily found that such payments were made, and there is substantial evidence sustaining this finding of the jury, so that the defendant was not entitled to a directed verdict on the ground that the policy was not in force at the time of the insured's alleged total permanent disability.

It is earnestly asserted by appellant that there was no evidence of a disagreement between the bureau and the insured, or the person claiming under the contract of insurance. This action is governed by the Act of July 3, 1930, § 4, amending section 19 of the World War Veterans' Act 1924 (38 USCA § 445). Such a disagreement is a necessary condition precedent to the exercise of jurisdiction by the court. United States v. Collins (C. C. A. 4) 61 F.(2d) 1002; Manke v. United States (C. C. A. 9) 38 F.(2d) 624. The District Court, however, had general jurisdiction of the parties and of the subject-matter, but the right to relief was dependent upon the fact of the existence of a disagreement. A total want of jurisdiction of the subject-matter cannot, of course, be waived, but where the court has general jurisdiction of the subject-matter, and the jurisdiction of a particular case is dependent upon the existence of certain facts, the jurisdiction may be waived by a failure to make timely and specific objections. United States v. Edwards (C. C. A. 8) 23 F.(2d) 477. Here, confessedly, the court had jurisdiction if a disagreement existed. In its motion for a directed verdict, the defendant specifically stated the grounds upon which it asked the court to direct a verdict in its favor. It did not urge in that motion that there was no evidence of such disagreement. Had it done so, the court might very properly have permitted plaintiff to reopen the case to supply the necessary proof if such proof were lacking, and the question, not having been presented in the lower court, cannot now for the first time be raised in this court. Falvey v. Coats (C. C. A. 8) 47 F.(2d) 856, 89 A. L. R. 1; Adams v. Shirk (C. C. A. 7) 117 F. 801; Hill v. Walker (C. C. A. 8) 167 F. 241, 257.

In the last-cited case, it was held that to justify a dismissal where jurisdiction is properly laid in the complaint, the question must be directly raised in the trial court and opposing counsel given an opportunity to rebut the evidence showing that the court was without jurisdiction. In the course of the opinion it is said:

"Here the jurisdictional facts are properly alleged in the complaint, and there is no showing in the evidence which can create even a suspicion of fraud upon the jurisdiction of the court, and the objection is raised in an appellate court by a defeated party who presented the issue obscurely under a general denial and refrained from directly raising the question in the trial while he speculated upon the result of the litigation. Under such circumstances, surely, this court is not justified in reversing the judgment when there is a general finding supporting jurisdiction."

It remains to consider the more serious question as to whether there was substantial evidence of total permanent disability at or prior to November 1, 1928. The insurance contract obligated the government to indemnify in the event of death or permanent total disability during the life of the policy. As the policy had lapsed before the death of the insured, it was incumbent upon plaintiff to establish total permanent disability before the lapse of the policy. The contract does not cover total temporary nor partial permanent disability. Eggen v. United States (C. C. A. 8) 58 F.(2d) 616; United States v. Pullig (C. C. A. 8) 63 F.(2d) 379; United States v. Hill (C. C. A. 8) 62 F.(2d) 1022; United States v. Nickle (C. C. A. 8) 70 F.(2d) 87...