This is аu appeal from a judgment dismissing on tho merits an action brought by appellant as plaintiff on a War Risk Insurancе Contract.
The vital question in the ease was whether plaintiff became totally and permanently disabled while his policy was still in force.
A jury was duly waived by stipulation, and the ease tried to the court. Findings of fact and conсlusions of law were made and filed by the court in favor of defendant. Judgment was entered accordingly dismissing the aсtion.
The errors relied upon in this court relate: (1) To the rulings of the trial court on tho admissibility of evidence; (2) to thе question of sufficiency of the evidence to support the findings and judgment.
In the course of the trial, a hypothеtical question was put to Dr. Reason Reagan, called as an expert by plaintiff. The question was objected to as incompetent, irrelep vant, and immaterial; that no proper foundation had been laid; and that the question was not a proper hypothetical question. Tho objection was sustained. Counsel for plaintiff made no offer of proof by the witness, and for aught that appears, the answer might have been unfavorable to plaintiff. The question was as follows:
“Q. Now, Doctor, assuming that following the attack of influenza that you have just had brought to your attention, and assuming that he had this attack of syphilis in 1915, and that after the attack of influenza hе was unable to walk as ho had walked, had pains in his hips, and that his left leg dragged and it was necessary for him to lean against something when he stands erect, at the time he was discharged from the United States Army, 1 will ask you whether or not, in your оpinion, at that time, in May 1919,’ that condition existing as I have just enumerated to you, whether or not, in your opinion, he wаs then totally and permanently disabled so as to be unable to follow continuously a substantially gainful occupation?”
Objection to the question could properly he sustained on several grounds: First, that the question did not embrаce all of the material facts disclosed by tho evidence; second, that the qualification of the witnеss to answer such a question had not been satisfactorily shown; third, that on the evidence given, the question was not one calling for expert opinion.
There is a further reason why the sustaining of the objection cannot be hеld to be reversible error. No offer of proof was made. The general rule is that offer of proof is nеcessary unless the question is in proper form and clearly admits of an answer relevant to the issues and favorable to the party propounding it. The instant case is, we think, governed by the rulings in Hatch v. United States,
A different rule or a,n exception to the rule has been held to apply wherе the proposed question is in proper form and clearly admits of an answer relevant to the issues, and fаvorable to tbe party propounding it. See Buckstaff v. Russell,
The question in the case at bar, in our judgment, comes within the general rule.
The government in its defense called as a witness Dr. Charles F. Culver. Certain questions were put to him to which objections were made by counsel for plaintiff, but the court said that it would take tbe answers sub
*696
ject to thе objections, and the answers were accordingly in most instances given. No further rulings were made by the court nor requested by counsel relative to the questions; nor, so far as appears, was the court’s attention drawn again to the questions involved. Under these circumstances, plaintiff is not entitled to a review of the questions by this cоurt. 4 C. J., p. 757; Gibson v. Luther,
Furthermore, the action having been tried to the court without a jury, it will be prеsumed, under the circumstances disclosed, that the court disregarded all incompetent and immaterial evidence. 2 R. C. L., p. 222; Davis v. Seattle,
Of course, if there were not sufficient evidence tо sustain the findings and judgment after the elimination of incompetent and immaterial evidence, attack could bе made on the findings and judgment for insufficiency of the evidence.
This brings us to the other question sought to be reviewed, viz., the suffiсiency of the evidence. But on that question also this court must decline a review.
In the case of Federаl Intermediate Credit Bank v. L’Herisson,
“When an action at law is tried to a federal court without a jury, stipulation waiving а jury having been filed with the clerk, the questions open for review in the appellate court are limited, first of all, by statute. *.* * (28 USCA §§ 773, 875, 879). The statute (section 1011 [28 USCA § 879]) as construed by us forbids the appellate court to reverse a judgment for any error of fact. A finding contrary to the weight of the evidence is an error of fact. It follows that the apрellate court will not review findings to ascertain whether they are in accordance with the weight of the еvidence. * * *
“If a party seeks to have reviewed the question whether the record contains any substantial еvidence to support the findings and judgment against him, it is incumbent upon him to make a motion for judgment in his favor on that ground, or to request á declaration of law to that effect, or to take some other equivalent step, and secure a ruling by the trial court, and to take exception to such ruling.”
To the same effect are Buechle v. Montgomery,
In the ease at bar, plaintiff interposеd no demurrer to the evidence, made no motion for judgment at the close of the evidence, made nо request for a declaration of law, and took no other equivalent step. Review of the question of the sufficiency of the evidence will accordingly not be made.
In view of the state of the record as above outlined, the judgment should be and is af-firr ecL