On the night of Oct.1, 2017, Staff Sgt. Markos Mendoza, an Army Reserve culinary trainer/instructor assigned to the 8th Battalion, 104th Quartermaster Regiment, 1st Brigade, 94th Training Division- Force Sustainment, 80th Training Command, found himself in an unimaginable predicament. As the general manager of the Tropicana Las Vegas Robert Irvine's Public House restaurant, Mendoza was in his office at the restaurant when he received a phone call from the restaurant's hostess, Madison Vincent, saying that an active shooter was in the hotel.
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With panic filling the air, Mendoza quickly took charge of the situation. He armed himself with a sledgehammer and pocket knife, and assessed the possibility of an active shooter in the area. He set a plan in place. He secured the area by barricading the stairwell and locking the elevator.
"As a Soldier, I remained composed throughout the shooting," Mendoza said. "I didn't hesitate. I reacted using what I had learned in combat lifesaver training, active shooter training, and leadership training. I always carry a first aid kit, inhalers and medical stuff with me in my Army backpack."
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A number of hypothetical questions were propounded to plaintiff's witness, Dr. Francis B. Camp. These questions purported to embody all the material facts shown by the evidence bearing upon the question of the insured's physical condition as to being permanently totally disabled. The assignment of errors does not embody the objections which were interposed, but simply recites that, "In answer to this question, Dr. Camp was permitted, over the objection and exception of the defendant, to state the following." Then appears the answer of the witness. What the objections were is not indicated, and it is impossible to determine from an examination of the assignment whether or not the court committed error in its rulings. There is no reference to the printed pages where the questions, objections, rulings, and answers are to be found, but we are left to grope about through the record in search for the alleged errors. It is the duty of counsel for appellant to point out and call to the *875 court's attention the specific errors complained of, and this should be done by the assignment of errors. The assignment in question does not fulfill this function, but is defective not only in form, but in substance. As said by the Supreme Court in Local 167 of International Brotherhood of Teamsters, etc., v. United States, 291 U.S. 293, 54 S. Ct. 396, 398, 78 L. Ed. ___, "They do not appropriately serve the convenience of the appellee or of the court." Rules 11 and 24; Wagner Electric Corp. v. Snowden (C. C. A. 8) 38 F.(2d) 599, 601; Federal Surety Co. v. Standard Oil Co. (C. C. A. 8) 32 F.(2d) 119; Lahman v. Burnes Nat. Bank (C. C. A. 8) 20 F.(2d) 897; Robinette v. Sidener (C. C. A. 8) 33 F.(2d) 37; Schmidt v. United States (C. C. A. 8) 63 F.(2d) 390.
When he was discharged from the hospital, he went to his father's farm at Purdy, Mo., where he stayed for a time and then went to Drumright, Okl., where he worked for about fifteen or twenty days in the fall of 1919, but had to quit the job on account of ill health. His heart bothered him there the same as it had in France. He returned to his father's farm, remaining there five or six months doing nothing, and after that period, he returned to Oklahoma in the spring of 1920, and worked there a little over a month and again had to quit because of the same heart trouble. He again returned to his father's home, remaining there some two or three months. In the fall of 1920, he went to Slick, Okl., where he worked around the oil fields for a month or a little over. During that time he was again afflicted with heart trouble, and he returned home where he remained until he went to Mountain Grove, Mo., where he was placed in vocational training for nine months. The work in vocational training was "mostly studying books and something like that." Before taking this training, his education was about the fifth or sixth grade in the public schools. After his training, he returned to Purdy, Mo., and was put on a project taking care of "a couple of hundred chickens." He did part of the work and his wife did the rest. At that time he was sleeping badly, and has had restless nights practically ever since he got out of the Army. He sleeps with his head high so he can breathe better. He lived on a little forty-acre place but has not farmed it, but rented it out. There were some truck patches on it for his own use which he hired tended, and his wife did part of the work on this garden. When he lies down, unless his head is raised, he has coughing spells, and he has to get up and walk the floor half the night, and he has restless spells off and on all the time, with night sweats. They first began on him at St. Louis while in the hospital, and they have lasted off and on until the present time. They come at intervals and last three or four nights. From the time he was in the hospital at Jefferson Barracks he has had a cough. There will probably be six months in the year that he will not cough, and then for a long period he would cough.
Lay witnesses, who were neighbors and acquaintances of plaintiff, testified that they saw plaintiff very early after his return from the service, some of them having seen him upon his return, others the first week after his return, and some a little later. They testified generally that he appeared to them to be sickly, weak, slow in movements, and that he had a cough. One witness testified that on one occasion he coughed excessively at the time he was undertaking to repair his automobile. One witness testified that he was in the service with plaintiff and was with him when he fell out in training in France. He came back with plaintiff and helped take care of him. This witness says he was in a weakened condition, was pale looking, and had a cough; that he left him at the hospital at Jefferson Barracks, and when he again saw him, after he had been discharged from the hospital, he was thin, had bad color, and looked as though he was in bad shape. Other of these witnesses testified that they noticed that he was weak, short of breath, and coughed. Another witness testified:
"X-ray findings: Stereoscopic examination of chest shows a somewhat diminished radiancy of lower third of left chest. Indicative of provably fluid. The shadow of the left diaphragm is obscured. There appears to be a comparative enlargement of the left ventricle. The entire left hemi-chest is slight less radiant than the right. There is extension into the apex of the left vertebral and in the first and (a) second interspaces the corresponding mainstem bronchi reach into the periphery. The right first mainstem bronchis is delicately fanned in the third zone. This case should be considered as active, with the greatest activity on the left; prognosis is good with adequate treatment. There is little if any destruction of lung tissue. The trachea appears pushed a trifle to the right. There is nothing on the plates to account for this."
Three physicians testified for plaintiff. They were Dr. Kelly, Dr. Miller, and Dr. Camp. Dr. Kelly testified that he first examined plaintiff in the early part of 1921; that it was his opinion from his examination that plaintiff was then suffering from active tuberculosis; that he suspected at the time of this examination that plaintiff was afflicted with mitral stenosis. Dr. Miller testified that he had examined plaintiff in 1931, and again just preceding the trial. Based upon these examinations, he was of the opinion that plaintiff at the time of the examinations had active tuberculosis and active tubercular involvement in the apex of each lung, and that plaintiff was afflicted with mitral stenosis.
Dr. Camp first examined plaintiff in November, 1930, and again examined him before the last trial. At the time of his examinations he found active tubercular involvement in the lungs and also mitral stenosis, and in addition he found that mitral stenosis was complicated by auricular fibrillation. Dr. Camp, in answer to a hypothetical question which embodied substantially all the facts testified to by the other witnesses and the hospital record, gave it as his opinion that as early as May, 1919, plaintiff was suffering from active tuberculosis, not of the lungs, but of the pleura of the lungs; that at that date he was suffering from mitral stenosis complicated by auricular fibrillation; that the disease mitral stenosis was an incurable disease, and if complicated by auricular fibrillation one suffering from it could not engage in physical employment without danger to his life and health. This witness said that plaintiff's case was different from ordinary mitral stenosis because of the presence of auricular fibrillation. The witness said, among other things:
"Now, gentlemen, if that was all of the medical testimony for the plaintiff, you could not from that testimony, even in addition to the lay testimony, find a verdict for the plaintiff, because none of these gentlemen from their examinations pretended to say to you *879 what was the condition of the plaintiff when he was discharged from the Army on June 1, 1919, which, as I stated to you, is the month and year you must keep in mind, but Dr. Camp, in answer to a hypothetical question in which was stated facts testified to by other witnesses, in basing his answer to that hypothetical question, assuming those facts to be true, gave it to you as his opinion that on June 1, 1919, the plaintiff was suffering from active tuberculosis, he said, not of the lungs but of the pleura of the lungs, which, I understand, is the covering of the lungs. He gave it to you, also, as his opinion that on that date he was suffering from mitral stenosis, complicated with auricular fibrillation, and he said to you that that disease, mitral stenosis, was an incurable disease and if it was complicated with auricular fibrillation that one suffering from it could not engage in physical employment without danger to his life and danger to his health." 2ff7e9595c
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