Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, Judge.
Before SPARKS, MAJOR, and MINTON, Circuit Judges.
The defendant-appellant seeks to reverse a judgment of the District Court entered upon the verdicts of a jury which awarded damages to the plaintiffs-appellees for injuries sustained in an automobile accident. The defendant-appellant claims there is no evidence in the record to sustain the allegation of the complaint that the defendant-appellant's agent was acting within the scope of his employment at the time of the accident.
The defendant-appellant made no motion for a directed verdict. In his motions for a new trial, some of the grounds alleged therefor were the insufficiency of the evidence. Since the defendant-appellant made no motion for a directed verdict, the insufficiency of the evidence cannot be raised here. Mutual Benefit Health & Acc. Ass'n v. Thomas, 8 Cir., 123 F.2d 353, 355; Western Produce Co. v. Folliard, 5 Cir., 93 F.2d 588, 589; Fricke v. General Accident Fire & Life Assur. Corp., Ltd., 8 Cir., 59 F.2d 563, 564.
Ordinarily, the overruling of a motion for a new trial is not assignable here as error. Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 134, 12 S. Ct. 181, 35 L. Ed. 961; Pittsburgh, Cincinnati & St. Louis Railway Co. v. Heck, 102 U.S. 120, 26 L. Ed. 58; Ford Motor Co. v. Hotel Woodward, 2 Cir., 271 F. 625; Illinois Central R. Co. v. Horace Turner Co., 5 Cir., 9 F.2d 6; Terzo v. United States, 8 Cir., 9 F.2d 357; Courtnay v. King, 9 Cir., 220 F. 112; Bidwell v. Geo. B. Douglas Trading Co., 2 Cir., 183 F. 93; Condran v. Chicago, M. & St. P. Ry. Co., 8 Cir., 67 F. 522, 28 L.R.A. 749. The record presents no question for review, and the judgment of the District Court is affirmed.