Rutherford v. United States
| Decision Date | 19 June 1947 |
| Docket Number | Civ. No. 955. |
| Citation | 73 F. Supp. 867 |
| Parties | RUTHERFORD v. UNITED STATES. |
| Court | U.S. District Court — Eastern District of Tennessee |
Poore, Kramer, Cox & Overton, and Charles H. Davis, all of Knoxville, Tenn., for plaintiff.
James B. Frazier, Jr., U. S. Atty., of Knoxville, Tenn., for defendant.
This action is before the Court on defendant's motion for the entry of summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The defendant's motion is based upon the pleadings on file in the action and the affidavit of Raymond J. Wininger, attached to the defendant's motion as an exhibit. No counter affidavit was produced by the plaintiff.
The question for decision by the Court upon defendant's motion is whether Wininger, the U. S. Naval petty officer at the time of the automobile accident upon which this action has been commended, was "acting within the scope of his office or employment" as required by the Federal Tort Claims Act, Act of Aug. 2, 1946, c. 753, Title IV, Sec. 410, 60 Stat. 844, 28 U.S.C.A. § 931.
Wininger's affidavit states in substance: that at the time of the accident Wininger was Chief Boatswain's Mate, U. S. Navy, retired, on active duty attached to U. S. Naval Recruiting Station at Nashville, Tennessee, and on detached duty in charge of the Recruiting Station at Knoxville, Tennessee; that Wininger was receiving pay and a maintenance and quarters allowance from the U. S. Navy; that Wininger was in charge of recruiting activities for the Navy in 19 upper East Tennessee counties, including Knox County in which the accident occurred; that shortly before 10 o'clock in the forenoon of Sunday, March 31, 1946, Wininger had gone to the broadcasting station of radio station WROL in Knoxville, Tennessee, with others, for the purpose of broadcasting a Navy recruiting and reserve program over that station; that the program was broadcast between 10:10 and 10:20 A.M., on that date; that after the broadcast Wininger proceeded to his automobile which was parked near the old Post Office in Knoxville, Tennessee; that Wininger proceeded and drove his automobile from its parking place toward his home, 505 Jacksboro Pike, Fountain City, Tennessee; that Wininger was alone in the automobile and was not engaged in any activity relating to recruiting; that Wininger's purpose in driving his automobile was to go to his home to remain there with his family during Sunday; that the automobile which...
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