Pearl Archer and Joseph Archer v. United States

Plaintiffs, who are the parents and heirs of Herman Archer, bring this action for his death. They allege:

It is further set up that, as a proximate result of the alleged negligence, Herman Archer died, to their damage.

The United States filed an answer which consisted of a general denial and several affirmative defenses.

Thereafter, a motion for summary judgment was filed. A great many affidavits were received on the question of whether the fact that the cadet was riding an army plane in order to get back to his post before his leave expired had an effect on the right of the parents . to recover. . The Court,made findings of i fact as to two specific issues,- and thereupon entered summary judgment. D.C., 112 F.Supp. 651 . This was technically improper. If any one «thing were shown more clearly than another, it was that the cause presented many genuine issues of 'material fact. " The Court decided certain of these issues of fact upon affidavits and documents submitted by the parties and entered judgment. The function of the Court on motion for summary judgment is not to try any issue of material fact upon deposition or affidavit. ' Rule 43 provides: “In all trials the testimony…