Paulyne B. McCall as the Administratrix of the Estate of Virgil C. McCall Deceased v. United States

Appellant appeals from a judgment of dismissal entered in favor of the United States in an action brought against the United States in the District Court for the Western District of Washington, Noi’thern Division, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Jurisdiction of the District Court was based on 28 U.S.C. § 1346 (b) and 28 U.S.C. § 2671 et seq. This court has jurisdiction under 28 U.S.C. § 1291 .

The facts are not in dispute. On March 31, 1963, one Ray E. Grantham, an enlisted man with a rating of Storekeeper 1st Class, in the United States Navy, while traveling in his own automobile from his home in Hayward, Cali-' fornia, to Bremerton, Vfashington, struck and killed one Virgil C. McCall who was then engaged in changing a tire on the shoulder of the Tacoma-Seattle Freeway in the State of Washington. The United States has not, and does not, contest the fact that the negligence of Grantham in the control and operation of his automobile proximately contributed to the cause of McCall’s death.

Following trial to the District Court, the court found as a fact, and concluded as a matter of law, that Grantham was not acting within the scope of his…