¶1dissenting. The majority has found it unnecessary, in considering this appeal, to pass upon the question, if any, as to the existence of a genuine factual issue between the parties as to the mission and scope of activities of appellee as an employee of the United States at the time of the collision. The majority has adopted the view that such an issue is not sufficiently raised by appellant for our review. I do not agree.
¶2Appellant’s entire appeal is bottomed upon a single Point, and I quote:
“Court erred in granting Defendant-Appellees motion for summary judgment since 28 U. S. Code Section '2679 grants exclusive jurisdiction to the United States only when the United' States accepts responsibility for the tortious act and declares the tort feasor immune, neither of which were done in this case.”
¶3This appellant suffered the dismissal of her entire cause of action in the trial court by the entry of a summary judgment. The propriety of the action of the trial court in doing so is the only issue here on appeal and it seems to me that anything in this record demonstrating or tending to demonstrate error by the trial court in granting summary judgment is now properly before us for review.
¶4Appellee filed an affidavit in support of his motion for summary judgment stating that he was employed by the United States and was in performance of his duties of delivering mail at the time of the accident. However, within two days of the filing of said affidavit by appellee, appellant filed a formal response, paragraph 1 of same reading as follows:
“That there are genuine issues of material facts which plaintiff cannot present in affidavit form because same are outside plaintiffs’ knowledge at this time, and/or would have to be presented by proper testimony.”
¶5Moreover, appellee had previously filed a request for admissions of fact by appellant as to appellee’s employment by the United States and as to his being engaged in delivering the mail at the time of the incident. Appellant formally responded refusing to make the admissions and stating in her response:
“ . . . She cannot, however, with certainty, say that the defendant was on this route delivering mail at the time of the collision. Plaintiff, therefore, states that she has insufficient information to admit or deny those items requested by defendant.”
¶6Summary judgment is not available unless all questions as to dispositive facts have been removed.
‘ ‘ Motion for summary judgment is extreme remedy and should be granted only in absence of genuine material fact issue. Ark. Stat. Ann. Sec. 29-211. Fed. Rules Civil Procedure, Rule 56, 28 U. S. C. A.”
¶7Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646.
¶8Our civil procedures as to summary judgment have been taken from Rule 56 of the Federal Rules of Civil Procedure. The federal courts have enjoyed a broad experience in the use of summary judgments and the federal courts have uniformly held that affidavits in support of a motion for summary judgment may be traversed by other affidavits or by the filing of an additional responsive pleading, which is what occurred in this case. Fletcher v. Norfolk Newspapers, Inc., 239 F. 2 169. In Hartford Accident and Ins. Co. v. Loyd, 173 F. Supp. 7, U. S. District Judge John E. Miller granted summary judgment when no factual issue was found to exist but stated on page 12:
“The affidavit was not disputed with counter affidavits or subsequent pleading of any kind, although the defendants have been given adequate time under the local rules to do so if they so desire.” (Underscoring ours.)
“Nothing less than most conclusive showing possible in defendants deposition that master and servant relationship existed between defendant and such owner and operator should be accepted as sufficient on defendant’s motion for summary judgment, as knowledge of controlling facts on such issue is almost exclusively in defendant’s possession.” Hoffman v. Lamb Knit Goods Co., 37 F. Supp. 188. In Subin v. Goldsmith, 224 F. 2d 753, the court held: “Opponents failure to file counter affidavit in answer to affidavit filed to support motion for summary judgment does not compel acceptance as true of facts alleged in movant’s affidavit.” Cert. denied, 350 U. S. 883.
¶9In Fogelson v. American Woolen Company, 170 F. 2d 660, cited in Subin v. Goldsmith, supra, all of the directors of the corporation, including a former G-over-nor of Massachusetts, a former Governor of the Federal Reserve Board, and a former Assistant Secretary of the Treasury, gave affidavits of fact in support of motion for summary judgment. While no affidavits were filed traversing said affidavits, the appellate court reversed the summary judgment entered below, noting: •
“It may be unlikely that the plaintiffs can prove their allegation, for such proof must be drawn largely from the directors themselves by cross-examination; but we do not think that their affidavits must be accepted as conclusive and thus preclude any trial of that issue.”
¶10In Bozant v. Bank of New York, 156 F. 2d 787, Judge Learned Hand set forth in the opinion:
“In conclusion we cannot avoid observing that the case is another mistaken effort to save time by an attempt to dispose of a complicated state of facts on motion for summary judgment. This is especially true when the plaintiff must rely for his case on what he can draw out of the defendant. Arnstein v. Porter, 2 Cir., 154 F. 2d 464. It appears to be somewhat difficult to persuade the district courts of this; but we are satisfied that it is true.”
¶11The practice has generally been followed in the federal courts at all levels to decline summary judgment where the facts set forth in affidavits in support of motion for summary judgment are peculiarly in the knowledge of defendants. See Colby v. Klune, 178 F. 2d 872. Sartor v. Ark. Natural Gas Corporation Kansas Group, 321 U. S. 620. In Toebelman v. Missouri-Kansas Pipe Line Co., 130 F. 2d 1016, the court declared:
“ It is obvious that this evidence must come largely from the defendants. This case illustrates the danger of founding a judgment in favor of one party' upon his own version of facts within his sole knowledge as set forth in affidavits prepared ex parte. Cross-examination of the party and a reasonable examination of his records by the other party frequently bring forth further facts which place a very different light upon the picture.”
¶12A leading case in interpreting the federal rules as to summary judgments in situations similar to the instant case is that of Cohen v. Curtis Publication Company, 31 F. R. D. 569, from which we quote:
“In considering this motion, the Court is fully aware that a summary judgment should be granted with caution and only where the movants have established the non-existence of any genuine issue of fact. The showing made likewise must be construed in the light most favorable to the plaintiff. Moreover, the plaintiff should be accorded any and all favorable inferences that may be deduced from the showing. It is with these principles in mind that the Court approaches the question as to whether or not these two movants are entitled to the relief which they seek.”
¶13The Cohen case, supra, was affirmed 312 F. 2d 747, cert. denied 375 U. S. 850, and rehearing denied 375 U. S. 936.
¶14Subsection (d) of Section 2679, Title 28 IT. S. C. A. expressly contemplates that the Department of Justice, through the Attorney General, will inquire into the case and make a certification as to whether the defendant employee was acting within the scope of his employment for the United States at the time of the incident.
¶15On October 8, 1964, appellee filed a verified motion seeking to have the United States substituted as a defendant in the action brought by appellant against him, and paragraph 4 of said motion, at page 10 of the transcript of the record, sets forth:
“The U. S. Attorney for the Western District of Arkansas has refused to certify that appellant was acting within the scope of his employment at the time of the incident out of which this suit arises. ...”
¶16Subsequently, on October 30, 1964, the U. S. Attorney for the Western District of Arkansas entered a special appearance opposing appellee’s motion to substitute the United States of America as a party defendant, paragraph 2 of said special appearance being as follows:
“That the defendant’s motion is not sufficient to state a claim from which liability of the United States can be founded.”
¶17The Department of Justice had several weeks of time in which to inquire into the circumstances of this accident before filing its special appearance, and the language of the special appearance, in avoiding any statement as to the mission of appellee at time of accident, strongly infers an additional cloud over the unresolved fact issue as to whether appellee was acting within the scope of his duties as an employee of the United States at the time of the accident. I am convinced that multiple doubts and inferences of doubt existed as to this factual issue. Since it seems to me that this case never reached a posture wherein summary judgment could be appropriately entertained, I must respectfully dissent from the majority opinion in affirming the summary judgment entered in this case.
¶18I, therefore, dissent.