
    THOMAS v. MARTIN.
    No. 1281.
    United States District Court E. D. Tennessee, S. D.
    Jan. 26, 1949.
    Berke & Fleming, of Chattanooga, Tenn., for plaintiff.
    Strang, Fletcher & Carriger, of Chattanooga, Tenn., for defendant.
   DARR, District Judge.

The defendant, Robert W. Martin, d/b/a Martin Motor Express Company, has a motion for summary judgment.

The plaintiff’s initial pleading has allegations of negligence which clearly amount to a cause of action against this defendant. This defendant has made answer and denied the allegations of negligence. To support the motion affidavits of several persons have been filed. These affidavits are proof of the averments in the answer, and if found to be true would defeat the plaintiff’s claim upon a trial of the case.

On principle, which is sustained by numerous cases, the extraordinary relief by summary judgment cannot be granted unless it very clearly appears from the whole record that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

If there be a substantial issue raised by the pleadings as distinguished from formal issues raised thereby, a motion for summary judgment cannot be sustained even though affidavits be submitted in denial of the substantial issue. The point to be determined on such motion is whether there is a real issue existing and in doing this all doubts are resolved against the movant. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318.

Affidavits making denial of allegations of negligence clearly set forth in a complaint are evidence that there exists an issue of fact. Under such circumstances a motion for summary judgment cannot be granted. Robinson v. Waterman Steamship Co., et al., D.C., 8 F.R.D. 155.

The motion is overruled.

Order accordingly.  