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CONTINENTAL AIRCRAFT SALES v. MCDERMOTT BROS. CO.

August 8, 1970

CONTINENTAL AIRCRAFT SALES d/b/a Flying W Ranch, Plaintiff,
v.
McDERMOTT BROTHERS COMPANY and John J. McGee, Defendants. ALLIED CHEMICAL CORPORATION, Defendant and Third-Party Plaintiff, v. HAUCK MANUFACTURING COMPANY, Third-Party Defendant


Herman, District Judge.


The opinion of the court was delivered by: HERMAN

HERMAN, District Judge.

 The matter before us is Hauck Manufacturing Company's motion for summary judgment in an action which arises from a claim for extensive damages to an airplane allegedly owned by Continental Aircraft Sales d/b/a Flying W Ranch.

 As evidenced by the complaint and summarization of the facts presented to the court for purposes of this motion, it appears that McDermott Brothers Company, one of the defendants, sold to Allied Chemical Corporation, another defendant, a large piece of equipment known as a calcinor. The contract of sale between McDermott and Allied called for McDermott to furnish, without charge, an engineer to inspect the calcinor at Allied's mine in Wyoming before start-up. Apparently an integral part of the calcinor is a combustion system which is supplied to McDermott Brothers by the third-party defendant Hauck.

 Allied, the purchaser, notified McDermott, the seller, of its readiness to start the machine and in turn defendant John J. McGee, President of McDermott Brothers Company, arranged to have Cunningham, an engineer for Hauck, accompany him for the start-up; allegedly a procedure which was frequently followed between the two companies. Additionally, McDermott Brothers apparently made arrangements for a private aircraft.

 McGee piloted the aircraft which upon landing in Wyoming was extensively damaged.

 Plaintiff, Continental Aircraft, brought an action against the alleged bailee, McDermott Brothers, and John J. McGee, individually, and Allied Chemical Corporation. Thereafter, Allied Chemical Corporation, seeking contribution, joined Hauck Manufacturing Company as a third-party defendant on the theory that Hauck and McDermott Brothers were engaged in a joint venture and that the negligence of Hauck, through its agent Cunningham, the engineer, contributed to the accident. *fn1"

 Hauck has filed a motion for summary judgment on grounds that "Cunningham was a mere passenger in the aircraft" at McDermott's request; that "Cunningham had no control over the course of the aircraft or the manner in which it was flown"; that neither Cunningham nor Hauck incurred nor were they responsible for any expenses in connection with the flight; that no general issue of facts exists; and that there is no reason for delay in the entry of a summary judgment.

 Upon motion for a summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, the movant has the initial burden of negating any real doubt as to the existence of any genuine issue of material fact and of showing that he is entitled to a judgment as a matter of law. Hardinge Co. v. Jones & Laughlin Steel Corp., 164 F. Supp. 75 (W.D. Pa. 1968). The rules further provide that the movant may submit to the court supporting affidavits, answers to interrogatories and other papers in an effort to meet his burden in the form prescribed by Rule 56(e).

 Rule 56(e) additionally requires that an adverse party may not rest upon the mere allegations or denials in his pleadings, but his response, if appropriate, must set forth specific facts showing that there is a genuine issue for trial if such facts are available to him; otherwise he must set forth the reason for their absence. Foster v. General Motors Corp., 191 F.2d 907 (7th C.A. 1951).

 Generally, in order to impute civil liability from one person to another it must be shown that a principal and agency relationship exists between the parties and that the tortious conduct arose within the scope of the agency relationship, or employment. Similarly, liability may be imputed from one to another if it is shown that the parties were engaged in a joint venture or enterprise. 38 Am. Jur. Negligence § 253 (1963).

 Restatement (Second), Torts § 491b. (1965) sets forth:

 
"A 'joint enterprise' is in the nature of a partnership, but is a broader and more inclusive term. In a partnership, there is a more or less permanent business arrangement, creating a mutual agency between the partners for the purpose of carrying on some general business dealings, so that the acts of one are to be charged against the others. A joint enterprise includes a partnership, but it also includes less formal arrangements for cooperation, for a more limited period of time and a more limited purpose. It includes an undertaking to carry out a small number of activities or objectives, or even a single one, entered into by members of the group under such circumstances that all have a voice in directing the conduct of the enterprise. The law then considers that each is the agent or servant of the others, and that the act of any one within the scope of the enterprise is to be charged vicariously against the rest. * * *"

 Both parties cite the case of Rodgers v. Saxton, 305 Pa. 479, 158 A. 166 (1932) as controlling authority for their respective positions. There the Supreme Court of Pennsylvania determined the question of whether or not the contributory negligence of a husband-driver is imputable to his wife who was the owner-occupant of the automobile. The Supreme Court held that a husband is presumably in control of the vehicle when driving ...


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