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FIELD v. OMAHA STD.

June 23, 1983

MARK DAVID FIELD
v.
OMAHA STANDARD, INC., SAVAGE TRUCK EQUIPMENT COMPANY and INTERNATIONAL HARVESTER COMPANY *



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 This is a products liability action which was instituted to recover damages for personal injuries sustained by plaintiff, Mark Field. Plaintiff's injuries arose from a collision on July 10, 1979, between the truck he was driving and an aerial crane truck which consisted, in part, of a cab-chassis manufactured and sold by defendant International Harvester Company ("IH"). Following a ten day jury trial, judgment was entered for defendant in accordance with the jury's finding that the IH cab-chassis was not defective at the time it left defendant's premises. Plaintiff now moves for judgment n.o.v. or in the alternative for a new trial. For the reasons which follow, plaintiff's motion will be denied.

 I. FACTS

 Plaintiff brought the present products liability suit against IH claiming that the cab-chassis of the transporter was defectively designed and manufactured because it didn't have a rear underride guard to prevent an impacting vehicle from underriding the truck body in a rear end collision. The troublesome aspect of plaintiff's suit was whether the IH cab-chassis was rendered defective by its lack of an underride guard since it was the completed truck, rather than the component cab-chassis, which ultimately required the guard.

 There was no dispute over the fact that the truck in question, in accordance with the standard truck manufacturing process, was manufactured in separate stages by independent parties. The first stage involved IH's delivery of the cab-chassis unit to an intermediate purchaser, in this case a dealer. Thereafter various parties, including a body builder specializing in building flat body trucks, took part in converting the cab-chassis into the completed truck. The cab-chassis by itself was nothing more than a component of the finished product. In fact, testimony adduced at trial revealed that cab-chassis units as a class may not be driven on the public highway until they are certified as having been finished by a body builder.

 The cab-chassis at issue in the present case was what IH has denominated as an F1800 Model. This unit is a multi-purpose vehicle which can be utilized for any one of hundreds of various body configurations. It was ordered from defendant IH in 1971 by Troy, Inc., an authorized IH dealer. Troy wanted this cab-chassis for an aerial crane truck to be purchased by a customer of Troy's, a building contractor named Ryland Systems. As was the usual practice, IH never knew the intended final configuration of the truck but merely filled Troy's order according to the specifications set out by Troy on IH's order forms. This could be done by IH without any knowledge of the final type of truck contemplated by the ultimate customer. Upon completion of the cab-chassis, IH delivered it to Troy which paid IH the accompanying invoice.

 Troy arranged for completion of the truck to conform to its customer's needs by engaging several other parties. Thereafter the cab-chassis underwent the following changes: a crane was added; the rear wheels were moved back; the frame was lengthened as was the drive train; and a bed was added. When the work was finished the completed aerial crane truck was delivered by Troy to its customer, Ryland Systems. The truck then passed through the hands of several owners before being purchased by plaintiff's employer, Tam Agri.

 The case was tried over a ten day period. Plaintiff's general theory was that IH should have provided an underride guard kit as a delete option to the order made by the original dealer for the cab-chassis. Plaintiff's expert opined that had this delete option been available, and if not deleted by the dealer, it would have been available to be attached to the crane transporter in question at some point along the assembly chain and plaintiff's injuries would have been avoided. However, another witness for plaintiff, the owner of the Troy dealership which had ordered the cab-chassis from IH and arranged for its completion by others, contradicted the expert. This witness stated that even if a guard had been offered as a delete option he would not have recommended its attachment because it would have interfered with the off-road use contemplated by the customer, in this case use relating to building construction.

 Following the conclusion of the evidence, the jury returned a verdict for defendant and found that the IH cab-chassis was not defective when it was sold by IH to the dealer without an underride guard kit as a delete option. Plaintiff moved for judgment n.o.v. or for a new trial raising 28 separate grounds. Of these, 21 are not briefed, and are stated in merely general terms. In view of this, the Court has re-examined its previous rulings and is not persuaded that those rulings on these non-briefed points should be changed. Accordingly, it shall dismiss all non-briefed points of error for lack of prosecution in addition to lack of merit. See Local Rule 20(c); Carl Walker & Associates, Inc. v. Dickerson Prestress, Inc., No. 75-2215, slip op. at 2 (E.D. Pa. Dec. 8, 1982). The remaining points are discussed below.

 II. DISCUSSION

 A. Agency

 Plaintiff contends that the Court erred in ruling, as a matter of law, that defendant IH could not be held liable under principles of agency for the knowledge or conduct of its authorized dealer, Troy, Inc., with respect to the finished product. At the close of plaintiff's evidence pursuant to a Rule 50 motion of defendant, the Court concluded that plaintiff did not have a claim for liability under an agency theory. (Tr. 7-14). The Court's ruling was based on plaintiff's failure to prove that the scope of the agency relationship between Troy and IH would allow the knowledge and conduct of Troy relating to conversion of the cab-chassis into a completed truck to be imputed to IH. As such, removal of the agency question from the province of the jury was not error and does not afford plaintiff grounds for relief.

 It is well established in Pennsylvania that the knowledge of an agent can only be imputed to the principal in connection with any transaction conducted by the agent on behalf of the principal, when such knowledge is acquired in the course of the business in which the agent is employed. Higgins v. Shenango Pottery Company, 256 F.2d 504 (3d Cir. 1958). Merely to state this principal, however, is to note its most obvious limitation. The knowledge in question must have been acquired by the agent while he was acting within the scope of the agency relationship as both he and the principal understood it. Thus for the purpose of the present case, the narrow question for resolution is whether Troy, Inc. was acting as IH's agent for the specific purpose of completing the unfinished product supplied by IH and delivering it into a stream of assembly and fabrication activity by different business houses that IH had no knowledge of nor affiliation with. It should be noted that the existence of an agency relationship between the parties for purposes of sale and delivery of the cab-chassis, the component part, is not determinative of the question and may even be immaterial. Merely because a party is an agent for some purposes does not mean that the party is an agent for all purposes. Mellon Nat. Bank & Trust Co. v. Esler, 357 Pa. 525, 55 A.2d 327 (1947).

 It is beyond dispute that for a principal to be bound by the acts of his agent, those actions must fall within the actual or apparent scope of the agency. See Restatement of Agency (Second) § 216 comment a & § 228 and comments a, b, c & d (1958). The scope of the agency is to be determined in light of the agreement of the principal and the agent as well as all of the accompanying circumstances. In deciding whether a particular undertaking by the agent was within the scope of the agency, one key factor is to consider if the service performed by the agent was one in which he was subject to control, or the right to control, by the principal. See Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980). If the facts concerning the connection between the parties are not in dispute, questions concerning the existence and the nature of the relationship are properly determined by the court. Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981).

 Here, the relationship between Troy, Inc. and IH was governed by a written agreement. Plaintiff neither introduced this agreement nor questioned his witness, Chester Troy, as to its contents. Additionally, the evidence which was adduced failed to establish any question of fact on the issue of control of the cab-chassis as it evolved at the hands of other parties into a completed product. The evidence merely demonstrated a course of conduct by the parties whereby Troy, Inc., acting as an authorized sales representative of IH cab-chassis, would solicit orders for cab-chassis, complete them without any input from IH, forward them to IH, and thereafter expect and accept delivery of the cab and chassis as ordered. There was absolutely no evidence that IH had knowledge of or any involvement in the completion of the truck once the cab-chassis was delivered to Troy, Inc. Plaintiff, at page 17 of his brief, states:

 
For the purpose of this argument, plaintiff also concedes that there is insufficient evidence of control by International over Troy, Inc.'s manner of selling finished trucks to establish a master-servant relationship.

 Indeed, it is perfectly clear from the evidence that following delivery of the cab-chassis to the dealer, the dealer than became the agent of the customer in structuring the final stages of assembly and fabrication. The Court was thus correct in concluding as a matter of law that even if an agency relationship existed between Troy, Inc. and IH, the sale of completed trucks was not within the scope of the agency that brought forth only the sale of a cab and chassis.

 Plaintiff also argues that the Court erred in determining as a matter of law that IH could not be held liable under the doctrine of apparent authority or agency by estoppel. In Turnway Corporation v. Soffer, 461 Pa. 447, 457, 336 A.2d 871, 876 (1975), the Pennsylvania Supreme Court summarized ...


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