between them. Morris, Wheeler & Co., Inc., v. Rust Engineering Co., D.C., 4 F.R.D. 307.
Therefore, plaintiffs' action involves only their claim against General Motors. To recover a judgment plaintiffs must prove that General Motors negligently manufactured and delivered to Jacobs Brothers this Chevrolet with defective brakes and safety equipment, regardless whether recovery is based upon that negligence or upon breach of warranty by such negligence.
For General Motors to recover in its third-party action, it must show that it is entitled to indemnity or contribution in whole or in part from Jacobs Brothers.
The primary responsibility for negligently manufacturing and delivering to its dealer an automobile with defective brakes or safety equipment is upon the manufacturer, irrespective of the dealer's duty to inspect the automobile and repair the defects before selling it to the ultimate user. The user could sue and recover damages for such negligent manufacture from the dealer, but the dealer could obtain complete indemnity from the manufacturer. MacPherson v. Buick Motor Co., 217 N.Y 382, 111 N.E. 1050, L.R.A. 1916F, 696; Foley, Executrix, v. Pittsburgh-DesMoines Company, 363 Pa. 1, 28-32, 68 A.2d 517; Restatement, Torts, Secs. 395, 396.
Thus Jacobs Brothers cannot under any theory be held liable to General Motors on plaintiffs' claim against General Motors.
General Motors' third-party complaint in effect alleges that plaintiffs' injuries were caused, not by General Motors' negligence in manufacturing defective brakes on plaintiffs' Chevrolet, but solely by Jacobs Brothers' negligence in adjusting, servicing and repairing these brakes on various occasions. If proved, this is a valid defense to plaintiffs' claim but it is not a valid theory for transferring liability under plaintiffs' claim.
Accordingly, third-party defendant's motion to dismiss the third-party complaint is hereby granted.
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