The opinion of the court was delivered by: GOURLEY
This is an action for damages arising out of the explosion of a gasoline tank on a farm tractor.
Claim for relief is premised on negligence and breach of implied warranty of fitness for purpose intended.
Plaintiff alleges that difficulty was experienced in the use of the farm tractor and it stopped. Plaintiff removed the cap of the gasoline tank of said tractor to determine if he was out of fuel. As he attempted to remove the cap of the gasoline tank, the tank exploded, which engulfed the plaintiff with flaming gasoline, causing the injuries and damages complained of.
Two matters are presently before the court:
2. Motion of plaintiff Ward C. Fleming, for leave to amend his complaint by modifying the basis of the liability of the corporation defendant from that of a manufacturer and supplier of the chattel to that of distributor and supplier.
Succinctly stated, the motions pose the following legal issue:
When plaintiff brings a cause of action against a defendant named as manufacturer and supplier of a chattel which is not marketable in a sealed package, but which is inherently dangerous, whether after statute of limitations has run, plaintiff may amend his complaint to proceed against the defendant as the distributor and supplier rather than the manufacturer and supplier.
In reaching this conclusion consideration and discussion is required of the two matters before the Court.
In disposing of a motion of defendant to dismiss, the court must assume the truth of all allegations in the complaint. There is no basis for dismissing the original complaint since to refuse to give credence to all allegations in the complaint on defendant's motion to dismiss would be opposed to the spirit of the Rules. Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 169 F.2d 580; Sherwin v. Oil City Nat. Bank, 3 Cir., 229 F.2d 835; Kroese v. General Castings Corp., 3 Cir., 179 F.2d 760, 15 A.L.R.2d 1117.
Motion of the Plaintiff for Leave to Amend its Complaint by Modifying the Basis of the Liability of the Corporate Defendant from That of Manufacturer and Supplier of the Chattel to That of Distributor and Supplier of Said Chattel.
The disposition of said Motion must be found in the Federal Rules of Civil Procedure and the ...