an injury to a third person resulting from a failure to perform this duty, if such injuries could reasonably be anticipated, although there is no contract or privity between the parties. * * *' Magee v. General Motors Corp., 117 F.Supp. 101, 102 (W.D.Pa.1953). (Emphasis supplied.)
'A recapitulation of all the credible evidence establishes the right of plaintiff to recover either upon the theory of breach of implied warranty of fitness for purpose and merchantability, or upon the basis of common law negligence.
'An appropriate Order is entered.' Magee v. General Motors Corp., 124 F.Supp. 606, 607 (W.D.Pa.1954).
A year later, another products liability case was argued before the United States District Court for the Western District of Pennsylvania, in an action against a cigarette manufacturer for damages allegedly resulting from smoking cigarettes. Pritchard v. Liggett & Myers Tobacco Company, 134 F.Supp. 829, 833 (W.D.Pa.1955). It was there said:
'Defendant apparently does not dispute the general proposition that an action for personal injuries to an ultimate consumer lies against a manufacturer for negligence in the manufacturing of the product, Magee v. General Motors Corp., D.C.W.D.Pa.1954, 124 F.Supp. 606, affirmed per curiam 3 Cir., 1955, 220 F.2d 270; Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 68 A.2d 517, 530-34, or for breach of warranty, Magee v. General Motors Corp., supra; Caskie v. Coca-Cola Bottling Co., 1953, 373 Pa. 614, 96 A.2d 901, 903.'
Candor requires the concession that the cases mentioned above are not overwhelmingly compelling on the right of this guest plaintiff to bring his action -- since those cases have involved plaintiffs no more remote than buyers of the manufacturers' products whose actual purchase was made through a dealer. Their language, however, has been broad enough to cover the present situation. In any event, none of the cases heretofore discussed has derogated from the authority of Mannsz v. Macwhyte Co., 155 F.2d 445 (3rd Cir.1946). That was the case, one will recall, which stated unequivocally that the requirement of privity in warranty cases had been obliterated from Pennsylvania law.
It has been argued, however, that the Pennsylvania Supreme Court held otherwise in the case of Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949).
In Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949), plaintiffs had been shopping in a self-service super market. They selected two bottles of ginger ale, one of which blew up -- injuring the wife-plaintiff -- as it was being placed in their merchandise cart. The case was decided on preliminary objections that plaintiffs had failed to allege any contract from which might arise an implied warranty under the applicable Sales Act of 1915, P.L. 543, § 15, 69 P.S. § 124. Held: the suit was properly dismissed below; there had been no sale, or contract of sale. Thus the only cause of action would be in trespass.
The case is well known for its discussion of matters of pleading and procedure. One of the essential problems was whether the pleadings showed that title to the ginger ale had passed (under the Sales Act). The outcome was the conclusion that the pleadings failed to show that the selection of the merchandise was irrevocable and binding, and thus it was held that no sale had been shown. It was held, accordingly, that the warranty theory was inapplicable. Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949).
Defendants Confair, in that case, traded as Confair's Beverage Company. They had bottled the ginger ale in question for the Atlantic and Pacific Super Market in Wilkes Barre, Pennsylvania, where the explosion took place. One may infer from the result -- no warranty since title had not passed -- that if the pleadings had demonstrated that the ginger ale had been purchased, the result would have been different.
To translate that case into the factual situation of the motor vehicle cases discussed herein, it was as though the Ford tractor, or the Buick automobile, had never been titled and was still on the dealer's display floor. See Jarnot v. Ford Motor Co., 191 Pa.Superior Ct. 422, 156 A.2d 568 (1959); Magee v. General Motors Corp., 213 F.2d 899 (3rd Cir.1954), etc. In sum, it is the view of this Court that the law of Pennsylvania as stated in Mannsz v. Macwhyte Co., 155 F.2d 445 (3rd Cir.1946) is not changed by Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949). Contra, 75 A.L.R.2d 53, n. 18 (1961).
In the light of the foregoing discussion, and for the foregoing reasons, it is the ruling of this Court that the Motions to dismiss the Plaintiff's complaint filed by Ralph Reedman, trading as Reedman Motors and General Motors Corporation, Chevrolet Motor Division, be and the same are hereby denied, and it is so ordered.
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