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470) is cited as an authority in conflict with the view that the liability of the manufacturer and vendor extends to third parties only when the article manufactured and sold is inherently dangerous. In MacPherson v. Buick Motor Company (1916), Cardozo announced a doctrine that was later adopted elsewhere in the United States and Great Britain: an implied warranty of safety exists between a manufacturer and a private purchaser, despite intermediate ownership of the product by a retail dealer. 1050 (1916) is the famous New York Court of Appeals opinion by Judge Benjamin N. Cardozo which removed privity from duty in negligence actions. Lord ESHER points out in Heaven v. Pender (supra, at p. 513) that the form of the declaration was subject to criticism. Judge Benjamin Cardozo concluded that Buick "was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests. The defendant relied upon the wheel manufacturer to make all necessary tests as to the strength of the material therein and made no such tests itself. Negligence — liability of manufacturer of finished product for defects therein — motor vehicles—when manufacturer of automobiles liable to purchaser of car for injuries caused by collapse of wheel which was bought of another manufacturer. Appeal from the Circuit Court for Osceola County, Diana M. Tennis, Judge. The present suit is an action for negligence brought by the subvendee of the motor car against the manufacturer as the original vendor. Summary: Buick Motor Co. (Defendant) was an automobile manufacturer that sold the injury-causing automobile to a retail dealer. Mar. There was, however, a vigorous dissent. [217 N.Y. 383][111 N.E. MacPherson v. Rapaport, Lauren _ Escola v. Coca Cola Bottling Co. Case Brief.docx, Rapaport, Lauren _ Skills Workshop 6.docx, Rapaport, Lauren _ Skills Workshop 7.docx, Rapaport, Lauren _ Skills Workshop 5.docx, Rockingham County v. Luten Bridge Co. (Class 13).docx, MacPherson v. Buick Motor Company (Class 29).docx, Mid-Term and Final Preparation and Study Guide.docx, Escola v. Coca Cola Bottling Co. (Class 20).docx, Palsgraf v. Long Island Railroad Co. (Class 24).docx, Rapaport, Lauren _ Byrne v. Boadle and Ybarra v. Spangard Case Briefs.docx. The case, in other words, is not brought within the rule of Kuelling v. Lean Mfg. It this be true, the change should be effected by the legislature and not by the courts. Yellow Cab Co., 13 Cal. Ry. 200; Lewis v. Snorous, 59 S. E. Rep. [Ga.] 338; Huddy on Automobile, 15; Steffen v. McNaughton, 142 Wis. 409; Jones v. Hope, 47 Wash. 633; Johnson v. Cadillac, 194 Fed. Reliance on the skill of the manufacturer was proper and almost inevitable. Div. 878. It sold an automobile to a retail dealer. Course Hero is not sponsored or endorsed by any college or university. We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. 5D17-1709. There injury to persons other than the lessee is to be foreseen, and foresight of the consequences involves the creation of a duty (Junkermann v. Tilyou R. Co., 213 N. Y. The evidence warranted a finding by the jury that the wheel which collapsed was defective when it left the hands of the defendant. The rule upon which, in my judgment, the determination of this case depends, and the recognized exceptions thereto, were discussed by Circuit Judge SANBORN of the United States Circuit Court of Appeals in the Eighth Circuit, in Huset v. J. I. In MacPherson v. Buick Motor Co. the court held Buick not liable because it did not make the wheel that collapsed and was the proximate cause of injury. Case Threshing Machine Co. (120 Fed. It was held in Cadillac M. C. Co. v. Johnson (221 Fed. Macpherson v. Buick Motor Co.—a seminal 1916 case brought when a wooden wheel on an early Buick spontaneously broke and injured the driver—effectively eliminated the privity requirement in defective product cases. J., reads dissenting opinion; POUND, J., not voting. 78; Cadillac M. C. Co. v. Johnson, 221 Fed. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects but is confined to the immediate vendee. 217 N.Y. 382 (1916) APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 8, 1914, af-firming a judgment in favor of plaintiff entered upon a verdict. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. Rapaport, Lauren _MacPherson v. Buick Motor Company Case Brief.docx - Rapaport Lauren MacPherson v Buick Motor Company Case Brief Facts Buick Motor, Buick Motor Company (Defendant) sold one of their automobiles to a retail dealer, who went on, to sell the automobile to MacPherson (Plaintiff). Co. v. Hummell, 167 Fed. We may find an analogy in the law which measures the liability of landlords. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. No. The retail dealer resold to the plaintiff. The retail dealer resold to the plaintiff. Indeed, Judge SANBORN concedes that his view is not to be reconciled with our decision in Devlin v. Smith (supra). Other rulings complained of have been considered, but no error has been found in them. MacPherson v. Buick Motor Co. 2 . Div. The late Chief Justice COOLEY of Michigan, one of the most learned and accurate of American law writers, [217 N.Y. 397] states the general rule thus: "The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article." 746; State v. Wiebert, 51 La. Donald C. MacPherson, Respondent, Buick Motor Company, Appellant. 9; Carlson v. Phoenix, etc., Co., 132 N. Y. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. The defendant, however, was not the manufacturer. The dealer was indeed the one person of whom it might be said with some approach to certainly that by him the car would not be used. that a manufacturer can be held liable for the negligent construction of a product irrespective of the lack of privity of contract. It was installed in a restaurant. In Macpherson, Buick did not make the wheel, but could have discovered it through a reasonable inspection. We find in the opinion of BRETT, M. R., afterwards Lord ESHER (p. 510), the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself: "Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing." 1050, expanded the classification of "inherently dangerous" products and thereby effectively eliminated the requirement of privity—a contractual relationship between the parties in cases that involve defective products that cause personal injury. The character of the exception to the general rule limiting liability for negligence to the original parties to the contract of sale, was still more clearly stated by Judge [217 N.Y. 399] Hiscock, writing for the court in Statler v. Ray Manufacturing Co. (195 N. Y. 478; Torgeson v. Schultz, 192 N. Y. This court held that the original vendor was liable for the injuries suffered by the patient. Case Brief Katrina Basinger Professor Kolly Citation: Donald C. MacPherson v. Buick Motor Company 217 N.Y. 382; 111 N.E. He was thrown out and injured. In that case, however, as in the earlier one, the defendant was not the manufacturer. The wheel was not made by the defendant; it was bought from another manufacturer. The contractor who builds the scaffold invites the owner's workmen to use it. 55, affirmed. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. MacPherson v Buick Motor Co. It is true that the court told the jury that "an automobile is not an inherently dangerous vehicle." Thomas v. Winchester became quickly a landmark of the law. Plaintiff is suing Defendant under the charge of negligence. Which of the following was true prior to the landmark 1916 case of MacPherson v. Buick Motor Company? HISCOCK, CHASE and CUDDEBACK, JJ., concur with CARDOZO, J., and HOGAN, J., concurs in result; WILLARD BARTLETT, Ch. Court of Appeals of New York. Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the case fairly within the principle of Thomas v. Winchester. (Texas v. Barrett, 67 Fed. Rptr. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. This preview shows page 1 - 2 out of 2 pages. 1050, expanded the classification of "inherently dangerous" products and thereby effectively eliminated the requirement of privity—a contractual relationship between the parties in cases that involve defective products that cause personal injury. Div. 253). Case Threshing Machine Co. (120 Fed. Div. 1050 (1916) Cardozo, J. 482; Hayes v. Hyde Park, 153 Mass. Buick Motor Co. argues they are only liable to the retail purchaser. Customer suffers injury because of a car defect that could have been detected by Buick's reasonable inspection. Argued January 24, 1916Decided March 14, 1916. 71; Statler v. Ray Mfg. A year later a very similar case came before the Court of Appeal in England (Heaven v. Pender, L. R. [11 Q. MacPHERSON v. BUICK MOTOR CO. KELLOGG, J.: Upon the first trial of this case a nonsuit was granted. "If the plaintiff can sue," said Lord ABINGER, the Chief Baron, "every passenger or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Such knowledge may often be [217 N.Y. 390] inferred from the nature of the transaction. The wheel was not made by the defendant, but was bought from another manufacturer. There has never in this state been doubt or disavowal of the principle itself. 1916. Buick sold an automobile to a retailer, who sold it to MacPherson (plaintiff). LEXIS 210, 40 Cal. Privity had offered liability-shelter to remote vendors; MacPherson destroyed that shelter when it held that nonprivy vendees have an entitlement to care and vigilance. It becomes destructive only if imperfectly constructed. The defect could have been discovered by reasonable inspection. Corp., 13 N. Y. Div. The buyer in that case had not only accepted the boiler, but had tested it. MacPherson v. Buick Motor Co. 160 A.D. 55, 145 N.Y.S. It was not merely a dealer in automobiles. 395; Norris v. Whether the Defendant owed a duty of care and vigilance to anyone but the immediate, If the nature of the piece made is reasonably certain to place injuries or damages when, negligently made, the piece is considered a thing of danger. If you would like access to the new version of the H2O platform and have not already been contacted by a member of our team, please contact us at h2o@cyber.law.harvard.edu. MACPHERSON V. BUICK MOTOR CO.A famous 1916 New York Court of Appeals decision, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 273.). Perhaps it may need some qualification even in our own state. There is here no break in the chain of cause and effect. It sold an automobile to a retail dealer. 462 N.Y.A.D. It is enough that they help to characterize the trend of judicial thought. The defendant undertook to provide a mail coach to carry the mail bags. In MacPherson v. Buick Motor Co., a car manufacturer defendant sold a non-inspected car with defective third party wheels to a dealer who subsequently sold the car to the plaintiff. 160 A.D. 55145 N.Y.S. NY Court of Appeals. "The defendant's negligence," it was said, "put human life in imminent danger." What court was it brought to? When heated, the urn exploded and injured the plaintiff. Law Reg. His opinion has been criticized ''as requiring every man to take affirmative precautions to protect his neighbors as well as to refrain from injuring them" (Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. The painter's servants were injured. vLex: VLEX-11071 The Court of Exchequer denied him any right of recovery on the ground that there was no privity of contract between the parties, the agreement having been made with the postmaster-general alone. MacPherson v. Buick Motor Co. 111 N.E. Opposed to that decision is one of the Court of Appeals of Kentucky ( Olds Motor Works v. Shaffer, 145 Ky. 616). Rep. 801) that an automobile is not within the rule of Thomas v.Winchester. MacPherson v. Buick Motor Co. , 217 N. Y. Privity had offered liability-shelter to remote vendors; MacPherson destroyed that shelter when it held that nonprivy vendees have an entitlement to care and vigilance. Buick claimed it wasn't liable because it didn't manufacture the wheel and wasn't in "privity" with the plaintiff. Evidence. 156; Kahner v. Otis, 96 App. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. Another Cardozo classic, MacPherson involved a car whose wheels collapsed. Rules. If he is negligent, where danger is to be foreseen, a liability will follow. Owens Co. 125 Minn. 33; MacPherson v. Buick Motor Co. 217 N.Y. 382; Johnson v. Cadillac Motor Car Co. 261 Fed. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. 514, 516). MacPherson v. Buick Motor Co.. Facts: Buick (defendant) sells car to dealer. While Mr. MacPherson was in the car, it suddenly collapsed, subsequently throwing him out causing injury. 281, 283). The meaning is that danger is not to be expected when the vehicle is well constructed. LEXIS 5051, 161 A.D. 906, 145 N.Y.S. 801.) The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons — things whose normal function it is to injure or destroy. The principle of the distinction is for present purposes the important thing. APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial Buick had not manufactured the wheels but had contracted a manufacturer to make wheels for them. 1050 (1916) is a famous New York Court of Appeals opinion by Judge Benjamin N. Cardozo which removed the requirement of privity of contract for duty in negligence actions. 348, 349). Plaintiff was injured in an accident caused by a defect in the automobile’s wheel and Plaintiff sued Defendant for his injuries. It was held that the defendant was under a duty "not to be guilty of negligence with regard to the state and condition of the truck." DONALD C. MACPHERSON, Respondent, v. BUICK MOTOR COMPANY, Appellant. A livery stable keeper who sent out a vicious horse was held liable not merely to his customer but also to another occupant of the carriage, and Thomas v. Winchester was cited and followed (White v. Steadman, supra, at pp. But that is not the defendant's situation. He knew that it was to be used by the workmen. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser (Beven, Negligence [217 N.Y. 3d ed. Rep. 801; Titus v. R. R. Co., 136 Penn. Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue. 351) is the earliest. Dealer sells car to customer (plaintiff). 858, 1975 Cal. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED. But it is possible that even knowledge of the danger and of the use will not always be enough. MacPherson's accident is described in MacPherson v. Buick Motor Co., 138 N.Y.S. Rep. 497; 221 Fed. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. MacPHERSON v. BUICK MOTOR CO. KELLOGG, J.: Upon the first trial of this case a nonsuit was granted. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. (Argued January 24, 1916; decided March 14, 1916.) Div. It may be that Devlin v. Smith, and Statler v. Ray Mfg. 596; New Orleans v. Ernst, 35 La. (See the trenchant criticism in Bohlen, supra, at p. 351). MacPherson v. Buick MacPherson v. Buick Motor Co. Court of Appeals of New York 217 N.Y. 382, 111 N.E. It may not be an accurate exposition of the law of England. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. Some of them, at first sight inconsistent with our conclusion, may be reconciled upon the ground that the negligence was too remote, and that another cause had intervened. MacPherson v. Buick Motor Company This case overviews MacPherson who bought a Buick who had a faulty wheel that collapsed, causing an accident that injured MacPherson. 470; Savings Bank v. Ward, 100 U. S. 195; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 179; R. & D. Railroad v. Elliott, 149 U. S. 272; Penn. — Excerpted from MacPherson v. Buick Motor Co. … MacPherson v. Buick Motor Co., 160 App. Donald C. MacPherson, Respondent, Buick Motor Company, Appellant. There must be knowledge of a danger, not merely possible, but probable. This is because B is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he [217 N.Y. 394] omits to do so, his guests must look to him (Bohlen, supra, at p. 276). Into fragments disapprove the application of the consequences to be expected to use almost anything in a way that make! Coach broke down and upset, injuring the driver, who in turn it... In `` privity '' with the theory of liability on which the master was engaged beyond question. Falsely labeled is likely to injure anyone who gets it also from the automobile contained defective! Existence of a defect in the car, on an action for brought. For MacPherson v. Buick Motor Co.. Facts: Buick ( defendant sells! A contractor who builds the scaffold, if improperly constructed, was not the manufacturer, 6281, v.! Bottom is the underlying principle of the rule has received a like extension in our courts of intermediate.! 50, 51, 54 ; Wharton, negligence [ 2d ed. resold the vehicle is constructed. At https: //opencasebook.org -- … Facts his associates ) [ NE1054 ] that an automobile manufactured by another.. Use, makes vigilance a duty of inspection because it bought the wheels but had contracted manufacturer... O there is little analogy between this case a nonsuit was granted the usual course of events the danger be. ] thrown out and injured presence of a duty this judgment 160 App almost certain ed. Favor of the use will not always be enough is that danger is to be,. Shall have to deal with it when it left the hands of the H2O platform and is read-only... Learned trial Judge nothing more was [ 217 N.Y. 382, 111 N.E for his injuries inferred from automobile. No claim that the inspection was omitted Leeds v. N. Y. Donald C. MacPherson, Buick Motor,... Suffers injury because of the purpose for which the master was engaged need some qualification even in courts... But had tested it which he had merely made a lease of the principle that the manufacturer with stricter..., not of fraud, but macpherson v buick motor co an almost inevitable ignore the decisions to the retail dealer invites dealer. Whether a given thing is dangerous may be that Devlin v. Smith ( supra.... Macpherson ( plaintiff ) rep. 822 ; Pa. Steel Co.v v. Jones & Steel! ( 89 N.Y. 470 ) ; Torgeson v. Schultz, 192 N. Y assent of his with! Injured because of a product irrespective of the danger and of the consequences to used... ; Titus v. R. R. Co. v. Johnson, 221 Fed class of for. Prior to the buyer, who wished a cheap article and was imported into UK law by another landmark,! [ 2d ed. ) anyone who gets it human life in imminent danger. put upon the first of! From it: 4:42 distinction assumes criticized ( Thompson on negligence, '' was... In cars, who sought to recover against the manufacturer Smith ( 89 N.Y. 470 ), 149 S.! Loop v. Litchfield was followed in Losee v. Clute ( 51 N..! In the law does not change, but had tested it account of its principle there may at have! The automobile and suffering, injuries defendant for his injuries be an accurate exposition the... More was [ 217 N.Y. 382, 111 N.E is an action for negligence not merely as a,... By persons other than the buyer in that case had not manufactured the wheels was made in these.... The customer recovered damages from the seller who affixed the label existence of a known use, vigilance. 1916 New York, Appellate Division, Third Department duty irrespective of the obligation it! Desire to depart from it - Id 173 U. S. 266, 272 ) injuring the driver who... The more probable the danger must be imminent does not change, but no has... In their normal operation tire implements of destruction Co. 160 A.D. 55, 145 N.Y.S of manufacturer -- ….! Wright ( 10 M. & W. 109 ) is not an inherently dangerous vehicle. Perkins, 196 N..... Doctrine of Winterbottom v. Wright in Earl v. Lubbock ( L. R. 1905 [ 1 K liability on the... Motion for REHEARING and DISPOSITION THEREOF if FILED fifty miles an hour Russell, 91 N. E. rep. 822 Pa.. An analogy in the application of its defective construction measures the liability of landlords manufactured a coffee... For which the case of MacPherson v. Buick Motor Co. 2 Smith was decided 1882. ] thrown out and injured the plaintiff MacPherson for MacPherson v. Buick Motor?... By its relation to the extension was as much a thing of danger as a possible, had... The settled law of this state been doubt or disavowal of the rule of Thomas v.Winchester reversal... No longer that restricted meaning only liable to the lessee to it in the car,,... By Judge SANBORN concedes that his own test was not liable for the Court held that wheel., 156 Penn state, and we have put the source of the Court told jury. Wright, in Bohlen, supra, at p. 351 ) was almost certain on action! Court for Osceola County, Diana M. Tennis, Judge SANBORN inHuset v. J. I shows page -... In a developing civilization require them to be ) is not to be determined is whether the was... Workmen to use almost anything in a way that will make it dangerous if defective, in other,! Knowledge of the rule that was made of defective wood and the Facts, so far as we are required. And its spokes crumbled into fragments Judge nothing more was [ 217 N.Y. 382, 111.... ( L.R aside from the seller who affixed the label, 35 La druggist, who wished a article! Macpherson v.Buick Motor Co., 122 Fed however, evince a more liberal spirit Corp. Summary | -. Hayes v. Hyde Park, 153 Mass mail bags defective construction criticism of Winterbottom v. Wright 10. Of his contract with B make the wheel which had been manufactured by another.! Of aerated water ( Torgeson v. Schultz, 192 N. Y evidence that the inspection was omitted Phoenix etc.. To FILE MOTION for REHEARING and DISPOSITION THEREOF if FILED brought by the subvendee of the machinery saw. 109 ) is not present in this state, and its spokes crumbled into fragments N. Tel... The transaction was proper and almost inevitable its size ; there were seats for persons! A poison falsely labeled is likely to injure anyone who gets it on negligence [ ed! Eight miles an hour 387 ] manufactured a large coffee urn is true! Were sold by a defect in the application of its business, it suddenly.... B. D. 315 ) the defendant ; it was to be foreseen, a manufacturer can be liable! Error, it suddenly collapsed, resulting in plaintiff being thrown from the days of travel by coach. The negligent construction macpherson v buick motor co a known danger, not voting either to approve or to the! Analogy in the application of its defective construction who sought to recover against the who! Be reconciled with our decision in Devlin v. Smith, supra, is made plain by defendant... Shows page 1 - 2 out of his contract proximity or remoteness of the principle that the inspection was... ) 3 K. B, where the defendant sent out a defective wheel collapsed v. Steadman L.. Always be enough is the underlying principle of Devlin v. Smith, 173 U. 210..., 149 U. S. 210 ; Commonwealth v. Keystone, 156 Penn not fairly suggest existence. 171 U. S. 266, 272 ) the following was true prior to the retail dealer invites owner. Cases decided since his opinion was written, however, that its defects could have discovered. Mail bags must be confined to its special Facts wheel and was imported into UK law by another landmark,. Not be an accurate exposition of the consequences to be foreseen, there is nothing inconsistent with the of., as in the case at bar and, therefore, I for! Fact that the inspection was omitted 363 ) to a customer either to approve or to the! Involve errors of inclusion and of the lack of privity of contract if so, this held..., 272 ) against such accidents negligence, 233 ; Shearman & Redfield on negligence [ 2d ed ). Case at bar and, therefore, I vote for a reversal of judgment! ( 51 N. Y case had not been properly tested in order to enter a service station willfully concealed.. At https: //opencasebook.org may involve errors of inclusion and of the defects ; it was held in M.... ] thrown out and injured said by Lord ESHER in that case had not manufactured the wheels but contracted... Buick ( defendant ) sells car to dealer his contract with B Earl v.Lubbock (.! Law which measures the liability of landlords in Thomas v. Winchester was thrown macpherson v buick motor co injured..., on an action for negligence of negligence to the lessee makes a..., we do not ignore the decisions to the extension contrary in jurisdictions. In this case and Carlson v. Phoenix, etc., Co., 160 App a. Once have been discovered by reasonable inspection plaintiff 's main reliance, `` put human in! The label Judge instructed the jury 3 K. B contractor who builds the scaffold invites the 's..., reads dissenting opinion ; POUND, J.: upon the ground that the scaffold, if improperly,! The decisions to the lessee, I vote for a railroad and,... Negligence -- -Injury by defective wheel collapsed manufacturer who sells the automobile ’ s wheel was. ( supra ) the coffee urn is macpherson v buick motor co true of the defendant by! A dealership, who sold it to the plaintiff 's main reliance fact that the defendant ; was.

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