# Otto E. Pritchard v. Liggett & Myers Tobacco Company > Court of Appeals for the Third Circuit · November 7, 1961 · 295 F.2d 292 URL: https://www.frixlaw.com/law-library/cases/9448211 ## Case - **Full name:** Otto E. PRITCHARD, Appellant, v. LIGGETT & MYERS TOBACCO COMPANY - **Court:** Court of Appeals for the Third Circuit - **Decided:** November 7, 1961 - **Citations:** 295 F.2d 292 - **Precedential status:** Published - **Opinion:** Concurrence by Goodrich - **Judges:** Goodrich, Staley, Forman - **Cited by:** 99 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448211 ## How later opinions describe it (automated extraction) - reversing dismissal of claim for breach of implied warranty of merchantability based on allegation that cigarettes were unfit because they caused physical injury to the smoker, notwithstanding lack of allegation that the cigarettes “smoked by plaintiff were not of the same qua… - applying timeliness provision under prior Uniform Sales Act in Pennsylvania - applying Uniform Sales Act ## Opinion text GOODRICH, Circuit Judge (concurring in result). While I concur in the result which sends this case back for another trial and submission to the fact finders, it seems desirable to me to express my understanding of the basis on which it is to be returned. There is language in some of the advertisements for Chesterfield cigarettes shown in the evidence which could be understood to assert a claim on the defendant’s part that these cigarettes are harmless. In newspaper and magazine advertisements the public was told that “Nose, throat, and accessory organs [are] not adversely affected by smoking Chesterfields,” and that “A good cigarette can cause no ills and cure no ailments.” Arthur Godfrey, on a program sponsored by defendant, broadcast that he “never did believe they [Chesterfields] did any harm and now we, we’ve got the proof.” If a manufacturer assures his potential public that his product is harmless and it is proved that it is not harmless, he can be held, no doubt, for breach of warranty. Pa.Stat.Ann, tit. 12A, § 2-313 (Supp.1960); Uniform Commercial Code § 2-313; Uniform Sales Act § 12. And when a person makes to another a statement of fact which he does not know to be true, intending that the other shall act in reliance on the truth of that statement, he *302 is liable for negligent misrepresentation. Restatement, Torts § 310 (1934); Robb v. Gylock Corporation, 1956, 384 Pa. 209 , 120 A.2d 174 . 1 If the defendant here takes the position that nobody knows whether cigarettes cause cancer or not but at the same time asserts to buyers that Chesterfield cigarettes do not cause cancer, it is in difficulty if a customer shows that the use of these cigarettes caused cancer in him. Further than that I am unwilling to go. Take a sale of potentially dangerous subject matter like whiskey. Everybody knows that the consumption of intoxicating beverages may cause several different types of physical harm. This goes clear back to the era of the Old Testament: “Woe unto them that rise up early in the morning, that they may follow strong drink * * Isa. 5:11. “Who hath woe? who hath sorrow? who hath contentions? who hath babbling? who hath wounds without cause? who hath redness of eyes ? “They that tarry long at the wine; * * Prov. 23:29~30. If a man buys whiskey and drinks too much of it and gets some liver trouble as a result I do not think the manufacturer is liable unless (1) the manufacturer tells the customer the whiskey will not hurt him or (2) the whiskey is adulterated whiskey — made with methyl alcohol, for instance. The same surely is true of one who churns and sells butter to a customer who should be on a nonfat diet. The same is true, likewise, as to one who roasts and sells salted peanuts to a customer who should be on a no-salt diet. Surely if the butter and the peanuts are pure there is no liability if the cholesterol count rises dangerously. In- this case there was no claim that Chesterfields are not made of commercially satisfactory tobacco. See Restatement (Second), Torts § 402A (Tent. Draft No. 6, 1961). . Especially appropriate in this connection is Illustration 1 to comment 6 of § 310: “1. A tells B that he has tried the ice on a certain pond and found it thick enough for safe skating knowing that he has not tried it and knowing nothing of the condition of the ice, which in fact is dangerously thin although not so appearing. B, in reliance on A’s statements, attempts to skate upon the pond and falls in, catching a severe cold. A is liable to B.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448211. Public record. Not legal advice.