(concurring) .
I concur in the opinion and judgment of the court.
It appears from the transcript that on May 24, 1955, the district court had a hearing on the sufficiency of the complaint as it then stood, including Count V, which at that time was entirely different from the rewritten Count V in the substitute complaint filed June 21, 1955. The old Count V merely alleged that the defendant had manufactured and offered for sale a brand of cigarettes containing “poisonous, deleterious, diseased, contaminated, filthy, putrid and decomposing substances which were injurious to the health and unfit for use or consumption by the general public,” with the allegations that plaintiff’s intestate smoked said cigarettes and was thereby caused to suffer an illness which subjected him to great expense for medicines and hospitalization, etc. In the colloquy between the court and counsel for the plaintiff at the hearing on May 24, 1955, the court pressed counsel for an interpretation of the theory on which Count V, as it then stood, was based. Counsel responded that under Count V the defendant manufacturer would be liable even if the manufacturer did not know that there was a deleterious product in the cigarette, and even if the manufacturer had no reason to know that there was such a deleterious product in the cigarette, if there was in fact a deleterious product therein, unknown to the manufacturer and undiseoverable by him. In a memorandum filed by the district judge at the conclusion of this hearing he stated : “I shall allow any amended or a substitute complaint which clearly and concisely states a cause of action in deceit and/or a cause of action in negligence framed upon any theory explicitly set forth in either any Massachusetts case or in the Restatement of the Law of Torts. In particular, an action in deceit may be alleged on the basis either that the defendant knew the matter to be otherwise than as represented, or knew that it had no adequate basis for its state*175ment.” It seems to me that the plaintiff, in the rewritten Count V of the substitute complaint filed June 21, 1955, complied in substance with this direction of the court. Count Y as thus rewritten set forth that the defendant in newspaper advertising and television broadcasts had made the express representation that its “Camel” cigarettes were harmless to the respiratory system; that such representation was in fact untrue “and known to be untrue by the defendant at the times made”; that the defendant intended plaintiff’s intestate and other members of the public to rely on such representation; that plaintiff’s intestate did rely on said representation and was deceived thereby, being persuaded to purchase and use such cigarettes, by reason whereof a cancer of the lung developed which caused him great pain, suffering and damage, for which the plaintiff prayed judgment. I think this rewritten Count V sets forth plainly all the elements of a conventional action of deceit, in compliance with Rule 8(a) of the Federal Rules of Civil Procedure. And cf. Huntress v. Blodgett, 1910, 206 Mass. 318, 324, 92 N.E. 427.
In revised Count V of the substitute complaint, the plaintiff as administratrix was suing under the Massachusetts survival statute to enforce the cause of action accruing to her intestate during his lifetime for conscious pain and suffering and for pecuniary damages. Count VIII of the substitute complaint was just the same so far as the allegations of fraud were concerned but was brought under the Massachusetts Death Act to recover for the ensuing wrongful death of the intestate. I think that what the opinion of this court says about Count V applies with equal force to Count VIII.
I may also observe that the type of harm here alleged is not an intangible pecuniary loss caused to the plaintiff by acting in reliance on a misstatement; but rather the complaint charges tangible bodily injuries to the intestate. Therefore it may be that under the Massachusetts law the plaintiff is not limited by the conventional requirements of an action of deceit. See Prosser on Torts (2d Ed. 1955) p. 144 and § 86. In Massachusetts the doctrine of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, has been accepted, whereunder a manufacturer who puts out in commerce an article which he knows, or ought to know, is likely to cause tangible harm to the person or property of another, may be liable, on a theory of negligence, for resulting bodily injuries to a remote user of the product, though there is no privity of contract between the plaintiff and the defendant. Carter v. Yardley & Co., Ltd., 1946, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. And cf. Sylvania Electric Products, Inc., v. Barker, 1 Cir., 1955, 228 F.2d 842, certiorari denied 1956, 350 U.S. 988, 76 S.Ct. 475.