Seawell, J.
The question presented for our decision is whether a sale of food by a retail dealer to a customer for his immediate consumption carries with it a warranty that the food is merchantable and fit for human consumption when the article of food is contained in a sealed package, affording no opportunity for inspection of its contents, and was bought in that condition by the retailer from a manufacturer. The plaintiff contends that there is such a warranty and that it is not abated or disturbed by the fact that the food was at the time of its purchase by defendants and its sale to plaintiff in a sealed container. The defendants contend that inasmuch as the food was sold in such sealed container and neither the seller nor buyer had an opportunity to inspect it, or that at least their opportunities were equal, the doctrine of
caveat emptor
applies and no warranty is implied.
To accept the view urged by the defendants would be to make an exception to the prevailing rule, in favor of canned goods or food sold in sealed packages, in deference to what is termed modern commercial developments in food distribution, which, it is contended, would make the application of the warranty rule inconvenient and unfair to dealers.
No ease demanding a decision of this point seems to have been presented to the Court and it has not, therefore, at least not consciously, made such a distinction.
Authorities are divided on the subject, seeming to fall on one side or the other of the line accordingly as they appraise the relative importance of the policies involved, or the consequences which might follow the adoption of one or the other.
Modern conditions of living, the conveniences and necessities of civilization, which have caused infinite division of labor in the production, processing and distribution of food products, whereby in its preparation for final consumption it passes through many hands and assumes many forms, may have rendered many of the old simple rules of law relating to the subject difficult of application and productive of hardship. Conceding that the development and interpretation of law must, as far as possible, be kept in accord with these changing conditions of society to which they apply, we may observe that drastic changes for the purpose of readjustment are usually matters for the lawmaking body and not for the Court. Here we have no sales law applicable to the situation, although the inadequacy of common law rules to do justice in the matter, if such exists, should have been long apparent to the lawmaking bodies. In this case, too, we are confronted with the argument that if we were free to make a choice of policies that choice must be made between facilitation of commerce and the preservation of the public health. In such a choice it seems to us there is no question that the latter should prevail.
The genesis of an implied warranty, it is true, rests in a recognition of the difference in attitude between the seller and purchaser regarding the subject of sale, but this does not necessarily mean that their opportunities are limited to what may be seen or investigated at the time of the sale. One who purchases an article of food for consumption is usually not equal in opportunity with the person who sells it, since the latter has the first opportunity of being assured that the goods he sells are merchantable and fit for human consumption, because of his experience in buying, his acquaintance with the manufacturer, and his knowledge of the brands, and of the responsibility of the concerns with which he deals. If occasionally the reliance which he places on these proves to be unjustified by the result, or if occasionally, through the negligence of the manufacturer, deleterious substances may be introduced into sealed packages, this seems to us rather to be a misfortune, the consequences of which are better absorbed in the course of commerce than passed on to a purchaser, in detriment to the public health.
It cannot be conceded that the present methods of preparation and distribution of food products are so greatly different from that which
bas obtained for a long period of time as to destroy tbe reasons upon which the common law rule has been based. To some extent, they have existed from a remote period sufficiently, at least, to have had any influence to which they are entitled in the establishment and maintenance of the principles upon which the rule is founded, and the magnitude which the system has now reached does not, we think, afford a sufficient reason for its abolition.
The importance of the opportunity for immediate inspection is more apparent than real, since certain kinds of goods sold in bulk may not be inspected conveniently or sufficiently to disclose their unwholesomeness or content of deleterious or foreign matter.
In coming to this decision we not only recognize the superior opportunity of the retailer over that of the consumer to be assured of the quality of the products sold by him through his opportunity of selection of brands and purchase from reliable manufacturers, but also recognize the fact that the internal pressure of commerce in this field, as well as in others, will, through the necessity of meeting competition, of improving methods, and of rigid attention to matters relating to the quality and fitness of the product, strongly tend to minimize untoward happenings of the kind complained of in this suit, unless that pressure is removed by a rule which would compel the consuming public to absorb, without redress, consequences for which trade should be left responsible.
Under
Thomason v. Ballard and Ballard Co.,
208 N. C., 1, 179 S. E., 30, there is no redress to be had by the consumer against the manufacturer under the doctrine of implied warranty, but only because of negligence. Since, as we have stated, the effect of modern methods of distribution has been to place the manufacturer at a remote distance from the consumer, and as he is ordinarily unable to prove the negligence of a manufacturer, since the doctrine of
res ipsa loquitur
is denied to him, the effect of the adoption of the views urged by the defendants would practically destroy any remedy which a consumer might have for the sale to him of food dangerous and unfit for human consumption, and prove a serious menace to the public health.
Griffin v. James Butler Grocery Co.
(1931), 108 N. J. Law, 92, 156 A., 636, 638;
Los Angeles Olive Growers’ Assn. v. Pacific Grocery Co.
(1922), 119 Wash., 293, 205 P., 375;
Chapman v. Roggenkamp
(1913), 182 Ill. App., 117.
The fact, if it is a fact, so insistently urged by defendants’ counsel that a ruling of this sort would open the gate to a fertile field of spurious litigation does not appeal to us. That some might abuse the processes of the court affords no reason for denying them to others who have meritorious causes of action.
We think the course we have pursued in this case has abundant support in reasoned authority.
In
Swift & Co. v. Aydlett,
192 N. C., 330, at pages 334, 335, the principle is tersely stated: “Tbe barsbness of the common law rule of
caveat emptor,
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Seawell, J.
The question presented for our decision is whether a sale of food by a retail dealer to a customer for his immediate consumption carries with it a warranty that the food is merchantable and fit for human consumption when the article of food is contained in a sealed package, affording no opportunity for inspection of its contents, and was bought in that condition by the retailer from a manufacturer. The plaintiff contends that there is such a warranty and that it is not abated or disturbed by the fact that the food was at the time of its purchase by defendants and its sale to plaintiff in a sealed container. The defendants contend that inasmuch as the food was sold in such sealed container and neither the seller nor buyer had an opportunity to inspect it, or that at least their opportunities were equal, the doctrine of
caveat emptor
applies and no warranty is implied.
To accept the view urged by the defendants would be to make an exception to the prevailing rule, in favor of canned goods or food sold in sealed packages, in deference to what is termed modern commercial developments in food distribution, which, it is contended, would make the application of the warranty rule inconvenient and unfair to dealers.
No ease demanding a decision of this point seems to have been presented to the Court and it has not, therefore, at least not consciously, made such a distinction.
Authorities are divided on the subject, seeming to fall on one side or the other of the line accordingly as they appraise the relative importance of the policies involved, or the consequences which might follow the adoption of one or the other.
Modern conditions of living, the conveniences and necessities of civilization, which have caused infinite division of labor in the production, processing and distribution of food products, whereby in its preparation for final consumption it passes through many hands and assumes many forms, may have rendered many of the old simple rules of law relating to the subject difficult of application and productive of hardship. Conceding that the development and interpretation of law must, as far as possible, be kept in accord with these changing conditions of society to which they apply, we may observe that drastic changes for the purpose of readjustment are usually matters for the lawmaking body and not for the Court. Here we have no sales law applicable to the situation, although the inadequacy of common law rules to do justice in the matter, if such exists, should have been long apparent to the lawmaking bodies. In this case, too, we are confronted with the argument that if we were free to make a choice of policies that choice must be made between facilitation of commerce and the preservation of the public health. In such a choice it seems to us there is no question that the latter should prevail.
The genesis of an implied warranty, it is true, rests in a recognition of the difference in attitude between the seller and purchaser regarding the subject of sale, but this does not necessarily mean that their opportunities are limited to what may be seen or investigated at the time of the sale. One who purchases an article of food for consumption is usually not equal in opportunity with the person who sells it, since the latter has the first opportunity of being assured that the goods he sells are merchantable and fit for human consumption, because of his experience in buying, his acquaintance with the manufacturer, and his knowledge of the brands, and of the responsibility of the concerns with which he deals. If occasionally the reliance which he places on these proves to be unjustified by the result, or if occasionally, through the negligence of the manufacturer, deleterious substances may be introduced into sealed packages, this seems to us rather to be a misfortune, the consequences of which are better absorbed in the course of commerce than passed on to a purchaser, in detriment to the public health.
It cannot be conceded that the present methods of preparation and distribution of food products are so greatly different from that which
bas obtained for a long period of time as to destroy tbe reasons upon which the common law rule has been based. To some extent, they have existed from a remote period sufficiently, at least, to have had any influence to which they are entitled in the establishment and maintenance of the principles upon which the rule is founded, and the magnitude which the system has now reached does not, we think, afford a sufficient reason for its abolition.
The importance of the opportunity for immediate inspection is more apparent than real, since certain kinds of goods sold in bulk may not be inspected conveniently or sufficiently to disclose their unwholesomeness or content of deleterious or foreign matter.
In coming to this decision we not only recognize the superior opportunity of the retailer over that of the consumer to be assured of the quality of the products sold by him through his opportunity of selection of brands and purchase from reliable manufacturers, but also recognize the fact that the internal pressure of commerce in this field, as well as in others, will, through the necessity of meeting competition, of improving methods, and of rigid attention to matters relating to the quality and fitness of the product, strongly tend to minimize untoward happenings of the kind complained of in this suit, unless that pressure is removed by a rule which would compel the consuming public to absorb, without redress, consequences for which trade should be left responsible.
Under
Thomason v. Ballard and Ballard Co.,
208 N. C., 1, 179 S. E., 30, there is no redress to be had by the consumer against the manufacturer under the doctrine of implied warranty, but only because of negligence. Since, as we have stated, the effect of modern methods of distribution has been to place the manufacturer at a remote distance from the consumer, and as he is ordinarily unable to prove the negligence of a manufacturer, since the doctrine of
res ipsa loquitur
is denied to him, the effect of the adoption of the views urged by the defendants would practically destroy any remedy which a consumer might have for the sale to him of food dangerous and unfit for human consumption, and prove a serious menace to the public health.
Griffin v. James Butler Grocery Co.
(1931), 108 N. J. Law, 92, 156 A., 636, 638;
Los Angeles Olive Growers’ Assn. v. Pacific Grocery Co.
(1922), 119 Wash., 293, 205 P., 375;
Chapman v. Roggenkamp
(1913), 182 Ill. App., 117.
The fact, if it is a fact, so insistently urged by defendants’ counsel that a ruling of this sort would open the gate to a fertile field of spurious litigation does not appeal to us. That some might abuse the processes of the court affords no reason for denying them to others who have meritorious causes of action.
We think the course we have pursued in this case has abundant support in reasoned authority.
In
Swift & Co. v. Aydlett,
192 N. C., 330, at pages 334, 335, the principle is tersely stated: “Tbe barsbness of the common law rule of
caveat emptor,
when strictly applied, makes it inconsistent with the principles upon which modern trade and commerce are conducted; the doctrine of implied warranty is more in accord with the principle that 'honesty is the best policy,’ and that both vendor and vendee, by fair exchange of values, profit by a sale.”
As peculiarly applicable to this case, we quote from
Colonna v. Rosedale Dairy Co.
(Va., 1936), 186 S. E., 94, 97: “We hold that the doctrine of implied warranty must be applied, and for these reasons: It is a rule of the common law, and that law is ours by inheritance; it is a salutary rule, and tends to promote the health of all the people. Pecuni-arily the vendor may suffer, but at times the vendee’s life itself is at stake, and generally the vendor has opportunities for information as to the wholesomeness of his foodstuff which the vendee cannot have. In business for profit he must bear this burden which the law puts upon him.”
Prom Williston on Sales (2nd Ed.), sec. 242, applicable to the argument rejecting implied warranty in cases of this kind, we quote: “The same argument, however, may be made in regard to any implied warranty, not only of food but of other articles where the seller could not discover the defect. Accordingly, if canned goods are to be made an exception to the general rule governing sales of food, the whole law of implied warranty should be revised and placed on the basis of negligence. But the general principle of the common law is opposed to this, and certainly if a dealer is ever to be made liable for injuries caused by defective goods where he has been guilty of no fault, the reasons are stronger for holding him liable for selling defective foods than in any other kinds of sale. According to the weight of authority, presumably for these reasons, a dealer is liable for selling such food even though in cans of reputable brand.”
In this State the common law is in force by virtue of the statute— C. S., 970. While no person has a property or vested interest in any rule of the common
law
— Hurtado
v. California,
110 U. S., 516, 532, 28 L. Ed., 232—we do not consider that the changed conditions pointed out in defendants’ brief have rendered it obsolete and the matter under consideration is one for the Legislature. If the choice has become ours, then, upon reason and authority, we accept its rule as being eommend-ably applicable to the present case.
The judgment of the court below is
Reversed.