We concur in the judgment for the reason that, in the absence of any showing of negligence, the only ground upon which defendant can possibly be held liable is that of an implied warranty of the purity and quality of the food dispensed by it. The only implied warranty that might be invoked as applicable to the transaction, under the law of California, is that declared in section 1775 of the Civil Code, which applies alone to "one who makes a business of selling provisions for domestic use." The complaint does not allege, and the facts do not show, that the defendant was engaged in the business of selling provisions for "domestic use," or that the transaction in question was a sale for "domestic use." The defendant *Page 580 is a restaurant-keeper, who dispenses food to be consumed by customers in his place of business, and such was the transaction here complained of. Under a strict and accurate definition, the term "domestic use" does not apply to such sales.
The statute in question, as well as the common-law doctrine on which it is based, lays down a severe rule, which makes the dealer responsible for the consequence of any deleterious quality in his wares, no matter how free from negligence or fault he may be. It ought not to be extended, by judicial implication or construction, beyond its strict legal meaning. If it be said that it is unreasonable to distinguish between a sale of food by a restaurant-keeper to be consumed on his own premises and the sale of food by a dealer to be taken home and eaten in the domestic environment of the purchaser, the answer must be found in the maxim ita lex scripta est; and one shown to be free from negligence, as was the case here, ought not to be held liable on an implied warranty, unless he is clearly within the letter and meaning of the law as written.