The decided weight of authority in this country is that a suit of this character against a remote vendor cannot be based upon a breach of an implied warranty but must be upon negligence. (See authorities cited in the majority opinion.) Most of the cases cited by the respective parties to this suit are distinguished and discussed in Pelletier v. Dupont, cited in the majority opinion. I quite agree with what was said in the case of Davis v. Van Camp Packing Co., cited in the majority opinion, that the highest degree of care is imposed upon the manufacturer of an article for immediate human consumption and, in Nehi Bottling Company v. Thomas, cited in the majority opinion, that the doctrine of res ipsa loquitur applies, but hold, with the weight of the authorities in this country, that the suit cannot be brought upon the theory of a breach of implied warranty, there being no privity of contract between the parties to the suit. I am loath to apply the warranty theory to this case for it will be remembered that there is no claim that the contents of the beverage, itself, were in any manner deleterious but the contention is that a foreign substance harmful in its nature was permitted by the defendant to get into the drink.
Courts that have sustained recoveries in these classes of cases, upon the implied warranty theory, it seems to me, have brushed aside the whole logic of a warranty, which can only be based upon contract or privity of contract. This they have felt constrained to do, I believe, because they have been unduly swayed by the dreadfulness and shock of the thought of one taking into his system poisoned or deleterious food or drink and have grasped at some means to hold the manufacturer, as an insurer for all practical purposes, of the product he furnishes to the dealer to be sold by him to the public in the original package and for immediate consumption. This I think is fallacious. Those courts have never assumed to say that the manufacturer of a machine, is liable to the ultimate buyer, on the theory of implied warranty, for injuries or death caused by some latent defect therein yet, such a character of machine may be imagined as would be as dangerous to human-kind as deleterious drugs or foods. Similarly the doctrine might be extended to almost any article manufactured and sold, if the theory of the majority opinion herein is the correct one. *Page 285
I believe the public is amply protected and no violence to the law is committed by holding the manufacturer to the highest degree of care and by applying to such cases as the one before us the doctrine of res ipsa loquitur, thus putting the burden upon him to show that he has not been negligent or has not failed to use the utmost care and leaving that issue for the determination of the jury.
For these reasons I respectfully dissent in this case.