dissenting: The plaintiff purchased from a retailer a 24-pound sack of flour, manufactured by the defendant, and it was alleged that said sack of flour contained a dead rat, which made it unfit for food for human consumption. There were allegations for an action in tort, and also in contract, but the former action was abandoned, and the case was tried upon the theory of a breach of warranty. The jury found there was a breach of warranty, and that the plaintiff was entitled to damages in the amount of $175.00. The case is now before us on the question as to whether or not there was an implied warranty from the manufacturer to the defendant, an ultimate consumer, that the flour contained in a sack, packed in the plant of the plaintiff, was wholesome and fit for human consumption.
There is a conflict in the decisions as to the theory of liability of defendant in this class of cases, some holding that an action must be based upon negligence alone; others that it may be founded upon an implied warranty; and still others that, where an implied warranty exists, it does not extend to third parties. Some of the decisions in North Carolina based upon the theory of negligence by the defendant are set forth in Corum v. Tobacco Co., 205 N. C., 213; Broadway v. Grimes, 204 N. C., 623; Broom v. Bottling Co., 200 N. C., 55; Grant v. Bottling Co., 176 N. C., 256; yet the doctrine of implied warranty was recognized by the late Chief Justice Walter Clark, speaking for a unanimous Court, in Ward v. Sea Food Co., 171 N. C., 33. In that case it was held that the defendant was liable to the plaintiff upon the finding by the jury that the death of plaintiff’s intestate was caused by the negligence of the defendant with respect to salt fish sold by the defendant to the merchant from whom the deceased bought the food. While the decision in that case was grounded upon negligence, it was pointed out that the authorities were numerous; that there is an implied warranty which runs with the sale of food for human consumption that it is fit for food, and is not dangerous and deleterious. That case did not involve a sealed package, as in the instant case, but salt mullets, and it can be assumed that the Chief Justice meant to imply that in a proper case the doctrine of implied warranty would apply.
The weight of authorities, I think, holds that an implied warranty will lie in cases such as the case at bar. In 26 C. J., 785, it is said: “It is generally agreed by the authorities that a manufacturer, packer, or bottler of foods or beverages is directly liable to a consumer for an in*6jury caused by the unwholesomeness or the unfitness of such articles, although purchased from a dealer or middleman and not from such manufacturer, bottler, or packer.” The modern doctrine is stated in 11 R. C. L., 1122, as follows: “In the case of food sold in cans, bottles, and sealed packages, some of the earlier decisions denied the right of the consumer to recover from the manufacturer, it appearing that the goods were purchased through the medium of a retail dealer. ... A great majority of the more recent cases, however, hold that the ultimate consumer of products sold in cans or sealed packages may bring his action direct against the packer or manufacturer.” 17 A. L. R., 688; 39 A. L. R., 995; 63 A. L. R., 343; 88 A. L. R., 531; Dothan-Chero-Colo Bottling Co. v. Weeks, 80 So., 734 (Ala.); Davis v. Van Camp Packing Co., 176 N. W., 382 (Iowa); Parkes v. C. C. Yost Pie Co., 144 Pac., 202 (Kan.); Meshbessher v. Channellene Oil Co., 119 N. W., 428 (Minn.); Chenault v. Houston Coca-Cola Bottling Co., 118 So., 177 (Miss.); Tomlinson v. Armour, 70 Atl., 314 (N. J.); Nock v. Coca-Cola Bottling Works of Pittsburgh, 156 Atl., 537 (Pa.); Mazetti v. Armour, 135 Pac., 633 (Wash.).
There are many cases to the effect that negligence must be alleged and proven, and elaborate opinions have been written, pro and con, and it is sometimes not easy to determine whether the Court holds the manufacturer liable without negligence or that the defect proven to exist in the manufactured products is without more sufficient evidence of negligence. 1 Williston on Sales (2d Ed.), footnote, p. 490. While our own decisions in North Carolina are not definite, I think the better view is stated in Nock v. Coca-Cola Bottling Works of Pittsburgh, supra, as follows: “We think the sounder reasoning is in support of the theory that a sale of food or beverage impliedly warrants that it shall be free of a foreign matter which may be injurious to- the well-being of the consumer. Nor do we see any just reason, from a public policy standpoint, as the health or human life may be involved, why a sale of food or beverage intended for human consumption should not carry with it an implied warranty that it is suitable and wholesome.”
The flour manufacturer, in the instant ease, when it delivered the sack of flour in question, impliedly represented to the public that it was free from injurious substances and fit for human food.
As pointed out in Ward Baking Co. v. Trizzino, 161 N. E., 557 (Ohio), there is no doubt that an implied warranty arises between the groceryman who makes the purchase and the manufacturer. The groceryman did not make the purchase for himself, but for his customers, who are the ultimate consumers. The groceryman is merely the distributing agent, he has no opportunity to make an inspection of a sealed package and the manufacturer is fully aware of that fact. The *7contract between tbe manufacturer and tbe retailer is one for tbe benefit of a third party, tbe ultimate consumer. If there is any implied warranty between tbe manufacturer and tbe retailer, and there is no conflict of decisions on that point, then it is for tbe benefit of the- third party, tbe ultimate consumer. Therefore, I fully agree with tbe bolding in Ward Baking Co. v. Trizzino, supra, that an implied warranty for tbe benefit of an ultimate consumer of a food product can be relied upon by such a consumer against its maker, who supplied it to a store for resale to tbe public, upon tbe ground that “there is imposed tbe absolute liability of a warrantor on tbe manufacturer of articles of food, in favor of tbe ultimate purchaser, even though there are no direct contractual relationships between such ultimate purchaser and tbe manufacturer.”
It is of tbe greatest importance to tbe health of tbe general public that when they purchase food or drink it should be pure, wholesome, and fit for use. It is a bard measure and almost impossible to prove negligence and by tbe weight of authorities, this rule under modern conditions is fastly growing obsolete. Tbe true rule, in more recent decisions, is that there is an implied warranty from tbe manufacturer to tbe consumer, tbe general public, where there is no opportunity to inspect, that tbe food or drink is pure, wholesome, and fit for consumption. I think there is no error in tbe judgment of tbe court below.