dissenting. If followed, the syllabus and judgment in the instant case would make the manufacturer and seller of a product (here, steel roof joists) an insurer without limit of any damage proximately caused by a defect existing in his product at the time of its sale, even though no amount of care could have eliminated that defect, even though such manufacturer made no representations about his product to anyone, and even though no one knew that it was his product.
*241In my opinion, it is particularly unfortunate that this court should announce such a revolutionary decision where the case before it does not even have in it a basic fact regarded in the syllabus and in the majority opinion as essential for the decision described therein.
Both deal only with a case in which defendant’s product was defective at the time of its sale by defendant. There is no allegation in plaintiff’s petition that defendant’s product was then defective.
The petition does allege that “defendant impliedly warranted that the said roof joists were of good and merchantable quality,” and that “said implied warranty was breached by defendant in that said roof joists were not of good and merchantable quality.” There is no allegation as to the respect in which the joists were not of such quality.
There are no other allegations which help us to give any meaning at all to the allegations as to defendant’s warranty and breach of warranty. Hence, we must look elsewhere for guidance.
At the time plaintiff’s petition was drawn, Section 1302.-27, Revised Code, provided in part that “goods to be merchantable must be at least such as: (1) Pass without objection in the trade under the contract description * *
Thus, under the allegations of the petition, the roof joists sold by defendant could have been not “of good and merchantable quality” if defendant supplied them in a weight-bearing capacity per unit of length lighter than that specified, although they were not defective in any way whatever, and even if their actual weight-bearing capacity was clearly marked on them. In such an instance, they would not “pass without objection in the trade under the contract description” for the heavier weight-bearing capacity. Thus, there would be a breach of the alleged warranty of merchantable quality even though the joists were not defective in any way.1
*242If the plaintiff’s petition had included allegations that the joists were defective when sold by defendant and that their defective condition was a proximate canse of plaintiff’s injuries, then its allegations would have been sufficient, with help from the doctrine of res ipsa loquitur, to state a cause of action in negligence. See Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer) (1960), 69 Yale L. J. 1099;2 Edelstein v. Cook (1923), 108 Ohio St. 346, 140 N. E. 765, 31 A. L. R. 1333; Soltz v. Colony Recreation Center (1949), 151 Ohio St 503, 87 N. E. 2d 167. Thus, if the petition had included the allegations that the joists were defective when sold by defendant, and that their defective condition was a proximate cause of plaintiff’s injuries, it would be unneccessary for this court to go beyond well settled principles of law to determine, as it has, that the petition states a cause of action.
*243The syllabi and decisions in Rogers v. Toni Home Permanent Co. (1958), 167 Ohio St. 244, 147 N. E. 2d 612, and Inglis v. American Motors Corp. (1965), 3 Ohio St. 2d 132, 209 N. E. 2d 583, are inconsistent with and do not in any way support the syllabus and judgment of the instant case. This is apparent from a comparison of the allegations of the petition in the instant case with the essential requirements for a cause of action specified in the syllabi of the Rogers and Inglis cases.
In Rogers, the syllabus reads in part:
“2. An express warranty is an affirmation of fact by the seller as to a product or commodity to induce the purchase thereof, on which affirmation the buyer relies in making the purchase.
“3. Under modern merchandising practices, where the manufacturer of a product in his advertising makes representations as to the quality and merit of his product aimed directly at the ultimate consumer and urges the latter to purchase the product from a retailer, and such ultimate consumer does so in reliance on and pursuant to the inducements of the manufacturer and suffers harm in the use of such product by reason of deleterious ingredients therein, such ultimate consumer may maintain an action for damages immediately against the manufacturer on the basis of express warranty, notwithstanding that there is no direct contractual relationship between them.” (Emphasis added.)
The recovery there allowed was in tort. However, it is apparent that the tort contemplated was one, similar to that of deceit, requiring reliance by the consumer on the affirmations or representations of the seller. (See paragraphs two and three of syllabus and opinion at page 247.)
There is nothing in the petition in the instant case from which even an inference could be drawn that plaintiff knew *244that defendant had supplied the steel joists. In other words, the essential elements of representations and reliance thereon emphasized in paragraphs two and three of the syllabus of the Toni case are not present in the instant case.
There is no allegation that plaintiff or anyone else relied upon any implied warranty or any representation of defendant.
The necessity of “reasonable reliance” by the plaintiff is also emphasized, especially in paragraph three of the syllabus in Inglis v. American Motors Corp., supra (3 Ohio St. 2d 132).
Where products are sold as those of a particular maker who has advertised the general quality of his goods, the reasons underlying our decision in Rogers v. Toni Home Permanent Co., supra (167 Ohio St. 244), may be applicable and justify implication of a warranty even though there is no express warranty, and Rogers v. Toni Home Permanent Co., supra, may therefore require some modification of our decision in Wood v. General Electric Co. (1953), 159 Ohio St. 273, 112 N. E. 2d 8.
However, that is not this case. There is no allegation of any reliance by anyone on any implied representations or warranties of defendant.
In the opinion in Rogers v. Toni Home Permanent Co., supra (167 Ohio St. 244), it is stated, at page 249, that “an express warranty excludes an implied warranty,” and in the opinion in Inglis v. American Motors Corp., supra (3 Ohio St. 2d 132), at page 140, which purports to follow the foregoing statement, it is stated that “where there are express warranties alleged * * * there is no need for the law to imply a warranty.”
Unless, therefore, we overrule the requirements of reliance specified in the syllabi of those last two named cases, we will have the incredible result that a non-negligent manufacturer of a defective product will be liable to someone proximately injured by its defective condition if he says nothing; but such manufacturer will not be liable, where he has made express warranties about the good condition of his defective product, unless the injured party alleges and proves that he relied on those express warranties.
*245The Court of Appeals recognized that “use of the word ‘warranty’ is probably improper” in explaining what this conrt is doing in the instant case, and that what it is really doing is recognizing a canse of action for “strict tort liability.” See Lonzrick v. Republic Steel Corp. (1964), 1 Ohio App. 2d 374, 384, 205 N. E. 2d 92.
Quite obviously, as is apparent from the authorities cited, the legal conclusions set forth in paragraph two of the syllabus represent a somewhat disguised statement of what is usually referred to as the doctrine of “strict tort liability.”
This doctrine of strict tort liability has for some time been vigorously promoted by certain law professors (see for example Prosser, The Assault Upon the Citadel [Strict Liability to the Consumer], supra [69 Tale L. J. 1099]; Harper and James, The Law of Torts, 752 and 1605, Sections 12.4 and 28.33; James, General Products—Should Manufacturers be Liable Without Negligence [1957], 24 Tenn. L. Rev. 923; James, Products Liability [1955], 34 Texas L. Rev. 44,192; Wade, Strict Tort Liability of Manufacturers [1965], 19 Southwestern L. J. 5) and by at least one organized group of lawyers (see for example 31 Journal of the American Trial Lawyers Association [1965], 247 to 254, 256 to 259, 261 to 267, 268 to 273, 275 to 279).
The doctrine was recently incorporated in Section 402A of the American Law Institute Restatement of the Law of Torts 2d for which Dean Prosser is the reporter. See Smyser, Products Liability in the American Law Institute; a Petition for Rehearing (1965), 42 U. of Detroit L. J. 343.
As stated in 74 A. L. B. 2d 1111, at 1131:
“It is frequently stated that it is a ‘general rule’ that a manufacturer or seller of a product alleged to have caused injury cannot be held liable therefor, on the ground of negligence, to one with whom he is not in privity of contract. At the foundation of this ‘general rule’ as to the nonliability of a manufacturer to a remote vendee or ultimate consumer of the manufactured product is the English decision in * * * Winterbottom v. Wright (1842), 10 Mees and W. 109, 152 Eng. Rep. 402.”
The unsoundness of the rule of Winterbottom v. Wright, *246supra, led to what Dean Prosser, in quoting from Mr. Justice Cardozo, has referred to as “The Assault Upon the Citadel of Privity. ’ ’
Apparently, those who have been successful in destroying the rule of Winterbottom v. Wright have become so enthusiastic as not to be satisfied with mere liability of the manufacturer for negligence, even where they have the help of the doctrine of res ipsa loquitur in establishing that negligence. As Dean Prosser pointed out, they are and have been carrying their “assault * * * against the fortress of strict liability.” Prosser, supra (69 Yale L. J. 1099), 1103.
Apparently much of the enthusiasm for this latter assault represents a residue of the enthusiasm left over after the successful “Assault Upon the Citadel of Privity” which destroyed the rule of Winterbottom v. Wright.
This court should be able to consider whether it should succumb to the “Assault * * * Against the Portress of Strict Liability” without being subject to the influence of any such residue of enthusiasm. The rule of Winterbottom v. Wright was rejected in this state long before the much more publicized case of McPherson v. Buick Motor Car Co. (1916), 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F 696, Ann. Cas 1916C 440. The rule was rejected by this court in Davis v. Guarnieri (1887), 45 Ohio St. 470, 491, 15 N. E. 350, and in Pennsylvania Rd. Co. v. Snyder (1896), 55 Ohio St. 342, 351, 361, 45 N. E. 559. Our subsequent holdings to the same effect are Sicard v. Kremer (1938), 133 Ohio St. 291, 13 N. E. 2d 250; Witherspoon v. Haft (1952), 157 Ohio St. 474, 106 N. E. 2d 296; Thrash, a Minor, v. U-Drive-It Co. (1953), 158 Ohio St. 465, 110 N. E. 2d 419 (as to defendant Spot Motors); Durham v. Warner Elevator Mfg. Co. (1956), 166 Ohio St. 31, 139 N. E. 2d 10.
Prom comment (b) to Section 402 A of the American Law Institute Restatement of Torts 2d, it appears that the cases supporting the rule stated in that section were decided after 1950 and represent an extension of the rule of strict liability of the seller of food for human consumption. That comment points out that the earlier food decisions ‘ ‘ displayed considerable ingenuity in evolving more or less fictitious theories of liability to fit the case,” but that “in later years the courts *247have become more or less agreed upon the theory of a ‘warranty’ from the seller to the consumer, either ‘running with the goods’ by analogy to a covenant running with the land, or made directly to the consumer,” and “other decisions have indicated that the basis is merely one of strict liability in tort, which is not dependant upon either contract or negligence.”
In Ohio there has been no need for any such ingenuity. The violation of a statute passed for protection of the public is negligence per se. Schell v. DuBois, Admr. (1916), 94 Ohio St. 93, 113 N. E. 664; Coal Co. v. Estievenard (1895), 53 Ohio St. 43, 40 N. E. 725. Hence, because of our holdings that a violation of our pure-food statutes represents negligence per se, there has never been any occasion for this court to consider whether, or for any one to argue that, apart from those statutes, strict liability in tort should be imposed on the seller of food. See, for example, Portage Markets Co. v. George (1924), 111 Ohio St. 775, 146 N. E. 283; Canton Provision Co. v. Gauder, a Minor (1935), 130 Ohio St. 43, 196 N. E. 634; Great Atlantic & Pacific Tea Co. v. Hughes (1936), 131 Ohio St. 501, 3 N. E. 2d 415; Kniess v. Armour & Co. (1938), 134 Ohio St. 432, 17 N. E. 2d 734; Yochem v. Gloria, Inc. (1938), 134 Ohio St. 427, 17 N. E. 2d 731; Rubbo v. Hughes Provision Co. (1941), 138 Ohio St. 178, 34 N. E. 2d 202; Wolfe v. Great Atlantic & Pacific Tea Co. (1944), 143 Ohio St. 643, 56 N. E. 2d 230; Allen v. Grafton (1960), 170 Ohio St. 249, 164 N. E. 2d 167. From the foregoing-decisions, it is apparent that our General Assembly has full power to readily impose what is in effect strict liability in tort on sellers of tangible items other than food if it should deem it advisable or desirable to do so. In some instances, it has. See, for example, Spaulding v. Waxler (1965), 2 Ohio St. 2d 1, 205 N. E. 2d 890; Bird v. Hart (1965), 2 Ohio St. 2d 9, 205 N. E. 2d 887; and Stump v. Phillians (1965), 2 Ohio St. 2d 209, 207 N. E. 2d 762.
Without such statutory help and in the absence of an express warranty, this court refused to do so in Wood v. General Electric Co., supra (159 Ohio St. 273), and in Welsh v. Ledyard (1957), 167 Ohio St. 57, 146 N. E. 2d 299.
Thereafter, the General Assembly apparently considered the problems with which we dealt in deciding those cases and *248Rogers v. Toni Home Permanent Co., supra (167 Ohio St. 244), and enacted a statute which in effect overrules our decision in Welsh v. Ledyard, supra (167 Ohio St. 57), (see Section 1302.31, Revised Code, extending seller’s express or implied warranty “to any natural person who is in the family or household of his buyer” as the plaintiff in Welsh v. Ledyard, was); but the General Assembly did nothing to interfere with our decision in either the Wood or Toni case.
We have the power to overrule Wood v. General Electric Co., supra (159 Ohio St. 273), and also to overrule the limitations requiring reliance of the plaintiff on representations of the defendant, which we provided for in deciding Rogers v. Toni Home Permanent Co., supra, and later required in Inglis v. American Motors Corporation, supra (3 Ohio St. 2d 132). We may do this even though the General Assembly, by what it did and did not do, has apparently indicated its approval of those limitations and of the case of Wood v. General Electric Co., supra. However, in my opinion, that apparent legislative approval should be given weight and respect in deciding the instant case.
Dean Prosser has confessed that the only substantial argument for the doctrine of “strict liability in tort” of the seller of a chattel is (Prosser, supra [69 Yale L. J. 1099], 1120) “the ‘risk spreading’ argument, which maintains that the manufacturers, as a group and an industry, should absorb the inevitable losses which must result in a complex civilization from the use of their products, because they are in the better position to do so, and through their prices to pass such losses on to the community at large.” He then quotes from Justice (now Chief Justice) Traynor’s opinion in Escola v. Coca Cola Bottling Co. (1944), 24 Cal. 2d 453, 461, 150 P. 2d 436, as follows, and we have interpolated in brackets some comments with regard thereto:
“Those who suffer injury from defective products are unprepared to meet its consequences [agreed]. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured [agreed], and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. [We *249do not know. A legislature could conduct hearings which would enable it to determine whether this “risk can be insured by the manufacturer” or otherwise “distributed among the public as a cost of doing business.”] It is to the public interest to discourage the marketing of products having defects that are a menace to the public [agreed — our present law does so]. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market [maybe — but a legislature has more means of determining through hearings than a court does whether so placing responsibility would unduly interfere with “desirable activity.” See 2 Harper and James, The Law of Torts, 757, Section 12.4]. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection [agreed] and the manufacturer is best situated to afford such protection [but how? A legislature has the power to devise ways which no court can].”
Another reason why a court cannot cope with the reasons for strict liability suggested by Justice Traynor, as well as a legislature, was stated by Dean Prosser as follows (Prosser, supra [69 Yale L. J. 1099], 1121):
“* * * Even the distribution of the losses through insurance may be a process that has its flaws. Until we develop, by analogy to workmen’s compensation, a comprehensive system of compulsory insurance with rigidly limited damages — which no one as yet seems to have proposed specifically in this particular field — there will always be uninsured defendants, there will always be liability in excess of coverage, and there will be members of the group whose competitive situation does not permit them to pass on the cost of the insurance to their customers. * * *”
There is considerable appeal to the idea of spreading the risk of loss to an individual from a particular activity over those vdio engage in that activity and profit from it. However, before determining to do so with respect to the manufacture and *250sale of a particular product, a court should at least consider questions such as:
(1) What additional liability would be involved?
(2) Could insurance be procured against such additional liability?
(3) If so, what would its cost be ?
(4) Could such cost be passed on to buyers of the product?
How can a court know the answers to such questions? A court such as this has no means of even exploring them. However, these are problems which a legislature can fully explore.
This court has no reliable information which would justify it in jettisoning existing products liability law and manufacturing new rules of law. To do so, could seriously affect the level of industrial activity in Ohio, and it could substantially increase manufacturing costs and result in either higher consumer prices, if the costs could be passed on, or many bankruptcies, if they could not.
Further, it is submitted that our General Assembly has, by what it has done, indicated an intention that strict tort liability should not be imposed upon the manufacturer of a product in a case such as that now assumed by the majority to be before this court for decision.
For example, as late as 1957, the General Assembly revised our laws dealing with pure foods and drugs (127 Ohio Laws 819). At that time, it knew that it would be negligence per se to make a sale prohibited by such a statute; and, as a result, such a statutorily prohibited sale would in effect involve “strict liability in tort.” See citations, supra, page 247. However, the General Assembly has never enacted any statute which could possibly be construed to prohibit the sale of defective steel joists, and thereby in effect to impose strict liability in tort on the seller of such joists.
Thus, although the General Assembly has recently legislated so as to impose in effect strict tort liability on the manufacture and sale of certain defective products, it has not dealt with steel joists.
Finally, the legislative history of the Uniform Commercial Code, which was enacted in this state in 1962 (129 Ohio Laws *25113), clearly indicates a legislative intention against imposing liability such as that approved by the syllabus and judgment of the instant case. See note “Implied Warranty, Strict Liability for Personal Injuries, and the Uniform Commercial Code, Section 2-318,13 University of Kansas L. Rev. 411 (1965).
The May 1949 draft of Section 2-318 of the Uniform Commercial Code extended liability for breach of a seller’s express or implied warranty to “one whose relationship [to the buyer] * # # is g-^k ag ma]je reasonable to expect that such person may use, consume or be affected by the goods * * *. ” This would have expressly permitted an action such as approved by the syllabus and judgment in the instant case. See James, Products Liability, supra (34 Texas L. Rev. 44, 192 at 194, Note 10).
However, Section 2-318 was modified in the 1952 official draft so as to provide that such warranty “extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume, or be affected by the goods and who is injured in person by breach of the warranty.”
As so modified, Section 2-318 became Section 1302.31, Revised Code3 (see variations in the Ohio Enactment of the Uniform Commercial Code, 14 Western Reserve L. Rev. 22 [1962]); and, as hereinbefore mentioned, that statute had the necessary effect of overruling Welsh v. Ledyard, supra (167 Ohio St. 57), but approving Wood v. General Electric Co., supra (159 Ohio St. 273).
If Comment 3 to that statutory section, as prepared by the American Law Institute and the National Conference of Commissioners on Uniform State Laws (see 13 Page’s Revised Code, Annotated 7, 55), is regarded as expressing any legislative intent, it clearly indicates an intention that a seller’s warranties shall not extend to a person who is not “in the distributive chain.” The plaintiffs in Rogers v. Toni Home Permanent Co., supra (167 Ohio St. 244), and Inglis v. American Motors Corp., supra (3 Ohio St. 2d 132), were each “in the *252distributive chain.” Admittedly, plaintiff is not “in the distributive chain” and is not one of those specified by the statute as one to whom a seller’s warranty should extend.
Thus, the syllabus and judgment in the instant case disregard the intention expressed by the General Assembly when it adopted Section 1302.31, Revised Code. See Hochgertel v. Canada Dry Corp. (1963), 409 Pa. 610, 187 A. 2d 575.
Schneider and Brown, JJ., concur in the foregoing dissenting opinion. Schneider, J.I desire to add that the basic underlying difference dividing the court is not the absence of privity but the operative effect of the decision, which eliminates from the consideration of the trier of the facts any standard of care to which the defendant would be required to adhere. In short, if the plaintiff should succeed in laying the defect which proximately caused his injury at the door of defendant’s place of business, the defendant will be permitted no explanation of any transaction occurring therein, including that which might tend to show that every precaution known to man was exercised to prevent the occurrence of the claimed defect.
An extreme example of this is Bennison v. Stillpass (1965), 5 Ohio St. 2d 122, 214 N. E. 2d 213, announced a few weeks after the argument of the instant case. There, this court held that mere proof of breach of a contract as to the condition that an article was to have when delivered would not authorize an inference that the article was in a defective condi*242tion when delivered. In that ease, defendant supplied to plaintiff’s decedent’s employer a tank which “contained vapors of an explosive nature * * * the tank exploded and plaintiff’s decedent was killed as a result of the explosion.” In the opinion by O’Neill, J., it is stated at page 125:
“The duty under the contract * * * was to send a tank which was ‘clean’ [i. e., one that admittedly would contain no explosive vapors] * * *.
“* * *
“* * * in order for the plaintiff to recover it would be necessary to determine that the gasoline vapors in the tank constituted a ‘defective condition’ * * *.
“* * * it can not be said that the gasoline vapors in the tank constituted a ‘defective condition’ * *
Dean Prosser states:
“One may well ask at the outset, why is not liability for negligence enough? Why do the plaintiffs want strict liability * * *.
“Where the action is against the manufacturer of the product, an honest estimate might very well be that there is not one case in a hundred in which strict liability would result in recovery where negligence does not. When a negligence action is brought against a manufacturer, the plaintiff is faced with two initial tasks. One is to prove that his injury has been caused by a defect in the product. The other is to prove that the defect existed when the product left the hands of the defendant. For neither of these is strict liability of any aid to him whatever. It cannot prove the causation; and it cannot trace that cause to the defendant. Once over these two hurdles, the plaintiff has a third task, to prove that the defect was there because of the defendant’s negligence. This is by far the easiest of the three, and it is one in which the plaintiff almost never fails.
“It is true that he has the burden of proof on the issue of negligence. *243It is true also that he seldom, if ever, has any direct evidence of what went on in the defendant’s plant. But in every jurisdiction, he is aided by the doctrine of res ipsa loquitur, or by its practical equivalent. In all jurisdictions this at least gives rise to a permissible inference of the defendant’s negligence, which gets the plaintiff to the jury. And in cases against manufacturers, once the cause of the harm is laid at their doorstep, a jury verdict for the defendant on the negligence issue is virtually unknown.”
Unlike Section 1302.31, Revised Code, the recently enacted procedural Section 2307.382(5) does not purport to extend the right of recovery beyond those to whom a warranty is “made.”