(concurring).
Plaintiff founded his suit against defendants primarily upon negligence, specifically alleging the negligent conduct of each defendant but also invoking the doctrine of res ipsa loquitur. The plaintiff also *537charged that the vendor of the sandwich had breached its warranty of wholesomeness. The trial judge rendered a solidary judgment against Bearden Sandwich Company, Inc., and Pak-A-Sak Service Stores, Inc., as well as the insurers of these defendants. Although the trial judge discussed implied warranty in the course of his opinion, it is clear he also applied the doctrine of res ipsa loquitur. The defendants and their insurers appealed to the Court of Appeal.
Despite the “serious doubt” expressed in the majority opinion, I am convinced the defendant Bearden Sandwich Company, Inc. has a right to seek relief from the Court of Appeal judgment releasing its co-defendant from solidary liability with it. Such a right of review exists even in the absence of a third party demand by Bearden against the co-defendant. LSA-C.C. Article 2103; Emmons v. Agricultural Insurance Co., 245 La. 411, 158 So.2d 594; Vidrine v. Simoneaux, La.App., 145 So.2d 400; 24 La.L.Rev. 307-308.
More difficult is the decision on the merits. Bearden urges the Court to decree its co-defendant solidarily liable either on the theory of implied warranty, often used by Louisiana courts in food contamination cases, or of strict liability in tort.
Since 1911, the courts of this state have held the manufacturer liable for damages caused by unwholesome food products. Doyle v. Fuerst & Kraemer, Ltd., 129 La. 838, 56 So. 906, 40 L.R.A.,N.S., 480 (1911). In some cases, the courts have based recovery on a delictual, or tort, theory. See, e. g., Mayerhefer v. Louisiana Coca-Cola Bottling Co., 219 La. 320, 52 So.2d 866; White v. Coca-Cola Bottling Co., La.App., 16 So.2d 579; Day v. Hammond Coca-Cola Bottling Co., La.App., 53 So.2d 447. In 1952, this Court in LeBlanc v. Louisiana Coca Cola Bottling Company, 221 La. 919, 60 So.2d 873, moved to the theory of implied warranty of wholesomeness. Later decisions have followed implied warranty. See, e. g., Reine v. Baton Rouge Coca Cola Bottling Co., La.App,, 126 So.2d 635; Walker v. American Beverage Co., La. App., 124 So.2d 157; and Miller v. Louisiana Coca-Cola Bottling Co., La.App., 70 So.2d 409. Running throughout these cases, however, is a conclusive presumption that the manufacturer knew of the unwholesomeness of the food product. Hence, the imposition of liability upon the manufacturer in such cases is consistent with the fault requirement of LSA-C.C. Article 2315, governing delictual responsibility. See Stone, Tort Doctrine in Louisiana: The Concept of Fault, 27 Tul.L.Rev. 1, 14— 15, 19-20; and 26 La.L.Rev. 447, 456.
The question here is whether a similar liability should be imposed upon a retailer who, without knowledge of unwholesome-, ness, sells food products packaged by the-manufacturer in sealed containers. I think-not.
*539LSA-C.C. Article 2531 provides:
“The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.”
The foregoing Article negates the retailer’s liability for damages under warranty. See Hurley v. J. C. Penney Company, La. App., 140 So.2d 445; Lesher v. Great Atlantic & Pacific Tea Company, La.App., 129 So.2d 96; Boyd v. J. C. Penny Company, La.App., 195 So. 87; and Coignard v. F. W. Woolworth & Co., La.App., 175 So. 123.
As to delictual responsibility, LSA-C.C. Article 2315 provides:
“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it;”
Fault is a prerequisite for recovery under this Article. As to food products in a sealed container, it is impracticable, if not impossible, for the retailer to open the container and inspect the contents. The great weight of authority supports the view that a retailer is under no duty to open sealed containers and hence is not at fault in failing to do so. Lesher v. Great Atlantic & Pacific Tea Company, supra; Kirkland v. Great Atlantic & Pacific Tea Co., 233 Ala. 404, 171 So. 735; Prosser, Law of Torts (3d ed. 1964) § 95, p. 649; Frumer and Friedman, Products Liability, § 22.02 ; 36A C.J.S. Food § 58, pp. 906-907; 22 La.L. Rev. 435, 447-450.
The record contains no evidence establishing that the employees of Pak-A-Sak, the retailer, mishandled the sandwiches. One must conclude, therefore, that Pak-A-Sak was without fault. Hence, under LSA-C.C. Article 2315, there is no liability.
For the foregoing reasons, I concur in the decree.