dissenting:
Liability of the manufacturer of provender for injury or loss occasioned by the unwholesome, unfit, deleterious or poisonous condition of his product is generally founded upon (a) the law as it relates to warranties, express or implied, or (b) upon the law of negligence.
An action for breach of warranty arises ex contractu, the universal rule being that a warranty, either express or implied, must grow out of contractual relations between the parties.
An action to recover damages for injury or loss occasioned by the manufacturer’s failure to exercise the proper degree of care, skill or diligence sounds in tort and arises ex delicto, being based upon the principles of negligence.
R. C. M. 1947, sec. 74-321, provides: “One who make a business of selling provisions for domestic use warrants, by sale thereof, to one who buys for actual consumption, that they are sound and wholesome.” Emphasis supplied.
The trial court’s instruction No. 4 reads: “You are instructed that one who makes a business of selling provisions for domestic use warrants, by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. That hy this statute the Defendants in this case are made the insurers of the *408purity of the food product sold by it to plaintiff and whether or not the Defendants knew of the impure condition of the food, if it were impure, is immaterial.” Emphasis supplied.
The first sentence of the above instruction is in the language of the statute (74-321, supra) and states the law of this state as written by the legislature. The second sentence, being the italicized portion of the instruction, is not an enactment of the legislature but is purely and simply a judge-made addition inserted in a plainly worded statute adversely affecting the statutory obligations of the manufacturer or seller of provender, in direct violation of the provisions of R. C. M. 1947, see. 93-401-15, which says: “In the construction of a statute * * * the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted * * *. ”
Only ordinary words appear in section 74-321, supra. The language is plain, simple, direct and wholly without ambiguity and the courts must presume the legislature intended exactly what it plainly said. It is the duty of judges to confine themselves to the words of the legislature,' — nothing adding, — nothing diminishing. The legislature says the seller “warrants” that his provisions “are sound and wholesome,” — not that manufacturers and sellers “are made the insurers of the purity of the food product sold by” them as is stated in the last sentence of the trial court’s instruction No. 4, supra.
The power to define is the power to legislate. In the exercise of the power to legislate vested in it by the Constitution, the Montana legislature saw fit to write into the law governing the obligations of manufacturers and sellers of provender and provisions its own definition of the word “warranty” as it wrote into the law of insurance its own definition of the word “insurance” and into the law of indemnity its own definition of the word “indemnity.”
Chapter 3 of Title 74, R. C. M. 1947, comprising twenty-four separate code sections, numbered 74-301 to 74-324, inclusive, is *409entitled: “Rights and Obligations of Seller — Delivery and Warranty.” It was proper to inform the jury as to the meaning of the term “warranty” but the definition given the jury should be that enacted into law by the legislature rather than an inaccurate or inappropriate use of the term that is in opposition to that intended and enacted into law by the lawmakers of this state.
“Warranty” as used in the code sections governing sales, is defined by the Montana legislative assembly thus: “A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future.” R. C. M. 1947, sec. 74-309. In each of the thirteen code sections (74-310 to 74-322, inclusive) immediately following section 74-309, supra, defining “warranty” the lawmakers have used the verb “warrants” and they employed such word as they defined it by valid legislative enactment.
In none of the twenty-four code sections comprising Chapter 3 of Title 74, supra, defining the rights and obligations of the seller, has the legislature said that the seller is an “insurer.”
“Insurance” is defined in R. C. M. 1947, section 40-101, thus: “Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event.” Emphasis supplied.
“Indemnity” is defined in R. C. M. 1947, section 30-301, thus: “Indemnity is a-contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.”
Nowhere has the legislature provided that ipso facto a contract of indemnity is created by the mere sale of foods for either man or beast.
There is a well-defined distinction between “warranty” and “insurance.” “A warranty promises indemnity against defects in the article sold, while insurance indemnifies against loss or damage resulting from perils outside of and unrelated to defects in the article itself.” State ex rel. Duffy v. Western Auto Supply Co., 134 Ohio St. 163, 16 N. E. (2d) 256, 259, 119 A. *410L. R. 1236, and annotation. See: 44 C. J. S., Insurance, sec. 1, pages 473, 474, and 55 C. J., Sales, secs. 667, 668, pp. 652, 653, defining ‘ ‘ warranties. ’ ’
In Kelley v. John R. Daily Co., 56 Mont. 63, 74, 181 Pac. 326, 329, the author of the opinion either by accident, mistake or inadvertence, employed the word “insurer” instead of the word “warrantor,” saying that a “seller is made the insurer of the purity of food products sold by him,” citing, as his authority, the cases of Rinaldi v. Mohican Co., 171 App. Div. 814, 157 N. Y. S. 561, and Catani v. Swift & Co., 251 Pa. 52, 95 A. 931, L. R. A. 1917B, 1272. Neither case supports the statement made. Neither case mentions the word “insurer.” Bach is based only upon an “implied warranty.” See Rinaldi v. Mohican Co., 225 N. Y. 70, 121 N. E. 471, affirming the cited New York case (an excellent decision on implied warranty.)
In the Kelley case, supra, 56 Mont, at page 74, 181 Pac. at page 329, the sentence immediately following the citation of the Rinaldi case and the Catani ease clearly shows that the word “insurer” was inadvertently and inaccurately substituted for the word “warrantor” for the court then said: “Under section 5115, Revised Codes, the ivarranty of food offered for sale extended only to the immediate purchaser, evidently upon the theory that it arose out of the contractual relations of the parties. Under chapter 130 the warranty extends to the public generally # * Emphasis supplied. In other words, the Kelley ease is based on “warranty” instead of “insurance” and the question of insurance was not there involved.
Bolitho v. Safeway Stores, Inc., 109 Mont. 213, 95 Pac. (2d) 443, quotes the above from the Kelley case, and then says, 109 Mont, at page 217, 95 Pac. (2d) at page 445: “Defendant contends that plaintiff’s action is based upon a violation of sections 2578 et seq., Revised Codes [now R. C. M. 1947, sec. 27-101] and not upon section 7618 [now R. C. M. 1947, sec. 74-321], It is our view that the action is based upon a violation of section 7618, as well as sections 2578 et seq.” Nowhere in the pure food law (R. C. M. 1947, secs. 27-101 to 27-120) is the word “insurer” *411used and the court held that a sale of adulterated or misbranded food is a violation of R. C. M. 1947, sec. 74-321, supra.
Neither the Kelley ease nor the Bolitho case may be said to authorize the giving of the trial court’s instruction No. 4 declaring the defendant to be an “insurer” of the product sold.
The record shows the pellets were manufactured by defendant, so its obligation for latent defects therein is governed by sections 74-315 and 74-321, R. C. M. 1947, neither of which makes the manufacturer an insure}'.
The majority opinion correctly concluded that the Pure Food and Drug Act has no application in this case. The statutes defining the obligations of manufacturers and sellers of provisions and provender control and none of these makes an insurer of the manufacturer for it is the law “that a manufacturer is not an insurer of his food products.” Armour & Co. v. Miller, 39 Ga. App. 228, 147 S. E. 184, 186.
Since this ease is being remanded to the district court for a new trial, it becomes highly important that the nest jury be correctly instructed on the law prescribing the obligations of the manufacturer or seller of food stuff. The court and the jury should take the law as they find it. The law as written by the legislature controls, namely: “One who makes a business of selling provisions for domestic use warrants, by sale thereof, to one who buys for actual consumption, that they are sound and wholesome.” R. C. M. 1947, sec. 74-321. Emphasis supplied. The trial court’s instruction No. 4 should have so stated and there stopped. To go further not only invades the field reserved for the legislature but nullifies the lawful enactments of that branch of our government.
The case of Leonidas v. Great Northern Railway Co. et al., 105 Mont. 302, 318, 72 Pac. (2d) 1007, 1012, was an appeal by the defendant railway company from a judgment entered on the verdict of a jury awarding the plaintiff, George Leonidas $8,000 damages for personal injuries suffered by him while in the company’s employ. In affirming the judgment this court reached the correct result but gave the wrong reasons therefor. *412In construing the Federal Employers’ Liability Act, 45 U. S. C. A., sec. 51 et seq., this court there held that the defense of assumption of risk was not available and that the act ‘ ‘ makes the carrier an insurer of the competency and carefulness of its agents and employees. ’ ’ Emphasis supplied. Of course the statute does not make “the carrier an insurer.” Because of such erroneous ruling the Supreme Court of the United States, on petition of the railway company, caused a writ of certiorari to issue (see Great Northern Ry. Co. v. Leonidas, 305 U. S. 1, 59 S. Ct. 51, 83 L. Ed. 3) with resultant delay, prolonged litigation, expense and untold suffering to the injured employee. While the litigation was in progress the employee, George Leonidas, was wrongfully committed to the State Hospital for the Insane. True he was later restored to capacity but this came about only after another hard-fought legal battle in this court. See State ex rel. Leonidas v. Larson et al., 109 Mont. 70, 92 Pac. (2d) 774. After acquainting the members of the 26th legislative assembly with the facts, legislation was passed amending the statutes governing the examination, hearing and commitment of persons charged with being insane. Such enactment divested county commissioners of all authority to conduct insanity hearings or order commitments. See Chapter 117, Laws of 1939. To hold that the obligation of a manufacturer selling provender for animals is that of an insurer is as erroneous as this court’s ruling that the Federal Employers’ Liability Act makes the carrier an insurer.
1 Cooley’s Briefs on Insurance, 2d Ed., sec. 114, says: “The primary requisite essential to the existence of every contract of insurance is the presence of a risk of loss. The dominant feature of the contract is to grant indemnity or security against loss by reason of the risk. Everly v. Equitable Surety Co., 190 Ind. 274, 130 N. E. 227.”
1 Couch Cyclopedia Insurance Law, sec. 61, p. 82, says: “A risk, which ordinarily means the liability assumed as specified on the face of the policy, is of the very essence of insurance and forms the very foundation of the contract.”
*41344 C. J. S., Insurance, see. 1, page 471, defines “insurance” as “ a contract by wbicb one party, for a compensation called tbe ‘premium,’ assumes particular risks of the other party. * * *”
29 Am. Jur., Insurance, sec. 3, p. 47, says: “® * * tbe essential features of policies of insurance at tbe present time is substantially tbat of indemnity to tbe insured. ’ ’
To hold tbat every time a merchant sells a bag of chicken feed, cotton seed cake or mustard seed pellets tbe price paid him therefor constitutes a “premium” — tbe contract entered upon is one of “insurance” and tbe liability assumed, in case of loss, is tbat of an ‘ ‘ insurer ’ ’ does violence to tbe plain language of tbe statute and imposes upon merchants obligations and liabilities never intended nor contemplated by tbe legislature or by tbe law of sales.
Business should not be unduly interfered with or restricted. It should be permitted as much freedom in tbe conduct and management of its affairs as is consistent with tbe public interest and welfare. This ease should be tried and decided upon tbe law as written and enacted by tbe legislature without inserting additional words, obligations or liabilities into a plainly worded statute.
MR. JUSTICE BOTTOMLY concurs in the foregoing dissent.On Appellant’s Motion to Modify Opinion
MR. JUSTICE ANGSTMAN:Defendant has filed a motion to modify tbe opinion so far as it bolds tbat it was proper to instruct tbe jury tbat to warrant tbe wbolesomeness of provisions sold for domestic use under section 74-321, R. C. M. 1947 (sec. 7618, R. C. M. 1935) is meant tbat the sellers are made tbe insurers of tbe purity of tbe food product sold by them and tbat whether they know of tbe impure condition of tbe food is immaterial.
To warrant means: “ a. To secure to, as a grantee, an estate granted; to assure, b. To secure to, as a purchaser of goods, the title to tbe same; to indemnify against loss. e. To se*414cure to, as a purchaser, the quality or quantity of the goods sold, as represented; to secure (a purchaser or grantee) by a warranty. See Warranty, n., 2. d. To assure, as a thing sold, to the purchaser; that is, to engage that the thing is what it appears, or is represented, to be, which implies a covenant to make good any defect or loss incurred by it.” Webster’s New International Dictionary.
“As a verb, the word means to defend; to guarantee; to enter into an obligation of warranty.” Ballentine Law Dictionary.
When a seller warrants that food is sound and wholesome he thereby covenants to make good any defect or loss incurred by its use by the consumer. That is exactly what is meant by an insurer of the purity of the same product.
It is not error to give an instruction to that effect. It is proper that the jury be informed of the meaning of the term “warrant” and that is all the instruction does.
The motion for modification is denied.
ASSOCIATE JUSTICES FREEBOURN and METCALF, concur.