concurring.
The certified question should be answered in the negative.
On the original submission both opinions took the position that there was little or no distinction between the liability of the retailer and that of the wholesaler. I felt that under Griggs Canning Co. v. Josey, 139 Texas 623, 164 S. W. 2d 835, 142 A.L.R. 1424, and dicta in Decker & Sons v. Capps, 139 Texas 609, 164 S. W. 2d 828, 142 A. L. R. 1479, the implied warranty based upon public policy extended to all selling food. Upon rehearing I have decided that the broad liability of an implied warranty based upon public policy should not be extended beyond limits necessary to satisfy that public policy. The question of whether to follow or overrule the Griggs case is not before us. The question at bar is whether or not a wholesaler should be directly liable to the consumer.
The reasoning used in either case does not apply to the wholesaler. As to him, there is no sale between him and the consumer to support the rationale of the Griggs case. Neither does the rationale of the Decker case fit his situation since there is neither opportunity to know and control the contents of the sealed package nor representations or inducements made by him to the consumer. The case of Walker v. Great Atlantic & Pacific Tea Co., 131 Texas 57, 112 S. W. 2d 170, 172, was expressly based upon the retailer’s conduct. The court said:
“* * * The can of corn was so labeled as to conceal from the buyer the identity of the manufacturer. This conduct in legal effect put the retailer in the place of the manufacturer.”
The record at bar does not disclose either the wording of *373the label or the name of the manufacturer. This suit was filed on the theory that the defendant was the manufacturer. In response to request for admissions it developed that the defendant was a wholesaler.
Our food distribution system has in recent years undergone a great change. The function formerly performed by the broker and wholesaler has in many instances been taken over by the retail chain stores, or by buying cooperatives or associations. Wholesalers have organized retail outlets under many different patterns. The different situations of the middlemen are so varied and complex that each should be governed by his own contract.
Under a second consideration of this case I find no impelling reason to extend to a wholesaler a direct liability to the consumer. There is little basis in the common law and none under Rule 38,^'T.R.C.P. The question here does not involve the possible ultimate liability of this wholesaler if impleaded by the retailer, but whether he is liable in a direct action. Any attempt to overrule the Griggs case in the proceeding at bar would be dicta.
Opinion delivered July 16, 1952.