joining by Chief Justice Hickman and Justices Smedley and Calvert dissenting.
I most respectfully dissent from the opinion expressed by the majority in this case.
The opinion of the majority holds that if the non-negligent retailer may be held liable to the consumer, who has suffered injury and damage from food sold in the original sealed pack*387age, upon an implied warranty imposed by law, as this court decided in Griggs Canning Co. v. Josey, 139 Texas 623, 164 SW 2d 835, 142 A. L. R. 1424, then it would be unjust and without reason not to hold the wholesaler, or middleman, also liable to the consumer. I have no quarrel with this conclusion. My attack is posed against the major premise — the liability of the retailer.
When the opinion in the Griggs case was written, the Court was composed of three men, one of whom filed a vigorous dissent. Under like circumstances, this Court exercises its right to review the principles of law announced by the majority when the question later arises in other litigation. Federal Royalty Co. v. State, 128 Texas 324, 98 SW 2d 993.
The duty of this Court is, among other things, to predicate its decisions upon reasonableness, upon fairness, and most certainly upon actualities. In recognition of this duty, it necessarily follows that many decisions depend upon judicial notions of wise public policy when there are no decisions upon the point within the state, and other jurisdictions offer only an evenly balanced conflict in result. This was the exact situation confronting this Court when it passed upon the Griggs Canning Company case. The majority common law rule, at that time, was that the retailer was not liable, in the absence of negligence, for injuries sustained by the consumer as a result of deleterious foods in sealed container. 22 Am. Jur. 882, Sec. 99. The majority rule of the United States, due to the fact that the adoption of the Uniform Sales Act influenced the decisions in many states, was that the retailer was liable. Williston on Sales, 2d Ed. 242. Texas has not adopted the Sales Act. In the Griggs Canning Company case the Court was placed in the position of deciding which was the wiser course to follow. This dissent is upon the grounds that an erroneous choice was made.
The Griggs opinion cites a statement from Williston on Sales, stating that there is no reason for engrafting an exception to the liability of the retailer merely because the goods are packed in sealed containers. The following is to be found in Vol. 1, Williston on Sales, Rev. Ed., 622:
“It must be possible, however, to sell unmerchantable goods even if the seller is a dealer or manufacturer, and though the buyer either does not inspect the goods or his inspection in the nature of the case can reveal nothing because the defects are latent. The ordinary way to do this is for the seller expressly *388to state that the buyer must take the goods as they are. Amy word or conduct tending to show that this1 was the intention of the parties will prevent a warranty from being implied . . .”
This section indicates that no warranty can be implied where the purchaser, at the time he purchases the packaged goods, knows, or is charged with notice, that the retailer could not possibly have known the contents of the package.
Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 120 N. E. 225, 5 A.L.R. 242 is cited in the opinion in the Griggs Canning Company case as a leading case supporting the view that the retailer is liable. The decision is based upon Section 15 (1) of the Uniform Sales Act which requires a reliance by the purchaser. Is it possible to infer that the dealer warrants that the contents of the can are wholesome, or merely that so far as the dealer knows, the contents are pure? As stated in Bigelow v. Maine Cent. R. Co. 110 Me. 105, 85 Atl. 396, (which has not been overruled since the adoption of the Sales Act by that state), “The plaintiff knew, or should be charged with the knowledge that the defendant could have no possible information concerning the contents of that can which she did not have. We know of no rule of law which will imply a warranty of that of which it is impossible for a defendant to know by the exercise of any skill, knowledge or investigation, however great. In other words, neither law nor reason require impossibilities.”
Furthermore, the Ward case was based upon cases which were themselves not precedents, unless it be recognized that the true basis of the Ward case was that of public policy, and not technical warranty. Chapman v. Roggenkamp, 182 Ill. App. 117, followed by Sloan v. F. W. Woolworth Co., 193 Ill. App. 620, are both based upon public policy. Wiedman v. Keller, 171 Ill. 93, 49 N. E. 210 cited by the Chapman case, was based upon the grounds that the dealer had superior facilities for ascertaining the condition of the meat than did the buyer. Other cases relied upon by the Chapman case were suits against the manufacturer. Finally Jackson v. Watson, 2 K. B. 193, 16 Ann. Cas. 492, where the court did not indicate whether the dealer had sold packaged or open goods, relied upon Frost v. Aylesbury Dairy Co., 1 K. B. 608, where the same fact was not shown, and there was the showing that an express warranty had been made.
Ryan v. Progressive Grocery Stores, 255 N. Y. 388, 175 N. E. 105, 74 A. L. R. 339, another case relied upon in the *389Griggs case, is based upon Subdivision 2 of Section 15 of the Sales Act. This section imposes a warranty regardless of the intention of the parties. Although modem authorities do not look to the intention of the dealer when imposing a warranty, Williston on Sales, Rev. Ed., Sec. 201, supra, they refrain to do so merely because the term is misleading, the real problem being the right of the buyer to rely. Disregarding the intention of both parties leads us to one conclusion. At most, Section 15 (2) of the Sales Act (which has been adopted by a vast majority of our United States) is a legislative pronouncement of the public policy of the state, or a judicially constructed and interpreted public policy, regardless of the soundness of that policy.
The majority opinion says it is not a “radical step” to impose liability upon a retailer of packaged goods, even in the absence of statute, since the courts under the Sales Act have made a “judicial” presumption that the consumer relied upon the “superior knowledge” of the retailer, refusing to make a distinction between packaged and open goods. As stated in McCormick and Ray on Evidence, p. 48, Sec. 31, “The courts and writers agree that the assumption (presumption) is required or permitted because of one or more of the following reasons to justify it: (1) human experience with such situations. (It is shocking to suppose that human experience leads one to the conclusion that the consumer relies upon a “superior knowledge” that has no basis in fact.) (2) It achieves a result which is socially desirable. (This dissent attempts to point out that there is no social desirability in condemning an innocent party by manufacturing a warranty based upon a “superior knowledge” which can be shown does not exist to escape criminal liability in this state.) (3) It serves as a procedual convenience.” (This seems to be the true basis of the majority opinion, but it is not a just or sound foundation upon which to rest liability.)
The court in the Griggs case then implies that the rule holding the retailer liable under this set of facts was the same even before the Sales Act, citing Van Bracklin v. Fonda, 12 Johns, N. Y. 468, 7 Am. Dec. 339; Race v. Krum, 222 N. Y. 410, 118 N. E. 853, L. R. A. 1918F, 1172; Hoover v. Peters, 18 Mich. 51; Wiedman v. Keller, 171 Ill. 93, 49 N. E. 210. However, an examination will reveal that each of these cases involved either a situation where the retailer was the manufacturer, or the goods were exposed to the dealer’s surveillance. As was stated in Bigelow v. Main Cent. R. Co., supra: “The early rules of law were formulated upon the theory that the provision dealer and *390the victualer, having an opportunity to observe and inspect the appearance and quality of the food products they offered to the public, were accordingly charged with knowledge * * * No knowledge of the original or present contents of a perfect appearing can is possible in the practical use of canned products. They cannot be chemically analyzed every time they are used. Accordingly, the reason for the rule having ceased, a new rule should be applied to the sale and use of canned goods that will more nearly harmonize with what is rational and just.” (Emphasis added). See also Julian v. Laubenberger, 38 N. Y. Supp., 1052. Clearly those cases dealt with the general rule and not the exception, and are not authority that will buttress the reasoning of the Griggs case.
The majority opinion states that there is not a significant difference between a sound-looking canned or packaged good and a piece of meat that has a poisonous germ or drug hidden in its tissues. This is a very unrealistic approach to the problem. The whole concept of police power of the state to control the sale and handling of impure foods is limited by due process. The reasonableness of the regulation is supported and governed by the desirability and the capability of the regulation to protect public health. The courts uphold such regulations, recognizing that many times hardship cases will arise, because the regulations instill, promote, and require the handlers of food to exercise the superlative degree of care in handling those commodities for human consumption. While the regulation would justly apply in the case of unpackaged goods, the reason falls where the goods are packaged. This dissent would be the first to hold a retailer liable who did not use the highest degree of care in inspecting the packaged goods for apparent defects, but we refuse to demand that, after he has done this, liability be imposed disregarding the limitation of reasonableness — a limitation which the criminal courts of this state respect. Because of this, we vigorously disagree with the conclusion of the majority that these decisions, concerning unpackaged goods, are relevant in even the smallest degree.
The Griggs case then cites the discussion of Texas Penal Statutes (involving food) found in Walker v. Great Atlantic & Pacific Tea Co., 131 Texas 57, 112 SW 2d 170. The discussion concludes that those statutes demonstrate an intent on the part of the Legislature to hold the retailer liable on the grounds of public policy. However, those statutes were interpreted, prior to that decision, by the Court of Criminal Appeals in Vaughn *391v. State, 86 Texas Cr. Rep. 255, 219 SW 206, as requiring a wilfulness or knowledge on the part of the dealer before he is liable for prosecution.
The Court of Criminal Appeals’ cases cited in the majority-opinion clearly show that the public policy of this state is diametrically opposed to holding the retailer liable in the case at bar and in the Griggs case. These cases recognize that the defendant has a right to prove mistake of fact, and yet the majority is content to cite those cases in support of their conclusion that the public policy of this state is to impose liability (since scienter is not an element of an indictment), then disregards the limitation of reasonableness set out in those cases by casting aside the obvious defense of lack of knowledge.
Also, in connection with the Walker case, the majority opinion indicates that since the retailer did not have knowledge of the contents of the can, and since he was not negligent then the Walker case is some specie of authority for this case. As was stated in the Walker case, “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.” (Emphasis added). Can it be argued that the element of induced reliance was absent in that case? We have no quarrel with that holding.
Degouveia v. H. D. Lee Mercantile Co., 231 Mo. App. 447, 100 S.W. 2d 336, is based upon an application of public policy.
In Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930, cited by the majority, the court did not seem to reach a result consistent with its reasoning. The court in that case stated that to relieve the retailer and middleman of liability merely because goods are packed in cans would practically relegate the consumer to his action against the manufacturer, since it must be recognized that today nearly every kind of commodity is sealed in containers. This, in the absence of negligence or implied warranty, is exactly what this dissent is advocating. For what reason did industry progress to this point but to meet the demand of the consumer-public to have his foods shipped from distant places at a low price, free from spoilage and filth? The court continued:
“It is also well known that many articles of food are sold by brand or name as a result of extensive advertising in which purity, wholesomeness, price, etc., are stressed in varying de*392grees, and that insofar as manufacturers, packers, and jobbers are concerned, the purpose is to challenge attention to the brand or name and to create a demand therefor. Insofar as the local dealer is concerned, he stocks and sells these advertised goods because of that demand.”
This seems to say but one thing. The manufacturer, who is deemed liable under the decision of the Decker & Sons, Inc. v. Capps, 139 Texas 609, 164 S.W. 2d 828, 142 A.L.R. 1479, advertises and appeals to the consumer. The consumer puts faith in that advertising, creating a public demand for that food. The dealer heeds that public demand and stocks his shelves with what they seek. The court then reaches the conclusion that since the retailer does what is expected of him, he warrants the fitness or wholesomeness and is held liable. This appears to be unsound.
From a careful analysis of the cases involving the liability of the retailer, it is found that the only basis, if sound, for shifting the loss to the retailer is a “warranty” imposed by law on the grounds of public policy. It is elementary that the retailer is liable if he makes an express warranty. The implied warranty must have as its basis some reasonably inferred reliance, which I have attempted to show does not exist. Therefore, we are left with this one question: “Is there any reason for shifting the burden from the consumer to the retailer, merely because of his status ?” I think there is a vast difference between the situation of the manufacturer and that of the retailer or wholesaler. The case of Decker & Sons, Inc. v. Capps, supra, decided by this Court on the same day it rendered its opinion in the Griggs Canning Company case, supra, was one in which the defendant was the manufacturer. The question to be determined was whether a manufacturer, who processes and sells contaminated food to a retailer for resale for human consumption, should be liable to the consumer for the injuries sustained by him as a result of the eating of such food. The exact question had not been before this Court at that time. The Court stated “there is quite a contrariety of opinion on the subject in other jurisdictions.” In this connection, it appears that one of the reasons for the “contrariety” of opinion was the insistence on the part of several jurisdictions upon the requirement of privity in a suit upon the basis of warranty in food cases. In other words, some jurisdictions had held that the customer of a retailer could not recover even in food cases from the manufacturer or wholesaler unless he could prove negligence of the defendant. In the Decker case, *393supra, this Court definitely, and I think correctly so, laid aside the requirement of privity for suit by the customer against the manufacturer and reached the conclusion the manufacturer was liable. Liability was based on the broad principle of the public policy to protect human health and life. An implied warranty was imposed by operation of law as a matter of public policy, and liability was not based on negligence, nor on a breach of the usual implied contractual warranty.
In reaching this conclusion, the Court said:
“It is a well known fact that articles of food are manufactured and placed in the channels of commerce, with the intention that they shall pass from hand to hand until they are finally used by some remote consumer. It is usually impracticable, if not impossible, for the ultimate consumer to analyze the food and ascertain whether or not it is suitable for human consumption. Since it has been packed and placed on the market as a food for human consumption, and marked as such, the purchaser usually eats it or ca/uses it to be served to his family without the precaution -of having it analyzed by a technician to ascertain whether or not it is suitable for human consumption. In fact, in most instances the only satisfactory examination that could be made would be only at the time and place of the processing of the food.” (Emphasis added.)
The reasoning and ultimate conclusion reached is sound as applied to a manufacturer. It is clear that this rule of liability in respect to food prepared for human consumption is for the protection of the health of the people, and to insure a scrupulous care in the preparation of those articles of commerce so as to reduce to a minimum all danger to those using them.
In my opinion, the reason for the rule ceases completely and should not have been applied in the Griggs Canning Company case, supra, where the defendant was a dealer. In that case, the vendor was an innocent retailer. In the case now under consideration, the defendant is an equally innocent wholesaler. It sold to a retailer and the retailer in turn sold to the plaintiff a sealed package containing “apricot puff cookies.” Plaintiff alleged injuries sustained by virtue of eating one of the cookies which had contained therein a piece of wire. The wholesaler had not prepared the sealed package. It was entirely ignorant of the presence of the wire in the cookie contained in the sealed package. I think it must be assumed that the plaintiff necessarily knew that the wholesaler and retailer had no superior knowledge *394of the contents of the sealed package and that it was just as impossible and impractical for the wholesaler and retailer to analyze or inspect the sealed package as it was for the consumer to so ascertain whether or not it was suitable for human consumption. The law cannot be so unreasonable as to inject into a contract what neither party had, or could have had, in mind at the time the contract was made. It comports better with justice to hold that where a dealer sells to his customer an article in the original package in which it is put up by the manufacturer, and the customer knows as much about the article as the dealer or wholesaler, and buys it without any representation from the dealer or reliance upon his judgment, knowing that there has been no inspection of it by the dealer, there is no implied warranty, although the dealer knows that the customer buys it for food.
The situation of wholesaler-retailer and consumer is properly governed by the rules of negligence law. The retailer owes to the consumer the duty to supply goods packed by reliable manufacturers, and such as are without imperfections that may be discovered by an exercise of care, skill and experience of dealers in such products generally. This is the measure of the retailer’s-wholesaler’s duty. 11 R. C. L., Sec. 29, 1124; Bigelow v. Maine Cent. R. Co., 110 Me. 105, 85 Atl. 396, 398; 43 L. R. A. N. S. 627, 629; Walden v. Wheeler, 153 Ky. 181, 154 S.W. 1088; 44 L. R. A. N. S. 597; Scruggins v. Jones, 207 Ky. 636, 269 S.W. 743; Fleetwood v. Swift & Co., 27 Ga. App. 502, 108 S.W. 909; Pennington v. Cranberry Fuel Co., 117 W. Va. 680, 186 S. E. 610; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 145 So. 726; Julian v. Laubenberger, 16 Misc. Rep. 646, 38 N. Y. S. 1052.
The two Kentucky cases cited above were overruled by the Court of Appeals of Kentucky in the case of Martin v. Great Atlantic & Pacific Tea Co., 192 SW 2d 201, for the sole reason, as stated, they "were based upon the law as declared before the enactment in 1928 of our Uniform Sales Act. * * *” This strongly indicates that had it not been for the passage of the Uniform Sales Act, the Court would have adhered to its former decisions.
In the case of Foley v. Liggett & Myers Tobacco Co., Inc. et al, 241 N. Y. 233, 240, decided in 1930, the court, in discussing the case of Julian v. Laubenberger, supra, said:
“Prior to the Sales Act, it was held in Julian v. Laubenberger, 16 Misc. Rep. 646, 38 N. Y. S. 1052, that the seller was not *395liable for food sold in sealed cases when it was known to the buyer that the seller had not prepared it, had not inspected it, and was ignorant of the contents of the can. This, however, is no longer the law of this state.
“Previous to the Sales Act, there was liability upon the manufacturer but not upon the dealer. The Sales Act, however, has brought about the change, for the Act expressly refuses to distinguish between manufacturers, growers, and dealers * *
Twelve years after the holding in the Foley v. Liggett & Myers Tobacco Company case to the effect that the law announced in the Julian v. Laubenberger case was no longer the law because of the enactment of the Uniform Sales Act, the New York court in the case of Hopkins v. Amtorg Trading Corporation, 265 App. Div. 278, 38 N. Y. S. 2d 788, held that the law announced in the Julian v. Laubenberger case must control in the absence of statute. In other words, the cause of action arose in the State of New Jersey, but the suit was filed in New York. The plaintiff failed to plead the statute of New Jersey as the foundation of his cause of action. The New York court simply held that in the absence of pleading and proving the law of the State of New Jersey, and further in the absence of sufficient proof as to the common law of that state, the common law of New York must govern. The court reached the conclusion that the retailer was not liable in the absence of proof of common law negligence. See also Kirkland v. Great Atlantic & Pacific Tea Co., 233 Ala. 404, 171 So. 735.
As to hidden imperfections, such as a small wire in a cookie in a sealed package, the consumer must be deemed to have relied on the care of the manufacturer or the warranty which is held to be implied on the broad principle to protect human health and life.
The wholesaler and retailer, when considered in their true light, are merely socially and economically desirable and necessary conduits, and where they have committed no wrong and have measured up to the duty required of them should be protected by a public policy which will say to him “your very existence will not be jeopardized merely because it is more convenient for the consumer to reach you than the manufacturer,” or “that you are in a much better position to put pressure on the one with whom you have dealt.”
Under the Griggs case a reputable retail grocer in this state, *396although he has committed no wrong, but, on the other hand, has exercised every precaution in selecting manufacturers recognized by the consumer-public as being the best, could be wiped out of business by the sale of one can of peaches, or in this instance, one sealed package of apricot puff cookies. I am not willing to jeopardize the existence of this class of small business men. The law should be written in every case so as to protect the innocent. It would seem to me much more just and equitable to put the burden on the consumer suing the manufacturer who processed the food than it would be to have the class of small business men handling groceries in constant jeopardy of being run out of business. The innocent wholesaler or retailer should not be required to shoulder an unwarranted burden merely for the convenience of the consumer. The entire liability in the instant case should be placed on the manufacturer, where it justly belongs, for the manufacturer had the opportunity and means, and therefore the duty, to insure that no noxious or injurious substances shall get into the sealed package — an opportunity and means which the wholesaler-retailer did not have, and for which he cannot justly be charged.
It is the settled law of this state as established in the Decker & Sons, Inc. case, supra, that liability is imposed on the manufacturer under an implied warranty imposed by operation of law as a matter of public policy. Therefore, the consumer has been given the right to sue the party at fault. This is all he is rightfully entitled to.
The certified question should be answered in the negative.
Opinion delivered July 16, 1952.
Rehearing overruled October 1, 1952.