1. We do not regard the exceptions to the admission of evidence as meritorious, and refrain from detailed expression of opinion in that connection.
2. The more serious challenge which the defendant makes to the plaintiff's position in this appeal is to the submission of the first issue relating to the supposed warranty of the manufacturer and distributors in the sale of the product “Amox,” and the charge of the judge relative thereto, in which he finds such warranty might exist.
The printed matter on the can of Amox described it as “100% active insecticide,” and recommends its use in a hand sprayer, from which, of course, in the nature of things, it is expected to commingle freely with the atmosphere of the room in which it is used for at least an extensive space.
It is further stated that “Amox is made for the purpose of killing-insects, it is not poisonous to human beings, but is sure death to insects.” “Amox Liquid Spray is non-poisonous to human beings, but is not suited for internal use. Do not spray on food or plants.” “Note with all its insect killing power Amox may be used freely indoors.”
We are not disposed to entertain medico-legal technicalities on the definition of the word “poisonous” or the word “poison.” It has a popular as well as, perhaps, a technical significance. Not conceding that the technical significance would not cover a substance the contact of which would produce violent alterations in the cell structure, normal metabolism and healthy functioning of any portion or organ of the body, including the skin, we may easily understand that when the word appears as a label upon products intended for popular consumption and use, it has its popular significance. In Funk & Wagnall’s Dictionary “poison” ■is defined as “any substance that when taken into the system acts in a *546noxious manner by means not mechanical, tending to cause death or serious injury to health.” Century Dictionary: “Any substance which by reason of an inherent deleterious property tends to destroy life or impair health when taken into the system.” No one would deny that the toxic properties of poison ivy or poison sumac brought into the system by external contact with the skin, constitute poison in this popular sense, and we do not doubt in strict medical terminology.
Featuring prominently in this case are the doctrines of warranty and of negligence. As to the first, it is argued by appellant that this case is controlled by Thomason v. Ballard & Ballard Co., 208 N. C., 1, 179 S. E., 30. But the situation in this case is somewhat different from that in the Ballard case, supra, and the distinction in the facts involved is sufficient to mark a distinction also in principle. In that case the Court had nothing before it but the sale of a food product by the wholesale dealer to the retail dealer, with such implications as might arise from that transaction. The Court simply held that the purchaser from the retail dealer was neither party nor privy to the.contract between the vendor and vendee and, therefore, could not avail himself of any warranty that may have existed between them. This was by no means an intimation that the original manufacturer and distributor might not warrant his product to the ultimate consumer in such a way as to make a breach of that warranty actionable.
Here we have written assurances that were obviously intended by the manufacturer and distributor of Amox for the ultimate consumer, since they are intermingled with instructions as to the use of the product; and the defendant was so anxious that they should reach the eye of the consumer that it had them printed upon the package in which the product was distributed. The assurances that the product as used in a spray was harmless to human beings while deadly to insects was an attractive inducement to the purchaser for consumption, and such purchase in large quantities was advantageous to the manufacturer. We know of no reason why the original manufacturer and distributor should not, for his own benefit and that, of course, of the ultimate consumer, make such assurances, nor why they should not be relied upon in good faith, nor why they should not constitute a warranty on the part of the original seller and distributor running with the product into the hands of the consumer, for whom it was intended. Upon the evidence in this case, it must be so regarded.
3. After having proceeded upon the theory of negligence, the plaintiff was permitted to amend her pleading and pursue the warranty. We need not consider here whether the two theories are incompatible. No motion was made by the defendant that the plaintiff be required to elect between them. . Qucere whether the subsequent allegation of injury be- • *547cause of breach of warranty might not have had the effect of such election.
But the trial judge gave .an instruction in this connection which we cannot sustain. Following his instructions on the first and second issues, relating respectively to warranty and negligence, and addressing himself to the issue of damages, he said: “If you answer both the first and second issues 'Yes,’ then you will add to that sum of money which you may find under the rule just laid down such as you may find under the rule first stated.” Reading the instructions to which this observation refers, we think the jury might have inferred that they would be permitted to find separate damages as to each of these issues and add them together in answer to the issue as to damages.
The plaintiff is seeking recovery for one damage sustained as a consequence of her injury and is, of course, entitled to no more.
We think this instruction erroneous, and there must be a
New trial.