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District Court of Appeal, First District, Division 2, California.


Civ. 9277.

Decided: November 16, 1934

Glensor, Clewe, Schofield & Van Dine, of San Francisco, for appellants. Joseph E. Bien and Werner Olds, both of San Francisco, for respondent.

Appellants, in their petition for a rehearing, criticize the opinion herein because it did not discuss the provisions of section 1775 of the Civil Code as they existed at the time of the sale. This section which was adopted in 1872, read: “Warranty of Provisions for Domestic Use. 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.”

We take the view that the section did not apply to sales of foodstuffs in original cans or sealed packages from the manufacturer where the seller had no means of knowing the condition of the contents by the exercise of any skill, industry, or investigation. Our reasons for this view are that the Code section was but an adoption of the common-law rule existing in 1872 when such sales were unknown to the law and to the trade. When the Code section was enacted, the common-law warranty was based on the theory that “one who makes a business of selling provisions for domestic use” either prepared the provisions for sale or handled them in bulk in such a manner that he had “an opportunity to observe and inspect the appearance and quality of the food products” (11 R. C. L., page 1124) and he was accordingly charged with knowledge of their imperfections. But there was nothing in the common-law rule of the time which by any possible inference could have extended the rule to the retailer of these sealed packages where he had no means of inspection. And there is nothing in the Code section which will warrant an interpretation that the Legislature meant to extend its provisions beyond the common-law rule.

It is a cardinal rule of interpretation that “a statute in affirmance of a rule of common law will be construed, as to its consequences, in accordance with such law. * * * When words of definite signification therein are used in such provisions, and there is no intention manifest that they are to be taken in a different sense, they are to be deemed employed in their known and defined common-law meaning.” Lewis' Sutherland Statutory Construction (2d Ed.) vol. II, § 455. “Statutes are to be read in the light of attendant conditions and the state of the law existent at the time of their enactment. The words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted.” 25 R. C. L., p. 959. To the same effect is People v. Barnett, 319 Ill. 403, 150 N. E. 290, where it was held that a statute of 1874, providing for a jury list to be made from “the legal voters,” did not permit the inclusion of women as jurors after they had been given the right to vote by the constitutional amendment of 1920, but that the statute must be construed to refer to male electors as the word was used when the statute was enacted. State v. Boston & M. R. Co., 123 Me. 48, 121 A. 541, follows the rule in holding that a statute of 1881, relating to taxation of “railroads,” did not include street railroads as they were unknown to the Legislature when the statute was enacted.

Another rule of construction which is supported by an unbroken line of authority is that found in the expression of Mr. Justice Field in United States v. Kirby, 7 Wall. 482, 486, 19 L. Ed. 278: “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.” To the same effect are Lewis' Sutherland Stat. Constr. (2d Ed.) vol. II, §§ 488, 489; People v. Ventura Ref. Co., 204 Cal. 286, 291, 268 P. 347, 283 P. 60; Robbiano v. Bovet, 218 Cal. 589, 596, 24 P.(2d) 466.

If we could assume that the Legislature of 1872 intended to include in the act the retailer of sealed packages who sells direct from the manufacturer without possibility of inspection as is the custom of modern trade, then we would have to hold that the Code section is, to that extent, unreasonable and void, because the construction which the appellants would have placed on the section would be so unjust and oppressive that no reliable and responsible seller could deal in such goods. The consequent result of such construction would be a detriment and hardship to the public in general with no corresponding benefit. When a statute “is fairly susceptible of two constructions, one leading inevitably to mischief or absurdity, and the other consistent with justice, sound sense, and wise policy, the former should be rejected, and the latter adopted.” In re Mitchell, 120 Cal. 384, 386, 52 P. 799, 800.

The petition for a rehearing is denied.

NOURSE, Presiding Justice.

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