Mullen v Barr & Company M'Gowan v Barr & Company
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1929 |
| Date | 20 March 1929 |
| Docket Number | No. 61. |
| Court | Court of Session |
Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
Negligence—Whether duty owed to person injured—Duty of manufacturer of article to ultimate consumer—Bottle of ginger beer bought from retailer—Bottle containing dead mouse—Purchaser poisoned by drinking contents—Liability of manufacturer to consumer.
Evidence—Burden of proof—Resipsa loquitur—Negligence—Presumption of negligence—Bottle of ginger beer containing dead mouse sent out from factory—Purchaser poisoned—No defect in system of manufacture or inspection—No proof of negligence of employees in working the system.
An action of damages was brought against a firm of ginger beer manufacturers on behalf of two children who had been injured through drinking a bottle of ginger beer, manufactured by the defenders, which contained the decayed body of a mouse. The bottle was bought from a retailer, but the mouse, unknown to the manufacturers, was in the bottle when it left their factory. It was possible for mice to enter empty bottles at a factory, but the manufacturers' system of cleansing and inspecting the bottles before filling was the best system known in the trade. There was no affirmative proof of carelessness by any of the manufacturers' servants in carrying out the system.
Held (diss. Lord Hunter) that the defenders fell to be assoilzied; per Lord Ormidale and Lord Anderson (the Lord Justice-Clerk reserving his opinion) on the ground that, as the defenders neither knew that the contents of the bottle were dangerous, nor were dealers in articles per se dangerous, they owed no duty to the consumers, who had not contracted with them; and per the Lord Justice-Clerk, Lord Ormidale, and Lord Anderson, on the ground that, in any event, no negligence on the part of the defenders or their servants had been proved, and that negligence could not be inferred from the mere presence of the mouse in the bottle.
On 21st April 1927 Francis Mullen, ironworker, Coatbridge, as tutor and administrator-in-law for his pupil children, John and Francis Mullen, brought an action in the Sheriff Court at Glasgow against A. G. Barr & Company, Limited, 482 Great Eastern Road, Glasgow, for damages on account of injury sustained by the children through drinking brewed ginger beer, manufactured by the defenders, which contained the body of a mouse.
The pursuer averred that his wife had bought from a retailer a bottle of brewed ginger manufactured by the defenders, that she had given some of it to the two children, that after they had drunk some of it it was observed that there was in the bottle the body of a dead mouse, and that the children became ill. He also averred that the bottle was made of very dark glass, and that the contents could only be seen if it was held up to a strong light. The averment of fault was as follows:—(Cond. 5) ‘The condition of the pursuer's children was caused through the fault and negligence of the defenders, in respect that there is an implied warranty that any bottle of aerated or mineral water supplied from their premises should be free from foreign matter and not injurious to health, and in bottling the dead mouse with the liquid contents of the bottle the defenders were at fault. It was the defenders' duty to ensure that their system of bottling and examination would have prevented any bottle sold by them containing foreign matter such as is averred, and, in respect of their faulty bottling and inspection, defenders were negligent. …’
The defenders pleaded, by their second plea in law, that the action was irrelevant.
The Sheriff-substitute (Macdiarmid) repelled the second plea in law for the defenders, and allowed a proof.
The defenders appealed to the Sheriff (A. O. M. Mackenzie), who recalled the interlocutor of the Sheriff-substitute, and dismissed the action.*
On 13th May 1927 Mrs Jeanie Oribine or M'Gowan, Huntly Terrace, Port-Glasgow, brought an action in the Sheriff Court at Greenock against Barr & Company, aerated water manufacturers, 12 Robertson Street, Greenock, concluding for damages on account of injuries she alleged that she had sustained through drinking brewed ginger beer manufactured by the defenders and containing the body of a mouse.
The pursuer averred that her son had bought for her a bottle of the defenders' ginger beer, that the bottle was made of dark coloured glass, that she drank some of the contents, that the body of a mouse was thereafter discovered in the bottle, and that she suffered severely in health. The averment of fault was as follows:—(Cond. 4) ‘The condition of the pursuer was due to the fault and negligence of the defenders, or their servants for whom they are responsible, in respect that they failed to take sufficient precaution to keep the said bottle free from foreign matter or other injurious and noxious contents, and in particular they failed to observe that the said bottle contained, together with the contents thereof, the body of a dead mouse or other vermin, thereby endangering the health of the pursuer. It was the duty of the defenders or their servants to examine the said bottle and to satisfy themselves that the contents thereof were fit for consumption by members of the public, and particularly the pursuer, and that they were not injurious to the health of such member or members partaking of the contents. The contents of the said bottle were contaminated and rendered unfit for drinking purposes by reason of the presence of the body of the dead mouse which was decomposed. The contents also contained a poison of an irritant nature which was responsible for the pursuer's condition. Moreover, the defenders guaranteed, by representation on their label, to members of the public, including the pursuer, that the bottle labelled “Barr's Perfect Stone Ginger Beer” contained nothing but the finest ingredients, and, accordingly, the failure of the defenders or their servants, for whom they are responsible, to examine the said bottle and to see that it was free from noxious contents before it was dispatched from their works for sale and consumption was the direct cause of the accident. The dark colour of the glass prevents or tends to prevent the immediate observance of any foreign matter in the said bottle. The defenders have failed to exercise the proper care and attention necessary in their trade, and in particular failed to observe that the said bottle was free from any noxious or other contents unsuitable to the purpose for which the beverage was sold.’
The defenders' pleaded, by their second plea in law, that the action was irrelevant.
The Sheriff-substitute (Hendry) repelled the second plea in law for the defenders, and allowed a proof.
The defenders appealed to the Sheriff (Irvine), who recalled the interlocutor of the Sheriff-substitute, and allowed a proof before answer.
The pursuer in Mullen's case and the defenders in M'Gowan's case appealed to the Court of Session, and the appeals were heard together on 16th and 17th May 1928.
On 28th May 1928 the Court allowed a proof before answer in each case. The proofs were ordered to proceed before Lord Hunter, and were taken together.
The following narrative of the facts established in Mullen's case is taken from the opinion of the Lord Justice-Clerk:—‘The material facts in this case are not, as I see them, in doubt. They are as follow:—The pursuer's wife purchased from a retailer a dark glass bottle of brewed ginger beer. The bottle was the property of the defenders, and its contents were bottled by them. The bottle when bought by the pursuer's wife was sealed with the defenders' paper seal. It had in point of fact been delivered by the defenders' lorryman to the retailer on the morning of the day on which it was supplied by him to the pursuer's wife. The pursuer's children drank some of the contents of the bottle. It was then discovered that in the bottle was the body of a dead mouse. The pursuer's children, after drinking from the bottle, suffered temporary illness, without a doubt caused by the contaminated contents of the bottle. These are the material facts—few in number—which the evidence, in my judgment, establishes.’ In M'Gowan's case the proof established the pursuer's averments of fact summarised above.
A. G. Barr & Co. and Barr & Co. had separate factories, but the organisation and system of the two were similar, and the management was in effect in the same hands.
Evidence was led for the pursuers in both cases to the effect that, before the filling process began, the bottles lay in a shed in such a position that mice might get into them, and a witness, with considerable experience of bottling whisky, spoke to the necessity of inspection for the purpose of detecting mice, and to one incident when a mouse had been found in a bottle just before it was sent away from the factory at which he was employed. The same witness also described a system of inspection by means of a special lamp used in the case of dark coloured bottles. The defenders did not use such a lamp. The evidence for the defenders, which was unchallenged, was that their system of cleansing and inspection was the best known in the trade, that their annual output was between one and a half and two million bottles, and that for at least thirty-five years (the longest experience of any of the witnesses in the employment of the defenders) no case was known of a mouse being found in a bottle.
The cases were heard before the Second Division on 5th, 6th, and 7th March 1929.
Argued for the pursuers;—(1) The pursuers admitted that there was no relation of contract between them and the defenders, so the pursuers could not rely on warranty. Their case was based on a duty owed by the defenders to them, and failure in that duty. Out of the contracts between two parties a general duty might arise towards third parties.1 In the case of a manufactured article supplied to a retailer the manufacturer...
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