Scottish Court of Session Decisions

This was an action at the instance of Adam Gordon, joiner, 22 Nelson Street, Dundee, against Edward M'Hardy, grocer and spirit merchant, 70 Ann Street, Dundee, in which the pursuer sought to recover damages for the death of his son, who, he alleged, had been poisoned through the fault of the defender.

The pursuer averred that on 17th February 1903 his wife purchased from the defender a one pound tin of salmon for 8 1 2d., and that on the same day, after eating a portion of the salmon, his son Adam Gordon junior, was taken ill, and after a week's illness died of ptomaine poisoning. “(Cond 5) … The ptomaine poisoning was the result of deceased having partaken of the said tinned salmon. (Cond. 6) The tinned salmon supplied by defender to pursuer's household was in such a bad condition that it was unfit for human food. The tin containing same had no label on it, and it was dented in as if it had been knocked about, or as if some heavy article

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had rested or fallen thereon… . (Cond. 7) The defender is responsible for the death of the said deceased, in so far as he failed in his duty to the public, and to the pursuer and his household in particular, in having in his possession and in selling the said tinned salmon, which was not, as before stated, in a fit condition for consumption. It was the duty of the defender to examine all tins containing foods which he was selling to the public in order to satisfy himself that these were air-tight and in order. He should have taken reasonable and proper precautions to prevent such an occurrence as that before condescended on. He did not make any such examination of the foresaid tin, nor did he take any such precautions, and in these respects he failed in his duty, and caused the death of the said Adam Gordon junior.”

The defender pleaded—“(1) The action is irrelevant.”

On 3rd July 1903 the Sheriff-Substitute ( Campbell Smith) allowed a proof.

The pursuer appealed for jury trial.

Argued for the respondent—The action was irrelevant; it was not averred that the defender knew that the salmon was unwholesome, or that the tin was not airtight. No action lay against the defender— Cramb v. Caledonian Railway Co., July 19, 1892, 19 R. 1054, 29 S.L.R. 869; Emmerton v. Matthews (1862), 31 L.J. Exch. 139; Smith v. Baker, Son, & Death (1878), 40 L.T. (N.S.) 261.

Argued for the appellant—The case should be sent to a jury. A tin in the condition of that supplied ought not to have been accepted by the defender from the manufacturers, and if damaged after delivery to the defender ought not to have been sold by him. There being no name on the tin, the defender should be held to be in the position of the manufacturer, and therefore liable as for negligence in preparing the article sold— George v. Skivington (1869), L.R., 5 Exch. 1.