From the National Archives
The Snail in the Bottle
CS252/2299
This month's document comes from the Court of Session
records held by the National Archives of Scotland. It
records details of a ground-breaking case in which a woman,
May Donoghue, claimed to have been made ill by a bottle of
ginger beer she had bought in a café in Paisley.
Mrs Donoghue sued, not the proprietor of the café, but
the manufacturer of the drink. She argued that the
manufacturer had been negligent in not noticing that the
bottle contained a snail before filling it with ginger beer
and sealing it.
Donoghue v Stevenson was ground-breaking in Scots law as
previously the customer would have been expected to sue the
shopkeeper rather than the manufacturer with whom she had
no 'contract'.
However, in this instance the drink's manufacturer was
found liable for damages, as they had neglected to provide
a system to protect the public in such a way that 'snails
would not get into the said bottle, render the said
ginger-beer dangerous and harmful, and be sold with said
ginger-beer'.
CS252/2299 is a document of the case at the Court of
Session, the supreme civil court in Scotland. It includes
the judge's legal summing up, details of the fine and
payment method imposed on the manufacturer and the
recording of the facts of the case as alleged by
Donoghue.
The part of the record reproduced here is headed 'Closed
Record'. This is a legal term meaning that all the
submissions from the disputing parties have been
received.
After a 'record' has been closed it may, in certain
circumstances be opened up and amended by authority of a
judge. This appears to have happened in this case as an
amendment is noted. No judgement can be pronounced on the
merits of a case until the 'record' is closed.
Transcript
SECOND DIVISION
[
Lord Moncrieff, Ordinary
November 1929
CLOSED RECORD
(As Amended)
IN CAUSA
MRS MAY MCALISTER OR DONOGHUE
AGAINST
DAVID STEVENSON
W.G. LEECHMAN & CO., Solicitors, Agents
for
Pursuer
MACPHERSON & MACKAY, W.S. (for Niven Macuiven
& Co.,
Solicitors, Glasgow), Agents for Defender
Mr Morn, Clerk
18
th July 1929. - LORD MONCRIEFF. -
Act. Gibson -
Alt. Clyde -
Alt. Cameron - The Lord Ordinary closes the
Record on the Simmons (as amended) and Defences. Nos.
1, 5 and 8 of process: And on the motion of Counsel,
appoints the cause to be Procedure Roll.
ALEX. MONCRIEFF
27
th November 1929 - LORD MONCRIEFF. - Act.
Gibson - Alt. Clyde - The Lord Ordinary having
considered the cause, Opens up the Record; allows the
same to be amended in terms of the pursuer's Minute of
Amendment, No. 10 of process; and the amendments having
been made, of new Closes the Record: Finds the pursuer
liable to the first defender in his expenses attendant
on the adjustment of the Record; allows an Account to
be lodged, and remits the same to the Auditor to tax,
and report: Appoints the pursuer to re-print the
Record.
ALEX MONCRIEFF.
CLOSED RECORD
(AS AMENDED)
IN THE ACTION AT
THE INSTANCE OF
MRS MAY MCALISTERORDONOGHUE residing care of McAlister, 49 Kent Street,
off London Road, Glasgow, -
Pursuer;
AGAINST
DAVID STEVENSON, Aerated-Water Manufacturer,
8 Glen Lane,Paisley, -
Defender.
CHAPMAN, WATSON & CO, LAW PRINTERS,
21 Hanover Street, Edinburgh
INDEX
Page
1. Summons …
…
…
…
…
…
…
…
2
2. Condescendence for Pursuer and Answers thereto for
Defender …
4
3. Pleas in Law for Pursuer …
…
…
…
…
…
7
4. Pleas in Law for Defender …
…
…
…
…
…
8
5. Interlocutors …
…
…
…
…
…
…
…
9
CLOSED RECORD
(
AS AMENDED)
Summons
called April 25,
1929
1. - SUMMONS
GEORGETHEFIFTH, &C. - WHEREAS it is humbly meant and shewn
to us by our lovite, Mrs MAY MCALISTER or DONOGHUE,
residing care of McAlister, 49 Kent Street, off London
Road, Glasgow. -
Pursuer; against DAVID STEVENSON, Aerated-water
Manufacturer, 8 Glen Lane, Paisley, -
Defender; in terms of the Condescendence and Note
of Pleas in Law hereunto annexed; Therefore the defender
Ought and Should be Decerned and Ordained, by decree of the
Lords of our Council and Session, to make payment to the
pursuer of the sum of £500 sterling, with interest thereon
at the rate of £5 per centum per annum from the date of the
decree to follow hereon; together with the sum of £50
sterling, or such other sum as our said Lords shall modify,
as the expenses of the process to follow hereon, conform to
the laws and daily practice of Scotland, used and observed
in the like cases as is alleged. - OUR WILL IS HEREFORE,
&c.
Summons signeted atEdinburgh, 9
th April 1929.
L.M. MACKENZIE, W.S.
HERBERT MACPHERSON,
Solicitor
2 - CONDESCENDENCE
for PURSUER
AND
ANSWERS
thereto for DEFENDER
COND. I. The pursuer is employed as a shop assistant,
and resides at 49 Kent Street, off London Road,
Glasgow. The defender is an aerated-water
manufacturer, and carries on business at Glen Lane,
Paisley
Ans. 1. The description of the defender is
admitted.
Quoad ultranot known and not admitted.
COND. II. At or about 8.50 p.m. on or about 26
th August 1928 the pursuer was in the shop
occupied by Francis Minchella, and known as Wellmeadow
Cafe, at Wellmeadow Place, Paisley, with a friend.
The said friend ordered for the pursuer ice-cream, and
ginger-beer suitable to be used with the ice-cream as an
iced drink.
Her friend acting as aforesaid, was supplied
by the said Mr Minchella with a bottle of ginger-beer
manufactured by the defender for sale to members of the
public.
The said bottle was made of dark opaque
glass, and the pursuer and her friend had no reason to
suspect that the said bottle contained anything else than
aerated-water.
The said Mr Minchella poured some of the
said ginger-beer from the bottle into a tumbler containing
the ice-cream.
The pursuer then drank some of the contents
of the tumbler.
Her friend then lifted the said ginger beer
bottle and was pouring out the remainder of the contents
into the said tumbler when a snail, which had been, unknown
to the pursuer, her friend, or the said Mr Minchella, in
the bottle, and was in a state of decomposition, floated
out of the said bottle.
In consequence of the nauseating sight of
the snail in said circumstances and of the noxious
condition of the said snail-tainted ginger-beer consumed by
her, the pursuer sustained the shock and illness
hereinafter condescended on.
The said Mr Minchella also sold to the
pursuer's friend a pear and ice.
The averments in answer, so far as not
coinciding herewith, are denied.
Ans. 2. Denied that any bottle of ginger-beer
manufactured by the defender contained a snail.
Quoad Ultra not known and not admitted.
Any illness which the pursuer suffered was not due to her
having partaken of the contents of a bottle of ginger-beer
manufactured and sent out from the defender's factory.
COND. III. The shock and illness suffered by the
pursuer were due to the fault of the defender. The
said ginger-beer was manufactured by the defender and his
servants to be sold as an article of drink to members of
the public (including the pursuer).
It was, accordingly, the duty of the
defender to exercise the greatest care in order that snails
would not get into the said bottle, render the said
ginger-beer dangerous and harmful, and be sold with the
said ginger-beer.
Further, it was the duty of the defender to
provide a system of working his business that was safe and
would not allow snails to get into his ginger-beer bottles
(including the said bottle).
Such a system is usual and customary, and is
necessary in the manufacture of a drink like ginger-beer to
be used for human consumption.
In these duties the defender culpably
failed, and pursuer's illness and shock were the direct
result of his said failure in duty.
The pursuer believes and avers that the
defender's system of working his business was defective, in
respect that his ginger-beer bottles were washed and
allowed to stand in places to which it was obvious that
snails had freedom of access from outside the defender's
premises, and in which, indeed, snails and the slimy trails
of snails were frequently found.
Further, it was the duty of the defender to
provide an efficient system of inspection of said bottles
before the ginger-beer was filled into them, and before
they were sealed.
In this duty also the defender culpably
failed, and so caused the said accident.
The defender well knew, or ought to have
known, of the frequent presence of snails in those parts of
his premises where the ginger-beer bottles were washed and
dried, and further, ought to have known of the danger of
small animals (including snails) getting into his
ginger-beer bottles.
The pursuer believes and avers that the said
snail, in going into the said bottle, left on its path a
slimy trial, which should have been obvious to anyone
inspecting the aid bottle before the ginger-beer was put
into it.
In any event the said trail of the snail
should easily have been discovered on the bottle before the
bottle was sealed, and a proper (or indeed any) inspection
would have revealed the presence of the said trail and the
said snail, and the said bottle of ginger-beer with the
snail in it would not have been placed for sale in the said
shop.
Further, the defender well knew, or in any
event ought to have known, that small animals like mice or
snails left in aerated-water (including ginger-beer), and
decomposing there, render aerated-water exceedingly
dangerous and harmful to persons drinking the contaminated
aerated-water. Accordingly, it was his obvious duty to
provide clear ginger-beer bottles, so as to facilitate the
said system of inspection.
In this duty also the defender culpably
failed, and the said accident was the direct result of his
said failure in duty.
If the defender and his said servants had
carried out their said duties the pursuer would not have
suffered the said shock and illness.
The averments in answer are denied.
Ans. 3. Denied. Explained that the system
employed at the defender's factory is the best known in the
trade, and no bottle of ginger-beer has ever passed out
there-from containing a snail.
The defender exercised every care in the
carrying out of that system, and every stage of the
processes are and have been properly executed by the
defender's servants.
COND. IV. The pursuer suffered severe shock and a
prolonged illness in consequence of the said fault of the
defender and his servants. She suffered from
sickness and nausea which persisted.
Her condition became worse and on 29
th August 1828 she had to consult a doctor.
She was the suffering from gastroenteritis
induced by the said snail-infected ginger-beer.
Even while under medical attention she still
became worse, and on 16
th September 1928 had to receive emergency
treatment at the Glasgow Royal Infirmary.
She vomited repeatedly, and suffered from
acute pain in the stomach, and from mental depression.
She was rendered unfit for her employment.
She has lost wages and incurred expense as
the result of her said illness.
The sum sued for is a reasonable estimate of
the loss, injury and damage she has sustained as
condescended on.
The averments in answer are denied.
Prior to the incident condescended on, the
pursuer suffered from no stomach trouble.
Ans. 4. Not known and not admitted.
Explained that the alleged injuries are
grossly exaggerated.
Explained further that any illness suffered
by the pursuer on and after 26
th August 1928 was due to the bad condition of
her own health at the time.
COND. V. The defender has been called on, but has
refused, to make reparation to the pursuer for the loss,
injury and damage she has sustained as condescended
on. The present action has, accordingly, been
rendered necessary.
ns.5. Admitted that the defender has been called on, but
has refused to make reparation to the pursuer.Quoad ultra denied.
3. - PLEAS
IN LAW for PURSUER
1. The pursuer having sustained loss, injury and
damage through the fault of the defender, is entitled to
reparation therefore from the defender.
2. The sum sued for being reasonable, decree
should be pronounced as concluded for.
In respect
whereof,
HERBERT MACPHERSON,
Solicitor.
22 Rutland Square, Edinburgh.
4. - PLEAS
IN LAW for DEFENDER.
1. The pursuer's averments being irrelevant and
insufficient to support the conclusion of the Summons,
the action should be dismissed.
2. The pursuer's averments, so far as material,
being unfounded in fact, the defender should be
assoilzied.
3. The pursuer not having suffered any injury
through the fault of the defender, he should be
assoilzied.
4. In any event the sum surd for is
excessive.
In respect
whereof.
J.L.CLYDE.
5. - INTERLOCUTORS
21
ST May 1929- LORD MONCRIEFF. -
Act. Gibson -
Alt. Clyde. - The Lord Ordinary continues the
adjustment of the Record till Wednesday 5
th June 1929. ALEX MONCRIEFF.
5
TH June 1929- LORD MONCRIEFF. -
Act. Gibson. -
Alt. - The Lord Ordinary allows the Record to be
amended in terms of Minute for pursuer, No. 7 of process:
Appoints the Record, as amended, to be served along with a
notice in the form contained in Appendix, C.A.S., B, 1.5,
upon Francis Minchella, Wellmeadows Café, Wellmeadow Place,
Paisley; and allows him to lodge Defences, if so advised,
within ten days after such service: Continues the
adjustment of Record till Tuesday 25
th June curt.
ALEX MONCRIEFF.
25
TH June 1929- LORD MONCRIEFF. -
Act. Gibson
- Alt. Clyde - The Lord Ordinary continues the
adjustment of the Record till Tuesday the 9
th day of July 1929.
ALEX MONCRIEFF.
9
TH July 1929- LORD MONCRIEFF -
Act. Gibson -
Alt. Clyde, Cameron - The Lord Ordinary further
continues the adjustment of Record till Tuesday 16
th inst.
ALEX MONCRIEFF
16
TH July 1929- LORD MONCRIEFF -
Act. Gibson -
Alt. Clyde -
Alt. Cameron - The Lord Ordinary closes the Record
on the Summons (as amended) and Defences, Nos 1, 5 and 8 of
process: And, on the motion of Counsel, appoints the cause
to be put to the Procedures Roll.
ALEX MONCRIEFF
19
TH November 1929. - LORD MONCRIEFF -
Act. Gibson -
Alt. Clyde -
Alt. Cameron - The Lord Ordinary allows the
Minute of Amendment, No. 10 of process, to be received
and seen, and in respect the pursuer has, by said
Minute, abandoned the action against Francis Minchella,
the defender second called, appoints the second
defender to give in an Account of Expenses; and remits
the same, when lodged, to the Auditor to tax and
report.
ALEX MONCRIEFF
20
th November 1929. - LORD MONCRIEFF -
Act. Morton, K.C. -
Alt. Normand, K.C. etClyde- The Lord Ordinary having heard Counsel on the
question of the proposed amendment, Makes
avizandum.
ALEX MONCRIEFF
27
TH November 1929. -LORD MONCRIEFF -
Act. Gibson -
Alt. Clyde - The Lord Ordinary having considered
the cause, Opens up the Record; allows the same to be
amended in terms of the pursuer's Minute of Amendment, No.
10 of process; and the amendments having been made, of new
Closes the Record: Finds the pursuer liable to the first
defender in his expenses since the Interlocutor dated 5
th June 1929, excluding
in hoc statu the expenses attendant on the
adjustment of the Record; allows an Account to be lodged,
and remits the same to the Auditor to tax, and report:
Appoints the pursuer to re-print the Record.
ALEX MONCRIEFF
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