DISTRICT COURT.

Nelson Evening Mail, Volume XXXVII, Issue 92, 4 May 1903, Page 2

DISTRICT COURT.

(Before Mr District Judge Ebinson.) A EOLLED OATS CA.SE. CLAIM AGAINST A GEOCEB. At the sitting of the District Court this morning William Barrie Thorn, Charlotte Thorn,, and two children named Hazel Thorn, and Walter Henry Thon^ sued Lewis Treacher Bowden, grocer, for .£225 damages for suffering and loss sustained through partaking of rolled oats sold to the plaintiffs by the defndant. Mr Maginnity appeared for the plaintiffs and Mr Pitt for the defendant. Mr Maginnity, in ' opening the case, said that he did not intend to go into the legal argument at present, but would have the facts of the case taken first. In the first place there was no attempt to . prove neglgence on the part of the dei fendant, but simply to proved that the oats had contained deleterious niatter. If Mr Bowden lost his case he though t he (Bowden) had a claim on someone else. James Scott Maclaurin, analyst to the Department of Publio Health (evidence taken at Wellington) said he examined two samples of the rolled oats separately ahd found that they contained arsenic in .lie following percentage., calculated as arsenic adic : — No. . 1 sample ; ' aiHeiliG acid 0.023 per cent j _Tb.j.2 v sample, : . arsenic acid 0.02T per cent. These results were equivalent to 1.61 grains and 1.89 grains respectively of arsenic axridper ' pound of rolled oatsV He tho*aghtthe percentage of arsenic acid mentioned would he injurious and dangerous to persons eating food prepared from the rolled oats.. He subsequently received in Septemherj 1902, tin aamples of flaked oats forwardedtb the Inpector of Weights and Measures at Nelson. He analysed them, but found no arsenic in any of them. On September 9th he also received from the Healt Department a sample of rolled oats apparently forwarded by Dr Gibbs. lie analysed it and found no trace of arsenic in it. .On the 31st March, 1903, he received "from the Health Department another sample < of rolled oats contained in a. sealed parcel marked " Sample rolled oats supposed to contain arsenic— S. A. Gibbs." He opened. ' the packet. It was very careful^a^ . : securely sealed, a_idr__^ evidenthrinof; been opened before. He analysed •-•s_» ""'.'■ sample, and found tjuit it containea P--0038 per cent of arsenic acid— ©qtdvalent X to 2-66 grains of arsenio add per pound 'vof rolled oats. This percentage was ___u_ious, ahd dangerous to any one partaking of food prepared from the. rolled o_,tfc The " British Pharmacopoeia" said that a standard dose of arsenicous acid is 1-^Othto l-15th of a grain-i-l-lSth iathe maximum. This was f or an adult!: v: The " German Pha_xuacopoeia " . piiits - th© masdmum, dose at l-13_h .of ' a grain for an adult, and the Ana^wiryirj 'Hi»ly do«*e 2-7ths of a grain. The^smallest dose which has proved fatal when taken at. one time £ so far as he could ascertain was 2_ grains; ■" j? Charlotte > Bessie 33iQn^ wife T|Tnu .'. f: Barrie Thorn* deposed that the sealed'tm :It of oats produced had been in her cub- - tody since Dr Gibbs had s^edifc:; jfc V:= 'M; : was in the same condition aaKe; left it^:;;s The tin.' contained part of. a olbb^oite^^ ''X* ibrand of iroll^;^)ats.^^^p^ were procured. from v Mr Bowden^ jjfclp • v " I iaTrkl algar-street. The:'h^-; : wa_:i^yi;.:. into the tin on the > same clay .the oats were delivered; ,.' The tin" waa '-pwn^ny : ; fcept for^rolled oa^^ ' irt M* house. . tjehe _f .; the family had Suffered through eatihjg data prior TO^fcbe A useof this bag;; __rst used the oats on, the MondayKmonring after they came— , ■ July 7th.^ All l pa-look of the _K>rridg«, -

thi%e Mojlday the <&ndren,a_d^herself , _S^r:Wfe^a»«*i^':a^^:^^ werS ÜBe£^>next;mo^^ ■■ '-.-'■ ■:■:■ insult _hkfFi^ i Mtirie Worrall, -frho was stayiiigwitli her_lwaa^^>^ ,'.-'■ •: <>thfe -follOwea-C v • epi9|__iio .gorngroniid, and did not attar > ,7 buis the^ aiolrri^itoMeoatg. i iPajtoot of : ;; ; ii_ii<^m^e-;w.^ da^aiutallwere sick. Mr Thorn, wentto r - hfe*^ / painl and,^^waV mucH swollen- Qn^^ __ila.y:__^^ lusbed. Haa •'<--T small qni__i%^theii^ea^and^,^tt^ Agirl^^l^bella B^ w^ Wtey-, ■•■.•■•": > lagiwith witness.' Tbe jf£^ te ™f - was alj the .-■: t__F ; The^girl Bate -b^£>^^_„ ld > andlad togo to b& On the Saturday v i__d!g_nday no^^^ Monday. All • iooil'it e^_*klfe;Tl^3ai who was Btifl : _n b^ that day,, m- > : <_i(^^Bßa_Jate; ;ThV' bats were iised oi ira Miss Bate was iv inMb*_^^ '<& #___.esday iaU^ Had the oati except Mw#tate:- and her K™ e ■*>? '- : .hadlfrie downi^fid were ; *^ J^/K 1 Xmm^ we_±^Bae_^ to work opt that day. _Md|iK>t fiave any more oatejmtil the Satafflay. Miss Bate went to Dr Andrew '■:■■{ ii^m^eardajne, and. lie ordered Miss •Ba^lSck^b--. »» B^M** 0 ' __o#M^^^- -The little boy was ifffl inbed iIL l ' Had tbe bats on the .'< Satri_aay,'a_t^an were ill* iriolnding Mr ThoM aiut ?tiss -Say, -who sfeyedwrth mt_*|s. ■ TEe little; boy was too ill to Xbi^e^he oats: Mr Thorn sent for Dr GibhfEJ It . beerirr-d to witness that £__kh«B. 2_l3^3^ytl*«iigLg.ill it^fan-stliave . JS^»tised $jrridge. The first ■■':-~.\lS^mßi^^^^«^ she *as ill. _J_ (Sbbs t(i# Bonia- of the oats away with^^fc3tia9hfe atfter- theyywere delivered laW&essiV Witness amd the e_dld^' wMim-er'DrGa or sixweeks. - _)r <&]l)b>ea]iedag_i-i on the 21st; and !tooi ! iway the second lot. Again mbseqnehtly; Dr Gibbs got anbtherlotbf the oats.' /The tm produced in Court containing the rolled oats was in the aame condition as : when Dr Gibbs lettitf Had great anxiety over the boy. •. Bid no ! doubt that the sickness was caused by the rolled 'oats. To Mr Pitt :': The tip <»ntainin£ the oats was kept in the pantry adjoininj •the Mtchen. H54 the tinfbr.threi years.- The pantry r «_id Mi^en were no looked- " I iiyed;. in Cambria-street . in j house near the road. ' To Mr _&gimiity: The pantry anc kitehenv were locked at night. Hac bought rolled oats from Mr Bowden be; fore. Had dealt with. Mr Bowden from the beginning of, last year, a_td all. groceries wetrejproer_fed!;from Mr Bowden. William Barrie Thorn, sworn, corroboaatedthe eyidenos^of : his wife. He attributed the sitinessto 'the use of -the rolled oats. Never had any poison of any kind about the house. - Mrs Thorn received a letfcOTfrpm"^ dated July 24, 1832; pressing Sympathy the family over the illness, and trusting that they would soon be weU again. Had hopes of settling the matter out of Courfej hence the" delay in the proceedings. Witness' wife was ill, and she eventually had to leave Nelson for a, change. It was not possible for any deleterious matter to get into the porridge, as the oats were kept in a tin specially for the purpose. The . doors were always locked at night, and if anything was put. in the tin it was done in the day time. : To Mr Pitt ; The first sample received by the doctor was wrapped in brown paper. 5-he paper was got out of one of the back bedrooms. The paper had wrapped up drapery.' The ; third sample was wrapped in paper brought by the doctor. Had procured oats before from Mr Bowden—the •__ brand. Some months had two bags, and sometimes three bags, Ethel Bay gave corroborative eivdence. The first she partook of the rolled bats was on the Saturday morning — a fortnight after the oats had arrived, and the same day the doctor came. Was present when the doctor took the two first samples away. Never heard of any poison being about the house. Sydney Gibbs, duly qualified medical practitioner, said he was called to the Thorn's place on the 19th July. On arriving there he found one child seriously . ill, the girl was ill, the 1 mother was ill, and the father was suffering from the symptoms of some irritant poisoning. Prescribed for the family. Were nnder Ids charge for six weeks to two months. Took samples' of the rolled oats, as that I waa suspected, on three occasions. For-'' warded the first and last samples to Wel- . lington, and the second was at home carefully sealed up. . One saxpple was from Mrs Thorn, and another was from Mrs Hingston in the country, which was another case of poisoning. The standard dose of arsenic was, l-60tfc ' to the l-15i?h part of a grain. The 1-15 th was the maximum. He quoted au _hori ties' to prove the fact that 2 grains had proved fatal, and 2.36 graans per lb would be dangerous aSd injurious^ Did not think there was Arsenic in the tin, as biscuit tins did not usually contain poison. The boy was very ill. Had no reason to suppose t&at tine wrajppinga of the parcels forwarded to iWellington .ctot^ined any poisonous or deleterious riiattef. Judging by the |r^p^te '-received from Weilingto_.'arse_.ie must be mixed fairly .well thro-ugh the bag. The boy was in a dangerous condition for about a, fortni^_t. To Mr^ Pitt • rHadari objection to newspapers for-; -wrapping anything in. Made no^ ; ot the tin, nojc = the^iper which Mrs Thorn haid. .iii .the.. bouse and which the oats were rolled in; Valentine Herbert Barri duly quan lified medical praictitioner, said be was ("alledvia on the 2.6 th Ju1y,1962 to -he __tbins'- house. One of the childreocat ' the l tame was seriously ill, and Dr; Gibbs asked witness to see the bof. ''■■> His idea was that the child \>ras < suffering from irritant poisonings Astandartldose of arsenc case. A : standard , dose of arsenic was l-60.tb to the lrlSthof a grainThe Hsth' was the^ maximum, and ' 2.36 graios _,;ib to a»y adult would be injurious and daaigerous.and 1-61 to a chxWsWould be'dangpfous. A fatal doßeiwas % grains for an adult and .or^ohila* about l-60th grain woiilc. bi _afeal. 'X, The C&urt then adjoutned till 2.15 • .William- JBaJtievThion-s, recalled, said that 'otfer stores such as flour and any 'large parcels were kept in tbfi;paatfyt c!r^^Tlr_i'usihg^the flour ait 'the same time as the rolled oats. ,"Wa^ making a «peci-<l -.clato oi £25 for docl^s^^ases^i V^ ■■•"-.,' Tblßfc^w-'~*'-et Mr Bowden in Septembef r aiid^a he would like to have a settlemmt. Told Mi Bowden- that. : without prejudice would taikje £&5 as a settlement. : T_tis was "Ehe case for the plaint intC ioi tbe defence, submit ___^thafc -he plaantifl^had no clam .^inlf-he ; lefendahlforcoatrac -K:^.hey>were; manufajetured "^vbng X \^(^^ Did tiiem JW

self . ;Bsua_ly : (goiK the oafe from S., & Co- The trade . tefaie under which the bats were s^dd was -"the K Brand.-" The bags come p_.cked just the same as the tine produced in Court. Never opened, the^ bags himself, but they Were sold a$ received. Had been' selling the oats for about a 7 ear prior to 'July last. During the whole period he sold about a hundred bags "ta various people. Sold about en. dozen hags to the plaintiffs. Heard of the Thorns family being ill, and wrote the letter produced in Court. When Mr Them came in September for a settlement, witness asked him to let - ™taess see Mr Kirkpatrick as he (Mr Kirkpatrick) was liable and not himself (witness). Told plaintiff that he (Witness) had seen Mr Kirkpatnck's clerk and been informed that he (Mr Thorn) had no, claim on Mr Kirkpatrick. 'Afterwards .eferred Mr Thorns to bis (witness's) solicitor. no arsenic in the store when the oats latere there. To Mr Maginnity : Heard that the oats were lebagged by Mr Kirktsatrick. The oats wert not patent. cd. Did not know whether the marie was a registered mark. It seemed to: him that the arsenic was in the parcel. .-_ „~ This concluded the evidence. I fife ifafiinnity in his legal argument orioted several autliorities and contended ihat this was not an action of breach oi trustbut an action for breach of under Section 16 Of the Sale of Goods Act Ifiudcment went, against the defendant he (the defendant) had his remedy against the inanrjactarer or supplier, but the defendant was responsible to the purchaser. (LeftpitUng.)