Winterbottom v Wright, 20 Meeson & Welsby 109 (Exchequer of Pleas [England] 1842)
[Wright had a contract with the Postmaster-General to keep a mail-coach in “fit proper, safe and
secure state and condition.” Atkinson contracted with the Postmaster-General to supply horses
and coachmen. Winterbottom was hired by Atkinson to be a coachman. While driving a mailcoach supplied by Wright, Winterbottom was thrown from his seat and, as a result, became
lamed for life. Winterbottom alleges that the accident occurred because the coach supplied by
Wright was defective and unsafe.]
Lord Abinger , C. B. I am clearly of opinion that the defendant is entitled to our judgment. We
ought not to permit a doubt to rest upon this subject, for our doing so might be the means of
letting in upon us an infinity of actions. This is an action of the first impression, and it has been
brought in spite of the precautions which were taken, in the judgment of this Court in the case of
Levy v. Langridge , to obviate any notion that such an action could be maintained. We ought not
to attempt to extend the principle of that decision, which, although it has been cited in support of
this action, wholly fails as an authority in its favour; for there the gun was bought for the use of
the son, the plaintiff in that action, who could not make the bargain himself, but was really and
substantially the party contracting. Here the action is brought simply because the defendant was
a contractor with a third person; and it is contended that thereupon he became liable to every
body who might use the carriage. If there had been any ground for such an action, there certainly
would have been some precedent of it; but with the exception of actions against innkeepers, and
some few other persons, no case of a similar nature has occurred in practice. That is a strong
circumstance, and is of itself a great authority against its maintenance. It is however contended,
that this contract being made on the behalf of the public by the Postmaster-General, no action
could be maintained against him, and therefore the plaintiff must have a remedy against the
defendant. But that is by no means a necessary consequence—he may be remediless altogether.
There is no privity of contract between these parties; and if the plaintiff can sue, every passenger,
or even any person passing along the road, who was injured by the upsetting of the coach, might
bring a similar action. Unless we confine the operation of such contracts as this to the parties
who entered into them, the most absurd and outrageous consequences, to which I can see no
limit, would ensue.
Alderson , B. I am of the same opinion. The contract in this case was made with the PostmasterGeneral alone; and the case is just the same as if he had come to the defendant and ordered a
carriage, and handed it at once over to Atkinson. If we were to hold that the plaintiff could sue in
such a case, there is no point at which such actions would stop. The only safe rule is to confine
the right to recover to those who enter into the contract: if we go one step beyond that, there is no
reason why we should not go fifty. The only real argument in favour of the action is, that this is a
case of hardship; but that might have been obviated, if the plaintiff had made himself a party to
the contract. Then it is urged that it falls within the principle of the case of Levy v. Langridge .
But the principle of that case was simply this, that the father having bought the gun for the very
1 purpose of being used by the plaintiff, the defendant made representations by which he was
induced to use it. There a distinct fraud was committed on the plaintiff; the falsehood of the
representation was also alleged to have been within the knowledge of the defendant who made it,
and he was properly held liable for the consequences. How are the facts of that case applicable to
those of the present? Where is the allegation of misrepresentation or fraud in this declaration
[complaint]? It shews nothing of the kind. Our judgment must therefore be for the defendant.
Gurney , B., concurred.
Rolfe , B. The breach of the defendant's duty, stated in this declaration, in his omission to keep
the carriage in a safe condition; and when we examine the mode in which that duty is alleged to
have arisen, we find a statement that the defendant took upon himself, to wit, under and by virtue
of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state and
condition of the said mail-coach, and, during all the time aforesaid, it had become and was the
sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep
and maintain the said mail-coach in a fit, proper, safe, and secure state and condition. The duty,
therefore, is shewn to have arisen solely from the contract; and the fallacy consists in the use of
that word “duty.” If a duty to the Postmaster-General be meant, that is true; but if a duty to the
plaintiff be intended (and in that sense the word is evidently used), there was none. This is one of
those unfortunate cases in which there certainly has been damnum [harm to the plaintiff], but it is
damnum absque injuriâ [harm without legally cognizable injury]; it is, no doubt, a hardship upon
the plaintiff to be without a remedy, but by that consideration we ought not to be influenced.
Hard cases, it has been frequently observed, are apt to introduce bad law.
Judgment for the defendant.
Notes and Questions
1. Note that in England, it was customary for each judge to write a “separate opinion” stating the
reasons for his decision. Unlike the United State, it was not customary for one judge to write an
opinion which other judges joined. Of course, even in the United States, judges are free to write
concurrences and dissents. Nevertheless, in the United States it is customary for one judge to
join in the opinion of another judge, if their reasoning is very similar. No such custom existed in
England.
2. The judges were concerned that if they allowed the plaintiff to prevail in this case, there would
be “the most absurd and outrageous consequences” and “an infinity of actions.” What sort of
cases were they concerned to prevent? Why?
2 3. The plaintiff’s strongest case is Levy v Langridge. If you were the plaintiff’s lawyer, how
would you have used that case to argue that the defendant in this case should be liable to your
client?
4. What is the holding in this case? That is, state in a sentence the legal rule established by this
case.
5. What authority do the judges cite to support their holding? Was this a case where precedents
clearly established a legal rule applicable to this case?
7. What does Judge Rolfe mean by “[h]ard cases… are apt to introduce bad law”?
8. Judge Rolfe says that judges should not be influenced by the hardship that the plaintiff suffers
on account of the absence of a remedy. Why not? What should influence a judge? What
influenced the judges in this case?
9. What does Judge Alderson mean when he says that the hardship in this case could have been
avoided if “the plaintiff had made himself a party to the contract”?
10. If Wright had sold a defective coach to Eigen, and Eigen’s wife had been injured while riding
in the coach, would Wright be liable to Eigen’s wife?
11. If the Postmaster had told Wright that the mail-coach would be used by coachmen, and
Wright had said that the mail-coach could be safely used by coachmen, would Wright be liable
to any coachman injured by a defective coach?
11. If Wright had put explosives under the mail-coach seat, which had gone off while
Winterbottom had been setting on the mail-coat seat, would Wright be liable to Winterbottom?
Thomas v Winchester, 6 N.Y. 397 (1852)
RUGGLES, Ch. J. delivered the opinion of the court.
The facts proved were briefly these: Mrs. Thomas being in ill health, her physician prescribed for
her a dose of dandelion. Her husband purchased what was believed to be the medicine
prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county,
where the plaintiffs reside.
A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it
produced very alarming effects; such as coldness of the surface and extremities, feebleness of
circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and
derangement of mind. She recovered however, after some time, from its effects, although for a
short time her life was thought to be in great danger. The medicine administered was belladonna,
3 and not dandelion. The jar from which it was taken was labeled “1/2 lb. dandelion, prepared by
A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz.” It was sold for and believed by Dr. Foord to be
the extract of dandelion as labeled. Dr. Foord purchased the article as the extract of dandelion
from Jas. S. Aspinwall, a druggist at New-York. Aspinwall bought it of the defendant as extract
of dandelion, believing it to be such. The defendant was engaged at No. 108 John-street, NewYork, in the manufacture and sale of certain vegetable extracts for medicinal purposes, and in the
purchase and sale of others. The extracts manufactured by him were put up in jars for sale, and
those which he purchased were put up by him in like manner. The jars containing extracts
manufactured by himself and those containing extracts purchased by him from others, were
labeled alike. Both were labeled like the jar in question, as “prepared by A. Gilbert.” Gilbert was
a person employed by the defendant at a salary, as an assistant in his business. The jars were
labeled in Gilbert's name because he had been previously engaged in the same business on his
own account at No. 108 John-street, and probably because Gilbert's labels rendered the articles
more salable. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not
manufactured by the defendant, but was purchased by him from another manufacturer or dealer.
The extract of dandelion and the extract of belladonna resemble each other in color, consistence,
smell and taste; but may on careful examination be distinguished the one from the other by those
who are well acquainted with these articles. Gilbert's labels were paid for by Winchester and
used in his business with his knowledge and assent.
[T]he question is, whether the defendant, being a remote vendor of the medicine, and there being
no privity or connection between him and the plaintiffs, the action can be maintained.
If, in labeling a poisonous drug with the name of a harmless medicine, for public market, no duty
was violated by the defendant, excepting that which he owed to Aspinwall, his immediate
vendee, in virtue of his contract of sale, this action cannot be maintained. If A. build a wagon and
sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence
of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the
builder. A.'s obligation to build the wagon faithfully, arises solely out of his contract with B. The
public have nothing to do with it. Misfortune to third persons, not parties to the contract, would
not be a natural and necessary consequence of the builder's negligence; and such negligence is
not an act imminently dangerous to human life.
So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse
from the owner is thrown and injured in consequence of the smith's negligence in shoeing; the
smith is not liable for the injury. The smith's duty in such case grows exclusively out of his
contract with the owner of the horse; it was a duty which the smith owed to him alone, and to no
one else. And although the injury to the rider may have happened in consequence of the
negligence of the smith, the latter was not bound, either by his contract or by any considerations
of public policy or safety, to respond for his breach of duty to any one except the person he
contracted with.
4 This was the ground on which the case of Winterbottom v. Wright, (10 Mees. & Welsb. 109,)
was decided. A. contracted with the postmaster general to provide a coach to convey the mail
bags along a certain line of road, and B. and others, also contracted to horse the coach along the
same line. B. and his co-contractors hired C., who was the plaintiff, to drive the coach. The
coach, in consequence of some latent defect, broke down; the plaintiff was thrown from his seat
and lamed. It was held that C. could not maintain an action against A. for the injury thus
sustained. The reason of the decision is best stated by Baron Rolfe. A.'s duty to keep the coach in
good condition, was a duty to the postmaster general, with whom he made his contract, and not a
duty to the driver employed by the owners of the horses.
But the case in hand stands on a different ground. The defendant was a dealer in poisonous
drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of
some person was the natural and almost inevitable consequence of the sale of belladonna by
means of the false label.
Gilbert, the defendant's agent, would have been punishable for manslaughter if Mrs. Thomas had
died in consequence of taking the falsely labeled medicine. Every man who, by his culpable
negligence, causes the death of another, although without intent to kill, is guilty of manslaughter.
(2 R. S. 662, § 19.) A chemist who negligently sells laudanum in a phial labeled as paregoric,
and thereby causes the death of a person to whom it is administered, is guilty of manslaughter.
(Tessymond's case, 1 Lewin's Crown Cases, 169.) “So highly does the law value human life, that
it admits of no justification wherever life has been lost and the carelessness or negligence of one
person has contributed to the death of another. (Regina v. Swindall, 2 Car. & Kir. 232-3.) And
this rule applies not only where the death of one is occasioned by the negligent act of another,
but where it is caused by the negligent omission of a duty of that other. (2 Car. & Kir. 368, 371.)
Although the defendant Winchester may not be answerable criminally for the negligence of his
agent, there can be no doubt of his liability in a civil action, in which the act of the agent is to be
regarded as the act of the principal.
In respect to the wrongful and criminal character of the negligence complained of, this case
differs widely from those put by the defendant's counsel. No such imminent danger existed in
those cases. In the present case the sale of the poisonous article was made to a dealer in drugs,
and not to a consumer. The injury therefore was not likely to fall on him, or on his vendee who
was also a dealer; but much more likely to be visited on a remote purchaser, as actually
happened. The defendant's negligence put human life in imminent danger. Can it be said that
there was no duty on the part of the defendant, to avoid the creation of that danger by the
exercise of greater caution? or that the exercise of that caution was a duty only to his immediate
vendee, whose life was not endangered? The defendant's duty arose out of the nature of his
business and the danger to others incident to its mismanagement. Nothing but mischief like that
which actually happened could have been expected from sending the poison falsely labeled into
the market; and the defendant is justly responsible for the probable consequences of the act. The
5 duty of exercising caution in this respect did not arise out of the defendant's contract of sale to
Aspinwall. The wrong done by the defendant was in putting the poison, mislabeled, into the
hands of Aspinwall as an article of merchandise to be sold and afterwards used as the extract of
dandelion, by some person then unknown. The owner of a horse and cart who leaves them
unattended in the street is liable for any damage which may result from his negligence. (Lynch v.
Nurdin, 1 Ad. & Ellis, N. S. 29; Illidge v. Goodwin, 5 Car. & Payne, 190.) The owner of a
loaded gun who puts it into the hands of a child by whose indiscretion it is discharged, is liable
for the damage occasioned by the discharge. (5 Maule & Sel. 198.) The defendant's contract of
sale to Aspinwall does not excuse the wrong done to the plaintiffs. It was a part of the means by
which the wrong was effected. The plaintiffs' injury and their remedy would have stood on the
same principle, if the defendant had given the belladonna to Dr. Foord without price, or if he had
put it in his shop without his knowledge, under circumstances which would probably have led to
its sale on the faith of the label.
In Longmeid v. Holliday, (6 Law and Eq. Rep. 562,) the distinction is recognized between an act
of negligence imminently dangerous to the lives of others, and one that is not so. In the former
case, the party guilty of the negligence is liable to the party injured, whether there be a contract
between them or not; in the latter, the negligent party is liable only to the party with whom he
contracted, and on the ground that negligence is a breach of the contract.
GARDINER, J. concurred in affirming the judgment, on the ground that selling the belladonna
without a label indicating that it was a poison, was declared a misdemeanor by statute; (2 R. S.
694, § 23;) but expressed no opinion upon the question whether, independent of the statute, the
defendant would have been liable to these plaintiffs.
GRIDLEY, J. was not present when the cause was decided. All the other members of the court
concurred in the opinion delivered by Ch. J. RUGGLES.
Judgment affirmed.
Questions on Thomas v. Winchester
1. What is the holding of this case?
2. What is the relationship between this case and Winterbottom v. Wright? Does it overrule
Winterbottom? Does it create an exception to Winterbottom? Is Winterbottom binding
precedent? Is Winterbottom irrelevant?
3. What authority does the court cite in favor of its decision? Was this a case where precedents
clearly established a legal rule applicable to this case?
6 4. Suppose Boeing makes an airplane which contains a defective part. After 5 years of safe
flying, it breaks apart in midair, and all passengers die. Under Thomas v Winchester, can the
airline which purchased the airplane sue Boeing for damages it incurred? Such damages might
include damage to property the airline had on the airplane, including destruction of food and life
jackets which were on board.
5. Under Thomas v Winchester, can the relatives of the dead passengers on the plane mentioned
in (4) sue for wrongful death? Wrongful death actions can ordinarily be brought by relatives for
a death caused by negligence, if the deceased could have brought a tort action for injuries other
than death in similar circumstances.
6. If you gave different answers to (4) and (5), do you think it makes sense that there is liability
in one case but not another?
Loop v. Litchfield, 42 N.Y. 351 (1870)
[Loop was killed by a cast-iron fly wheel defectively manufactured by Litchfield. Litchfield sold
the wheel Collister. Before selling the wheel to Collister, Litchfield claims to have pointed out
the defect, but that Collister bought it anyway because the price was low. Collister leased the
wheel to Loop. The jury was instructed to hold Litchfield liable, if Litchfield had negligently
manufactured the defective wheel. The judge refused to instruct the jury that plaintiff cannot
recover if Collister warned Litchfield about the defect. The jury found for the plaintiff, and the
defendant appealed.]
HUNT, J.
A piece of machinery already made and on hand, having defects which weaken it, is sold by the
manufacturer to one who buys it for his own use. The defects are pointed out to the purchaser
and are fully understood by him. This piece of machinery is used by the buyer for five years, and
is then taken into the possession of a neighbor, who uses it for his own purposes. While so in use,
it flies apart by reason of its original defects, and the person using it is killed. Is the seller, upon
this state of facts, liable to the representatives of the deceased party? I omit at this stage of the
inquiry the elements, that the deceased had no authority to use the machine; that he knew of the
defects and that he did not exercise proper care in the management of the machine. Under the
circumstances I have stated, does a liability exist, supposing that the use was careful, and that it
was by permission of the owner of the machine?
To maintain this liability, the appellants rely upon the case of Thomas v. Winchester (6 N. Y., 2
Seld., 397). In that case, the defendant was engaged in the manufacture and sale of vegetable
7 extracts for medicinal purposes…. It was conceded by the counsel in that case and held by the
court, that there was no privity of contract between Winchester and Thomas, and that there could
be no recovery upon that ground. The court illustrate the argument by the case of a wagon built
by A, who sells it to B, who hires it to C, who, in consequence of negligence in the building, is
overturned and injured. C cannot recover against A, the builder. It is added: “Misfortune to third
persons, not parties to the contract, would not be a natural and necessary consequence of the
builder's negligence, and such negligence is not an act imminently dangerous to human life.” So,
if a horse, defectively shod, is hired to another, and by reason of the negligent shoeing, the horse
stumbles, the rider is thrown and injured, no action lies against the smith. In these and numerous
other cases put in the books, the answer to the action is, that there is no contract with the party
injured, and no duty arising to him by the party guilty of negligence. “But,” the learned judge
says “the case in hand stands on a different ground. The defendant was a dealer in poisonous
drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of
some person was the natural and almost inevitable consequence of the sale of belladonna by
means of the false label.” “The defendant's neglect puts human life in imminent danger. Can it be
said that there was no duty on the part of the defendant to avoid the creation of that danger by the
exercise of greater caution?”
The appellants recognize the principle of this decision, and seek to bring their case within it, by
asserting that the fly wheel in question was a dangerous instrument. Poison is a dangerous
subject. Gunpowder is the same. A torpedo is a dangerous instrument, as is a spring gun, a
loaded rifle or the like. They are instruments and articles in their nature calculated to do injury to
mankind, and generally intended to accomplish that purpose. They are essentially, and in their
elements, instruments of danger. Not so, however, an iron wheel, a few feet in diameter and a
few inches in thickness, although one part may be weaker than another. If the article is abused by
too long use, or by applying too much weight or speed, an injury may occur, as it may from an
ordinary carriage wheel, a wagon axle, or the common chair in which we sit. There is scarcely an
object in art or nature, from which an injury may not occur under such circumstances. Yet they
are not in their nature sources of danger, nor can they, with any regard to the accurate use of
language, be called dangerous instruments. That an injury actually occurred by the breaking of a
carriage axle, the failure of the carriage body, the falling to pieces of a chair or sofa, or the
bursting of a fly wheel, does not in the least alter its character.
It is suggested that it is no more dangerous or illegal to label a deadly poison as a harmless
medicine than to conceal a defect in a machine and paint it over so that it will appear sound.
Waiving the point that there was no concealment, but the defect was fully explained to the
purchaser, I answer, that the decision in Thomas v. Winchester was based upon the idea that the
negligent sale of poisons is both at common law and by statute an indictable offence. If the act in
that case had been done by the defendant instead of his agent, and the death of Mrs. Thomas had
ensued, the defendant would have been guilty of manslaughter, as held by the court. The injury
8 in that case was a natural result of the act. It was just what was to have been expected from
putting falsely labeled poisons in the market, to be used by whoever should need the true articles.
It was in its nature an act imminently dangerous to the lives of others. Not so here. The bursting
of the wheel and the injury to human life was not the natural result or the expected consequence
of the manufacture and sale of the wheel. Every use of the counterfeit medicines would be
necessarily injurious, while this wheel was in fact used with safety for five years.
Upon the facts as stated, assuming that the deceased had no knowledge of the defects complained
of, and assuming that he was in the rightful and lawful use of the machine, I am of the opinion
that the verdict cannot be sustained. The facts constitute no cause of action.
Questions on Loop v Litchfield
1. What is the holding of this case?
2. What reasons or authority does the judge provide to justify that holding?
3. What does Judge Hunt say was the holding of Thomas v. Winchester? Does he give the same
holding as you did?
4. Would the outcome of this case be any different if it were proved that Litchfield did not warn
Collister of the defect in the fly wheel?
5. According to Thomas v. Winchester, if a manufacturer sold a defective handgun to a retailer,
and the retailer sold the gun to a consumer, and the handgun exploded and injured the consumer,
would the manufacturer be liable to the consumer?
6. According to Thomas v Winchester, if a manufacturer sold a defective car to a deal, and the
dealer sold the car to a consumer, and the car exploded and injured the consumer, would the
manufacturer be liable to the consumer?
7. If your answers to (4) and (5) are different, do you think it makes sense that the manufacturer
is liable in one case but not the other? 9