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salmon purchased from the defender. The pursuer averred that the tin, when sold, was dented, but he did not suggest that the grocer had cut through the metal and allowed air to get in, or had otherwise caused injury to the contents. The action was held irrelevant, the Lord Justice Clerk remarking, “I do not see how the defender could have examined the tin of salmon which he is alleged to have sold without destroying the very condition which the manufacturer had established in order to preserve the contents, the tin not being intended to be opened until immediately before use.” Apparently in that case the manufacturers' label was off the tin when sold, and they had not been identified. I should be sorry to think that the meticulous care of the manufacturer to exclude interference of inspection by the grocer in that case should relieve the grocer of any responsibility to the consumer without any corresponding assumption of duty by the manufacturer.
My Lords, I am of opinion that the contention of the Appellant is sound and that she has relevantly averred a relationship of duty as between the Respondent and herself, as also that her averments of the Respondent's neglect of that duty are relevant.
The cases of Mullen and McGowan which the learned Judges of the Second Division followed in the present case related to facts similar in every respect except that the foreign matter was a decomposed mouse. In these cases the same Court — Lord Hunter dissenting — held that the manufacturer owed no duty to the consumer. The view of the majority was that the English authorities excluded the existence of such a duty, but Lord Ormidale (at p. 471) would otherwise have been prepared to come to a contrary conclusion. Lord Hunter's opinion seems to be in conformity with the view I have expressed above.
My conclusion rests upon the facts averred in this case, and would apparently also have applied in the cases of Mullen and McGowan, in which, however, there had been a proof before answer, and there was also a question as to whether the pursuers had proved their averments.
I am therefore of opinion that the appeal should be allowed and the case should be remitted for proof, as the pursuer did not ask for an issue.
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