Absolute.[[541]]
WHITE v. MELLIN
In the House of Lords, February 14, 1895.
Reported in [1895] Appeal Cases, 154.
The respondent was the proprietor of Mellin’s food for infants, which he sold in bottles enclosed in wrappers bearing the words “Mellin’s Infants’ Food.” The respondent was in the habit of supplying the appellant with these bottles, which the appellant sold again to the public after affixing on the respondent’s wrappers a label as follows:—
“Notice.
“The public are recommended to try Dr. Vance’s prepared food for infants and invalids, it being far more nutritious and healthful than any other preparation yet offered. Sold in barrels, each containing 1 lb. nett weight, at 7½d. each, or in 7 lb. packets 3s. 9d. each. Local agent, Timothy White, chemist, Portsmouth.”
The appellant was the proprietor of Vance’s food. Discovering this practice, the respondent brought an action against the appellant, claiming an injunction to restrain him and damages.
At the trial before Romer, J., the plaintiff proved the above facts, and called two analysts and a physician, the result of whose evidence is stated in Lord Herschell’s judgment. Briefly, they testified that in their opinion Mellin’s food was suitable for infants, especially up to the age of six months, and persons who could not digest starchy matters, and that Vance’s food was unsuitable for such beings, nay pernicious and dangerous for very young infants. At the close of the plaintiff’s case Romer, J., being of opinion that the label was merely the puff of a rival trader and that no cause of action was disclosed, dismissed the action with costs. The Court of Appeal (Lindley, Lopes, and Kay, L.JJ.) being of opinion that the cause ought to have been heard out, discharged that judgment and ordered a new trial, [1894] 3 Ch. 276.[[542]]
Lord Herschell, L. C. (after stating the facts):—
My Lords, in the Court of Appeal Lindley, L. J., stated the law thus: “If upon hearing the whole of the evidence to be adduced before him the result should be that the statement contained in the label complained of is a false statement about the plaintiff’s goods to the disparagement of them, and if that statement has caused injury to or is calculated to injure the plaintiff, this action will lie.” Lopes, L. J., said: “All I desire to say is that, in my opinion, it is actionable to publish maliciously without lawful occasion a false statement disparaging the goods of another person and causing such other person damage, or likely to cause such other person damage.”
None of the learned judges in the Court of Appeal dealt with the evidence which had been adduced on behalf of the plaintiff; but I think it must be taken that they had arrived at the conclusion that that evidence did bring the case within those statements of the law. Of course, if the plaintiff, on his evidence, had made out no case, he could not complain that the learned judge decided against him and did not hear the witnesses for the defendant; the action was in that case properly dismissed. I take it, therefore, that although the learned judges did not analyse the evidence or make any reference to it, they must have concluded that it established a case coming within the law as they laid it down. My Lords, as I understand, in the view of those learned judges, or in the view of Lindley, L. J., to take his statement of the law in the first place, it was necessary in order to the maintenance of the action that three things should be proved: that the defendant had disparaged the plaintiff’s goods, that such disparagement was false, and that damage had resulted or was likely to result. Now, my Lords, the only statement made by the defendant by means of the advertisement is this: that Vance’s food was the most healthful and nutritious for infants and invalids that had been offered to the public. The statement was perfectly general, and would apply in its terms not only to the respondent’s infants’ food but to all others that were offered to the public. I will take it as sufficiently pointed at the plaintiff’s food by reason of its being affixed to a bottle of the plaintiff’s food when sold, and that it does disparage the plaintiff’s goods by asserting that they are not as healthful and as nutritious as those recommended by the defendant. The question then arises, Has it been proved on the plaintiff’s own evidence that that was a false disparagement of the plaintiff’s goods?