On the face of it, the advert for the Carbolic Smoke Ball company, that appeared in the Pall Mall Gazette and the Illustrated London News during the influenza epidemic of 1891, was pretty straightforward.
£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.
£1000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter.
During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.
One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address: “Carbolic Smoke Ball Company”, 27, Princes Street, Hanover Square, London.”
BACKED UP BY IMPRESSIVE TESTIMONIALS
The advert was even backed up by an impressive list of testimonials, topped by Sir Morrell Mackenzie, the founder of the Hospital For Diseases of the Throat, in King Street, Golden Square, London.
In short, the Carbolic Smoke Ball was the miracle remedy that Victorian society needed in order to combat the influenza pandemic that had been sweeping across Europe since 1889.
Accordingly, thousands of people placed their faith in its flu prevention properties, and sales duly soared.
MRS CARLILL BUYS A SMOKE BALL
In November 1891, Mrs Louisa Elizabeth Carlill, who was determined not to fall victim to the Russian Flu epidemic that was then raging across Europe, purchased a Carbolic Smoke Ball. Having taken it home, she proceeded with the prescribed ritual of, three times a day, placing the tube of the the carbolic acid filled rubber ball in her nostril, and giving it a hefty squeeze to send a puff of acidic smoke right up her nasal passage.
The principle behind the remedy was that the smoke would cause the nose to run which would, in turn, flush cold or flu viruses out of the system.
It can’t have been a pleasant sensation when the acidic smoke hit the sensitive tissues of the sinuses, but, when set against the terrible symptoms of the flu, the few seconds of discomfort caused by administering the contents of a Carbolic Smoke Ball were considered a worthwhile price to pay.
So, just like thousands of her fellow Victorians, Mrs Carlill dutifully followed the thrice daily regimen; and, for the next two months, she puffed, sniffed and sneezed her way to what she was convinced would be a flu-free New Year.
She was, therefore, somewhat miffed when, on the 17th January 1892, she came down with the flu.
A HUNDRED POUNDS RICHER?
However, Mrs Carlill’s bout of influenza was to have profound consequences on consumer and contract law; because although the unfortunate Mrs Carlille was left prostrate by the flu, she had no intention of taking the fact that the Carbolic Smoke Ball Company had failed to prevent her from catching influenza lying down.
After all, according to their advert, a reward of £100 would be paid to anyone who, having followed the prescribed instructions, went on to develop influenza.
Mrs Carlill – whose husband, fortuitously, happened to be a solicitor – therefore wrote to the company to claim her £100 reward.
However, The company ignored two letters, sent to them by Mr Carlill, claiming the £100.
But, when a third letter from the aggrieved Carlills’ arrived, the company decided that they should at least give them the courtesy of a reply and so, they duly sent back an unsigned letter stating that they had “complete confidence in the smoke ball’s efficacy”, and they, therefore, refused to pay out – no doubt believing that the Carlills’ would not pursue the matter as far as a costly court case.
Unfortunately for them, they had underestimated the tenacity of their opponents; as the Carlills’ reaction was to throw down the gauntlet and go to court.
And so began the landmark legal case of Carlill v Carbolic Smoke Ball, which has been described as “one of the most important cases in English legal history, ” as it laid down exactly how legally binding a “promise” or an “offer”, when made in an advertisement, should be in the eyes of the law.
THE CASE GOES TO COURT
The case opened before Mr Justice Hawkins on Thursday 16th June 1892.
The Carbolic Smoke Ball Company and its proprietor, Mr Frederick Rowe, through their barrister, Mr Herbert Asquith, raised almost every possible argument as to why there had been no actual contract between themselves and Mrs Carlill.
In its edition of that day The Northern Daily Mail reported on the opening arguments:-
“In the Queen’s Bench today, before Justice Hawkins and a special jury, the case of Carlill V the Carbolic Smoke Ball Co. was commenced.
Mr Murphy QC., for the plaintiff, Mrs Louisa Carlill said the action was to recover £100 promised by the defendants in an advertisement to anyone who could prove that, after using their patent smoke ball for a fortnight, they had influenza or any other ailments set out in the advertisement.
Plaintiff saw the advertisement in November last and bought a smoke ball for 10s, but in the following January she had influenza.
A claim was duly made on the defendants, but they refused to pay, saying plaintiff should have inhaled the ball three times a day for a fortnight at their offices in the presence of their staff.
Plaintiff was called, and testified to using the ball for two months, and to having influenza afterwards.
Mr Asquith, for the defendants, admitted all the facts as stated by the plaintiff.
The case was adjourned until Saturday, when the question of the defendant’s liability will be argued.”
Interestingly, even as the case was being heard in court, the company were busily advertising their wonder cure, this time for hay fever, in the pages of the Illustrated London News, albeit they weren’t offering any financial compensation this time!
THE ACTION AGAINST THE CARBOLIC SMOKE BALL COMPANY
On the same day that the above advertisement appeared in various newspapers, the case was resumed before Mr. Justice Hawkins.
In its edition of Monday 20th June 1892 the St James’s Gazette carried a report on the proceedings:
In the Queen’s Bench on Saturday, the case of Carlill v the Carbolic Smoke Ball Company again came before Mr. Justice Hawkins.
The plaintiff, a married lady, sought to recover from the defendants £100, in accordance with the terms of an advertisement issued by them offering to give a reward of £100 to any person who, after buying one of their carbolic smoke balls, was afflicted with, amongst other things, influenza.
When the case was before his lordship and a special jury on Thursday, at the close of the plaintiff’s case the jury were discharged, the case being postponed until Saturday in order that his lordship might hear arguments of counsel.
Mr. Murphy, Q.C., and Mr. W. Graham appeared for the plaintiff, and Mr. Asquith, Q.C., and Mr. Loehnis for the defendants.
Mr. Asquith, on behalf of the defendants, submitted that upon the plaintiff s admitted facts there was no cause of action.
He contended in the first place that there was no contract between the plaintiff and the defendant, and, in the next place, that if there were a contract it was a contract which was either a wager, and therefore void under the statute 8 and 9 Vict., cap. 109, or it was a contract by way of insurance, and therefore void by reason of the statute 18 Geo. 111., cap. 48.
His lordship: Is the advertisement a mere idle false misrepresentation in order to induce the public to buy these balls? Is that what you say is its meaning?
Mr. Asquith replied that it was not. His contention was that the advertisement was not intended to form the foundation of a legal obligation enforceable in a court of law.
His lordship: If you wanted to increase your business and promised people something if they purchased one of the articles you are dealing in, and if you do not fulfil your engagements, it is dishonourable, to say the least of it.
Mr. Asquith then contended, in the event of his lordship holding that there was a contract, that it was bad in law, inasmuch as it was in the nature of a wager. In sporting language it was, “I will lay you £100 to 10s. that you will not get the influenza.”
His lordship: Yes, it will be 200 to 1. (Laughter)
Mr. Graham, on behalf of the plaintiff, said that the defendants’ conduct in defending the action was a very dishonest attempt to abate money due upon a distinct promise to pay it.
At the conclusion of the arguments his lordship reserved judgement.”
CARBOLIC SMOKE BALL COMPANY MUST PAY
His lordship mused over the legal arguments for several weeks.
Then, on Saturday 9th July 1892, the Leeds Times reported on his decision:-
“The long delayed carbolic smoke ball case has come to an end at last.
The grave deliberations of Mr. Justice Hawkins have resulted in an order from the Queen’s Bench – which was made on Monday -compelling the Carbolic Smoke Ball Company to pay over to Mrs. Carlill the sum of £100.
In order to induce the public to buy their products this company advertised that they would pay that sum to any person who should contract influenza, cold, or any diseases caused by taking cold, after having purchased one of the smoke balls, and used it for a prescribed time and in a prescribed way.
The case for Mrs. Carlill was that she had
FULFILLED THE CONDITIONS, AND YET HAD INFLUENZA
and this being so, she claimed the reward.
Mr. Justice Hawkins, on the points of law submitted to him, now declared that there had been a contract.
The daily use of the smoke ball by Mrs. Carlill was sufficient to support the promise to pay by the company on a certain event.
The contract, moreover, did not require a stamp; nor was it a wagering contract within the meaning of any Act.
It was not a contract of insurance, and therefore void because certain conditions had not been complied with.
Under all these circumstances there would be verdict and judgement for the plaintiff, with costs.
A stay of execution, with a view to an appeal, was refused.”
THE LEGAL ARGUMENTS
The Morning Post went into more detail on what his lordship had said in response to the legal arguments put forward by the counsel for the defendant:-
“Mr. Justice Hawkins said that the first question was whether there was a contract of any kind between the parties, and he was of the opinion that there was a contract, and that the daily use of the Smoke Ball by the plaintiff was sufficient to support a promise by the defendants to pay the £100.
Then, the second question was whether this contract was wholly or partly in writing so as to require that it should be stamped, and he was of the opinion that it was not such a contract as required stamping.
Then came the question whether it was a wagering contract within the meaning of the 8 and 9 Vict. cap. 109, and therefore void, and he thought that it was not. The further question was whether it was a contract of insurance within the meaning of the 14 Geo. 3, cap. 48. and therefore void.
He did not think that it was a contract of insurance within the meaning of the Statute. He was of the opinion that the provisions in the Statute related only to policies of insurance, and did not apply to a contract like the present, which was not wholly in writing, but was created by a written proposal or offer, and completed by the performance by the plaintiff of certain conditions attached to the proposal.
This being so, the plaintiff was entitled to recover the £100, and therefore there would be a verdict and judgement for the plaintiff for £100, with costs.”
IMPORTANT TO THE PUBLIC AS WELL AS ADVERTISERS
The majority of the newspapers viewed Mr Justice Hawkins ruling as a victory for common sense and justice.
As The Manchester Courier opined, on Saturday 9th July 1892:-
“The judgement of Mr. Justice Hawkins in the smoke ball case is important to the public as well as to advertisers….If advertising firms will make these promises, they must expect to be held to their bond, and the practice of making promises which there is no intention of carrying out is at all times discreditable. whether it be in politics or in business. It injures and casts suspicion upon honest people who really wish to keep faith with the public, and it is to be hoped that the case of Carlill v the Carbolic Smoke Ball Company will have a salutary effect on those who aim at imposing upon simple and credulous people by promises beyond their power to fulfil.”
However, apparently operating on the principle that any publicity is good publicity, the company continued to advertise their wonder ball, even adding a few more miracle cures, as they prepared to appeal against Mr Justice Hawkins ruling.
THE COMPANY APPEALS
The Carbolic Smoke Ball Company were not about to go down without a fight and, no sooner had the judge’s ruling been given, than they launched an appeal against it.
The appeal was heard by Lord Justices Lindley, Bowen and Smith on Wednesday 7th of December 1892.
All three judges gave detailed responses to the arguments put forward by the company (you can read them in full here).
Lord Justice Lindley observed that:-
“It appears to me…that the defendants must perform their promise, and, if they have been so unwary as to expose themselves to a great many actions, so much the worse for them.”
Meanwhile, Lord Justice Bowen, tackled the argument raised by the company that since neither side had actually agreed between themselves to the terms laid out in the advert, their could be no contract between them.
His Lordship pointed out that:-
“If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal?”
Ultimately, the three Court of Appeal judges agreed with their colleague, Mr Justice Hawkins, and the appeal was dismissed with costs.
DID IT SPELL RUIN FOR ROWE?
Since Fredrick Rowe’s Carbolic Smoke Ball Company was not operating under the protection of limited liability, many people believed that he would now be bankrupted by thousands of claimants wishing to claim their £100.
However, this did not happen and, in early 1893, Fredrick Rowe formed a new company – this time with limited liability; and he set about vigorously advertising his product, even going so far as to put a positive spin on the lost court case by stating that:-
“Many thousand Carbolic Smoke Balls were sold…but only three persons claimed the reward of £100, thus proving conclusively that this invaluable remedy will prevent and cure the above mentioned diseases.”
He even went on to up the financial stakes by offering a “£200 Reward to the person who contracts” a long list of diseases.
This new company, however, failed to capture the public imagination, and it was wound up in 1896.
AND WHAT OF MRS LOUISA CARLILL?
As for the lady whose bout of influenza had led to the costly court case – well, Mrs Louisa Elizabeth Carlill, went on to live to the ripe old age of 96, finally dying on the 10th of March 1942.
And, if you’re wondering, despite the fact that old age played a large part in her demise, the actual cause of her death was given as – yes, you’ve guessed it – influenza.