Wedick v Osmond & Son Ltd

• Jurisdiction: Ireland
• Judgment Date: 15 July 1935
• Date: 15 July 1935
• Court: High Court (Irish Free State)

High Court.

Wedick v. Osmond & Son.

JAMES WEDICK (an Inspector of the Pharmaceutical Society of Ireland)

Complainant

and

OSMOND & SON (DUBLIN), LIMITED, Defendants(1)

Poison - Sale of - Sale of Poisons (Ireland) Act, 1870 (33 & 34 Vict. c. 26),sect. 2, Sch. A, Parts I and II - Sale of Arsenic in a sheep dip - Whether exempted from provisions of sect. 2 by Part II of Sch. A as being"prepared or sold for the destruction of vermin" - Pharmacy Act (Ireland), 1875, Amendment Act, 1890 (53 & 54 Vict. c. 48), sect. 17 -Limited Company keeping open shop for retailing poisons without a qualified assistant - Whether company a "person" - Right of common informer to prosecute in Irish Free State - Whether preserved by Criminal Justice (Administration) Act, 1924 (No. 44 of 1924), sect. 9, sub-sect. 2.

Case Stated.

The case was stated by M. J. Hannan, Esq., one of the Justices for the time assigned to the Metropolitan District (No. 31) sitting at the District Court for the said District,

pursuant to the Courts of Justice Act, 1924, sect. 83, for the opinion of the High Court of Justice on the application in writing of the defendants, who were dissatisfied with the determination of the District Justice as hereinafter set out as being erroneous in point of law. The Case Stated was as follows:—

At the District Court for the said District held at the Metropolitan District Courthouse, Inn's Quay, Dublin, on the 17th day of September, 1934, the complainant, James Wedick, who is an Inspector of the Pharmaceutical Society of Ireland, charged the defendants, who are a Limited Company incorporated in Saorstát Éireann éireann, having their registered office at 11-13 Little Ship Street, Dublin, as follows:—

1. That they on the 26th day of April, 1934, at 11-13 Little Ship Street, Dublin, within the said District did sell poison within the meaning of the Act, 33 & 34 Vict. c. 26, to wit: arsenic contained in a preparation or compound thereof known as "Osmond's Sheep Dip" to the said James Wedick who was a person unknown to them and the said James Wedick was not introduced to them by any person whatsoever, contrary to sect. 2 of the said Act.

2. That they on the 26th day of April, 1934, at 11-13 Little Ship Street, Dublin, within the said District did sell poison within the meaning of the Act, 33 & 34 Vict. c. 26, to wit: arsenic contained in a preparation or compound thereof known as "Osmond's Sheep Dip" to the said James Wedick and did not before delivery of the said poison have the entry prescribed by sect. 2 of the said Act signed by the purchaser, contrary to the said section of the said Act.

3. That they on the 26th day of April, 1934, at 11-13 Little Ship Street, Dublin, within the said District, while lawfully keeping open shop for selling and retailing poison, did not employ as an Assistant or Manager in such shop a duly registered Chemist and Druggist, or Registered Druggist, or Pharmaceutical Chemist, or Licentiate Apothecary to manage and conduct such shop and the retailing of poisons therein, contrary to sect. 17 of the Pharmacy Act (Ireland), 1875, Amendment Act, 1890.

On behalf of the complainant evidence was given by:

(1) The complainant, (2) Dr Phyllis Ryan, and (3) Mr. James J. Kerr.

On behalf of the defendants evidence was given by Mr. Hugh McElhinney.

The complainant stated that he is an Inspector of the Pharmaceutical Society of Ireland; that at 11.20 a.m. on the 26th day of April, 1934, he visited the defendants' premises at 11-13 Little Ship Street, Dublin, that he was attended by an assistant when he asked for Mr. Hugh McElhinney (hereinafter mentioned), but was informed that the said Hugh McElhinney was out; that he then ordered from the said assistant a bottle of "Oxygas"(which is a cattle medicine containing chloral hydrate and is manufactured by the defendants) and three packages of Sheep Dip Powder; that he was not known by, and did not know, the assistant or the defendant Company and was not introduced to him or the defendants by any person; that he stated to the Assistant that he required these articles for his own use; that the Assistant asked him for his name and address; that he stated his name was John Murphy and his address Hill Street, Monaghan; that this was done to demonstrate that he was a person unknown as aforesaid, that the Assistant then wrote something in a book, that he was neither requested to sign, nor signed, any book or entry therein; that he paid to the Assistant the sum of 6s. 3d. for the said articles which were delivered to him by the Assistant; that he received a receipt (produced), that during the whole time the Assistant and himself were the only persons in the defendants' shop; that on that day he wrote in ink on each of the said packets"Purchased on 26.4. 1934 J. W."; that he personally gave one of the said packets to Dr. Phyllis Ryan; that on a later occasion (in May) he had a conversation with the said Assistant at the defendants' premises and that the Assistant informed him that his name was F. J. O'Brien.

Dr. Phyllis Ryan deposed that she is a Public Analyst practising at No. 12 Dawson Street in the City of Dublin; that she received from the complainant a packet of powder marked as deposed by him; that the packet contained approximately 2 lbs. of powder; that she analysed it and found that it contained 22 per cent. of arsenious oxide (a preparation of arsenic) which is equal to about 7 ounces of arsenic; that she reported the result of her analysis to the Pharmaceutical Society of Ireland. The packets and the labels thereof form part of this case.

Mr. James J. Kerr stated that he is the Registrar of the Pharmaceutical Society of Ireland and is a fully qualified Registered Pharmaceutical Chemist; he produced a certified copy of the certificate of incorporation of the defendants from which it appeared that they were incorporated in Saorstát Éireann éireann on 20th October, 1932; he produced the registers of Registered Chemists and Druggists, Registered Druggists, Pharmaceutical Chemists and Licentiate Apothecaries and stated that Mr. F. J. O'Brien is not a Registered Chemist and Druggist, or Registered Druggist, or Pharmaceutical Chemist, or Licentiate Apothecary; he produced a statement, dated 23rd June, 1934, furnished to him by the defendant Company in response to a letter, dated 7th June, 1934, written pursuant to sect. 18 of the Pharmacy Act (Ireland), 1875, Amendment Act, 1890 (copy also produced), he stated that the defendant Company do not hold a license under the Poisons Act, 1908, as he ascertained from an inspection of the register on 5th July, 1934. He also stated that there are 437¹/₂ grains in an ounce of arsenic; that 2 grains of arsenic is a fatal dose for a human being; that an ounce of arsenic is sufficient to poison 200 people and that the arsenical content of one of the packets sold to the complainant would be sufficient to poison 1,500 people.

For the defence Mr. Hugh McElhinney stated that he is a Registered Druggist; that he is a Director of the defendant Company and is employed by the Company as Manager of the business carried on at 11-13 Little Ship Street; that the defendant Company are manufacturers of, and dealers in, animal medicines, veterinary preparations and sheep dips; that a sheep dip known as "Osmond's Powder Sheep Dip" is a compound manufactured by the defendant company; that this sheep dip is prepared and sold for the destruction of vermin in sheep; that they supply this sheep dip either direct or through their agents to buyers who order the same personally or by post; that on the occasion of the sale to Mr. Wedick neither he nor any person who is a Registered Chemist and Druggist, or Registered Druggist, or Pharmaceutical Chemist, or Licensed Apothecary was in or upon the said premises.

Mr. Hugh McElhinney was the only witness examined in behalf of the defendant Company. No veterinary or other technical evidence was given as to the principles upon which the said sheep dip was prepared for the destruction of vermin, as to the degree of potency requisite in such sheep dip or otherwise whatsoever as to the propriety of the said sheep dip for the destruction of vermin.

From the evidence of Mr. McElhinney and the answers of Dr. Ryan and Mr. Kerr in cross examination I was satisfied that it was possible to use the said sheep dip for the destruction of vermin and I was satisfied on the evidence that one of the purposes for which the said sheep dip as a compound was prepared or sold was for the destruction of vermin in sheep.

On the said evidence I find as facts:—

(1) That the defendant Company on the 26th day of April, 1934, at 11-13 Little Ship Street, Dublin, did sell arsenic contained in a preparation or compound thereof known as "Osmond's Sheep Dip" to the said James Wedick.

(2) That the arsenic so sold is poison within the meaning of the Act, 33 & 34 Vict. c. 26, and one of the poisons which are named in Part I of Schedule A of that Act.

(3) That the said James Wedick was a person unknown to the defendant Company and was not introduced to the defendant Company by any person whatsoever.

(4) That the defendant Company, or any person on its behalf, did not, before the delivery of the said poison to the said James Wedick, have the entry prescribed by sect. 2 of the said Act signed by the said James Wedick.

(5) That on the said date the defendant Company kept open shop for selling and retailing poison and did not employ as an Assistant or Manager in such shop a duly Registered Chemist and Druggist, or Registered Druggist, or Pharmaceutical Chemist, or Licentiate Apothecary to manage and conduct such shop and the retailing of poisons therein.

(6) That one of the purposes for which the said "Osmond's Sheep Dip" was prepared or sold was the destruction of vermin in sheep.

As to all the three complaints in the three summonses aforesaid, it was contended for the defendants that having regard to sect. 9 of the...