The Strange Case of Miss E.C. Carlill versus the Carbolic Smoke Ball Company

During the winter season, legitimate fears concerning an annual influenza epidemic resurface, especially with respect to our elderly patients. Every year there is also a real concern that we may once again suffer through “The Big One,” which last struck in 1918-1919, killing scores of millions of all ages around the world.¹ (More people died during this epidemic than in World War I.) And if these fears weren’t enough to frighten both doctors and their patients, there is the more contemporary concern about the new influenzas, such as the Avian variety and the fluish SARS (severe acute respiratory syndrome).

It seems that worries about influenza go back quite a long time. An excellent example of a flu-like story involves a fascinating court case studied even today by our feared and respected colleagues during their legal studies. The famous court battle was euphoniously labeled, “Carlill versus the Carbolic Smoke Ball Company,” which happily for posterity (and the advancement of contract law) Miss Carlill won handily.²

It turns out that back in 1891 the company put a large advertisement in the Pall Mall Gazette, a prestigious publication of the day. The company offered that £100 would be paid to anyone who had purchased one of its “smoke balls” (meant to prevent influenza, among other maladies) and who, despite using it, still contracted influenza. In order to emphasize the company’s good will, the ad touted that £1000 (a very sizable sum for the day) had been deposited with the Alliance Bank on London’s Regent Street to cover any claims.

What was the smoke ball? As described in the 1889 United Kingdom patent application by its inventor Mr. Frederick Roe, the device consisted of a “hollow ball or receptacle of porous or perforated India rubber or other suitable elastic material, having an orifice or nozzle provided with a porous or perforated disk or diaphragm consisting of muslin, silk, wire or gauze, perforated sheet metal or the like, through which, when the ball or receptacle is compressed, the powder will be forced to cloud infinitesimally into small particles resembling smoke.” Somewhat like the ball at the end of the blood pressure cuff that one squeezes to push up the column of mercury. In the case of the “carbolic” smoke ball, the reader will not be surprised to learn that in this particular incarnation the device contained carbolic acid. Why carbolic acid? By 1891, we were well into the period where both the germ theory of infection and the technique of surgical asepsis were already well established. Koch had published his postulates, and Lord Lister had been using carbolic acid to disinfect the surgical operating theater already by the 1860s.

Despite the lack of efficacy of carbolic acid on viruses as opposed to bacteria, which it does kill, the company may well have sincerely held that this chemical in the form of an inhaled vapor would protect against influenza (not to speak of other infectious conditions such as appeared in the advertisement: “sore throat, cold in the chest, catarrh”). (In looking back, it behooves us not to mock our predecessors’ ignorance, as we must never forget the historian’s adage that the past is a different country. In any case, there are still today many educated patients and too many of their physicians who apparently remain confused, as is evidenced by the widespread use of antibiotics for obvious viral infections.)

According to the court record, on November 20, 1891, just in time for the start of London’s annual flu season, Miss Carlill purchased and began to use a smoke ball, as directed, for the recommended 2 weeks and thereafter. Unfortunately, despite an admirable concern for preventive medicine and her careful compliance, almost 2 months later on January 17, 1892, she was diagnosed by her physician as having contracted influenza. Fortunately for her, for posterity, and for legal precedent, the good lady not only survived but recovered sufficiently to write to the company the very next day, that is on January 18, 1892, claiming her £100 compensation. Both the mail and the wheels of justice seemed to move pretty quickly in those pre-electric days, and Miss Carlill received a negative reply from the company’s solicitors less than 2 weeks later.

The plaintiff immediately sued and, even more amazing, court began to sit just 10 days after this letter was received. According to the court record, the claimant’s position was: “…that the advertisement represented an offer, directed to anyone, to form a contract, acceptance being the act of purchasing the smoke ball and using it in the prescribed way. Thus a valid contract was formed, and a condition…was that £100 would be paid to customers should they contract influenza. Given [her] state of health post 17th January, 1892, she submits that the defendant [the company] has breached the contract by not forwarding the requisite sum. In essence, the claimant claims £100 plus costs although is aware of the uncertainties of litigation and has expressed a preference for a compromise settlement.”³

In response, in a model of legal obfuscation, the company argued as follows: “Firstly, that the construction of the wording of the advertisement does not amount to an offer. The words, taken together are sufficiently ambiguous as to present a ‘mere puff.’ Moreover, as the advertisement was not an offer, it follows that it was not a continuing offer as averred by the claimant. Secondly, the defendant states that even if the wording were constructed as amounting to an offer, there was no acceptance of the offer in that such acceptance was not communicated [by the company]. Merely purchasing the ball could surely not be sufficient acceptance as an act in private would realistically be impossible to disprove. Naturally, the second condition reinforces the first in that acceptance could not be given to an offer that had never been made.”

The defense, beyond claiming that the ad did not constitute a contract, tried to strengthen its case by offering a clinical argument that “during the last epidemic of influenza [date not noted] 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.” Not surprisingly, given the clear claims of the ad, the appeal judges made short shrift of the defense’s position. For example, Lord Justice Lindley opined, in a testament to common sense, “Read the advertisement how you will, and twist it about as you will, here is a distinct promise [to pay £100] expressed in language which is perfectly unmistakable.” Obviously, the company was concerned, not so much about paying out £100 in this particular case (as they had £1000 on deposit) but what if hundreds or thousands of claimants showed up? The good Lord Justice was scathing on this point, offering a kind of caveat advertisor: “It appears to me, therefore, 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.” (In more modern parlance, “Tough luck!”)

From the court records, it appeared that Miss Carlill won both at her first appearance and on appeal. Did she receive her £100? If so, what did she do with it? What happened to the company? On all of these issues, for me at least, the historical trail disappears. On one point, however, the record is clear. Far from harming her, the smoke ball seems to have done Miss Carlill much good, as she lived well into her ninth decade. Obviously, the influenzas of the day were no match for either her physical or moral constitution, and the Carbolic Smoke Ball Company, no match for her legal instincts.

Acknowledgment
I am indebted to Mr. Michael Fox of Haaretz newspaper for introducing his readers to this wonderful tale.