Issued August 13,1910.
United States Department of Agriculture,
OFFICE OF THE SECRETARY.
NOTICE OF JUDGMENT NO. 473, FOOD AND DRUGS ACT.
SUPPLEMENT TO NOTICE OF JUDGMENT NO. 80.
MISBRANDING OF SALAD OIL.
On March 26, 1909; Guido Brina was tried, convicted, and fined?
$100 in the Circuit Court of the United States for the Southern?
District of New York on the charge of shipping in interstate com??
merce a quantity of oil labeled "Olio per Insalata Sopramno Vival?
Brand Cotton Salad Oil Extra Qualita," which was misbranded?
because the statements on the above label in the Italian language,?
the English meaning of which is "salad oil, superfine, extra quality,"?
were misleading and deceptive, tending to deceive and mislead?
Italian purchasers into believing that said oil was a superfine olive?
oil manufactured in Italy, whereas, in fact, said oil was not olive oil?
and was not manufactured in Italy. The facts of the above case are?
set out more fully in Notice of Judgment No. 80 of this Department.
Thereafter the defendant took an appeal from the above judgment?
to the United States Circuit Court of Appeals for the Second District.?
The following is the assignment of errors on which the appeal is based:
ASSIGNMENT OF ERRORS.
THE UNITED STATES CIRCUIT COURT OP APPEALS FOR THE SECOND CIRCUIT.
Assignment of Errors.    99.
GUIDO BRINA, Plaintiff in Error,
against?
UNITED STATES, Defendant in Error.
Now comes the defendant the plaintiff in error herein and in connection with his?
petition for a Writ of Error herein and makes the following assignment of errors which?
he says occurred upon the trial:
First. The Court erred in permitting the witness James C Duff to answer the follow??
ing question: "Will you examine this can which I hand you here. Is that one of the?
three cans purchased by you at that time? " and in overruling defendant's objection?
thereto.
Second. The Court erred in permitting the witness Herman Lind to answer the?
following question: "How was it that Mr. Brina happened to come there on that day? "?
and in overruling the defendant's objection thereto.
Third. The Court erred in permitting the witness Ernest Petrucci to answer the?
following question: "To what class of persons do you sell that oil?" and in overruling?
the defendant's objection thereto.
52100??No. 473?10
Fourth. The Court erred in permitting the said witness Ernest Petrucci to answer?
the following question: "During your experience as a grocer, have you sold or has?
there come into your possession any cans of salad oil labeled in the Italian language,?
Cotton-seed oil?" and in overruling the defendant's objection thereto.
Fifth. The Court erred in permitting said witness Petrucci to answer the following?
question: "What kind of oils do you sell for Balad oil in the Italian trade?" and in?
overruling the defendant's objection thereto.
Sixth. The Court erred in permitting the said witness Petrucci to answer the follow??
ing question: "Is there on the market packed up in cans or bottles or other small con??
tainers for the retail trade, as far as you know, any oil for salad use labeled Olio de?
Cottene?" and in overruling the defendant's objection thereto.
Seventh. The Court erred in permitting the following colloquy between Assistant?
District Attorney Bird, the Court and the attorney for the defendant in open Court and?
in the hearing in the presence of the jury, to wit:
Mr. Bird: I want to endeavor to show that the Italians of this community are gen??
erally utterly ignorant of the existence of cotton seed oil and of its use as salad oil and?
it cannot be sold to them as salad oil.
The Court: I think it comes pretty near being a notorious fact that salad oil means?
olive oil.
Mr. Bird: If your Honor will take judicial notice of that and charge the jury?
The Court: I certainly shall take judicial notice of that fact; it is prima facie salad oil ??
means olive oil.
Mr. Wasserman: I take exception to your Honor's ruling on that.
The Court: I so hold, that it is a fact that I may take judicial notice of, that salad?
oil means olive oil.
Mr. Wasserman: If that is the situation that practically breaks down our entire?
defense. Our contention is that salad oil does not necessarily mean olive oil, espe??
cially in view of the fact that there is a label.
The Court: Then that simplifies the matter very much. Of course, you may intro??
duce evidence to upset the presumption raised by the fact, which I am sure is notori??
ous, and that would transfer this to rebuttal. I feel quite sure and so hold, that any?
gentleman who advances the proposition that salad oil in common thought, within?
the ordinary rules of the statute means cotton seed oil among others, has the burden?
of proof.
Mr. Wasserman: We do not contend that it means cotton seed oil by any means. It?
simply means that oil can be used "for salad purposes. We label it later on as cotton?
oil.
The Court: It appears to be in evidence that the Italian words which are on Mr.?
Brina's product, Olio per Insalata, is or means salad oil.
Mr. Wasserman: No, that is not the interpretation in the indictment?
The Court: I am talking about the testimony of Mr. Lind. I understood Mr. Lind?
to testify that it has been stated in his presence by Brina that the translation of those?
words, Olio per Insalata, means salad oil. But not olive oil. The literal translation?
means salad oil. Now, then, I hold as a notorious fact that prima facie salad oil means?
olive oil. Now, if you are going to attack that prima facie presumption, it is up to?
you to produce the evidence.
Mr. Wasserman: May I call your attention to the fact that there is no charge in the?
indictment that Olio per Insalata means or is understood to be olive oil? We are not?
prepared to meet any such interpretation as that.
The Court: The sense of the information is that the words "Salad Oil" expressed?
in the Italian language is calculated to deceive persons who habitually use Italian?
oil, because in effect salad oil means olive oil. This statute is in English, the official?
language of this Court, and I hold that salad oil prima facie is olive oil.    Now, if it
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means something else in Italian, and if it means something else because of recent?
events which have perhaps rendered olive oil more difficult to obtain or introduce?
other food elements which have come to be known as salad oil among other things?
you can prove it; you are entirely at liberty to prove it, but I do not think it is incum??
bent on the prosecution to interpret the words Olio per Insalata any further than to?
show that when translated it means salad oil.
Mr. Wasserman: Will your Honor note my exception?
Eighth. The Court erred in denying the defendant's motion made at the close of?
the government's case to dismiss the information herein.
Ninth. The Court erred in denying the defendant's motion made at the close of the?
defendant's case to dismiss the information herein.
Tenth. The Court erred in allowing the case to go to the jury and in not directing?
a verdict of not guilty.
Eleventh. The Court erred in charging the jury as follows: "I think also it is a?
matter of common knowledge that salad oil prima facie imports olive oil; that is what?
the world has been accustomed to regard as salad oil."
Twelfth. The Court erred in charging the jury as follows: "And it has been argued?
to you, and I think it is a fair inference that since it goes into such hands it went?
into the possession, and to be used, by people of, to say the very least, a very moderate?
degree of education."
WHEREFORE, the plaintiff in error prays that the judgment of the Circuit Court?
for the Southern District of New York, Criminal Branch term, may be reversed and?
the verdict set aside, and a new trial ordered.
Thereafter the case was heard on appeal, by the Circuit Court of?
Appeals for the Second Circuit, and the judgment of the trial court?
was affirmed. The opinion of the appellate court, delivered by Mr.?
Justice Lacombe, is as follows:
UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT.?
Before LACOMBE, COXE and WARD, Circuit Judges.
GUIDO BRINA, Plaintiff in Error,       1
vs.?
THE UNITED STATES, Defendant in Error.)
This cause comes here on writ of error from a judgment of the Circuit Court, Southern?
District of New York, imposing a fine of $100, entered on a verdict of a jury finding?
defendant guilty of a violation of the Food and Drugs Act of June 30, 1906. The?
offense charged was the shipment from New York City to Newark, New Jersey, of?
cotton seed oil contained in cans labeled (the Italian words in large type and the?
English words in small type) as follows:
"Olio per Insalata, Sopraffino Vival?
Brand, Cotton Salad Oil extra quality."
It was charged that the oil was misbranded in that the label failed to disclose to?
Italian purchasers ignorant of the English language that the oil was a cotton seed oil,?
and that it was calculated to mislead the purchaser and induce him to believe the?
cans contained olive oil.
LACOMBE, C. J.
The section declared on (sec. 2) imposes a penalty on "any person who shall ship?
or deliver for shipment from any state ... to any other state . . . any?
article of food or drugs so . . . misbranded." It was proved that the words?
"Olio per Insalata" mean "oil for salad" or "salad oil" and the trial judge held??
and so charged the jury?that "as a notorious fact salad oil prima facie means olive?
473
oil" but allowed the defendant to show if he could that "it means something else?
because of recent events which have perhaps rendered olive oil more difficult to?
obtain or that other food elements have come to be known as salad oil." No such?
proof was introduced and the ruling is assigned as error. The Century Dictionary,?
Worcester's, Stormont's, Imperial, and the Encyclopedia all define "salad-oil" as?
olive oil;" Webster's does not give any definition. We are satisfied that the trial?
judge quite properly charged, in the absence of any testimony of the sort suggested,?
that "salad oil prima facie imports olive oil; that is what the world has been accus??
tomed to regard as salad oil."
The evidence showed that the articles complained of were sold and shipped by the?
"Standard Trading Co." of which defendant was an employee,?its "manager."?
He negotiated the sale. It did not appear whether the concern was a corporation, or?
a firm, or an individual trading under this corporate name; nor whether the defend??
ant had any interest in the concern other than as employee. It is contended that?
the circuit court should have directed a verdict of not guilty at the close of the case?
on the ground that there was not sufficient proof to sustain a finding that he personally?
shipped the goods or caused them to be shipped. The plaintiff in error is in no posi??
tion to make such contention in this court. At the close of the government's case?
motion was made to dismiss the information upon several grounds, one of which was?
"that it has not been shown that the defendant Brina shipped these goods to any?
place out of the state." The motion was denied and exception reserved. Testimony?
was thereafter introduced by the defendant on the various issues in the case, part of it?
being directed to the matter of shipment. At the close of the case defendant renewed?
his motion to dismiss the information but only "on the ground that it has not been?
shown by any evidence that the can which was used in this case deceived any of the?
public." This motion was denied, the court stating that it was "the only question?
for the jury." No objection was taken on the ground that shipment was not proved,?
nor was there any request to go to the jury on that question. There is, therefore, no?
exception in the case which raises the point now relied upon.
Thejudgment is affirmed.
This notice is given pursuant to section 4 of the Food and Drugs?
Act of June 30, 1906.
JAMES WILSON,
Secretary of Agriculture.?
WASHINGTON, D. C, June 25, 1910.
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