F. & D. No. 1754.
S. No. 614.	
Issued June 16, 1911.
United States Department of Agriculture,
OFFICE OF THE SECRETARY.
NOTICE OF JUDGMENT NO. 873, FOOD AND DRUGS ACT.
ADULTERATION OF FROZEN EGGS.
On or about August 6, 1910, R. Smithson shipped from the State?
of Illinois into the State of Connecticut 3,000 pounds, more or less,?
of frozen eggs: Forty 25-pound cans of frozen whole, five 20-pound?
cans of frozen whites of eggs, and forty 25-pound cans of frozen?
yolks. Samples of said eggs in this shipment were procured and?
examined by the Bureau of Chemistry, United States Department of?
Agriculture, with the following results: Sample of the frozen yolks?
of eggs showed 18,000,000 bacteria per cubic centimeter, 1,000,000 of?
which were gas-producing organisms; a sample of the frozen whites?
of eggs showed 80,000 bacteria per cubic centimeter, of which 10,000?
per cubic centimeter were gas-producing organisms; and the sample of?
whole eggs showed 10,000,000 bacteria per cubic centimeter, of which?
1,000,000 per cubic centimeter were gas-producing organisms, indicat??
ing that said eggs were filthy and decomposed. As it appeared from?
the findings of the analyst and report thereon that the product was?
adulterated within the meaning of the Food and Drugs Act of June?
30, 1906, and liable to seizure under section 10 of the act, the Sec??
retary of Agriculture reported the facts to the United States attor??
ney for the District of Connecticut.
In due course a libel was filed against said 3,000 pounds, more or?
less, of frozen eggs, charging the above shipment and alleging that?
the product so shipped was adulterated in that said eggs were in a?
filthy and decomposed condition. Thereupon R. Smithson, of Chi??
cago, 111., entered an appearance and filed an answer denying the?
allegation of adulteration in said libel. The cause came on for hear??
ing upon the issues raised by said libel and answer, and after testi-
95682??No. 873?11
mony of the witnesses and argument of counsel, Piatt, J., instructed?
the jury as follows:
JAN. 13, 1911.?
GENTLEMEN OP THE JURY:
We have reached the last stage of the interesting inquiry which has been before?
you for the last two or three days, and the labor of the case now really falls upon your?
shoulders. It happens to be a case of that description in which the Court's duty is?
nominal and your duties are the important and essential ones in the determination?
of the issue there is between the Government and these claimants.
You have undoubtedly observed, as the case has been presented that I have been?
extremely liberal in my presentation of the testimony before you for your consider??
ation, and I conceive that no fault can be found by either party to the controversy?
about the privilege which has been accorded them in presenting the case in such a?
way that in their view you will be able to arrive at a just conclusion.
This is a somewhat peculiar action, arising under the Pure Food and Drug Act, as?
counsel have already explained to you several times, which was passed in 1906 and?
which puts under the control of the Government the investigation of drugs and food?
so far as they are concerned with interstate commerce; that is, so far as they are trans??
ported from state to state to form part of the general commerce of the country, aside?
from the individual commerce carried on here in Connecticut or in New York or in?
any other state of itself.
You understand, of course, that the frozen eggs against which this libel pleads are?
concededly the subject of interstate commerce and within the province of the Govern??
ment under the Pure Food and Drug Act to take action on. Whether the Govern??
ment can do what it desires to do depends entirely upon the conclusion which you?
gentlemen reach as to the character of this product.
The Government says that this shipment of eggs was adulterated within the meaning?
of the act of Congress and the manner in which it was adulterated is set forth in the?
libel as follows:
"(a) The said article of food, to wit:-?three thousand (3,000) pounds, more or less,?
of frozen eggs is and was at the time of said shipment and delivery decomposed and?
filthy and of a poisonous and deleterious character."
Right around that statement of the Government centers the issue upon which you?
are to pass, Gentlemen. The Pure Food and Drug Act doesn't use the words "unfit?
for food." That particular expression isn't found in the act, but when it describes?
an adulterated article as one which is "decomposed and filthy," it means undoubtedly?
unfit for food to the extent that it would be improper and unfit food for me or you or?
any other citizen of this country to indulge in.
The burden of proof, you understand, I presume, Gentlemen, is upon the Govern??
ment, which presents that allegation that the article was of a poisonous and deleterious?
character. The Government is bound, by a preponderance of the evidence that has?
been presented to you during the last three days, to have satisfied your minds as reason??
able men that their contention is true that upon this testimony which has been pre??
sented to you it,is your duty to find that these frozen eggs were decomposed, filthy?
and poisonous and deleterious in character. Now, I don't think that you are bound?
to find that all of those characteristics exist in this product which is under considera??
tion by you. I don't think it necessary for you to find, upon the evidence presented?
by both parties to the controversy that the frozen eggs were not only decomposed,?
but filthy and also poisonous and also deleterious. Of course, it goes without saying?
that if they are decomposed to the extent that they are unfit for human food, they?
might reasonably be called filthy and deleterious and perhaps in a sense poisonous.
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If they are unfit for food, there must be a certain element of poison about them. But?
that is the entire issue upon which you have to pass, and it all depends upon the view?
which you take, Gentlemen, of the testimony which has been presented to you since the?
case opened, first on behalf of the Government, and then on behalf of the claimants.?
I don't think it my duty to occupy your time with a review of that testimony in?
extenso. It is fresh in your minds and you have listened to it with care, and I am?
sure with intelligence, and I expect you, when you retire to your room for consultation?
to apply to the evidence presented by both parties the ordinary rules of reason and?
common sense which you apply to every other issue that arises for your consideration?
and judgment as you pass along through life. I am willing to take it for granted that?
you will not be respecters of persons, that you will let no feeling of sympathy govern?
you in your considerations, but that you will treat the matter as a purely abstract?
proposition.
A certain amount of so-called frozen eggs has been seized by the Government?
because, as the Government avers, it is in the condition referred to, and it is for you?
to say whether, in the testimony presented to you, the Government has sustained the?
averment and satisfied you that they are in that condition.
The Government has produced, as you will remember, two gentlemen from Wash??
ington connected with the department that is engaged in carrying on investigations?
under the provisions of the Pure Food and Drug Act, Dr. Bates and Dr. Stiles, who?
have both told you about the way in which they obtained samples of the article in?
question, what they did with them, how they treated them and what the results they?
found were, and, after telling you what results they obtained, they gave you their?
conclusions as experts that, containing the things that they say the article contained,?
the article itself is filthy, decomposed and deleterious. In addition to that, Dr.?
Wolff, whom I presume is known to some of you, who is in charge of the health depart??
ment here in the city, has told you about his experience and has given you his opinion,?
based upon, as I remember it, the condition of the article as testified to by Dr. Bates?
and Dr. Stiles, that if they have given you correct reports of the condition of the article,?
he considers it an entirely improper article to be distributed and sold under the Pure?
Food Act.
In their evidence, the claimants have described to you the place in which they pro??
duce and make this food, and you remember all the details of how they make it and?
the location of the room in which the frozen product is prepared. All this is fresh in?
your minds.    It is unnecessary for me to enlarge upon it.
You, I presume, Gentlemen, have had sufficient experience in the line of the duty?
you are now engaged upon to know that in the consideration of the evidence it is not?
a mere question of counting heads; if it were, it would be the Government's case with??
out question because they presented Dr. Stiles and Dr. Bates, who both told you about?
what they found, and the claimants have been contented to present Dr. Smith, who?
told you what he found in examining the same product. It won't turn, of course, in?
your minds upon the fact that two say one thing and one says the other, but it is for?
you to make up your minds which line of expert testimony it strikes you is the most?
reasonable and it is for you to determine, as I said before, which line of thought with?
reference to the matter of the frozen eggs, seems the most reasonable way of approach??
ing it. You recollect Dr. Smith says it isn't enough to find out how many bugs there?
are in a quarter of a teaspoonful of the product. (I believe he says he found 18,000,000.)?
It doesn't follow from that that they were bad bugs. It is fair to say, however, it?
seems a fair inference to make, that if he did find 18,000,000, he would think it worth?
while to apply the acid test in order to be sure one way or the other. You will also?
remember that Dr. Wolff told you the acid test is not a recognized test in such?
cases and is not used by boards of health the country over. I think Dr. Smith says?
that he himself has confidence in it, but he doesn't Btate that he iB following the rest of?
the scientific investigators when he performs it.?
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I don't think it worth while for me, Gentlemen, to delay you in your work. I want?
you to approach the matter fairly and apply your ordinary common sense which was?
born in you and which it is your duty to apply to all matters that come before you for?
your decision. I shall trust you to arrive at the proper verdict after consultation?
among yourselves.
You may now retire.
The jury in due form of law found for the libellant, whereupon?
the court rendered the following decree:
Now therefore, it is ordered, adjudged and decreed that the said personal property,?
to wit, 3,000 pounds of frozen eggs, described in said information, for the reasons and?
causes set forth in said information, be and the same are condemned to the use of the?
United States, and the Marshal of the United States for the District of Connecticut is?
hereby ordered and directed to destroy said 3,000 pounds of frozen eggs, provided,?
however, that, upon the payment on or before February 1, 1911, of all the costs in the?
proceedings herein, including all court, clerk and marshal's costs, fees and expenses?
and all other legal costs incident to these proceedings, and upon the execution and?
delivery on or before February 1, 1911, to said Marshal of a good and sufficient bond?
to the United States in the penal sum of Four Hundred Dollars, to the satisfaction of?
the United States Attorney for the District of Connecticut, conditioned that said 3,000?
pounds of frozen eggs shall not be sold or otherwise disposed of for food purposes or?
contrary to the provisions of the Act of Congress commonly known as the Food and?
Drugs Act, approved June 30, 1906, nor contrary to the laws of any state, territory or?
insular possession of the United States, that the said Marshal shall re-deliver said 3,000?
pounds of frozen eggs or such portion thereof as is now in his possession to said R.?
Smithson, at the expense of said R. Smithson and subject to all storage charges uow?
due or which may hereafter become due upon said goods.
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, May 11, 1911.
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