6193. Alleged adulteration of tomato catsup. TJ. S. * * * v. 720 Cases of Tomato Catsup.?
Tried to the court and a jury. Verdict for claimant. (F. & D.No.8587. I. S.No. 3304-p,?
S. No. E-919.)
On November 19, 1917, the United Stages attorney for the Eastern District of New?
York, acting upon a report by the Secretary of Agriculture, filed in the District Court?
of the United States for said district a libel for the seizure and condemnation of 720?
cases, each containing 36 bottles of tomato catsup, alleging that the article had been?
received on or about October 29, 1917, the same having been shipped by the Garret?
Bergen Co., Bridgeton, N. J., and transported from the State of New Jersey into the?
State of New York, and charging adulteration in violation of the Food and Drugs Act.
Adulteration of the article was alleged in the libel for the reason that it consisted?
in part of a filthy, decomposed, and putrid vegetable substance.
On April 27, 1918, the case having come on for trial before the court and a jury,?
after the submission of evidence and argument by counsel, the following charge?
was delivered to the jury by the court (Garvin, D. J.):
Mr. Foreman and gentlemen of the jury, it now devolves upon the court to charge?
you generally with reference to the law applicable to the case on trial, and before pro??
ceeding to discuss the law which is peculiarly applicable to this case, it is my duty to?
charge you generally with respect to the duties that devolve upon juries irrespective?
of the character of the case on trial.
In the first place, just as the court is the sole judge of the law which is applicable?
to the case on trial, so you gentlemen of the jury are the sole judges of the facts, and?
that means that you are to decide this case upon the evidence, and you are to dis??
regard entirely statements of counsel made during the trial, because that is not evi??
dence. You are further to disregard any opinion that you think the court may?
entertain as to the merits of either side in this controversy, because the function of?
the court has nothing to do with determining the facts. That, gentlemen, is a duty?
which the law imposes upon you, and it is a duty which you are obliged, by your?
oath, to face fearlessly. That is to say, that you are to put aside all passion, prejudice,?
and sympathy and to decide the case according to the evidence in order that justice?
may be done, and that means that you are to disregard the fact that the United States?
of America is a party to this proceeding. That should not sway you one way or the?
other. You are to disregard any consequences that you may think may be directed?
against the claimant in the event that you decide against the claimant, because that?
consequence is something with which a jury has nothing to do, and which a jury?
has no business to consider in reaching its verdict.
As you are to decide this case upon the evidence I will charge you that you are?
to take into consideration all the evidence presented, and you are to give it such?
weight as in your judgment it deserves. In determining whether or not you will?
accept or reject evidence given by a witness you will take into account the bearing?
of that witness on the stand, the probability of the story told, and the likelihood of?
its being true. I charge you that if you find that a witness has willfully misstated a?
material fact you are at liberty to disregard the entire testimony given by that witness.?
You are not required to do so, but that is your right. You may disregard it if you so?
desire.
And now, gentlemen; with respect to the law applicable to the case on trial. The?
United States of America comes into court and files a process known as a libel, and?
under that process seizes a quantity of tomato catsup, and then the shipper of that?
catsup, known here as the claimant, appears in the proceeding and states that the?
Government had no right to make the seizure, and the Government had no right to?
make the seizure unless that seizure was justified by law, and the Government claims?
that the justification for its action was that an act of Congress known as the Pure Food?
Law Act had been violated and that law reads in part as follows:
"That for the purpose of this act an article shall be deemed to be adulterated if it?
consists in whole or in part of a filthy, decomposed, or putrid animal or vegetable?
substance, or any portion of an animal unfit for food, whether manufactured or not,?
or if it is a product of a diseased animal or one that has died otherwise than by-?
slaughter."
And so, the part peculiarly applied here is that the Government claims that the?
goods in question consisted in whole or in part of a filthy, decomposed, or putrid?
animal or vegetable substance. I charge you in reaching your conclusion as to whether?
or not the law-was violated that you are to accept in the common ordinary every day?
sense these words "filthy," "decomposed," and "putrid." There has been consid??
erable expert testimony here, but I charge you it is the law that you are to give to
N. J. 6151-6200.]      SERVICE AND REGULATORY ANNOUNCEMENTS.	225
these words the meaning which they are ordinarily given in every day life. That is?
to say, filthy is usually considered to be nasty or dirty, and decomposed is usually?
considered to be rotten, and putrid has a somewhat similar meaning in every day life??
rotten or emitting a vile odor. Just the meaning that you gentlemen, would give to?
those words in your daily life.
Although the United States of America is a party to this proceeding, and although?
you gentlemen who have sat in criminal prosecutions have found in this court that?
the United States of America is the plaintiff there, yet this proceeding is not a crim??
inal prosecution, and the reason of that becomes of extreme importance to you because?
of the fact, as perhaps you know, a different rule of law applies in guiding you in?
reaching your verdict. If it were a criminal prosecution the court would charge you?
that you must be satisfied that the Government made out its case against the defendant?
beyond a reasonable doubt. Now, this is not a criminal prosecution and if you gentle??
men determine that the Government has proved the claims that it makes by a fair?
preponderance of evidence then it is your duty to find in favor of the Government.?
If you are satisfied that a fair preponderance of evidence has been presented by the?
Government, that makes out the Government's case. If you find that the evidence?
is evenly balanced between the claimant and the Government, and you are unable to?
make up your minds in whose favor your verdict would be, in that event you must?
render your verdict in favor of the claimant.
The Government has charged, and the trial disclosed, that 512 cases of catsup was?
seized, and the Government claims that by reason of an analysis made of a part of?
this seizure, and by reason of conditions existing in the factory of the claimant with?
respect to the manner of sorting tomatoes that this entire lot is so substantially affected?
with mold as to render it filthy, decomposed, or putrid within the meaning of the?
Pure Food Law. And if, gentlemen, after considering the evidence you come to the?
conclusion that the Government has sustained by a preponderance of evidence its?
contention that a whole or part of this seizure of 512 cases are so affected by mold as?
to render them filthy, decomposed, or putrid, then your verdict will be in favor of?
the Government.
The evidence has been so carefully analyzed for the benefit of you gentlemen,?
by counsel for the claimant and the Government, that the court does not deem it?
necessary to go over it at length. You have been paying careful attention to its?
presentation, and the court is of the opinion that you can, without further comment?
by the court, review the details of the evidence, and give it such weight as in your?
judgment it requires.
I have been asked by the claimant to make certain specific charges. I will read?
them to you:
(1)?In determining as to whether the catsup seized consists in whole or in part?
of a filthy, decomposed, or putrid vegetable substance, the jury should consider?
that the words "filthy," "decomposed," or "putrid" are not used in a purely tech??
nical and scientific sense, but in the common, ordinary, every-day sense.
I have endeavored to so charge, and I so charge.
(2)?The question for the jury to determine is whether upon all the facts appearing?
in this case there is such a substantial presence of mold, yeasts and spores, and bac??
teria as to warrant the finding that the product is filthy, decomposed, and putrid?
in a natural, practical sense. If the jury find there was not a substantial presence?
of these molds, yeasts and spores, and bacteria, the verdict must be for the defendant.
I so charge, except I charge you, you are not required to find all four of these prod??
ucts in the material. If you find any one or more of them present in such a sub??
stantial degree as to render the product decomposed and putrid in the natural sense,?
your verdict must be for the Government.
(3)?The testimony of the Government's experts as to the percentage of molds,?
yeasts and spores, and bacteria are only statements of fact as to the counts obtained?
by them, and the inferences they draw from these facts are opinions which the jury?
may accept or reject.
I so charge, and let me make it a little plainer to you, gentlemen. The Govern??
ment experts have testified that they made certain tests, and they found certain?
percentages of molds as a result of those tests in specimens which they selected from?
the quantity seized. Now, those statements by the Government experts under oath?
are positive statements of fact. Then the Government experts went on to say that?
as a result of the tests made, in their opinion, the balance of the goods seized were?
in the same condition and had the same relative percentages of mold. Those are?
mere expressions of opinion, the sort of opinion upon which expert testimony is very?
largely based, and which the jury may accept or reject according to whether or not?
they believe that the expert is a man who knows sufficiently about what he is talking?
to justify giving his opinion some substantial credence.
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[Supplement 54.
(4)?In determining as to whether the catsup is filthy, decomposed, or putrid, the?
jury should also consider the testimony as to the quality of fruit used and the process?
employed by the Garret Bergen Co. in the manufacture thereof.
I so charge. I have endeavored to cover that in my charge to you when I charged?
you to pay attention to all the evidence presented, and to consider all the evidence.?
I am requested to charge as to part of the evidence, and I charge as to that. I charge?
also that you are to consider all the evidence.
(5)?This case involving a forfeiture of property, the Government must establish its?
case by the preponderance of evidence and if you are in doubt on the whole case as?
to whether the Government has made a case or not, you must find for the defendant.
I so charge.
(6)?The court's denial of the motion made by the defendant's counsel for a dis??
missal of the libel, in no way indicates any opinion of the court upon the merits of?
the case. The significance of the denial is that there were questions of fact in the?
case to be decided by the jury.
I so charge. I endeavored to cover that proposition when I told you if you think?
the court has any opinion in this matter you must dismiss it from your minds entirely.?
What the court thinks of the facts is of no significance to you whatever. You are to?
determine the facts in this case.
(7)?No charge is made that the product is filthy or decomposed in a way that makes?
it injurious to health in the sense of a poison.
I so charge. I charge you further. It is not necessary that the contents, if it?
consists in whole or in part of a filthy or decomposed vegetable substance, is unfit for?
food, but if it comes within this prohibition as defined m the statute and explained?
by the court in its charge, then the claimant has violated the law and your verdict?
will be accordingly. And so I charge you, if, after considering the evidence with the?
instructions given by the court, you conclude that these 512 cases of catsup, or any?
part of them, are in such a condition as to have violated this law, then your verdict?
will be for the Government, indicating the number of 512 cases you believe were in?
an unfit condition. If you believe that the cases were all in a proper condition and?
the law was not violated, then your verdict would be for the claimant. Are there?
any further requests to charge?
Mr. GILPATRIC. None from the claimant.
The COURT. Any from the Government?
Mr. SMITH. I ask the court to charge that if the jury find that the bottles examined?
by the Government employees as to which the testimony was gjiven by those em??
ployees respecting the mold counts are deemed by them to be a fair sample after such?
examination, they may find that the condition of the entire shipment was the same?
as that indicated by the examination of those 22 bottles.
The COURT. DO you wish to be heard upon that request?
Mr. GILPATRIC. I should except to that, if your honor please.
The COURT. I so charge.
Mr. GILPATRIC. Exception.
Mr. SMITH. I ask your honor to charge that it is not necessary for the Government?
to establish that this product is decomposed and putrid and filthy. It is not necessary?
for the Government to establish all of these. If it establishes any one of these, it?
establishes its case.
The COURT. I so charge.
Mr. SMITH. I ask your honor to charge the jury, if the jury find that this catsup?
so seized contained as much as 8 per cent of decomposed matter, such as rotted toma??
toes, they may find that the statute is violated.
The COURT. I so charge, gentlemen, only, however, if you reach the conclusions?
that by 8 per cent present, there is present a substantial amount of the mold, which?
in your judgment brings it within the prohibition of law.
Mr. GILPATRIC. I take an exception to that, if your honor please. If your honor?
please, I desire to except to so much of your charge in charging the claimant's second?
request to charge as referred to the presence of yeast and spores, and my exception?
is on the ground that that is not relevant to the case here, as the whole point of the?
Government's contention is the presence of rot as indicated by mold.
The COURT. I am very willing to have that taken out. Very well; by consent?
that will be eliminated and the only question for you to have in mind is the presence?
or absence of mold.
Mr. SMITH. Of course, what your honor charged as to the manner in which the?
Government experts testified is to be treated as well to the claimant's expert.
The COURT. It does, gentlemen.
The jury thereupon retired, and after due deliberation, returned into court with a
verdict for the claimant.
CARL VROOMAN,
Acting Secretary of Agriculture.
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