6411. Adulteration of tomato pulp. U. S. * * * v. 1,000 Cases and 500?
Cases * * * ?f Tomato Pulp. Tried to the court and a jury.?
Verdict for the Government. Decree of condemnation, forfeiture,?
and destruction.      (F. '& D. No. 8533.    I. S. No. 1025-p.    S. No. E-899.)
On October IS, 1917, the United States attorney for the Southern District of?
New York, acting upon a report h,y the Secretary of Agriculture, filed in the?
District Court of the United States for said district libels for the seizure?
and condemnation of 1,000 cases and 500 cases, each containing 4 dozen cans?
of tomato pulp, remaining unsold in the original unbroken packages, at New.?
York, N. Y., alleging that the article had been received on or about September?
19, 1917, and October 5, 1917, having theretofore been shipped by the Booth?
Packing Co., Locust Point,' Md., and transported from the State of Maryland?
into the State of New York, and charging adulteration in violation of the?
Food and Drugs Act. The article was labeled in part, " Diamond Brand To??
mato Pulp Made from Tomatoes and Tomato Trimmings D. D. Mallory?
& Co.    *    *    *    Baltimore, Md.    *    *    *    ."
Adulteration of the article was alleged in the libels for the reason that it?
consisted in part of a filthy, decomposed, and putrid vegetable substance.
Thereafter the said Booth Packing Co., claimant, by its attorney, filed its?
motion for an order directing the marshal to release to said claimant 20 sam??
ples of the product for the purpose of -analysis. On January 31, 1918, said?
motion was granted upon certain conditions, as will more fully appear from?
the following opinion of the court (Manton, D. J.) :
No authorities are cited by counsel, nor do I find any, which require the?
United States to submit samples of the tomato pulp in question to the claim??
ant's counsel or their experts for analysis and investigation. It is a privi??
lege accorded the claimant by the United States Attorney, and the conditions?
upon which such an examination is allowed in this case are liberal. If a?
limited number of cans are taken from each and these be deemed representa??
tive of the entire shipment, it should be satisfactory to the claimant. The?
proof will not require examination of each particular can in order to work?
a forfeiture to the libellant.
The motion will be granted upon these conditions.
On July 10, 1918, the consolidated case came on for trial before the court and?
a jury, and after the submission of evidence and arguments by counsel on July?
15, 1918, the following charge was delivered to the jury by the court (Grubb,?
J.):
Gentlemen of the jury: It is necessary for me in the first place to call your?
attention to the fact that there are two cases being tried by arrangement, as?
one case under this testimony, under which separate verdicts are required to be?
rendered by you, although, of course the result of the one verdict will be the?
same as the other, that is, the same evidence applying to each, we will have a?
verdict of the same kind with reference to both cases.
The first case is 377. In that case the Government of the United States?
seeks to condemn a shipment of five hundred cases of tomato pulp which was?
Seized, as has been described to you. In No. 378, the other case, the Govern??
ment seeks to condemn one thousand cases of tomato pulp seized as has been?
described to you. As I say, those two cases are before you for decision upon?
the same testimony, but in order to keep the record straight it is necessary for?
you to render a separate verdict in No. 377, and a separate verdict in No. 378,?
although the verdict will be of the same tenor and effect in each case, as the?
evidence is the same, and therefore should produce in your minds the same re??
sult in each case.
Now, these are both cases that arise in this way: The Government has?
seized and by these libels seeks to condemn these shipments of tomato pulp?
upon the idea that they were shipped in interstate commerce in violation of the?
Pure Food and Drug Act, passed by Congress. After the seizure of one of the?
shipments the Booth Packing Company intervened and claimed the shipments,?
and that makes that litigation, and the controversy between the Government on?
the one hand, and the claimant, the Booth Packing Company, on the other hand,
478	
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[Supplement 59,
and the only question involved is whether the'se shipments are subject to seiz??
ure under the Pure Food and Drug Act.
As a condition to any such seizure it is necessary that the seized shipment?
should travel in interstate commerce, because Congress has no jurisdiction over?
food products except as they enter into interstate commerce, therefore, the pre??
liminary question would be, except for the concession that I will call your at??
tention to, whether these shipments entered into interstate commerce before?
their seizure. But, it is conceded on the record that the shipments had entered?
into interstate commerce and were in interstate commerce at the time of the?
seizure, so you need not trouble yourselves with that question, since it is con??
ceded on both sides that that is the case.
It is further conceded that the samples that have been used, that is the?
cans that were used for the purpose of investigation, were parts of the two?
shipments and were fairly representative of the other cans in the shipments.?
In other words, to avoid the impossibility of investigating each can, it comes?
before you that the cans that had been produced are fairly representative of?
the shipments, and that they were taken from the shipment. Their identity,?
as far as the shipments are concerned, is conceded, and that they were fairly?
representative of the shipments is conceded.
Now, the Pure Food and Drug Act affecting interstate shipments prohibits?
shipments of food products that are either putrid, filthy, or decomposed. In?
this case the Government lays no stress on the word " putrid ". It does claim?
that this tomato pulp was filthy and decomposed; filthy, as I understand it,?
because it had sediment in the bottom of it, and decomposed because it was?
made from what the Government claims was decomposed stock when it was?
originally made.
Now, those are the questions that are presented for your decision, whether?
the shipments in question were either filthy or decomposed in the sense?
claimed. The burden is on the Government to reasonably satisfy you from the?
evidence, of one of those two propositions, either that they were filthy or that?
they were decomposed. If it has reasonably satisfied you of either the one or?
the other, then the product is subject to condemnation. If it has failed to sat??
isfy you that the product was either filthy or decomposed, in other words, if?
you do not believe it was filthy, and do not believe it was decomposed, then?
the claimant is entitled to your verdict.
Now, what " filthy " means outside of its being synonymous with decomposed,?
is what it means in ordinary use, that is, a product that is unclean, foul, and?
dirty. Whether you believe that this proof relating to the sediment which has?
been testified was seen, would bring the product within that description, is for?
you to say. It must be filthy in the sense I have defined, that is, dirty, un??
clean, and unfit for use by reason of its uncleanly condition.
Passing from that for a minute, the other thing that the Government lays?
stress on is that this product was decomposed within the meaning of this law,?
and decomposed within the meaning of the law means decayed or rotten, using?
these words in their ordinary acceptation, that is, what you or I would call?
decayed or rotten in ordinary conversation. That is the significance to be?
applied to the terms of the statute, and not the scientific meaning of decay or?
the scientific meaning of decomposition, which means a different thing from?
what is understood in ordinary conversation.
It is not essential of course, in order that you should find that the product?
was decomposed within the meaning of the statute, that the Government should?
show that it was, by reason of that decomposition, injurious to health, because?
its shipment in interstate commerce is prohibited if it is decomposed, and that?
applies without reference to the effect of the decomposition on the health of?
the consumer. Congress may have intended to conserve the taste of the con??
sumer in preventing shipments of decomposed food products In interstate com??
merce, that is, it may have been the intention of Congress to preserve the con??
sumer against the use of decayed products from the points of taste rather than?
from the point of health. However that may be, there is no qualification in?
the statute which limits the denomination of this class of stuff to such products?
as injure health. If they are decomposed within the meaning given you, the?
common acceptation, even if they have no deleterious effect on health, the?
shipment then comes within the inhibition of the statute.
The Government claims that they were decomposed, because it claims that the?
product was made from rotten tomatoes, and therefore the result must be that?
the product itself is rotten. The Government has not, and of course could not,?
introduce eyewitnesses to testifv to the character of stock that wpnf into thosp
N. J. 6401-6450.]   SERVICE AND REGULATORY ANNOUNCEMENTS.	479
particular shipments of tomatoes. It does not ask you to arrive at your con??
clusions from the teslimony given by witnesses who have seen the original toma??
toes that made up the product, but they ask you to arrive at your deduction in?
the reverse way?that is, by determining by analysis what is in the product, and?
by an inference, which it claims is a legitimate inference, arrive at a conclusion?
that the stock must have been rotten that went into the product because of the?
character of the product itself.
The evidence tends to show that there are three things which cause rot in vege??
table matter of this kind?bacteria, yeast, and mold.
The Government has placed no reliance on any excess of bacteria or yeast as?
rot producers in these tomatoes. Dr. Howard testified that his examination de??
veloped that there was no excess of bacteria and no excess of yeast, and there??
fore he made no further examination, and the Government does not rely on either?
of those as causes of rot, which, it claims, existed in this product. Its reliance?
is placed on an excess of mold in the product, and it claims the evidence shows?
that this was produced by rotten tomatoes. As I said, it does not get that con??
clusion by showing by witnesses what the tomatoes looked like before they went?
into the product, because that naturally would be impossible, but it claims that?
you have a right to deduce from the fact that it has shown, as it claims, that?
there was an excessive mold in the product, and that mold produces rot, that?
therefore there must have been rot in the tomatoes. This method on arriving at?
that, as I understand, is designated as the Howard method.
That method is this: A microscopic analysis is made of the product or a sam??
ple of the product, and a count of the mold field is made, microscopically, from?
the specimen of the product. After having arrived at the number of fields?
shown in the specimen the Government has its first premise. Then, under this?
method, experiments are made on stock that it actually has seen of sound toma??
toes, and partially rotten tomatoes, and wholly rotten tomatoes, and bi these?
experiments the Government seeks to convince you that there is a relation be??
tween the mold count and the character of the original stock as to rot. In other?
words, it has caused experiments to be made in cases where it could see the?
condition of the stock, and has caused microscopic analyses to be made of the?
amount of mold in a product where it has seen the stock, and thereby arrive by?
experiment at what it deems the rule as to the relation between the number of?
fields showing mold count in the product and the character of the stock in the?
product. It claims that it shows that there is a relation between the mold?
count, the fields containing mold, and the character of the stock that entered?
into the product which was the subject matter of the experiment.
In applying that rule to this case, where it has not seen the stock, they claim?
that, if it shows a certain number of fields showing mold count in the experiment,?
they can, by this rule, show the relation between the number of fields showing?
mold count and the rot in the original stock.
As I understand the contention of the Government's witnesses, it is that a?
percentage of something like 66 per cent of mold count would indicate a per??
centage of rot in the product of something like 6 per cent; that thereafter the?
percentage of rot rapidly increases; when the mold count increases above 60?
per cent the percentage of rot in the original product increases rapidly, and?
for that reason they say that it is fit to use a stock containing less than approxi??
mately 6 per cent, but have prohibited a stock that contains a greater propor??
tion than 6 per cent.
You have heard the testimony of Dr. Howard as to the mold count taken?
from these shipments, and you have heard the testimony of the claimant on?
that subject matter. It is for you first to determine what you believe from the?
evidence to be the character of this product as to the quantity of mold indicated?
by this microscopic analysis. Then it is also your duty, having done that, if?
you can do it, to determine what the proportion of rot in the product would b??
under that rule, if the rule is the correct one, from the amount of mold you?
determine the product to contain according to this count by microscope. If,?
after having done that, you arrive at the conclusion that the product itself is?
rotten in the sense of the statute, that is, that it was made from rotten stock,?
and was therefore rotten itself and within the prohibition of the statute, then?
the Government would prevail. If you are unable to do that, or, if you believe?
that on the contrary it was not made from rotten stock, then the claimant?
would prevail.
Of course, your ability to do that and the Government's case depend upon?
jthe accuracy of the Howard method and its correct applicability to the speci??
mens in question and to the tomato pulp in question.   Each of these matters
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[Srapptemeat S9,
are questions of conflict in testimony?whether the Howard method Is a cor??
rect one, and whether it was correctly applied to these specimens. That it is?
a correct method tmd waS properly applied is asserted by the Government and?
disputed hy the claimant.
In the first place, the claimant contends that the specimens analyzed are?
not fairly representative of the shipment, not in the sense that the cans from?
which the drops were taken are not fairly representative, because that is con??
ceded; but the Booth Packing Co. claims that the drops taken from the ean?
were not properly taken or not properly prepared to make them representative?
samples of the shipment or the cans from which they came. That is a matter?
which the Government disputes. The Government contends that they were?
properly taken and were properly representative of the cans from which they?
were taken. You have heard the criticisms with reference to that. The claim??
ant's witnesses, or some of them, criticised the kind of instruments used by?
Dr. Howard. Then, with reference to the shaking, you have heard the criticism?
of Dr. Brooks that a severe shaking was likely to give inaccurate results,?
whereas the Government's witnesses testified that that is the only way you can?
properly prepare a sample to get accurate results. Those arc questions of fact?
in conflict that you are to determine.
Then the claimant contends that the sample itself, or the number of drops,?
whatever the evidence shows were analyzed under the microscope, were them??
selves too small a quantity of the original shipment to be fairly representative?
of the character of the shipment. The Government, on the other hand, claims?
that, they wore fairly representative. That is a question for you to determine?
under the evidence, with the understanding, of course, that you -are to do it in?
the light of science, so far as it relates to the use of the microscope, and not be?
swayed by reason of any prejudice that you may liave ^against it. You arc to?
look at the matter in the light of science, as arrived at, at the present time.?
If you find that the method was properly applied, your next inquiry would 1*?
whether the method itself is a correct one in the 'sense that it gives fairly?
accurate results, that is, from the mold- count you can fairly arrive at the?
amount of rot in the stock, which, of course, would indicate rot in the product
Now, the method itself is criticised on the one hand by the claimant, and is?
asserted to be correct by the Government You have heard the evidence as to?
the experiment that lias been made to support its accuracy, experiments made?
by the Department of Agriculture for the purpose of arriving at whether an?
accurate method could be discovered to show the relation between the moid?
in the product and the rot ia the stock. You have heard the testimony of Dr.?
Howard with relation to the experiments he made, and these other witnesses?
for the Government, some of them in the Government department, and some in?
private business, who testified to the experiments they had made, having seen?
the stock, and determining the percentage of rot in the stock, then having?
analyzed the product of tomato pulp after it was made, and having counted the?
mold field in the product, the percentage of mold fields in the product and having?
done that often enough, they contend, to have shown that there was an ap??
proximate fixed relation between the number of mold fields in the prodnct and?
the percentage of rot in the stock. The claimant contends that there is no such?
relation, and that experiments based on that would be unreliable for that reason;?
that there is no relation between them which can be determined with any?
accuracy, between the number of mold fields, as determined by the microscope,?
in the product, and the percentage of rot as determined by weight or by the?
eye, or any quantitative way of getting at it, in the stock from which the?
product was made. In addition to that you have heard discussion pro and?
con as to the reputation among scientists as to what is called the Howard?
method, and it is for you to take into consideration that testimony, and make?
up your minds as to which has the better reason, in your judgment. It is also?
proper for yon to consider the evidence relating to the use of this method by?
practical canners, as to whether it is general or not, and the weight you will?
give to the method because of its having been in use by canners as a method?
of arriving at conditions of the stock from the count of mold fields in the?
product.
Then the claimant introduces evidence of a chemical analysis as distin??
guished from a microscopical analysis, and claims that the chemical analysis?
was in conflict with this Howard method or its application as applied in this?
case. As against that, the Government contends that the chemical analysis of?
Dr. Brooks, who was the witness that testified on that subject, was an xinre-
N. J. 6401-6450.]   SERVICE AND REGULATORY ANNOUNCEMENTS.	481
liable one, and that not sufficient time was taken in the way provided by the?
Government in making that kind of experimental analysis; also the Govern??
ment's contention is that no chemical analysis can with any reliability show?
the relation between the rot and the original stock, and the amount of mold as?
shown by the count of mold fields in the product, or that any chemical analysis?
of tomato pulp can indicate how much rotten stock was used.
On the one hand the claimant's position is that chemical analysis can do?
that, while the Government contends that owing to the nature of the tomato,?
no chemical analysis of tomato pulp can show with any certainty whether there?
was rot in the tomatoes or not from which the pulp was made.
Those, as I recall, are the general contentions on the one side and the other,?
and the answers of each side to the other's contention. Of course those conten??
tions must be supported by the evidence which has been introduced before the?
jury, and in arriving at which contention to adopt you must look to the evi??
dence as introduced. You should try this case on the evidence, and?
not by any prejudices you may have one way or the other about the mat??
ter. Your inquiries are restricted to determining which contention is the?
correct one based on the evidence introduced since this trial began up to the?
time when both sides rested. That evidence includes the oral testimony of the?
witnesses, the scientists, the experts, and those who testified to the fact. Also?
the physical exhibits that have been introduced, the tomatoes themselves, the?
inspection which you made of them under the microscope, and all the exhibits?
which have been introduced before you for the purpose of enlightening you as?
to the correct result. Also the documentary evidence, which includes the scien??
tific pamphlets which have been introduced, upon the idea that men of recog??
nized ability, scientists?that what they write or say about a thing is some?
evidence, and the jury may look to it as persuasive that what is contained?
therein is true as a matter of fact.
Then you have a right to look at the evidence as to the conditions in the Booth?
Packing Co.'s factory. On the one hand you have heard the testimony of Dr.?
Howard, as he says, on August 20, as to the absence of sorting, method of clean??
ing, etc. The claimant's contention is that on that day they did not make any?
tomato pulp, and that therefore it was not required to sort, because that was not?
the practice when tomatoes were canned as whole tomatoes and no pulp made.
You have also heard the description of the premises by the claimant's wit??
nesses as to the character of the machinery, cleanliness, and sanitary methods?
adopted, and from that and all the other evidence I have mentioned, you are?
required to make your minds up on this issue, wdiich is the ultimate issue in the?
case, whether you are reasonably satisfied from the evidence that these ship??
ments were either filthy or decomposed. If you are reasonably satisfied from?
the evidence that they were either filthy or decomposed, one or the other, in the?
sense defined to you, and the sense intended by Congress when it enacted this?
pure food and drug law, then the Government, as the plaintiff in this case, is?
entitled to your verdict. If you are not reasonably satisfied from the evidence?
that they were either filthy or decomposed?that is, if you fail to find that they?
were filthy and fail to find that they were decomposed, then the claimant is en??
titled to your verdict. The Government must establish its case by a preponder??
ance of the evidence to your reasonable satisfaction; not beyond a reasonable?
doubt, because this is a civil case. It simply relates to whether the property,?
tlie tomato pulp in question, shall be condemned, and the interest of the claimant?
divested by your judgment.
The jury thereupon retired and after due deliberation returned into court?
a verdict in favor of the Government, and thereafter, on July 31, 1918, in?
accordance with such verdict, a formal decree of condemnation and forfeiture?
was entered, and it was ordered by the court that the product should be de??
stroyed by the United States marshal, and that said claimant company should?
pay the costs of the proceedings.
C. F. MABVIN, Acting Secretary of Agriculture.
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[Supplement 59,