29392. Alleged adulteration and misbranding of potatoes. U. S. v. 420 Sacks 
of Potatoes. Tried to the court. Judgment for claimant. Libel dis- 
missed and product ordered released. (F. & D. No. 42921. Sample No. 
33644-D.)
On June 13, 1938, the United States attorney for the District of Maryland, 
acting upon a report by the Secretary of Agriculture, filed in the district court 
a libel praying seizure and condemnation of 420 sacks of potatoes at Baltimore, 
Md.; alleging that the article had been shipped in interstate commerce on or 
about June 4, 1938, by W. H. Martin from Bangor, Maine; and charging adul- 
teration and misbranding in violation of the Food and Drugs Act. The article 
was labeled in part: "Maine Selected Potatoes Martin's W. H. M. Brand 
U. S. Commercial Graded   *   *   *   W. H. Martin   *   *   *   Bangor, Maine."
The article was alleged to be adulterated in that it consisted in whole or in 
part of a decomposed vegetable substance.
It was alleged to be misbranded in that the statement "U. S. Commercial" 
was false and misleading and tended to deceive and mislead the purchaser 
when applied to potatoes below U. S. Commercial grade.
On June 28, 1938, W. H. Martin having appeared as claimant, the case 
came on for trial before the court. After hearing the evidence and arguments 
of counsel, the court entered judgment for the claimant, with the following 
opinion delivered orally from the bench:
COUSMAN, District Judge: "I am inclined to believe that the owners of the 
goods in this shipment are entitled to a verdict in their favor, in view of the 
conflict in the evidence in this case.
"Of course, it is difficult for the court to put itself in the position of the 
inspectors and attempt to say what yardstick ought to be adopted by the 
Government under this ruling. The fact remains, however, that the regulation 
with respect to the 6 percent tolerance is couched in very broad language and 
obviously permits of a great variation, depending upon how the examination 
is conducted.
"I do feel that there is considerable weight to the argument of the claimant 
that where 70 bags have been examined, as against 28, the former examination 
ought to control if there is nothing otherwise to upset it—in other words, 
if it appears to have been fairly and reasonably made. Of course, the person 
making it, the witness Schley, may be said to have an interest in the investiga- 
tion because, presumably, he would have an interest in the sale. But, also, 
the Government witnesses who made the inspection had an interest in uphold- 
ing the technical requirements of the law.
"Since the average of serious damage exceeds the allowable amount by rela- 
tively little—only three and a quarter percent, as I understand it, in regard to 
the 20 bags inspected for the claimant, and only one-quarter of a percent with 
reference to the inspection of 50 bags inspected for the claimant—I am inclined 
to take the position that this conflict, or wide variance between these figures 
and what the Government found—namely, an average of 15 percent with 
respect to the eight sacks seriously damaged, and an average of 13 percent 
with respect to the 20—I am inclined to the view that because of this difference 
between the two groups of inspections, it is very reasonable to say that a more 
minute inspection might have shown that the whole lot did not violate the 
regulations.
"I will, therefore, give the claimant the benefit of the doubt.
"Having come to that conclusion, it is equally reasonable to say that the 
goods should be allowed to go entirely free, because it necessarily follows 
that it cannot be said that they have been misbranded any more than it can 
be said that they are decomposed, contrary to law.
"I will sign a decree to this effect."
On June 29,1938, a decree was entered dismissing the libel and ordering that 
the product be released to the claimant.
HARRY L. BROWN, Acting Secretary of Agriculture.