11465. Adulteration of tomato puree.    TJ. S. v. 998 Cases    *    *    *.    (F. D. C. No.
7932.   Sample No. 1403-F.)
LIBEL FILED :    July 16, 1942, Western District of Michigan.
ALLEGED SHIPMENT: On or about January 10, 1942, from Lebanon, Ind., by the 
Ladoga Canning Co.
PRODUCT: 998 cases, each containing 6 6-pound, 8-ounce cans, of tomato puree 
at Fremont, Mich.
LABEL IN PART:   "Ladoga Brand   Tomato Puree."
NATURE OF CHARGE: Adulteration, Section 402 (a) (3), the article consisted in 
whole or in part of a decomposed substance.
1942, a motion to quash on the ground that the seizure of the product was in 
violation of the Fourth Amendment to the Constitution, and that the libel did 
not allege facts sufficient to sustain an action for relief in admiralty. Briefs 
were thereafter filed by the parties, and on September 21, 1942, the following 
ruling was made by the court:
RAYMOND, District Judge: "It being the view of the court that proceedings 
for condemnation under Section 304 (a) of the Federal Food, Drug and Cos- 
metic Act (21 U. S. C. A., Section 334) are essentially civil and are intended 
for protection of the lives and health of the public, and that they are not de- 
signed to obtain information for use in evidence against the owner and that 
therefore the Fourth Amendment to the Constitution is inapplicable (see United 
States v. Eighteen Cases of Tuna Fish, 5 F. (2d) 979; United States v. B. & M. 
External Remedy, 36 F. (2d) 53; Boyd v. United States, 116 U. S. 616; North 
American Cold Storage Co. v. City of Chicago, 211 U. S. 306; 15 Ann. was. 281; 
56 C. J. 1166; 25 C. J. 1173; 22 Am. Jar., Food, Section 81), an order may be 
entered denying the motion of Ladoga Canning Company to quash warrant and 
seizure and for return of goods."
On October 5,1942, the claimant filed exceptions to the libel for the following 
reasons: First, that the libel did not allege facts sufficient to sustain an 
action for relief in admiralty and, second, that the libel was indefinite and 
uncertain because it did not state what decomposed substance was present in 
the product.
An answer to the exceptions was filed on or about November 16,1942, stating 
that the question raised by the first exception was res judicata by reason of 
the court's opinion of September 21, 1942. In answer to the second exception, 
the answer alleged that the product consisted in whole or in part of decomposed 
tomato material, as evidenced by mold.
On January 14, 1943, the court entered an order sustaining the Government 
on both points.
Following the entry of the order of January 14, 1943, the claimant filed its 
answer to the libel, denying that the product was adulterated; and, in addi- 
tion, the claimant propounded a number of interrogatories, together with a 
motion for an order compelling answers to the interrogatories. The granting 
of such motion was opposed by the Government, and on April 21, 1943, the 
following opinion was handed down by the court:
RAYMOND, District Judge: "In proceedings in admiralty for seizure and 
destruction of alleged adulterated tomato puree introduced into interstate 
commerce, claimant has filed a motion for an order compelling answers to in- 
terrogatories. These interrogatories seek disclosure of the following informa- 
tion : (1) the extent to which the seized goods consisted of decomposed tomato 
products at time of shipment; (2) the number of cans taken out of shipment and 
their contents examined, with the can marks of each can; (3) the number 
of cans found to contain decomposed products, with the can mark of each can;
(4) the nature of the test or examination made of the contents of each can;
(5) the result of the test or examination made of the contents of each can with 
the can mark of each such can.
"The issue before the court under the statute is whether or not the food 
was adulterated when introduced into or while in interstate commerce. For 
this reason, the first interrogatory, as to whether the goods consisted of de- 
composed products at the time of shipment is wholly immaterial.
"The remaining interrogatories, in substance, seek to obtain from the libel- 
lant evidence upon which it will rely to support its own allegations, and are 
objectionable for this reason. In the case of Coronet Phosphate Co. v. United 
States Shipping Co., 260 F. 846, Judge Learned Hand said (page 849):
* * * Interrogatories in the admiralty serve two purposes, to amplify the plead- 
ings of the party interrogated, and to procure evidence in support of the libel or defense 
of the party interrogating. Bock v. Int. Navy. Co. (D. C.j 124 Fed. 711; The Baker 
Palmer (D. C.) 172 Fed. 154. They should not, however, be used merely to fish into 
the evidence which the party interrogated may produce in support of his own allegations. 
This limitation upon discovery has remained even in the most modern rules of procedure. 
A party is of course entitled to know whether his opponent admits the truth of his own 
allegations, and how far, so as to avoid unnecessary preparation for trial. He is not 
entitled to know what evidence his adversary will produce to prove the adversary's 
allegations, and what evidence he must himself produce to overcome the case so made. 
The result will, of course, be, as it has been in the past, that he must go to trial some-
that, and interrogatories are proper to reduce those allegations to very specific form. 
They should be encouraged for that purpose, but so far as they call upon the pleader 
to go further, and give, not only the details of his allegations, but the evidence by which 
he means to prove them, they are liable to abuse. If there develop on the trial a case 
of genuine surprise, the court, especially where there is no jury, has ample power to pro- 
tect the party surprised.
"While it has been held that admiralty rule No. 31 as to interrogatories 
to parties should be as broadly construed as federal rule 33 touching dis- 
closure of an adversary's case (see The Exermont, 1 F. R. D. 574; Citro 
Chemical Co. v. Bank Line Limited, 1 F. R. D. 638), the better rule is that 
interrogatories may not be used to examine the opposite party as to evidence 
upon which the other will rely to support his own case (Jensen v. Sinclair Nav. 
Co., 58 F. (2d) 407; Cargo Carriers v. The Prospect, 2 F. R. D. 519; The 
Arthur Conners, 35 F. Supp. 775).
"An order will be entered denying the motion filed February 26, 1943."
On April 25, 1944, a motion was filed by the Government for amendment 
of the libel, to allege that the product consisted in whole or in part of de- 
composed tomato material, as evidenced by mold, rot fragments, fly eggs, 
and fly maggots. The claimant subsequently requested that as a condition 
to the granting of the Government's motion for amendment, terms be im- 
posed requiring the Government to disclose certain analytical data. After 
hearing the argument of the counsel and after due consideration of briefs 
submitted, the court, on July 10, 1944, granted the motion without imposition 
of the terms requested by claimant. The claimant thereafter withdrew its 
answer- to the libel, and on November 18, 1944, judgment of condemnation 
was entered.
On November 20, 1944, the court ordered that the portion of the product 
which was found fit for food be released to the Ladoga Canning Co., and 
that the remainder be delivered to a Federal institution, for use as animal 
feed.