598 CASES, ETC. v. United States, 10960.
| Decision Date | 09 April 1954 |
| Docket Number | No. 10960.,10960. |
| Citation | 211 F.2d 249 |
| Parties | 598 CASES, EACH CONTAINING 24 CANS, MORE OR LESS OF TOMATOES v. UNITED STATES. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Eugene M. Fife, Jr., Indianapolis, Ind., William K. Bachelder, Chicago, Ill., for appellant.
Joseph H. Lesh, U. S. Atty., Phil M. McNagny, Jr., Asst. U. S. Atty., Fort Wayne, Ind., Warren Olney, III, Asst. Atty. Gen., Leonard D. Hardy, Department of Health, Education and Welfare, Washington, D. C., for appellee.
Before DUFFY, LINDLEY and SCHNACKENBERG, Circuit Judges.
This action is based upon a libel in rem filed by the plaintiff to condemn canned tomatoes produced by the claimant, Virgil Etchison, for alleged violation of the United States Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. From a summary judgment for plaintiff, claimant appeals to this court.
The libel, filed June 10, 1952, as amended, alleges that the canned tomatoes were shipped in interstate commerce from New Palestine, Indiana, on or about November 19, 1951; that said article of food was adulterated in interstate commerce, within the meaning of said act, 21 U.S.C. 342(a) (3), 21 U.S. C.A. § 342(a) (3), in that it consisted wholly or in part of a filthy substance by reason of the presence therein of fly eggs and maggots and of decomposed tomato material and within the meaning of 21 U.S.C. 342(a) (4), 21 U.S.C.A. § 342(a) (4), in that it was prepared under insanitary conditions whereby it may have become contaminated with filth. The libel asks for a decree of condemnation.
Plaintiff's motion for summary judgment alleges that all questions herein were adjudicated in favor of libelant and against claimant in civil action No. 2929 in the United States District Court for the Southern District of Indiana, Indianapolis Division; that the charges of adulteration made in the instant case are the same as those alleged and tried in case No. 2929; that, in response to requests for admission filed herein, the claimant has admitted that the canned tomatoes involved in this case were processed at the New Palestine plant during the 1951 canning season; that the canned tomatoes involved in this case bear the same code numbers as did the canned tomatoes found to be adulterated by the court in No. 2929; that the judgment in No. 2929 was entered after a full trial on the merits and constitutes an estoppel by judgment against the claimant as to the issue of adulteration of the tomatoes under seizure in the instant case.
The motion was supported by certified copies of the pleadings, findings of fact, conclusions of law, and memorandum judgment of the court in No. 2929 and the affidavit of the chief of the Cincinnati district of the Food and Drug Administration.
Among the findings of fact in No. 2929 were the following: the unsorted stock of tomatoes used by claimant in his 1951 canning operations contained large numbers of decomposed and partly decomposed tomatoes and was infested with flies, fly eggs and larvae; claimant, by failing to take proper sanitary precautions, etc., permitted the plant to become infested with scavenger flies; the operations in the plant in 1951 were not adequate to remove all eggs and larvae from the tomatoes, and much decomposed tomato material went into the tomato juice; representative samples were taken by the government from the stock of canned tomatoes and tomato juice packed by claimant in 1951, examinations of which disclosed they contained fly eggs and larvae and mold.
From the foregoing facts, the court concluded that a permanent injunction should be granted restraining the claimant from introducing into interstate commerce canned tomato products "heretofore packed" at the New Palestine plant "which are adulterated", within the meaning of said act. An order for a permanent injunction was entered accordingly.
Claimant's answer to the motion for summary judgment alleges that there is one issue only raised by said motion, to wit: whether the injunction in No. 2929 directly adjudicated the question at issue here. The answer contends that the goods in issue here were shipped before the injunction proceedings started and, therefore, they...
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...Silverman, 1 Cir., 189 F.2d 80. 15 For examples, see Huff v. Louisville & Nashville Railway Co., 5 Cir., 198 F.2d 347; 598 Cases v. United States, 7 Cir., 211 F.2d 249; Stevens v. Howard D. Johnson Co., 4 Cir., 181 F.2d 16 Rule 56(d), Federal Rules of Civil Procedure. 17 "If grantee exercis......
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Selsor v. Callaghan & Co., 83 C 8147.
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