CC CO. v. United States

• Decision Date: 20 January 1945
• Docket Number: No. 10962.,10962.
• Citation: 147 F.2d 820
• Parties: C. C. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

147 F.2d 820 (1944)

C. C. CO. v. UNITED STATES.

No. 10962.

Circuit Court of Appeals, Fifth Circuit.

October 30, 1944.

Rehearing Granted December 12, 1944.

On Rehearing January 20, 1945.

S. E. Morse, of Gulfport, Miss., for appellant.

T. Hoyt Davis, U. S. Atty., and John P. Cowart, Asst. U. S. Atty., both of Macon, Ga., for appellee.

Before HOLMES, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

The appellee by separate proceedings in rem sought to condemn two interstate shipments of canned oysters packed by appellant at its plant in Biloxi, Mississippi. One shipment of 179 cases, each containtaining 48 cans of "C. C. Brand Oysters," was consigned to Webb-Crawford Company, Athens, Georgia, and the other shipment of 49 cases, each containing 48 cans of "C. C. Brand Oysters," was consigned to Thornton Grocery Company, Elberton, Georgia. The actions, brought under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., were consolidated for trial and tried to the court without a jury. The court found that one lot of oysters, code number 4J70, was not adulterated, was fit for food, and ordered it released. The remaining lots were found adulterated, unfit for food, and were ordered destroyed. The sole issue is whether the oysters were adulterated in violation of 21 U.S.C.A. § 342(a) (3) in that they were wholly or partially decomposed.

The Federal Food, Drug, and Cosmetic Act, after providing for condemnation proceedings by libel, with reference to procedure, provides:

"The article shall be liable to seizure by process pursuant to the libel, and the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined in any such case shall be tried by jury. * * *" 21 U.S.C.A. § 334(b).

The rule in this court in admiralty cases is that the hearing on appeal is de novo, and that it is the appellate court's duty to review the whole case and make such decree as ought to have been made. Pavlis et al. v. Jackson, 5 Cir., 131 F.2d 362; Coryell v. Phipps, 5 Cir., 128 F.2d 702, 704.

Where forfeiture of private property is sought, as is here sought by the Government, "a higher degree of proof than a mere preponderance, a mere balance of evidence in favor of the Government, is required. It is necessary, in a case like this, that the Government should establish, by clear and satisfactory evidence, that its case has been made out." Van Camp Sea Food Co. v. United States, 3 Cir., 82 F.2d 365, 366.

To prove its case, the Government offered the testimony of two officers: Dr. Albert C. Hunter, Chief of the Bacteriological Division of the Food, Drug, and Cosmetic Administration; and Raymond L. Vandeveer, Chief Chemist in charge of the New Orleans office of the same Administration. Both witnesses examined the oysters organoleptically, that is, smelled them. Each can was carefully opened, the liquid drained off into a pan, and "then the oysters were very carefully smelled and examined." Both agreed that in appearance the oysters were perfectly normal.

Dr. Hunter examined a total of 168 sample cans from the Webb-Crawford Company shipment and found 12 cans, or 7%, definitely rotten and 4 cans, or about 2%, with some degree of decomposition; the remaining cans he classed as passable. He examined 48 sample cans from the Thornton Grocery Company shipment and found one can definitely decomposed. The "off" oysters were from code numbers 4J80 and 4J90. Oysters from code number 4J70 were normal in appearance and smell.

Mr. Vandeveer examined 24 sample cans of oysters from the Webb-Crawford shipment and 48 cans from the Thornton Grocery Company shipment. Both sample lots contained cans from each code number. Of the 24 samples examined, he pronounced about 24% bad; and of the 48 samples examined, he pronounced 14% rotten, 4% slightly decomposed.

The evidence makes clear, however, that oysters from sandy bottoms, from mud bottoms, and from reefs near the mouth of the Mississippi River are packed in appellant's plant at Biloxi, Mississippi; and that the odor of an oyster or of any other sea food depends on the area from which it is caught. An oyster from a sandy bottom has an odor different from that of an oyster from a mud bottom, and an oyster from near the mouth of the Mississippi River has an odor reflecting contact with sulphur, not found in oysters from sandy or mud bottoms. This characteristic of oysters was testified to by every witness introduced by either party who gave evidence respecting the fitness of the oysters here involved for food.

Dr. Hunter also admitted that whether the odor of an oyster reflected good or bad condition was a matter of personal judgment. Mr. Vandeveer, who testified that he trained his sense of smell by using experimental packs of oysters "packaged at different stages of decomposition," admitted that men who daily handle sea foods for a livelihood develop through their work a high sense of smell.

Following the seizure of the oysters, appellant obtained 164 sample cans and had them examined by the research department of the American Can Company Southern, in New Orleans. The Government offered in evidence a copy of the report of that examination, in which it was stated that the appearance of the oysters was comparable to that of oysters in normal cans, but that of the 60 cans coded 4J80 and of the 19 cans coded 4J90, "eleven cans in each lot had an abnormal odor comparable to that associated with oysters which have undergone partial decomposition before canning." Upon the suggestion of the trial judge, the depositions of Mr. Lamberton and Mr. Riester, employees of the American Can Company who had made the test, were taken. In explanation of the language in the report, Mr. Lamberton said:

"I believe that the statement there intended not to show that the oysters were decomposed, but, as stated, there was an odor there which we have associated with oyster decomposition. The particular oysters in those samples themselves, we were remarking only about the odor of the oysters."

Lamberton and Riester in making their test opened the cans, smelled the liquid, poured off the liquid, placed the oysters on a rack and smelled them, then crushed the oysters in the hands and smelled them. Only when the oysters were crushed in the hands was there an "off" odor. They testified as follows:

"Q. In checking code 4J70 in regard to appearance and odor, the cans were normal in every respect? A. Yes, sir.

"Q. Both from a standpoint of odor and after crushing? A. Yes, sir. * * *

"Q. What was the only time with reference to code 4J80 that any abnormal or off odor was noticed, Mr. Riester? A. When the oysters were picked up in the hand and crushed and smelled with the nose close to the oyster. * * *

"Q. With reference to Code 4J90, were you able to detect abnormal or off odor when these cans were opened? A. Only by crushing."

Neither Lamberton nor Riester could say what caused the odor in the oysters they crushed.

Mr. Lamberton said:

"Q. You still could not state, Mr. Lamberton, Whether the odor that you got came from the ground where the oysters were feeding, which was on the mud flats in the sulphur bottom, or whether it came from decomposition? A. I could not state that. I defined the odor as similar to decomposition, but could not say definitely that I know it was decomposition or anything else."

Mr. Riester said:

"Q. In these cases where you have not been able to detect the odor until after you have crushed an oyster and crushed its intestines and its body, it is possible, is it not, for any off odor or abnormal odor to come from whatever food the oyster has eaten while on the bottom of the water? A. That is correct."

Appellant's witnesses were all identified with the oyster-packing business in and around Biloxi, with years of experience in that business. Elmer Williams was with the DeJean Packing Company, one of the largest independent plants in the United States, and had been in its employ twenty-two to twenty-three years. Nick Mavar was with the Mavar Shrimp & Oyster Company, another large company. C. A. Delacruz was mayor of Biloxi and manager of the Southern Shell Fish Company, owned by the Wesson Oil Company, and had been in the sea food business some thirty-five years. William Cruso was president of the C. C. Company, appellant, and had been in the oyster-packing business since the close of the first World War. All of them told of odors given off by oysters caught on sandy bottoms, on mud bottoms, and from near the mouth of the Mississippi River where sulphur was present. All of them stated that an oyster from a sandy bottom had a normal odor; from a mud bottom, a slightly...