Dr. J. L. Stephens Co. v. United States

• Decision Date: 13 March 1913
• Docket Number: No 2,283.,2,283.
• Citation: 203 F. 817
• Parties: DR. J. L. STEPHENS CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

203 F. 817

DR. J. L. STEPHENS CO. v. UNITED STATES.

No 2,283.

United States Court of Appeals, Sixth Circuit.

March 13, 1913

Bruce &amp Bruce, of Cincinnati, Ohio, and Eltzroth & Maple, of Lebanon Ohio, for plaintiff in error.

Sherman T. McPherson and Wm. M. Coffin, both of Cincinnati, Ohio, for the United States.

Before WARRINGTON and DENISON, Circuit Judges, and COCHRAN, District judge.

PER CURIAM.

This is a proceeding on writ of error to set aside a judgment rendered and sentence pronounced upon an information. The information contained two counts, and was based on the Pure Food and Drugs Act of June 30, 1906 (Act June 30, 1906, c 3915, 34 Stat. 768 (U.S. Comp. St. Supp. 1911, p. 1354)). The plaintiff in error, hereafter called defendant, is an Ohio corporation doing business and having its principal office at Lebanon, Ohio. It there maintains a sanatorium, where persons addicted to the drug and liquor habits are treated; and patients are also treated away from the institution through correspondence. According to an agreed statement of facts, the defendant shipped two boxes of medicine by railway from Lebanon, Ohio, to Washington, D.C.; one shipment was made December 19, 1908 and the other, October 22, 1909; each box contained 18 bottles of the medicine, and all the bottles contained alcohol as one of the ingredients, and some contained as another ingredient morphine in varying and diminishing quantities. The bottles were labeled,

'Maplewood Sanatorium. Ledger M. 45. 3,609. Directions: Take half a tablespoon four times a day and as directed.'

The president of defendant, who was also its medical director, has charge of the patients at the sanatorium, and also of those who are treated at a distance through correspondence. He is a graduate of Columbia University, and has had a long and varied professional experience He is a specialist in the treatment of patients addicted to drug and liquor habits. In the agreed statement of facts this appears:

'It is a recognized fact by the medical profession generally that in the treatment of diseases, especially the drug habit, it is an important, and in most cases a vital factor, that the patient should not know the composition of the medicines given in such treatment.'

This agreed fact is offered as a defense to the charge that the medicine in question was mislabeled and misbranded, because correct labeling and branding would defeat the object of the treatment. The defendant has no proprietary medicines, and does not offer or sell any medicines to the general public. In every case where a patient applies for treatment, either at the sanatorium or at the patient's home, a history of the case is obtained from the patient, a diagnosis in each instance is made, and a prescription prepared by the medical director to meet the needs of the particular case.

The cause was submitted upon the agreed statement of facts alluded to, and each party asked for a directed verdict. The case was fully considered by the trial judge, who directed a verdict in favor of the government and sentenced the defendant to a fine of $50 and costs of prosecution.

Among the questions determined was whether it was necessary to allege that the two boxes or packages containing the bottles of medicine were misbranded, the information having simply charged that each of the bottles contained in such packages was misbranded. The court held that the word 'package,' as used in the act, 'means the package which passes into the possession of the public, of the real consumer; and that the words, 'original unbroken package,' relate * * * to the package in the form in which it is received by the vendee or consignee.'

Another question determined was:

' * * * Whether the Pure Food and Drugs Act deals with articles other than those which are the subject of bargain and sale. It is urged that the medicine or prescription is a mere incident of the services rendered, and that it is not therefore to be treated as an article of commerce.'

Upon this question the court held:

'As was said in the Hipolite Egg Co. Case, 220 U.S. 45 (31 Sup.Ct. 364, 55 L.Ed. 364), the object of the law is to keep adulterated and misbranded articles out of the channels of interstate commerce, and it is immaterial whether the medicine or prescription which was furnished by the defendant company was the mere incident of the employment, or its primary object. It is enough to know that the medicine or prescription was sent through the channels of interstate commerce, and misbranded, within the terms of the act.'

Still another question was determined:

'Is a reputable, regularly licensed, practicing physician, residing in Ohio, who prescribes for a person beyond the limits of the state and transmits to such person through the channels of interstate commerce the medicine prescribed, subject to the penalties of the law, if the medicine so prescribed and so passing through the channels of interstate commerce, contains morphine--the bottle, box, container, or package inclosing the medicine so prescribed and to be taken by the patient not being so labeled as to show the presence of the drug?'

We do not find it necessary to pass upon the last question stated. The medical director did not in his individual capacity prescribe or furnish the medicine for the persons served in this case. His acts were performed for the corporation, and in legal contemplation by it. State v. Laylin, 73 Ohio St. 90, 100, 76 N.E. 567. We agree with Judge Sater in his conclusions upon the other two questions, and so must affirm the judgment.

Note.-- The charge of Sater, District Judge, in the District Court, referred to above, is as follows:

This case is submitted upon an agreed statement of facts. Each party asks for a directed verdict.

The defendant's first contention is that the information is defective and insufficient, because it alleges that each of the bottles shipped to the vendee was misbranded, whereas, it should have been alleged that the larger package, of which each bottle was a part, was misbranded.

A number of bottles of the article in question were shipped together as a single shipment. They went forward through the channels of interstate commerce as a single bundle or package, surrounded by some sort of a cover. The information charges that each individual bottle was mislabeled and misbranded, and not that the inclosing cover of all of the bottles was mislabeled or misbranded.

The first sentence of the second section of the Pure Food and Drugs Act provides: 'That the introduction into any state or territory or the District of Columbia from any other state or territory or the District of Columbia, or from any foreign country or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this act, is hereby prohibited. ' The paragraph then recites that 'any person who shall ship or deliver for shipment from any state or territory or the District of Columbia to any other state or territory or the District of Columbia, or to a foreign country, or who shall receive in any state or territory or the District of Columbia from any other state or territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adulterated or misbranded within the meaning of this act' shall be punished as is thereinafter set forth. For the purposes of this case, the other portions of the section need not be noticed.

This section prohibits the introduction into interstate commerce of any article of food or drugs which is adulterated or misbranded within the meaning of the act. It also penalizes the shipment or delivery for shipment from any state or territory or the District of Columbia, of any such article so adulterated or misbranded within the meaning of the act. The verbs 'ship' and 'deliver' are both transitive, and call for an object. The object is found in the words, 'any such article so adulterated or misbranded within the meaning of this act. ' The antecedent of 'such' and 'so' is found in the first sentence of the section, in the words, 'any article of food or drugs which is adulterated or misbranded within the meaning of this act. ' If I should be wrong in this, and if the object of the transitive verbs 'ship' and 'deliver' should be found further along in the section, in the words, 'any such adulterated or misbranded food or drugs,' the meaning would not be changed. I do not think, however, that I am mistaken as to the grammatical construction.

The section also imposes a penalty on the vendee or consignee who, having received, delivers in original unbroken packages for pay or otherwise, or offers to deliver to any other person, any article adulterated or misbranded within the meaning of the act. The law contemplates the punishment of two classes of persons. This construction accords with that put upon the section by the Supreme Court in Hipolite Egg Co. v. United States, decided March 13, 1911. In that case an adulterated article was involved. The court said: 'Section 2 of the Food and Drugs Act prohibits the introduction into any state or territory from any other state or territory of any article of food or drugs which is adulterated, and makes it a misdemeanor for any person to ship or deliver for shipment such adulterated article, or who shall receive such shipment, or, having received it, shall deliver it in original unbroken packages for pay or otherwise.'

It was also said in that case: 'The object of the law is to keep adulterated articles out of the channels of interstate commerce, or, if they enter such commerce, to condemn them while...