People v. Bowen

• Citation: 74 N.E. 489,182 N.Y. 1
• Parties: PEOPLE v. BOWEN.
• Decision Date: 30 May 1905
• Court: New York Court of Appeals

182 N.Y. 1

74 N.E. 489

PEOPLE

v.BOWEN.

Court of Appeals of New York.

May 30, 1905.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Proceeding by the people against Charles B. Bowen. From a judgment of the Appellate Division (90 N. Y. Supp. 1108,97 App. Div. 642) affirming a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

This action was brought to recover a penalty of $100 alleged to have been incurred by the defendant, in that on the 13th of August, 1902, he ‘did offer and expose for sale three cans of milk’ which was ‘adulterated, and did contain a foreign substance, to wit, formaldehyde, as a preservative.’ There was neither allegation nor proof that formaldehyde is unwholesome, or that it injures milk or renders it less valuable, or that any fraud was intended or committed by the defendant upon either purchaser or consumer. The answer was a general denial. At the close of all the evidence the court directed a verdict in favor of the plaintiff for $50, although the defendant asked to go to the jury ‘upon the question of the fairness of the sample and the analysis, and also upon the question as to whether any foreign substance had been added to the milk at the time it was delivered to the station and offered for sale.’ The judgment entered accordingly was affirmed by the Appellate Division, and the defendant appealed to this court.

Werner and Haight, JJ., dissenting.

Clarence H. Beane, for appellant.

Julius M. Mayer, Atty. Gen. (Myron H. Peck, of counsel), for the People.

VANN, J. (after stating the facts).

The agricultural law provides that the term ‘adulterated milk’ means milk containing more than 88 per centum of water or fluids, or less than 12 per centum of milk solids, or less than 3 per centum of fats, or ‘milk which has been diluted with water or any other fluid, or to which has been added or into which has been introduced any foreign substance whatever.’ The term also includes milk drawn from cows within a stated period before or after parturition, or from those fed on certain kinds of food or kept in unhealthy places, as well as milk from which any part of the cream has been removed. The statute further provides that ‘all adulterated milk shall be deemed unclean, unhealthy, impure and unwholesome,’ and that ‘no person shall sell or exchange or offer or expose for sale or exchange any unclean, impure, unhealthy, adulterated or unwholesome milk.’ Laws 1893, p. 660, c. 338, § 20 (Laws 1900, p. 187, c. 101, § 22). ‘Every person violating any of the provisions of the agricultural law shall forfeit to the people of the state of New York the sum of not less than fifty dollars nor more than one hundred dollars for the first violation and not less than one hundred dollars or more than two hundred dollars for the second and each subsequent violation.’ The violation of the provisions above quoted is also made a misdemeanor, punishable by fine or imprisonment for the first offense, and by six months' imprisonment for the second offense. Laws 1893, p. 666, c. 338, § 37 (Laws 1901, p. 1677, c. 656).

Upon the trial evidence was given tending to show that the milk in question, which belonged to the defendant and was offered for sale by him, contained formaldehyde, a foreign substance. The dipper and cup used by the agents of the state in taking samples for analysis had been used the day before to take samples of milk belonging to another person, which, when analyzed, was found to contain formaldehyde. They had also been used for the same purpose eight days before, as well as on other occasions when samples containing formaldehyde were taken. They were kept in a satchel when not in use, and were thoroughly cleaned every time they were used-not immediately, but before they were used again. The sample bottles, corks, and other articles used in connection with the dipper and cup were kept in the same satchel, which had been in use for this purpose for a long time. Formaldehyde is not found in pure milk, but is a foreign substance. It is capable of such minute diffusion that 1 part in 100,000 parts of water, or 1/200 of a drop in an ounce of milk, can be discovered by the color and reduction tests, which were the only tests employed by the chemist who analyzed the defendant's milk. The quantity of formaldehyde contained in the samples examined was not determined, and the most minute particle in a can of milk would permeate the entire mass, so that any portion would respond to the tests which were made, and disclose the presence of formaldehyde to the extent found by the chemist. No complete or quantitative analysis was made, and no herd sample was taken.

The foregoing facts appeared before the plaintiff rested, and thereupon the defendant proved that, when the samples in question were taken from his milk, his family consisted of his wife, hired girl, and two hired men. By appropriate questions he tried to show that no formaldehyde, preservative, or foreign substance had been added to the milk by himself or any member of his family, including his employés, and that the milk, when delivered at the station and exposed for sale, was in the same physical condition as when it was drawn from the cows. The objection of the plaintiff, which specified no ground, was sustained, and the defendant excepted. The following questions were asked the defendant by his counsel: ‘Did you use any preservative or formaldehyde or any foreign substance in this milk?’ ‘Did you at that time or ever have any formaldehyde or preservative of any kind about your premises?’ ‘Was the milk delivered at Griswold Station on the morning of August 13, 1902, in the same physical condition that it was when it was drawn from the cows?’ One of the defendant's hired men was called, and testified that he helped milk on the evening of August 12th and the morning of August 13th, and to put the milk in the cans. In the morning he took the milk to the station. The following questions were asked him by the defendant's counsel: ‘Did you put anything into the milk-either the night's or the morning's milk-at any time?’ ‘Did Mr. Bowen or his wife or any of the members of his family, to your knowledge, put any foreign substance into this milk?’ ‘So far as you know, was the physical condition of this milk the same when it was drawn by you to the platform at Griswold Station on the morning of August 13th as it was when it was drawn from the cows?’ All these questions were objected to upon general grounds, merely, and in each instance the objection was sustained, and an exception taken.

The object of the statute is to promote the health of the public by securing pure milk for its use, and to prevent fraud through the offer of impure milk for sale as pure. It seeks to effect these objects by three methods, which we will briefly consider:

(1) The first method is by creating a standard of natural component parts, which all milk must reach before it can be sold as pure. It must have certain percentages of fats and solids, and must not contain more water than the percentage allowed; and in any action these are the only issuable facts, aside from the sale itself. A penalty is imposed for selling milk that is below the standard, whether anything has been added to or taken from it or not. Although it may be sold just as it came from the cow, if it falls below the standard fixed by law the penalty is incurred, regardless of motive or of any act except the mere sale. If it has more than 88 per cent. of water, the owner has no right to offer it for sale as pure milk, even if no water has been added, and the fault is wholly owing to the cow. If it contains less than 12 per cent. of milk solids, or less than 3 per cent. of fats, it cannot be sold as pure milk, even if nothing has been taken from it, and it is as rich as the cow gave it. This penalty may be incurred without furtive intent or moral wrong. The fault is not positive in nature, but negative, for good faith is no protection, provided the milk is not up to standard. As some cows do not at all times give milk with enough solids and fats in it for wholesome food, expecially in the case of young children or persons who are ill, the Legislature fixed the quality which, in its judgment, was required by the interests of the public, and compelled all producers, as well as sellers, to comply therewith, at their peril. They must conform to the standard, or incur the penalty. An illustration of this method, which was attended with some hardship, is seen in the case of People v. Cipperly, where the dissenting opinion in the General Term was adopted as the opinion of this court. 37 Hun, 324; 101 N. Y. 634, 4 N. E. 107. Although it appeared in that case that nothing had been put in the milk, and nothing taken from it, the conviction of the defendant was sustained because the Legislature had fixed the standard, and he had failed to comply with it. The fact that he was careful and honest in the transaction was held to be immaterial, as the controlling fact was that he sold milk which was below the positive standard fixed by law. This case was followed in People v. West, 106 N. Y. 293, 12 N. E. 610,60 Am. Rep. 452, and People v. Kibler, 106 N. Y. 321, 12 N. E. 795.

(2) The second method is by creating a standard depending on the condition of the cow, and prohibiting the sale of milk drawn from cows affected by parturition or by unhealthy food, or when kept in a crowded or unhealthy condition. All these are issuable facts, with no direct relation to the component parts of the milk, but to the history of the cows which gave it. Even if the milk conforms to the statutory standard as to water, fats, and solids, it may not be sold as pure, provided the cows have been fed or kept in the manner specified.

(3) The third is by creating a standard which excludes foreign substances, and forbidding the sale of milk from which cream has been removed, or into which any...