Salamonie Packing Co. v. United States, 13549.

• Citation: 165 F.2d 205
• Decision Date: 29 March 1948
• Docket Number: No. 13549.,13549.
• Parties: SALAMONIE PACKING CO. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

165 F.2d 205 (1948)

SALAMONIE PACKING CO. v. UNITED STATES.

No. 13549.

Circuit Court of Appeals, Eighth Circuit.

January 6, 1948.

Writ of Certiorari Denied March 29, 1948.

Israel Treiman, of St. Louis, Mo., and William C. Bachelder, of Indianapolis, Ind. (Lashly, Lashly, Miller & Clifford, of St. Louis, Mo., and Bachelder, Bachelder & Fife, of Indianapolis, Ind., on the brief), for appellant.

Drake Watson, U. S. Atty., of St. Louis, Mo. (Vincent A. Kleinfeld, of Washington, D. C., on the brief), for appellee.

Before SANBORN, WOODROUGH, and COLLET, Circuit Judges.

Writ of Certiorari Denied March 29, 1948. See 68 S.Ct. 744.

SANBORN, Circuit Judge.

The Government, pursuant to § 304(a) of the Federal Food, Drug, and Cosmetic Act of June 25, 1938, 21 U.S.C.A. § 334(a), instituted five separate libels against certain cases of canned tomato juice shipped in interstate commerce by appellant. In each libel the Government sought the condemnation of the accused tomato juice on the ground that it was adulterated within the meaning of 21 U.S.C.A. § 342(a) (3), in that it consisted, in whole or in part, of a decomposed substance by reason of the presence of decomposed tomato material. The libels were consolidated. The appellant in its answer denied that its product was "adulterated", and alleged that it was "neither harmful nor poisonous, but good and safe for human consumption." On motion of the Government, the court struck from the answer the allegation that the juice was fit for human consumption.

The case was tried to a jury. The Government's evidence showed that the accused tomato juice contained mold and decomposed tomato material. There was no evidence that the juice was unfit for food. Some evidence was introduced by appellant to show that the juice was not offensive to the sense of smell or taste, and that no decomposed material was observable to the naked eye. At the close of the evidence, appellant moved for a directed verdict on the ground that there was no evidence that the accused product was unfit for food. The District Court denied the motion. The jury returned a verdict for the Government. From the judgment and decree, directing the destruction of the tomato juice, this appeal is taken.

The contentions of appellant are (1) that an article of food must be proved to be unfit for food before it can be adjudged to be "adulterated" within the meaning of § 342(a) (3) of Title 21 U.S.C.A., and (2) that evidence of fitness for food is admissible in determining whether an article of food is "adulterated".

The pertinent language of § 342 is as follows:

"A food shall be deemed to be adulterated —

"(a) * * * (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food * * *."

The following paragraph of appellant's brief concisely states its position relative to this language: "The section of the statute referred to above provides that food is to be...