United States v. 1,800.2625 WINE GALLONS OF D. SPIRITS

• Decision Date: 11 January 1954
• Docket Number: No. 8178.,8178.
• Citation: 121 F. Supp. 735
• Court: U.S. District Court — Western District of Missouri
• Parties: UNITED STATES v. 1,800.2625 WINE GALLONS OF DISTILLED SPIRITS etc.

121 F. Supp. 735

UNITED STATES v. 1,800.2625 WINE GALLONS OF DISTILLED SPIRITS etc.

No. 8178.

United States District Court W. D. Missouri, W. D.

January 11, 1954.

Edward L. Scheufler, U. S. Atty., Kansas City, Mo., Joseph L. Flynn, Asst. U. S. Atty., St. Joseph, Mo., for plaintiff.

Jerome Walsh, Kansas City, Mo., for claimant, John Patrick Goulding.

RIDGE, District Judge.

When the catastrophic flood of July 13, 1951, descended on Kansas City, Missouri, claimant herein, John Patrick Goulding, was the owner of 2613.60 wine gallons of wine and champagne; and 1,800.2625 wine gallons of distilled spirits which were then stored and held for sale in the Last Chance Tavern and Shawnee Club, both of which places were engulfed by that deluge. Federal Retail Liquor Dealer's Special Tax Stamps had been issued, covering each of said premises. At approximately 11:00 a. m., on the above date, the aforesaid wines and distilled spirits were inundated by impure and unsanitary flood waters so that they were "held (for several days) under unsanitary conditions whereby (they) may have become contaminated with filth, or whereby (they) may have been rendered injurious to health," within the ambit of Section 402 of the Federal Food, Drug, and Cosmetic Act. T. 21 U.S.C.A. § 342 (a)(4). Sometime after the flood waters subsided, claimant, after having the cases and bottles containing the wine and distilled spirits washed with water from a hose, had them removed to residences located at 3437 Coleman Road and 3328 Karnes Boulevard, in Kansas City, Missouri. Tax stamps and other insignia on the bottles containing such liquors, had, as a consequence of the flood and washing, supra, become multilated, torn and separated from the bottles, so that they were "either wholly or partially misbranded within the meaning of Section" 403 of the Act. Thereafter, claimant had the aforesaid wine delivered to the Mid-Continent Distributing Company, Inc., in Kansas City, Missouri, where it was re-bottled, re-labeled and new stamps affixed thereto for the purpose of offering it for sale. Later, said wine was held and offered for sale at 1921 Main Street, in Kansas City, Missouri. The distilled spirits remained at the aforesaid places on Coleman Road and Karnes Boulevard.

April 8, 1953, the instant libel action was filed, seeking to condemn and forfeit both the wine and distilled spirits, in that the floor stock tax imposed thereon by the Internal Revenue Act of 1951, had not been paid, the Government contending that both the wine and distilled spirits were then subject to the tax, being held for resale, and failure to pay such tax was an attempt to defraud the United States. Cf. Title 26 U.S.C.A. §§ 3321, 3116, 3723, 2800, 3030 and 3195, as amended by Revenue Act of 1951. By stipulation of the parties, dated the same day, the Court entered an order whereby the wine aforesaid was declared forfeited and ordered destroyed. The distilled spirits were ordered returned to claimant. The premise of such order being that the wine in question had, in fact, been offered for sale, without first having the floor stock tax paid thereon; whereas the distilled spirits had not been so offered on or after November 1, 1951.

Before delivery of said distilled spirits to claimant was effected, an amended libel was filed, upon complaint of the Food and Drug Administration, seeking order of condemnation and forfeiture of the distilled spirits, pursuant to Section 304(a) of the Federal Food, Drug, and Cosmetic Act, under claim of adulteration and misbranding, within the meaning of Sections 402(a) (4) and 403 (a) of the Act, as aforesaid. 21 U.S.C.A. §§ 334(a), 342(a)(4), 343(a).

The matters now before the Court are: (1) claimant's contention, raised by amended answer to the amended complaint, that from and after July 13, 1951, the distilled spirits in question were not held for sale, or offered for sale, by claimant, or any other person, but were stored at his "own residence for safe keeping and for no other purpose"; hence claimant says the above sections of the Federal Food, Drug, and Cosmetic Act are not applicable to his distilled spirits and no claim is established under the agreed facts which would permit the granting of any relief as here prayed; and (2) plaintiff's motion for summary judgment. As to the latter, it is conceded that, no facts being in dispute between the parties, if plaintiff's contention, supra, is not sustained, then the latter motion should be granted. Accordingly, the parties are in agreement that a disposition of the above matters wholly depends upon a determination of whether "the distilled spirits mentioned in (the amended libel) were held for sale while, or after having become, adulterated or misbranded * * * notwithstanding that on the date of seizure such spirits may have been held under unsanitary conditions whereby it may have become contaminated with filth," and "some of the labels, stamps and other insignia on the bottles containing the distilled spirits were lost, soiled, dirty, torn and misshapen, which would require relabeling, if they were to again be offered for sale."

"This is a horse that is easily curried." When the flood waters submerged claimant...