United States v. 184 Barrels Dried Whole Eggs

• Decision Date: 22 December 1943
• Docket Number: 852,1111.,Civ. No. 853
• Citation: 53 F. Supp. 652
• Parties: UNITED STATES v. 184 BARRELS DRIED WHOLE EGGS. SAME v. 47 BARRELS DRIED WHOLE EGGS. SAME v. 5 BARRELS WHOLE DRIED EGGS.
• Court: U.S. District Court — Eastern District of Wisconsin

53 F. Supp. 652

UNITED STATES v. 184 BARRELS DRIED WHOLE EGGS.

SAME v. 47 BARRELS DRIED WHOLE EGGS.

SAME v. 5 BARRELS WHOLE DRIED EGGS.

Civ. Nos. 853, 852, 1111.

District Court, E. D. Wisconsin.

December 22, 1943.

B. J. Husting, U. S. Atty., and Carl Becker, Asst. U. S. Atty., both of Milwaukee, Wis., for plaintiff.

William J. McCauley, of Milwaukee, Wis., for defendant.

DUFFY, District Judge.

This case is a consolidation of three in rem proceedings under Sec. 304(a) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(a). The claimant, Wisconsin Dried Egg Company of Oconto, Wisconsin, filed an answer denying that the eggs in actions Nos. 852 and 853 were in interstate commerce, and further denying adulteration in all three proceedings.

Sec. 304(a) of the act provides: "Seizure * * * Any article of food * * * that is adulterated or misbranded when introduced into or while in interstate commerce, * * * shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States within the jurisdiction of which the article is found: * * *."

The eggs had been gathered by claimant from within the State of Wisconsin and were processed at claimant's plant in this State. The five barrels in Action No. 1111 were shipped to Chicago, Illinois, and there seized, and of course were in interstate commerce. However, the eggs in Actions Nos. 852 and 853 have never been outside the State of Wisconsin. They have never been offered to a common carrier for shipment, and in fact never left the property of the claimant. Under the terms of the contract between the claimant and the Federal Surplus Commodity Corporation, the claimant agreed to supply a certain number of pounds of spray dried whole eggs, but the contract provides for inspection by government agents prior to the delivery date. After inspection, the eggs in question were rejected. No shipping instructions were ever given and no bill of lading was ever issued. Additional marking and labeling remained to be added. It is my opinion that the eggs in Actions Nos. 852 and 853 had not been introduced into and were not in interstate commerce.

At the commencement of the trial, after the court had expressed doubt on the jurisdictional question of interstate commerce, plaintiff's attorney moved that the prayer for condemnation be amended by the addition of an alternate prayer for injunctive relief, in the event that the prayer for condemnation were denied on jurisdictional grounds. The government and the claimant were in court ready to present their witnesses on the merits. Both prayers for relief grew out of the same transaction. The basic issues of adulteration were identical. If the court ruled adversely to the government on the jurisdictional question, it would have been necessary to start a new action for injunctive relief, in which the same testimony would have been presented. The government and the Wisconsin Dried Egg Company would be parties to both actions. As the plaintiff well states the situation, "Both prayers for relief involve the same transaction, the same res, the same parties, the same court, the same evidence, and the same issues, save that the amendment injected one additional issue as to the appropriateness of issuing a statutory injunction." The issuance of an injunction is authorized under Sec. 302(a) of the act, 21 U.S.C.A. § 332 (a). It was believed that time and expense would be saved to all concerned by proceeding with the trial, and withholding a ruling on the motion to amend; and this was done. Claimant objected to the amendment on the ground it changed an in rem action to one in personam. It did not ask for an extension of time and, after its objection was overruled, it presented evidence on the merits.

There can be no doubt that while the seizure action was pending, a separate suit for injunctive relief could have been commenced in this court. It would then have been appropriate for the court to have ordered a consolidation. 28 U.S.C.A. § 734; Rule 42(a) Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Where a party is before the court in an in rem proceeding, the court has the power to render an in personam judgment against him. Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364. It has likewise been held that the distinction between the proceedings in rem and in personam have no proper relation to the question of jurisdiction. Hipolite case, supra. While the court may refrain from exercising such power if by so doing it would impair substantial rights, yet where it will further the ends of justice and eliminate multiplicity of action and save expense to the parties, it should be invoked. As was well stated by the court in Bee Mach. Co., Inc., v. Freeman, 1 Cir., 131 F.2d 190, 194: "Allowing the amendment, then, provides in effect only a convenient short cut to a result attainable in a more round-about way. * * *"

Sec. 304(b) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334(b), provides: "* * * procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; * * *." There is authority that where a claimant in admiralty has intervened in an in rem proceeding and filed a general appearance, the libelant may amend his libel so as to seek relief in personam as well as in rem. The Monte A, D.C., 12 F. 331. It has also been held that the avoidance of multiplicity of action by every device that is jurisdictionally possible should be one of the main objectives of the courts of admiralty. Munson Inland Lines, Inc., v. Insurance Co. of North America, D.C., 36 F.2d 269.

Allowing the amendment to introduce a closely related cause of action against a resident defendant already before the court in effect merely dispensed with personal service which could have been had at any time. The amendment will be allowed.

Proceeding now to the merits, Sec. 402 (a) of the act in question, 21 U.S.C.A. § 342 (a) provides: "A food shall be deemed to be adulterated—* * * (3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; * * *."

Plaintiff contends that the dried whole eggs in question did consist in part of decomposed eggs, and that whether they were fit or unfit for food is beside the point. Claimant contends that while there was a trace of fermentation, and some odor (which it claims to be characteristic of such products), it denies there was any decomposition of the eggs, and contends that the food was fit for human consumption.

The egg powder in question, when seized, was not injurious to health when used as a food product. Two containers of egg powder were sent to the Home Economics Department of the University of Wisconsin for testing. Ordinary uncondemned egg powder was put in Container "A", while egg powder from the condemned barrels was put in Container "B". Professor Personius who made the tests was not informed as to which container held the condemned powder. On opening the containers she noticed that "B" had a somewhat fishy odor. She baked a custard from each sample and obtained satisfactory results. The finished products had no unpleasant odor. She also baked butter cakes from each sample, one batch being baked the night before she testified in court. The cakes were cut open in court. They were satisfactory in taste and texture, and no appreciable difference in the finished bakery products could be noted. Samples of the cakes made from the condemned egg powder were eaten with no ill effects.

With permission of government officials, eleven barrels of the original seizure of 47 barrels had been shipped to Chicago. Six of these barrels had been used by bakers prior to the time the remaining five barrels were seized in Action No. 1111. Louis Nieman, whose business is wholesale bakery supplies, was the purchaser. He had many years of experience in dealing in dried egg powder, and egg albumen (dried white of eggs), and over the years has imported large amounts of these products from China. He testified he was satisfied with the egg powder in question and described the odor as a characteristic cold storage odor. He paid 92¢ a pound for the first barrel of powder purchased and 88¢ a pound for the other barrels, at a time when the going price of ordinary egg powder ranged from 87¢ to 95¢ a pound. He expressed the opinion that the powder was not decomposed, and said he judged it by its smooth texture and color as well as the odor. He testified further that the longer egg powder is kept in storage, the stronger its odor becomes. He sold a 50-pound batch and also one barrel to Silverstein, a wholesale cake baker who has been in the business since 1921. Silverstein testified he considered this egg powder a satisfactory product. Mr. Fred W. Lietzow, who has been a wholesaler of egg products for 32 years and who was a pioneer in the egg powder business, tasted and tested the samples of the claimant's powder which had been rejected. He testified that there was an odor to all powdered food products; that there was a slight off odor and off flavor to the powder in question;...