United States v. 353 CASES, ETC.

• Decision Date: 06 August 1957
• Docket Number: No. 15679.,15679.
• Citation: 247 F.2d 473
• Parties: UNITED STATES of America, Appellant, v. 353 CASES * * * MOUNTAIN VALLEY MINERAL WATER * * *; Mountain Valley Sales Company, a corporation, John G. Scott, and H. B. McFarling, Claimants, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

247 F.2d 473 (1957)

UNITED STATES of America, Appellant, v. 353 CASES * * * MOUNTAIN VALLEY MINERAL WATER * * *; Mountain Valley Sales Company, a corporation, John G. Scott, and H. B. McFarling, Claimants, Appellees.

No. 15679.

United States Court of Appeals Eighth Circuit.

August 6, 1957.

Paul M. Steffy, Attorney, Department of Health, Education, and Welfare, Washington, D. C. (Warren Olney III, Asst. Atty. Gen., Charles W. Atkinson, U. S. Atty., Fort Smith, Ark., Frank J. Kiernan, Attorney, Department of Justice and William W. Goodrich, Asst. General Counsel, Department of Health, Education, and Welfare, Washington, D. C., on the brief), for appellant.

J. F. Schlafly, Jr., Alton, Ill. (Robert F. Schlafly, St. Louis, Mo., and Edward L. Wright, Little Rock, Ark., on the brief), for appellees.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal by the United States from an adverse judgment in a libel proceeding brought by it on August 19, 1953, in the Western District of Tennessee, for the condemnation, under § 304(a) of the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, 21 U.S.C. A. § 334(a), of a quantity of allegedly misbranded Mountain Valley Mineral Water, bottled by the Mountain Valley Spring Company, of Hot Springs, Arkansas, and shipped in interstate commerce. At the time of seizure in the libel proceeding, the water and its accompanying sales literature was located at 2089 Madison Avenue, Memphis, Tennessee, in the possession of an authorized distributor, Henry Branson McFarling, doing business as Mountain Valley Water Company.

How the case came ultimately to be tried, in the spring of 1956, before the United States District Court for the Western District of Arkansas and a jury, at Hot Springs, Arkansas, can be gathered from United States v. United States District Court for the Eastern District of Arkansas, 8 Cir., 226 F.2d 238.

The claim of the Government that the water was misbranded, and therefore subject to condemnation, was based upon the assertions: (1) that the "labeling" (promotional sales literature and advertising), accompanying the water,¹ falsely represented it to be an adequate and effective treatment for various diseases and disorders, and contained other false statements § 502(a) of the Act, 21 U.S. C.A. § 352(a);² and (2) that the water was represented for special dietary uses, and that its label did not bear the information concerning its mineral properties, determined by regulations (21 C.F.R. § 125.4, promulgated in 1941) to be necessary "in order fully to inform purchasers as to its value for such uses," as is required by § 403(j) of the Act, 21 U.S.C.A. § 343(j).³

The Mountain Valley Sales Company, of Hot Springs, Arkansas, a subsidiary of the Mountain Valley Spring Company which bottled the water, filed a claim for the water and a separate claim for "24 pamphlets, more or less, entitled `Your Health Begins With Nature'," and "24 pamphlets, more or less, entitled, `Mountain Valley Water From Hot Springs, Arkansas, in Pregnancy and Care of Children'," which pamphlets had been seized in the libel proceeding.

John G. Scott, of Yonkers, New York, "the Mountain Valley distributor in New York and in the New York area," filed a claim asserting ownership of three of the seized pamphlets entitled, "Helping to Stay Young Through Minerals." He moved to dismiss the libel as to the three pamphlets on the ground that they did not constitute labeling and had been unlawfully seized. He also moved to suppress the pamphlets as evidence, on the ground that they had been obtained in violation of his constitutional rights; this upon the theory that Government Agents had unlawfully used decoys and subterfuge in procuring the pamphlets from the Memphis distributor.

McFarling, the distributor from whom the water and pamphlets were taken, filed a claim for the following seized literature, of which he asserted he was the owner:

"146 pamphlets, more or less, entitled `The Importance of Mountain Valley Water in Arthritic and Rheumatic Disorders\'

"80 pamphlets, more or less, entitled `The Importance of Mountain Valley Water in Kidney and Bladder Disorders\'

"7 pamphlets, more or less, entitled `The Story of Mountain Valley Mineral Water from Hot Springs, Arkansas\'

"123 pamphlets, more or less, entitled `Is Your Trouble Mineral Deficiency?\'

"500 pamphlets, more or less, entitled `Facts About Mountain Valley Mineral Water from Hot Springs, Arkansas\'

"4 pamphlets, more or less, entitled `Why Everyone Should Drink Two Quarts of Water Each Day\'

"50 pamphlets, more or less, entitled `How Much Mountain Valley Mineral Water Should I Drink?\'"

McFarling also filed a motion to suppress the pamphlets as evidence.

The trial court deferred ruling on the several motions to suppress evidence and to dismiss the libel, until the trial of the case on the merits. The motions ultimately disappeared from the case.

All of the claimants were represented by the same counsel. It is apparent from the record that the party most interested in defending against the libel was the Mountain Valley Spring Company, of Hot Springs, Arkansas. It has for many years bottled the water from the Mountain Valley Spring, which is located about ten miles by road from the city of Hot Springs, and has sold the water rather generally throughout the United States to authorize distributors, and to dealers through its subsidiary the Mountain Valley Sales Company.

At the trial, the issues were: (1) whether the sales literature introduced in evidence by the Government constituted "labeling" of the water within the meaning of 21 U.S.C.A. § 321(m); (2) whether the labeling was "false or misleading in any particular" 21 U.S. C.A. § 352(a); and (3) whether the water was represented for special dietary uses.

The Government, having the burden of proof, first introduced its evidence tending to support its charges that the representations contained in much of the sales literature with respect to the medicinal and therapeutic qualities of the water were false or misleading, and to show that the water was represented for special dietary uses. The claimants then introduced evidence to show that the representations contained in four pamphlets, which they contended were the only ones used by the Memphis distributor, and therefore the only ones constituting "labeling", were not false or misleading. They denied that the water was represented for special dietary uses, but did not claim that the labels on the bottles contained the information required by 21 U.S.C.A. § 343(j).

At the close of the claimants' evidence, the Government made a written motion for a directed verdict on the grounds:

"The uncontroverted evidence in this case shows that Mountain Valley Mineral Water is recommended and suggested for use as a food for special dietary uses because of its mineral content. The labels on both sizes of bottles seized fail to bear the information required by 21 U.S.C. § 343(j) and 21 C.F.R. § 125.4. For this reason, the mineral water is, as a matter of law, misbranded within the meaning of 21 U.S.C. § 343(j) and should be condemned pursuant to 21 U.S.C. § 334(a) & (b)."

In ruling upon the motion, the court said:

"Now, this motion of the plaintiff or libelant for a directed verdict on the question of the alleged misbranding of the water as appearing in the exhibit, the bottles introduced here, raises this question. Water may be considered a food when used under the statute for dietary uses. Now, if the court was satisfied that this water was recommended for special dietary uses, then I think the motion probably should be granted, but I am not certain at all on that. * * * I think that is a question that the court must submit to the jury."

At the time of this ruling, the trial was virtually at an end so far as the taking of evidence was concerned, and the court was considering requests for instructions. The court then said to counsel: "I think we can reasonably assume that the testimony will close this afternoon, at 2:30 or 3:00." The record shows that the Government called two rebuttal witnesses, and the claimants called one witness on surrebuttal. This additional testimony had nothing to do with the question whether the water was represented for special dietary uses. At the close of this rebuttal evidence, the Government's motion for a directed verdict was not renewed. But when the court called upon counsel for their objections, if any, to the instructions, counsel for the Government said:

"The libelant has no objections except for the failure to direct a verdict upon the charge that the water is misbranded because it fails to bear statements required by Section 343-J, of the Federal Food, Drug, and Cosmetic Act, since it is represented as a food for special dietary uses because of its mineral content * * *."

The court overruled the objection.

The jury's verdict found all issues in favor of the claimants. The Government moved for judgment notwithstanding the verdict, in accordance with its motion for a directed verdict. This the court denied on the grounds (1) that by not renewing the motion for a directed verdict at the close of the entire evidence, the motion was waived, and (2) that the issues were all issues of fact and the verdict of the jury was supported by the evidence. The opinion of the court is found at 143 F.Supp. 219.

The claimants now insist that the failure of the Government to renew its motion for a directed verdict after the last witness had testified precludes the review of the question whether, under the evidence and the applicable law, the case was mistakenly submitted to the jury.

O'Malley v. Cover, 8 Cir., 221 F. 2d 156, states the well known general rule that to preserve for review the question of the sufficiency of the evidence to take a case to the jury, there must be a motion for a directed verdict at the close of the evidence. The Government contends that,...