United States v. 4 Cases*** Slim-Mint Chewing Gum

• Decision Date: 09 April 1962
• Docket Number: No. 13370.,13370.
• Citation: 300 F.2d 144
• Parties: UNITED STATES of America, Libellant-Appellant, v. 4 CASES * * * SLIM-MINT CHEWING GUM, Thompson Medical Company, Claimant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

300 F.2d 144 (1962)

UNITED STATES of America, Libellant-Appellant, v. 4 CASES * * * SLIM-MINT CHEWING GUM, Thompson Medical Company, Claimant-Appellee.

No. 13370.

United States Court of Appeals Seventh Circuit.

March 2, 1962.

Rehearing Denied April 9, 1962.

James P. O'Brien, U. S. Atty., Chicago, Ill., William W. Goodrich, U. S. Dept. of Health, Education & Welfare, Washington, D. C., Thomas W. James, Asst. U. S. Atty., Chicago, Ill., William J. Risteau, Atty., Dept. of Health, Education, and Welfare, Washington, D. C., for appellant.

Joshua Levine, New York City, George M. Burditt, Chicago, Ill. (C. Lee Cook, Jr., Snyder, Chadwell, Keck, Kayser, & Ruggles, Chicago, Ill., Patricia Hatry, Davis, Gilbert, Levine & Schwartz, New York City, of counsel), for claimant-appellee.

Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.

KNOCH, Circuit Judge.

The government brought this action in rem under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 334, to condemn Slim-Mint Chewing Gum allegedly misbranded in violation of the Act, 21 U. S.C.A. § 352(a), which provides that a drug shall be deemed misbranded:

"If its labeling is false or misleading in any particular."

The libel of information refers to:

The following described articles of written, printed and graphic matter which accompany said article of drug as labeling and which contain statements relating thereto, namely:

A newspaper mat reading "Eat What You Want — Yet Lose Up to 3-5-9 Pounds a Week"

An unknown number of tear sheets reading "Eat What You Want — Yet Lose Up to 3-5-9 Pounds a Week!" and "Eat What You Want — Yet Lose Pounds and Inches Fast"

An unknown number of streamers entitled "Reduce Without Dieting" (in red ink) and

An unknown number of placards reading "Life! Now! Lose Up To 5 Pounds a Week — Reduce * * *"

and charges:

3. That the aforesaid article (all lots) was misbranded when introduced into, while in, and while held for sale after shipment in interstate commerce, within the meaning of said Act, 21 U.S.C. 352(a) in that the name "Slim-Mint Chewing Gum" and statements and designs appearing in its labeling, namely, the display carton and card, the box label and insert, the newspaper mat and tear sheet reading "Eat What You Want — Yet Lose Up to 3-5-9 Pounds a Week!", the tear sheet reading "Eat What You Want — Yet Lose Pounds and Inches Fast", the streamers entitled "Reduce Without Dieting" (in red ink); and the placards reading "Life! Now! Lose Up To 5 Pounds a Week * * * Reduce * * *", accompanying said article, contains statements and designs which represent and suggest that the article is an adequate and effective treatment for obesity, which statements are false and misleading since the article is not an adequate and effective treatment for obesity.

A claim to the attached cases of Slim-Mint was filed by Thompson Medical Company as bona fide owner.

There was no contention that the Slim-Mint article was adulterated or harmful to health.

The jury heard evidence of medical witnesses called by the government and by the claimant, and lay witnesses who testified for claimant. There was no motion for a directed verdict. The jury returned a verdict for claimant. The Trial Court denied the government's motion for new trial. This appeal followed.

The government contends that the record shows that the labeling is false and the article clearly misbranded. The Trial Court instructed the jury:

You must find the Slim-Mint Gum to be misbranded, therefore, if you find that any one of the statements made in the labeling is false or misleading.

The government asserts that the jury failed to follow this instruction. The government also poses the theory that it is not precluded from seeking review of the adequacy of the evidence, even though it first raised the question in its motion for a new trial.

The government relies on United States v. Harrell, 8 Cir., 1943, 133 F.2d 504. That case involved eminent domain proceedings. The Eighth Circuit held (at page 506) that:

"Since the government failed to move the trial court, at the close of the evidence, for a directed verdict on the ground that the evidence was insufficient to sustain a verdict for the appellees, and since the government took no other equivalent action, it is not entitled as of right to a review of the question of the sufficiency of the evidence to support the judgment." citations omitted

However, the Eighth Circuit in Harrell also held that where the public interest is directly and substantially involved, a federal appellate court, in order to prevent a manifest miscarriage of justice, may notice an apparent error not properly raised on the record. The Court stressed the fact (at page 507 of 133 F.2d) that:

"The rule is invoked only in the exceptional case, and its application in any particular case may not be accepted as a departure from the general rules governing the preservation of questions for review here."

In Harrell, the Eighth Circuit found an obvious error in the Trial Court's charge to the jury (at page 505 of 133 F. 2d):

"I am going to say to the jury the Government has taken these leases and whatever you believe the market value is from all the evidence and the circumstances in this case, you are entitled to that damage."

The Eighth Circuit found nothing in the record to support the charge that the government had taken the leases in question, or to excuse the failure of counsel for the government to accept that charge without objection, and concluded that the government's acceptance must lie in something which occurred in chambers prior to the trial, and which was not brought into the record. The Eighth Circuit then went on to say that no evidence was presented to the jury from which the fair value of the leases could be determined. The leases had never been introduced in evidence. No witness before the jury had professed any knowledge of their terms or conditions. The jury was left in ignorance of the rent, how long the leases ran, whether the lessees were required to drill for oil on penalty of forfeiture, whether the leases were renewable, etc.

The government cites a number of cases in which Harrell has been cited with approval. In Lambur v. Yates, 8 Cir., 1945, 148 F.2d 137, plaintiff, a tenant, sought to recover excessive rentals collected in violation of the Emergency Price Control Act. The case was pleaded and tried, without objection, on the theory that there were twelve separate violations. The contention that there had been only one violation (over a period of 12 months) was raised in the appellate court for the first time. However (1) numerous cases involving the same statute were pending, (2) no federal appellate court had construed the statute, and (3) the decisions of state and district courts were in conflict. Therefore, the Eighth Circuit ruled on this issue adversely to appellant despite the delay in raising the question.

In Hoblik v. United States, 8 Cir., 1945, 151 F.2d 971, another eminent domain case, the Court restated the rule (at page 972) that:

"The question of the sufficiency of the evidence to sustain a verdict is usually not subject to review on appeal unless the record shows that, during the trial, that question was presented to the trial court by a motion for a directed verdict, a request for a ruling or an instruction, or some other equivalent action." citations omitted

but then added:

"In this case, however, we shall assume that the question of the sufficiency of the evidence to support the verdict is properly before us. In a case such as this, where the sole issue was one of fact for the jury, it reasonably can be urged that a verdict, if entirely without evidentiary support, should be set aside to prevent a manifest miscarriage of justice." citing Harrell

The Court found the verdict to be supported by substantial evidence and concluded (at page 973 of 151 F.2d) with a cautionary word:

"As was said by the Supreme Court in Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 255, 77 L.Ed. 439, `Appellate courts should be slow to impute to juries a disregard of their duties, and to trial courts a want of diligence or perspicacity in appraising the jury\'s conduct.\'"

An insurance company sought declaratory judgment that a liability policy had been canceled in Frieze v. West American Insurance Co., 8 Cir., 1951, 190 F.2d 381, also cited by the government. The Court of Appeals concluded that the right to cancel the policy did not exist because of failure to comply with statutory provisions covering cancellation, although those provisions had not been brought to the attention of the Trial Court, reversed judgment for plaintiff and remanded the cause to the District Court. The Court of Appeals stressed the fact that it was proceeding under an exception to the rule which ought to be sparingly applied.

The government further cited United States v. Certain Parcels of Land, etc., 5 Cir., 1945, 149 F.2d 81, which also involved eminent domain. There the Court found (at page 82) that the case was:

"Conducted throughout with complete disregard of the rules of proof governing in such cases * *. That the case was wrongly tried throughout may not be doubted."

even though:

"It is true enough that the counsel for the United States stood by doing nothing to prevent, if they did not add to, the resulting confusion, and that normally a judge may not thus be put in error." citation omitted

In Hardware Mutual Casualty Co. v. Chapman, 7 Cir., 1959, 272 F.2d 614, and Commercial Credit Corporation v. Pepper, 5 Cir., 1951, 187 F.2d 71, also cited by the government, the published reports indicate that motions for directed verdicts were filed in the course of the trials.

In Complete Auto Transit, Inc. v. Floyd, 5 Cir., 1958, 249 F.2d 396, the Court said (at page 399):

"Our reversal of the judgment of the court below is based upon the error committed by the court below in denying appellant\'s motion for

...