United States v. Thirty-Six Bottles of London Dry Gin

• Decision Date: 02 February 1914
• Docket Number: 1772.
• Parties: UNITED STATES v. THIRTY-SIX BOTTLES OF LONDON DRY GIN et al.
• Court: U.S. Court of Appeals — Third Circuit

210 F. 271

UNITED STATES v. THIRTY-SIX BOTTLES OF LONDON DRY GIN et al.

No. 1772.

United States Court of Appeals, Third Circuit.

February 2, 1914

Walter C. Douglas, Jr., and Francis Fisher Kane, both of Philadelphia, Pa., for the United States.

John G Johnson, of Philadelphia, Pa., for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and YOUNG, District Judge.

YOUNG District Judge.

This is a proceeding by the United States for the condemnation of certain bottles of gin alleged to be misbranded in violation of the Food and Drugs Act of June 30, 1906. The eighth section of that act provides that an article shall be deemed to be misbranded 'if it be labeled or branded so as to deceive or mislead the purchaser or purport to be a foreign product when not so. ' The cause went to trial before a jury upon the libel and amended libel and answer thereto by Sir Robert Burnett & Co., the claimant. The libel alleges that the bottles were labeled and branded so as to purport to be a foreign product, whereas they were in fact a domestic product. The amended libel alleges that the bottles were labeled and branded so as to deceive and mislead purchasers thereof and to purport to be a foreign product when not so.

The assignments of error raise the single question whether or not, in a proceeding under the Food and Drugs Act for the condemnation of misbranded articles, the intent of the claimant is a necessary ingredient in the determination of the case. The learned trial judge admitted evidence, over the government's objection, for the purpose o showing good faith in the branding and absence of an intention to deceive. The court also submitted the question of intent as follows:

'The third question refers more particularly to the second charge of the government. It is this: In using the label in suit, did the maker of the gin intend to deceive or mislead the purchaser by representing the gin to be a foreign product, when in truth it was not a foreign product.'

Under the libel and amended libel, the sole question was whether the packages were so labeled and branded as to deceive and mislead the purchaser. This was not the question submitted to the jury, but the question submitted to the jury was, as we have seen: Did the maker of the gin intend to deceive or mislead the purchaser? The court was in error in submitting the question of intention to the jury. The Food and Drugs Act nowhere requires proof of intention by the use of the words 'knowingly,' 'willfully,' or such like words. The language of section 8 (in the case of food) subsec. 2, of the act, is:

'If it be labeled or branded so as to deceive or mislead the purchaser, or purport to be a foreign product when not so.'

This language clearly means if the label deceives or misleads the purchaser; if the purport of the label be that it is a foreign product when it is not so. This the label, and the label alone, must determine. The intention of the user to deceive is of no consequence. The act strikes at deceiving the public by selling them one thing when they desire to purchase another. As has been frequently said by courts, the purchaser has the right to choose for himself what he will purchase, and, when he has purchased, the right to receive that which he desires and not something else. It would be destructive of the act, nullify it entirely, to allow...