United States v. Two Cases of Chloro-Naptholeum Disinfectant

• Decision Date: 22 June 1914
• Citation: 217 F. 477
• Parties: UNITED STATES v. TWO CASES OF CHLORO-NAPTHOLEUM DISINFECTANT.
• Court: U.S. Court of Appeals — Fourth Circuit

217 F. 477

UNITED STATES

v.

TWO CASES OF CHLORO-NAPTHOLEUM DISINFECTANT.

United States District Court, D. Maryland.

June 22, 1914

John Philip Hill, U.S. Atty., and J. Craig McLanahan, Asst. U.S Atty., both of Baltimore, Md.

Julius Wyman and Richard E. Preece, both of Baltimore, Md., and Stroock & Stroock, of New York City, for defendant.

ROSE District Judge.

This case arises out of a seizure under the tenth section of the Insecticide Act. The packages proceeded against were labeled 'Chloro-Naptholeum.' The libel says that such label constituted a misbranding. It charges that the words used conveyed, and were intended to convey, the meaning and impression that the article contained as an essential ingredient chlorine or chlor-napthol. Claimant admits that it did not.

The allegation that the words were intended to convey a false meaning is immaterial. Absence of fraudulent intent on the part of the shipper is not a defense to proceedings under the Food and Drugs or Insecticide Acts. United States v Thirty-Six Bottles of London Dry Gin, 210 F. 271, 127 C.C.A. 119. There was a jury trial. It turned out, however that the facts were not in dispute. The interstate shipment was admitted. The government put on the stand a number of expert witnesses of high qualification, among them, some of the most distinquished authorities on pharmacology preventive medicine, and hygiene. They testified that chlorine was a valuable disinfectant. It had been recognized as such as far back as the close of the eighteenth century. It is now extensively used in purifying the water supplies of urban communities. Napthol is also a well-known and powerful germicide. As early as 1881 the name chlor-napthol had been given to a definite chemical compound. To chemists the name was descriptive. It conveyed to them a clear idea of the essential composition of the product to which it was applied. Some years later the claimant's predecessors adopted 'Chloro-Naptholeum' as the name for their disinfectant. germicide. It is not hard to make, but except for laboratory purposes it is seldom made. The chemical witnesses all said that to them the name 'chloro-naptholeum' indicated that the product so called contained chlorine or chlor-napthol as an essential ingredient, and that they so supposed until they learned otherwise. It was nevertheless admitted that claimant's disinfectant was reliable, valuable, and largely used. No attempt was made to controvert any of the testimony offered on behalf of the government. Claimant put witnesses on the stand to prove that the ordinary purchaser knows nothing about chlor-napthol. They testified that the people who bought chloro-naptholeum attached no significance to the name. They asked for it, because they had used it before, or had heard of somebody else who had. While there was no great volume of such evidence, the government made no effort to dispute it.

The issue, therefore, became almost entirely one of law. No facts were in controversy. The jury, indeed, had the right to disbelieve any part of the testimony which did not seem to them credible. No reason was apparent, nor was any suggested, why the truthfulness of any of it should be questioned. There was no attempt to discredit the veracity or the knowledge of any of the witnesses. No request for an instructed verdict was, however, made. The case accordingly went to the jury. Their verdict was for the government. The claimant moved for a new trial on various grounds. At the hearing they resolved themselves into the contention that incompetent evidence had been admitted and that erroneous instructions had been given to the jury. Little need be said as to the rulings as to testimony, or as to any of the criticisms of the charge, except those going to the fundamental proposition of law involved.

At the argument it was stated that claimant had some months before the trial adopted a new name for its goods. It wanted to resume the use of the old so soon as its right to do so could be clearly established. What it and the government, therefore, both wish, is a final decision upon the merits. To prolong the litigation over technical questions would do harm to everybody. It does not appear, however, that on such questions any error was made.

The government sought to show that chlor-napthol was, as early as 1881, a recognized chemical product, and that at various dates before and since certain specific things were known to chemists. For that purpose it produced from the library of the Department of Agriculture various books published here and abroad. It proved that they were standard works on the subjects to which they related. Their title pages were offered in evidence to establish the dates and places of their respective publications. The claimant objected to their admission, on the ground that their publication had not been properly proved. They were admitted. No question arose as to the admissibility of the opinions of text-writers. The books were not offered for such purpose. They were let in, as in patent cases, to show what at a particular time was the state of the art or of the world's knowledge. For such purposes they are clearly admissible. 4 Chamberlayne, Modern Law of Evidence, § 2755.

Proceedings in these cases are expressly assimilated to those in admiralty. Under the liberal rules of that forum, sufficient prima facie proof of the date of the publication of the books in question was given.

It was urged that the court in its charge to the jury had too freely assumed that testimony which was uncontradicted was true. At the close of the charge claimant was given an opportunity to call attention to any errors which it supposed had been made. It specified the respects in which it thought the court had taken for granted things which it was entitled to question. The jury were then distinctly told that all such issues were for them, and that theirs was the responsibility for the decision thereon.

In substance the jury were instructed that a word does not become purely arbitrary until it has lost its descriptive significance both to the specialist in the subject and to the general public. In this circuit it has already been determined that, where words in every day use are put upon labels, they will be held to have been used in their popular meaning rather than that which they have acquired among manufacturers and dealers. Libby, McNeill & Libby v. United States, 210 F. 148, 127 C.C.A. 14.

In the case at bar the words in controversy were not in everyday use. Only a few people accurately knew their meaning. Nevertheless they had a definite and precise one. That is now what it was at and before claimant's predecessors by accident or design adopted the phrase, or what appears to be an obvious variant thereof, as the name of their product. Moreover the very thing to which it properly belonged could be used, and in some respects at least was well adapted for use, for the very purposes for which claimant's goods were offered for sale. Claimant says, conceding all this, its wares have by that name been on the market for about 30 years. Those who know of the words only in connection with its product are at least 100 times as numerous as those who ever knew what their real meaning was and is.

It contends that in law their only present significance is what it has given to them. By usage and common acceptation they have come to mean, not the definite, known chemical compound, but the disinfectant made up by it according to its secret proprietary formula. The fact that as it uses the words they would still mislead and deceive chemists and other persons familiar with chemical terminology is in its view immaterial. The question is so important that I have felt that more thought should be given to it than was possible in the hurry and rush of a jury trial.

Claimant relies upon such cases as United States v. 40 Barrels of Coca-Cola (D.C.) 191 F. 431. In so doing it loses sight of the fact that those cases were decided as they were largely, if not solely, because the names which the government attacked were in the opinion of the court protected by the first proviso of the eighth section of the Food and Drugs Act (Act June 30, 1906, c. 3915, 34 Stat. 771 (U.S. Comp. St. 1913, Sec. 8724)) which reads:

'That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded * * * in the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, if the name be accompanied on the same label or brand with a statement of the place where said article has been manufactured or produced.'

The Insecticide Act was not passed until nearly four years after the Food and Drugs Act had gone upon the statute book. Various questions under the former had been raised before the latter was enacted. A comparison of the text of the two shows that the draftsman of the Insecticide Act took the Food and Drugs Act as his model. The larger part of it he copied verbatim. Where he did not it was obviously because he had a definite purpose in departing from it. United States v. 30 Dozen Packages Roach Food (D.C.) 202 F. 271. A word here or there might have been left out or altered as the result of a clerical mistake. Changes of another sort are clearly significant. The first proviso of the eighth section of the Food and Drugs Act is not to be found in the Insecticide Act,...