Goodwin v. United States, 2 F.2d 200 (6th Cir. 1924)

T. V. Maxedon, of Cincinnati, Ohio, for appellants.

Robert A. Kramer, Asst. U. S. Atty., of Cincinnati, Ohio.

Before DENISON and DONAHUE, Circuit Judges, and SATER, District Judge.

DONAHUE, Circuit Judge.

The Food and Drug Act of 1906 and the amendments of 1912 (Comp. St. § 8724) do not confer, and do not purport to confer, admiralty jurisdiction upon the United States District Courts, in proceedings to condemn property seized under the provisions of that act and amendments thereto. The provision that a libel shall be filed and the proceedings shall conform as near as may be to the proceedings in admiralty, relate only to procedure and not to jurisdiction. Four Hundred and Forty-Three Cans of Frozen Egg Product v. U. S., 226 U.S. 172, 33 S. Ct. 50, 57 L. Ed. 174, and cases there cited.

This prosecution was based solely on the amendment of 1912 to section 8. The libel quoted from the label a long list of ailments for which the water was said to be beneficial, with "healing powers" and a "reliable remedy." It then denied that the water "is capable of producing the therapeutic effects claimed in the statements upon and in said cartons as hereinbefore set forth." This does not fail to state a case under the statute, and did not make the libel subject to demurrer or motion to quash. It would be sustained by proof of the false and fraudulent character of any one of the various claims recited. If defendant needed a better specification of the particulars upon *201 which the government would rely, if it did not rely upon all the statements, a motion for a bill of particulars would doubtless have been granted, or an amendment of the libel permitted.

The record in this case does not present the question whether mineral spring water as it comes from the earth is or is not a drug, for the reason that the Crab Orchard concentrated mineral water is not transported and marketed in its original condition. While it appears that the constituent drug elements are not completely extracted therefrom, and transported and sold without the admixture of other elements, nevertheless the processes of separation are carried to such an extent that the water can no longer be used as a beverage, but only in small quantities or doses, as a medicine. For this reason Crab Orchard concentrated mineral water cannot be classified as "food," but, on the contrary, comes fairly within the meaning of "drug," as used in the Pure Food Act and amendments thereto.

Upon the trial of the issue of fact joined by the libel charging the misbranding of mineral water and the answer of the intervener, expert evidence may be properly admitted. If it appears from the testimony of a witness upon preliminary examination that he is learned in the science of chemistry or has been regularly and legally admitted to the practice of medicine, and that he has knowledge of the drug elements contained in the article transported in interstate commerce and their efficacy or lack of efficacy as curative agents, used either separately or in combination in the treatment of the diseases specified on the label, his opinion on that subject is competent evidence regardless of whether he has had actual experience or observation of the effect of the use of such drugs in the exact form in which they are transported in interstate commerce. The weight of his evidence is a question for the jury.

This court has no authority to determine the weight of the evidence, or reverse the judgment for the reason that the verdict is against the weight of the evidence, where the verdict of the jury is sustained by substantial evidence. R. S. § 1011 (Comp. Stat. § 1672); Bullock v. U. S. (C. C. A.) 289 F. 29-32; Atlantic Ice & Coal Co. v. Van (C. C. A.) 276 F. 646.

The government having charged misbranding in general terms, and no motion being made to require it to file a bill of particulars, the general verdict must be sustained, if there is substantial evidence that any one of the statements made on the label is false or fraudulent; but the verdict and judgment relates to and affects only the particular label on the bottles seized in interstate commerce. This general verdict is sustained by substantial evidence.

For the reasons stated, the judgment of the District Court is affirmed.