testified further as to dirty walls and window sills on which
vessels were set, encrustations on containers used in the
manufacturing process, two house flies in one of the strainers,
and how the drippings of sauce from the table were caught in a
vessel unstrained and used again or preserved in a vat for later
use; that the tomato boxes showed drippings of soupy materials
attracting flies; that Viviano told him he paid 75¢ per
bushel for the tomatoes, that he bought good tomatoes, that he
did not cut out rotten spots but threw out the tomatoes with rot
on them and used only the good ones.
Though defense witnesses testified to more favorable conditions
at the plant than was disclosed by the government witnesses and
produce men supported Viviano's testimony that he bought good
tomatoes, the defense testimony fell far short of overcoming the
testimony of inspectors Balfing and Hradil. From a preponderance
of all the evidence I find that on October 11, 13 and 16, 1950
the conditions at the plant were insanitary whereby the products
then being manufactured may have become contaminated with filth
such as tomato rot, flies and fly eggs and kindred filth.
The insanitary conditions at the plant on October 11, 13 and 16
resulted in most part from conditions of a continuing nature such
as lack of screens, flies, dirt on walls and floors, et cetera.
The inference is not only reasonable but compelling that the
conditions were no less insanitary on the dates when the various
shipments here in question were prepared and packaged which I
find from the evidence was immediately or within a very few days
before the dates of the respective shipments.
Did the libeled articles in each seizure consist in whole or in
part of a decomposed substance by reason of presence therein of
decomposed tomato material; and did F.D.C. No. 30144 consist in
whole or in part of a filthy substance by reason of the presence
therein of maggots and F.D.C. No. 30178 by reason of the presence
therein of fly eggs and maggots? As to each query, based on a
heavy preponderance of the evidence, I find in the affirmative.
The government scientists who testified on these points gave the
impression of being in all respects highly qualified and
responsible witnesses who were seeking to develop the facts as
they found them to be. The scientific methods they used were not
secret or new or questionable when judged by usual standards but
widely recognized by scientific societies, and accepted by the
government and by industry as a dependable method to be used in
examining foods similar to these for decomposed substances. The
government witnesses were widely experienced in examining similar
foods for the very purposes that they made the examination of the
foods here in question. I am persuaded that I should accept their
testimony as true and accurate. The testimony of claimant's
expert is entitled to careful consideration because of his high
reputation as a scientist and obvious effort to bring the court
the true results of his tests and examinations. His findings and
conclusions wherein they conflict with or tend to refute the
findings and conclusions of the scientists who testified for the
government are weakened, however, by his lack of experience in
the field of decomposed substances in food and particularly in
the field of tomatoes and tomato molds. His testimony fails to
overcome that of the government scientists whose testimony amply
sustained the case of the government in each of the four libels.
The testimony of the government's witnesses that decomposed and
filthy substances were found in the samples examined by them is
strengthened by the proof of insanitary conditions at the plant
that would cause one to expect to find decomposed matter and
filth in the product.
Section 342(a)(3) prohibits the interstate shipment of food
when it consists in whole or in part of filthy, putrid or
decomposed substances irrespective of whether it is fit for food
or injurious to health. United States v. 184 Barrels Dried Whole
Eggs, D.C., 53 F. Supp. 652; United States v. 1851 Cartons, etc.,
146 F.2d 760; Salamonie Packing Co. v. United States, 8 Cir.,
165 F.2d 205.
The words in clause (3) "or if it is otherwise unfit for food"
do not modify, limit, or add any additional requirement of proof
to the preceding words. United States v. 935 Cases, etc., D.C.,
65 F. Supp. 503; United States v. 184 Barrels Dried Whole Eggs,
The word "filthy" as used in the Act is intended to be given
its ordinary meaning and not confined to any scientific or
medical definition. United States v. Swift & Co., D.C.,
53 F. Supp. 1018. Likewise, "insanitary conditions" as used in 21
U.S.C.A. § 342(a)(4) should be construed to have its usual
and ordinary meaning. United States v. Lazere, D.C., 56 F. Supp. 730.
From the findings herein and the applicable provisions of the
Act and the interpretations placed thereon by the courts I
conclude that the articles of food herein libeled were
adulterated within the meaning of the Act by reason of the
presence therein of decomposed tomato material and in F.D.C. No.
30178 by the presence also therein of filth consisting of fly
eggs and maggots and in F.D.C. No. 30144 by the presence also of
maggots. I further conclude that the seized articles of food are
adulterated within the meaning of the Act by reason of having
been prepared and packed under insanitary conditions whereby they
may have become and were contaminated with filth.
Counsel for the government are directed to submit, upon notice,
proposed findings, conclusions and order pursuant hereto.
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