Goode v. United States
44 App. D.C. 162
D.C. Cir.
1915
Check Treatment
Mr. Justice Robb

delivered the opinion of the Court:

In 443 Cans of Frozen Egg Product v. United States, 226 U. S. 172, 57 L. ed. 174, 33 Sup. Ct. Rep. 50, the court ruled that it was not intended to liken proceedings under the pure food act “to those in admiralty beyond the seizure of the property by process in rem, then giving the case the character of a law action, with trial by jury if demanded and with the review already obtaining in actions at law.” The court observed that if “the action is tried in the district court without a jury, the circuit court of appeals is limited to a consideration of such questions of law as may have been presented by the record proper, independently of the special findings,” and cited Campbell v. United States, 224 U. S. 99, 56 L. ed. 684, 32 Sup. Ct. Rep. 398, as authority for the proposition. The court further *166said: “But the party on jury trial may reserve bis exceptions, take a bill of exceptions, and bave a review upon writ of error in tbe manner we bave pointed out.” Inasmuch as provision bas been made in tbe District of Columbia for a trial of issues of fact in civil cases by tbe court without a jury, tbe ruling in tbe Campbell Case does not apply. In this jurisdiction tbe finding of tbe court upon tbe facts, which may be either general or special, bas tbe same effect as tbe verdict of a jury. An exception may be taken to any ruling of tbe court during tbe bearing and to such finding, on tbe ground that tbe evidence was insufficient in law to justify it, and may be stated in a bill of exceptions as in case of a jury trial. See D. C. Code, secs. 70, 71 [31 Stat. at L. 1200, 1201, chap. 854].

From tbe foregoing it is apparent that our review of this case must be confined to questions of law presented by tbe record proper, and to such other questions as may bave been reserved by exceptions duly noted during tbe progress of tbe trial. Tbe only exceptions taken, which are followed up in appellants’ brief, relate to tbe admission of evidence introduced by the government tending to prove tbe inappreciable quantity of lithium in Buffalo Litbia Water, and that the-trace of lithium found would not of itself give any therapeutic effect. Tbe libel as amended alleges that tbe water in question is misbranded because, as branded, it is represented as litbia water, when it is not such a water or entitled by reason of its ingredients to be so called, and that by reason of this misbranding tbe purchaser of tbe water is deceived. Clearly, under these averments, it was competent for tbe court to receive evidence concerning tbe real character of this water. Evidence that an analysis of about half a gallon of tbe seized water failed to disclose any lithium except by tbe use of tbe spectroscope, and then only a trace, and evidence that water from tbe Atlantic and Pacific Oceans, from tbe Mississippi and Potomac rivers, contained five times as much lithium as tbe same quantity of “Buffalo Litbia Water,” certainly shed some light upon the question whether such so-called lithia water was in fact what tbe label under which it was sold represented it to be.

Appellants insist that tbe libel fails to allege any facts con*167stituting misbranding, and. hence that it is fatally defective. It alleges that the seized water is labeled as “Buffalo Lithia Water;” that the label is false and misleading “in this, that the said statement imports that the liquid contained in said bottles is a lithia water, whereas in truth and fact the food and drug contained in said bottles is not a-lithia water, or entitled by reason of its ingredients to be so called.” In other words, the label alleges that the seized property is branded, labeled, and sold as lithia water, when in fact it is not, and that by reason of such branding the public is deceived and misled. If appellants mean that the libel should have characterized this water, we do not agree with them. Whether it should be called a mineral water or a spring water is not important. The important question here is whether it is what the label represented it to be, — a lithia water. The libel in unambiguous terms alleges that it is not, and we think the averments sufficiently explicit.

The decree must be affirmed, with costs. Affirmed.

An application for the issuance of a writ of error to remove the cause to the Supreme Court of the United States was granted and the writ issued October 18, 1915.