Meyer v. Cadwalader

| U.S. Circuit Court for the District of Eastern Pennsylvania | Dec 8, 1891

Acheson, Circuit Judge.

This action was brought by importers against the collector of the port of Philadelphia to recover back an alleged excess of duties paid under protest upon certain imported goods claimed by the plaintiffs to be “trimmings,” chieily “used for making or ornamenting hats, bonnets, and hoods.” As to all the articles involved in the suit, upon which there was any controversy before the jury, the verdict was for the defendant. The plaintiffs move for a new trial, and in support of their motion assign several reasons. But, in the view the court takes of the case, it is only necessary to consider one of these reasons, which is based upon the fact, that, during the course of the trial statements highly prejudicial to the plaintiffs appeared from time to time in several daily newspapers of large circulation and influence published at the placo of trial; some of these statements purporting to have been made to the newspapers by government officials, and all of them calculated to bias the minds of the jury, and prevent them from rendering a fair and impartial decision. The general character of all those publications can bo inferred from the following head-linos, which appeared over an" article relating to the trial, published while it was in progress, namely: “importers and the Government;” “Blocking the Twenty Million Dollars Raid on the Treasury;” “Experts Give Testimony;” “'Practical Business Men Como to the Aid of the Treasury, and Help to Shatter the Raiders’ Claims.” Another publication, during the trial, which was a special dispatch from Washington, and purported to quote remarks of the chief special agent of the treasury department to the newspaper reporter, condemning as unjust, for reasons stated, claims of importers to recover back excess of duties exacted from them, had, in conspicuous letters, these introductory head-lines: “The Custom’s Decisions;” “Sharp Attorneys who Prosecute Claims on Contingent Pees:” “Millions of Dollars Recovered from the Government on Technical Errors in Tariff Laws; ” “Costly Hat-Trimming Oases;” “Tlie Claimant Sometimes Gets 50 per Cent, and Sometimes Even Less.” These striking head-lines are indications of the character of the statements which followed.

But the most objectionable of all these publications was what purported to be an interview between the newspaper reporter and a special agent of the treasury department, who seems to have had charge of the preparation of the government’s case, and who was present at the trial. This interview, in substantially the same form, appeared on the same day in the issue of two different newspapers, and the statements therein contained, as coming from this government official, bear marks of very deliberate preparation. This official, as reported, undertook, in a newspaper interview intended for publication, to discuss the merits of the case on trial with respect to each particular kind of goods involved in the controversy, and to pronounce that their chief use was for other specified purposes than the trimming of hats, stating facts to support his assertions; and he further stated that one of the plaintiffs’ counsel, whose name was given, and who was described as “the chief lawyer for the hat-trimming syndicate,” had declared to a certain named government appraiser that the importers did not claim nor expect to have certain satins in controversy in this case classed as hat materials, but, he added, “he now comes here, and will vigorously contest that they are.” In one of the newspapers containing this interview this treasury agent is represented as declaring: “I am only too glad to give my views, as I think that the people should know all the facts in this attempt to loot the United States treasury.” There has been no sort of denial of either the genuineness or the accuracy of these published interviews.

It is idle to say that there is no direct evidence to show that the jury read these articles. They appeared in the daily issues of leading journals, and were scattered broadcast over the community. The jury separated1 at the close of each session of the court, and it is incredible that, going out into the community, they did not see and read these newspaper publications. That these published statements were well calculated to prejudice the jury against the plaintiffs and deprive them of a fair trial is a proposition so plain that it would be a sheer waste of time to discuss it. Good ground, therefore, here appears for setting aside the verdict.

But it.is strenuously urged on behalf of the government that counsel for plaintiffs “waived all right to object to a verdict on account of these articles, because they did not openly call the attention of the court to the same, enter their objection to further proceeding with the trial, and except to an adverse ruling on the application.” The fact, however, is that, immediately after the earliest of the newspaper articles appeared, the plaintiffs’ counsel did make an application at chambers to the judge presiding at the trial for the withdrawal of a juror, and the continuance of the case until the'next term, on the ground that a fair trial had become impossible by reason of said publications. This application was resisted by counsel for the government, and, for reasons which then seemed satisfactory to the judge, was refused. What more, then, was incumbent upon the plaintiffs? It is true that the articles which they brought to the attention of the judge were less objectionable than those which subsequently appeared, and to which particular reference has been made in this opinion. But we think the plaintiffs’ counsel had done their whole duty in the premises, and were under no obligation to renew their application to stop the trial. Under all the circumstances, a waiver cannot justly be imputed to the plaintiff's. For the reason we have discussed, the verdict must be set aside, and a new trial granted; and it is so ordered.

Botler, District Judge, who, at the request of Judge Acheson, sat with him at the hearing of the motion for a new trial, concurs in the opinion and order.