79 A.D. 384 | N.Y. App. Div. | 1903
Lead Opinion
This action was brought to recover a penalty for selling adulterated milk in violation of section 22, chapter 338 of the Laws of 1893,
On the 13th day of September, 1900, the defendant by his agent, one Yaughan, was selling milk about the -city of Rochester. Two inspectors in the employ of the Department of Agriculture of the State made a lactometer test of the milk in a small peddling can containing about six quarts, and immediately thereafter caused it to be thoroughly stirred, and then took two samples therefrom, sealing, them up as required by the statute, and immediately delivered one to the agent of the defendant who was peddling the milk, and the other to' the State Chemist. A subsequent chemical analysis- of this milk delivered to thechemist showed that it was adulterated within section 20 of chapter 338, referred to, and which defines adulterated milk. The analysis showed that the percentage of water was eighty-eight and fffty-six one-hundredths, and of solids eleven and forty-four onehundreths.
The question was submitted to the jury as to the fairness of the taking of the samples of milk. The witness Yaughan, who was the' agent of the defendant, testified that he was delivering the milk to the defendant’s customers when the samples were taken by the inspectors, and . that he continued to do so thereafter. . The two inspectors testified as to the manner in which the samples were taken ; that one of them requested Mr.-Yaughan to stir the milk thoroughly, which he did, and after this was done the milk composing the samples was poured in the bottles. Yaughan testified that he stirred the milk “ good ” before starting on his trip that morning, but had no recollection of just how the milk was taken for the samples. There was no other proof given upon this subject, and the correctness of the analysis of the chemist was not impeached. There was? therefore, no question of fact from this evidence to be submitted to the jury as to the fairness of the samples taken. While this action is to'recover a penalty, it is still a civil action, and if the evidence is undisputed-or at least is not fairly susceptible of an inference against the positive testimony of the witnesses, there is ho question of fact
We appreciate that in several cases the question of the fairness of the sample was submitted to the jury, and that ordinarily in actions of this character that quéstion is one of fact. But in each of those cases there was some independent evidence tending to impeach the fairness of the sample.
When milk is delivered by the producer “ for manufacture, sale or shipment, or from a milk vendor who produces the milk which he sells,” and it is designed to prosecute such producer, the statute (§ 12, as amd. by Laws of 1898, chap. 557) provides for taking a sample of the “ mixed milk of the herd of cows ” from which the milk claimed to be adulterated was drawn. That is, the statute aims to prevent offenses by the original producer, and also by any person who sells unwholesome milk. In the larger cities the great bulk of the milk is not gold by the producers. It is shipped to the city, mixed indiscriminately, and sold by peddlers from house to house. It is impossible, therefore, in the latter case to make any test of the milk to be compared with that from the herd. There is no unfair discrimination for or against any one. Whoever sells milk not up to the arbitrary standard prescribed by the statute is liable for the penalty provided by section 37 of the act as amended. Every producer, as an extra guard against unjust prosecution, may have the milk of his herd compared with that which is claimed to be unwholesome, and that privilege relates to the manner of ascertaining the quality of his milk. The statute gave no such privilege to the peddler who was not the producer, because no herd sample could be obtained. The statute was passed in view of existing conditions and must be construed in a way to be fairly adapted ‘to them.
The illustration in the opinion of Justice McLennan of the farmer whose milk is divided at a street corner is an unusual one. It may be that if the milk came direct from the producer to the peddler, and was sold by him unmixed with any other, that a fair construction of the statute would permit him to have the comparative test made with that from the herd.
In People v. Wiard (61 App. Div. 612) the decision was based upon the fact that the delivery of the milk was to a single purchaser. Eight cans of the milk had been taken by the producer to the railroad station, and the sample tested was from only one of these cans. That sample was compared with a sample from the herd. It might well be that no fair comparative test could be made of a sample from a distinct part of the milk with the mixed milk of the whole herd. In the present case the peddler was engaged in selling milk from the smaller can when apprehended by the inspectors. The sample was taken from the can out of which he was selling the milk. The peddler may have a dozen cans of milk on his wagon; he may have disposed of the greater part of it. The reason for mixing the entire milk together does not obtain in his case for two reasons ■— the milk is not to be tested with that from the herd, and it would not be feasible to do so, for a part may already have been sold by him and the mixing would be impracticable of impossible. If the milk he has in the can from which he is selling is stirred properly and proves to be below the standard the liability attaches. The Wiard case has no application to milk taken from a peddler.
Upon the trial of this action, and under the objection of the plaintiff, the defendant was permitted to show by the defendant and his wife that they had not tampered with this milk. We think this evidence was incompetent. If the fairness of the sample or
The injurious effects which may result from drinking impure milk, the difficulty in detecting its impurities by the customers, the enormous extent to which it enters into the food supply, and the temptation to adulterate it, render it essential that the purpose of the statute be adhered to somewhat inflexibly by the,courts.
In the present case Zuber, who furnished the milk to Laesser, may have added water or some ingredient to the milk, so that the testimony of the defendant or his wife proves nothing. And yet the defendant, though innocent, is amenable to the payment of a penalty if he sells milk which comes within the condemnation of the statute. Milk sold throughout a city may often change hands several times before reaching the consumer, and it would impair the efficiency of the statute to allow the last seller to be exonerated by swearing to his own honesty. It would likewise create confusion and uncertainty to permit each person who has sold the milk to exculpate himself by proof of this kind unless there is some evidence, or some reasonable inference, that the samples were unfairly taken or the analysis is unsatisfactory.
We are aware that proof of this kind has been given in actions for penalties for delivering impure milk to a cheese factory or creamery, as has been stated, but a different method obtains in a case of that kind, as samples must be taken from the herd of the producer, and the statute (■§ 12 as amd. by Laws of 1898, chap. 557)
It appeared on the trial that the milk was obtained from one Zuber, who delivered it at the station of the Mew York Central and Hudson River Railroad Company in Rochester. The defendant was permitted to show that no herd sample of Mr. Zuber’s milk Was taken. This evidence was objected to and an exception taken. We think the evidence was incompetent. As already suggested, the necessity of taking samples of the milk from the herd is not required where milk is delivered about the city.
This court has already held that this statute is constitutional. (People v. Hills, 64 App. Div. 584.)
The question of intent does not enter into actions of' this kind. (People v. Kibler, 106 N. Y. 321.)
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Williams and Hisoock, JJ., concurred ; McLennan, J., dissented in an opinion ; Davt, J., not voting.
Dissenting Opinion
It seems to me that the decision of this court in the case of People v. Wiard (61 App. Div. 612; affd., 170 N. Y. 590) furnishes the rule of law applicable to the case at bar, and should be regarded as controlling upon this court and as decisive of this case. The rule laid down in the Wiard Gase (supra) was stated in the following language, namely: “ Held, that the analysis of a sample of milk taken from only part of the product delivered by the producer at any one time to a single purchaser, will not afford a basis for an action for a penalty under the Agricultural Law (Laws of 1893, chap. 338).”
The statement of the rule is clear and unambiguous, and its meaning ought not to be doubtful; yet when the facts of the Wiard case and the questions which were there involved are recalled, per: haps the exact meaning of the decision is made even more apparent.
In the case at bar the defendant, through his hired man or agent, was, on the 13th day of September, 1900, engaged in selling milk in the city of Rochester. He had upon the wagon two cans of milk, one a thirty-two-gallon can and the other a ten-quart can, which, at the time in question, contained three or four quarts of milk. As the defendant’s agent came out of a restaurant or saloon in which he had been delivering milk out of the smaller can, an inspector of the Agricultural Department, after stirring the milk in the small can, took two samples of milk from it, sealed them, delivered one to the defendant’s agent and the'other to Mr. Latimer, the chemist. The chemist analyzed the sample delivered to him, and found that it Contained eighty-eight and fifty-six one-hundredths per cent water; eleven and forty-four one-hundredths solids and three and four one-hundredths fat, showing that the milk was at least as good as the milk taken at the railroad station in the Wiard case. It appears that the three or four quarts of milk from which the sample was taken was not sold to or intended for a single purchaser, if that may be considered material. But in the ■ Wiard case it in no mam ner appeared that the eight cans of milk were sold and delivered to or intended for a single purchaser. In fact, it was alleged in the complaint in that case, was admitted in the answer, and was in no manner controverted by the evidence, that the defendant was engaged at the time in question in selling and delivering milk to various dealers in the city of Rochester.
In this case we simply have the analysis of the chemist of the sample taken from one of two cans upon defendant’s wagon, which can contained about three quarts of milk, from which the defendant’s agent had been selling from time to time, yet it is held in substance in the prevailing opinion that upon such analysis alone the defendant shall be. held, as matter of law, guilty of a violation of
Whatever our individual views may have been prior to the decision of this court and the Court of Appeals in the Wiard case, it seems to me that it ought now to be regarded as settled that an analysis of a sample of milk taken as was the one in question, cannot be made the basis of a recovery against a defendant charged with selling adulterated milk. The suggestion that such holding will render the law difficult of enforcement, or in effect nugatory, ought not to be regarded as of importance, when the statute, as interpreted by the court of last resort, is plain and unambiguous. The Legislature is charged with the duty of formulating a statute that is practical and enforcible, and not the court.
In the Wia?'d case it was held that it would not answer to take a sample of milk for analysis from one of eight cans, notwithstanding the fact that such analysis was corroborated by the analysis of another sample taken from the milk of the entire herd. We, therefore, are unable to see how it will answer to say in this case that the analysis of a sample taken from one of two cans will serve such purpose, and that it may be made the basis of a recovery against the defendant.
There is nothing in the case at bar to show that the milk which was being offered for sale by the defendant was not in precisely the same condition as it was when it came from the cows, and we think, until evidence is produced tending to show that the defendant’s milk was adulterated, he ought not to be held liable for the penalty prescribed by the statute. It was for the very purpose of avoiding such a condition of things, in the case of a producer of milk, that the further provision was added to the statute requiring the milk of the herd to be examined, so that it might be determined whether or not it had been adulterated.
It cannot be possible that the statute means, when properly interpreted, that if the farmer who produced the milk in question had
Under the decision of the court in the case at bar, if the purchaser of the eight cans of milk attempts to sell it to the inhabitants of a city, a like sample may be taken from the same can, the same analysis made showing the same result, and such analysis, as matter of law, is sufficient to entitle the People to recover from the purchaser of the eight cans of milk the full penalty prescribed by ■ the statute. In other; words, a farmer may sell with impunity milk below the standard, where and when he pleases, and wholly without ■ reference to what its analysis may show, provided only it is of a quality which his cows actually give, when not improperly fed. But a person who may buy the saíne milk and attempt to resell it, if an analysis shows it is below the prescribed standard, is, as matter of law, liable for the penalty named in the statute. Presumably the statute was enacted for the protection of the consumers of milk, and not for the purpose of enabling the State to punish one class of its citizens for selling a quality of milk which another class may perchance sell without restraint. If the decision in this case and in the Wia/rd case correctly interpret the statute, there is much force in the contention of defendant’s counsel that the act is unconstitutional, for the reason that it discriminates in favor of vend ers of milk produced by them as against sellers of milk which is purchased and is not produced by such sellers. To prove that such discrimination may exist under the- statute as inter})reted, no more apt illustration can be made than that suggested by defend
The learned county judge allowed.the certificate of the chemist to be received in evidence, and he submitted to the jury the single question whether, under the circumstances disclosed by the evidence, the sample taken was a fair sample, stating to the jury that if they found it was, then the plaintiff could recover, but if they found it was not a fair sample, their verdict should be for the defendant. We think the instruction was as favorable to the plaintiff as it was entitled to.
The jury, by its verdict in this case, found that the agent of the Agricultural Department did not take a fair sample when he took it from what remained in the bottom of the ten-quart can, when there was a thirty-two-gallon can of milk upon the same wagon, and I think the verdict was amply supported by the evidence.
These views lead me to conclude that the judgment and order appealed from should be affirmed, with costs, upon the authority of People v. Wiard (61 App. Div. 612; affd., 170 N. Y. 590).
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.
