| N.Y. App. Div. | Jan 6, 1903
Lead Opinion
This action was brought to recover a penalty for selling adulterated milk in violation of section 22, c. 338, Laws 1893, as amended by chapter 101, Laws 1900. Section 22 provides that “no person shall sell or exchange or offer or expose for sale or exchange any unclean, impure, unhealthy, adulterated or unwholesome milk.” Section 37 of the original act prescribed penalties for a violation of its provisions. On the 13th day of January, 1900, the defendant, by his 'agent, one Vaughan, 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 the chemist 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 88.56 and of solids XX.44. The question was submitted to the jury as to the fairness of the taking of the samples of milk. The witness Vaughan, 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. Vaughan to stir the milk thoroughly, which he did, and, after this was done, the milk Composing the samples was poured in the bottles. Vaughan 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 óf 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 no question of fact to be submitted to the jury. It has been held that even the credibility of a party when his evidence is explicit, and without any suspicion or unusual circumstance tending to show its improbability, doeá not inflexibly require the submission of the case to the jury. Hull v. Littauer, 162 N.Y. 569" court="NY" date_filed="1900-05-01" href="https://app.midpage.ai/document/hull-v--littauer-3628643?utm_source=webapp" opinion_id="3628643">162 N. Y. 569, 57 N. E. 102. 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 question 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 vender who produces the milk which he sells,” and it is designed to prosecute such producer, the statute 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
In the Wiard Case, 61 A.D. 612" court="N.Y. App. Div." date_filed="1901-04-15" href="https://app.midpage.ai/document/people-v-wiard-5189610?utm_source=webapp" opinion_id="5189610">61 App. Div. 612, 69 N. Y. Supp. 1142, 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, or 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 or impossible. If the milk he has in the can from which he is selling is stirred properly, and proves to be
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 correctness of fhe analysis had been impugned in any way, the evidence might be competent as bearing upon either of those questions, but it is not permissible in and of itself, and without any other proof attacking the plaintiff’s case, to raise a question of fact, and thus secure a submission of the case to the jury. If testimony of this character is to be received, then the purpose of this salutary statute will be thwarted. If this rule obtains, and the sample shows the milk very badly adulterated, containing water largely above the margin prescribed by the statute, the defendant may always make a question of fact by stating that he or those in charge of the milk had not interfered with it. The offense at which the statute aims is selling or exposing for sale adulterated milk, and the statute has defined what constitutes adulteration. The only requisite to a cause of action is proof of a sale of this kind. People v. Kibler, 106 N.Y. 321" court="NY" date_filed="1887-07-01" href="https://app.midpage.ai/document/people-v--kibler-3607429?utm_source=webapp" opinion_id="3607429">106 N. Y. 321, 12 N. E. 795. 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 land 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 minutely provides how this shall be done, and seems to imply that it may be shown that such milk “was just as it came from the cow’’ when delivered to the factory. Milk, however, is delivered about the cities by peddlers', and not producers of the milk, and the feature of the statute applicable to dairymen would not be practicable as applied to these peddlers. It appeared on the trial that the milk was obtained from one Zuber, who delivered it at the station of the New York Central & 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 evi
The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.
WILLIAMS and HISCOCK, JJ„ concur. McLENNAN, J., dissents in an opinion. DAVY, J., not voting.
Dissenting Opinion
(dissenting). It seems to me that the decision of this court in the case of People v. Wiard, 61 A.D. 612" court="N.Y. App. Div." date_filed="1901-04-15" href="https://app.midpage.ai/document/people-v-wiard-5189610?utm_source=webapp" opinion_id="5189610">61 App. Div. 612, 69 N. Y. Supp. 1142, affirmed in 170 N.Y. 590" court="NY" date_filed="1902-03-25" href="https://app.midpage.ai/document/people-v--wiard-3631634?utm_source=webapp" opinion_id="3631634">170 N. Y. 590, 63 N.E. 1120" court="NY" date_filed="1902-05-20" href="https://app.midpage.ai/document/merrick-v--waters-3578217?utm_source=webapp" opinion_id="3578217">63 N. E. 1120, 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 Case, supra, was stated in the following language, namely:
“Held, that the analysis of a sample of mlllr 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 1893, c. 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, perhaps the exact meaning of the decision is made even more apparent. In the Wiard Case the defendant, on the 8th day of June, 1899, delivered eight cans of milk, produced upon his farm, at the railroad station in Markham, in the county of Monroe. One of the inspectors in the employ of the agricultural department of the state, after thoroughly stirring the contents of a single can of milk, took two samples from such can, one of which he delivered to the defendant and the other to a chemist for analysis. Samples were also taken from the other cans, but, so far as appears, were not delivered to the chemist or analyzed. The chemist analyzed the sample delivered to him, and found the percentage of water by weight to be 88.15 Per cent., total solids 11.85 per cent., fat 2.94 per cent. On the 13th day of June, 1899, the inspectors went to the barn of the defendant, and took a sample of the milk of his entire herd, after it had been thoroughly mixed, and such sample was delivered to the chemist. Upon analysis it was found to contain 87.94 per cent, water, total solids 12.06, fat 3.14 per cent; so that it will be seen that the sample taken at the railroad station contained 21/ioo more water, 21/ioo less solids, and 20/ioo less fat than the sample of milk taken at Wiard’s barn. In that case it was not contended that the analysis was not properly made; that the samples were not taken in all respects as required by law, except that the sample taken at the railroad station was not taken from the entire quantity of milk delivered, after it had been mixed. Upon that state of facts, and passing upon that single question, this court held—which decision was unanimously affirmed by the court of appeals—that the
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 32 gallon can and the other a 10-quart can, which, at the time in question, contained 3 or 4 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 88.56 per cent, water, 11.44 solids, and 3.04 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 were not sold to or intended for a single purchaser, if that may be considered material. But in the Wiard Case it in no manner 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 the agricultural law, and liable for the penalty imposed, notwithstanding it appears by the uncontradicted evidence that unadulterated milk, in the condition in which it comes from the cows, may fall below the standard prescribed by the state, and notwithstanding it further appears that in milk which has been permitted to stand, as the milk in question had stood, the fats rise to the top, and thus it would naturally be first removed from the can. 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
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 the statute means, when properly interpreted, that if the farmer who produced the milk in question had sold it all to the defendant, the analysis, as made in this case, could not form the basis of an action against the farmer; but that, as against the defendant, the purchaser of the milk, who was engaged in selling it in precisely the same condition as it was when received, such analysis, as matter of law, entitles the plaintiff to ■ recover. Yet such is the precise effect of the two decisions. A farmer, a producer of milk, sells and is about to deliver eight cans of milk at one time to a single purchaser. A sample is taken by an inspector from one of the cans, who procures it to be analyzed, and it is found to be below the standard prescribed by the state. Clearly, under the decision in the Wiard Case, such a decision cannot form the basis of an action against the farmer, solely because the contents of the eight cans were not mixed and the analysis was not of a sample of the mixed product. 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 same milk, and attempt
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 that 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 10-quart can, when there was a 32-gallon can of milk upon the same wagon, and we 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 A.D. 618" court="N.Y. App. Div." date_filed="1901-05-15" href="https://app.midpage.ai/document/in-re-field-5189698?utm_source=webapp" opinion_id="5189698">61 App. Div. 618, 69 N.Y.S. 1142" court="N.Y. App. Div." date_filed="1901-04-15" href="https://app.midpage.ai/document/people-v-wiard-5189610?utm_source=webapp" opinion_id="5189610">69 N. Y. Supp. 1142, affirmed in 170 N.Y. 590" court="NY" date_filed="1902-03-25" href="https://app.midpage.ai/document/people-v--wiard-3631634?utm_source=webapp" opinion_id="3631634">170 N. Y. 590, 63 N. E. 1120.