The opinion of the court was delivered by: John E. Miller, Chief Judge.
This is a seizure action brought under the provision of the
Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq.
The libel of information charges that the res, 233 tins of
frozen strawberries, is "adulterated" within the meaning of 21
U.S.C.A. § 342(a)(3) while held for sale after shipment in
interstate commerce. The adulteration charged is that it
consists "wholly or in part of a decomposed substance by reason
of the presence therein of rotten berries." The claimant, Kelly
Canning Company, admits in its answer that the strawberries
involved in this case were shipped in interstate commerce. It
denies, however, that the frozen strawberries are adulterated
The strawberries in question comprise a portion of lot No.
5258 of the Kelly Canning Company of Prairie Grove, Arkansas.
On May 27, 1958, the strawberries were quarantined by Arkansas
state authorities while at the Rogers Ice and Cold Storage
Company, Rogers, Arkansas. The strawberries are still at that
location. However, from time to time various samples of the
frozen fruit have been taken and examined.
At the conclusion of the trial to the court on July 1, 1959,
the case was submitted and taken under advisement. Counsel for
the parties were requested to submit briefs in support of
their respective contentions. The briefs of the parties have
been received, and have been considered with all of the
testimony, a transcript of which was furnished to the court by
the claimant, along with the exhibits thereto, and the court
now makes and files herein its findings of fact and
conclusions of law, separately stated.
The libeled article of food, consisting of 233 tins labeled
in part, "Grove Brand * * * Whole Blakemore Strawberries Net
Weight 30 lbs. Code 5258 Kelly Canning Co., Prairie Grove,
Arkansas," was shipped in interstate commerce on or about May
25, 1958, by the Adair County Commission Company from
Stilwell, Oklahoma, to the Kelly Canning Company, Prairie
Grove, Arkansas, where the berries were packed and
subsequently shipped for freezing to the Rogers Ice and Cold
Storage Company, Rogers, Arkansas. The code number "5258" was
adopted to indicate that the berries were shipped to the
claimant on the 25th day of the 5th month of the year 1958.
The Kelly Canning Company received the strawberries in
question on May 26, 1958, and processed and packed them that
evening. The processing and packing operation consisted of
receiving, dumping, sorting, and washing the strawberries, and
then adding sugar and placing them in 30-lb. tins. Sam Dickey,
a sanitarian for the Arkansas State Board of Sanitation,
observed the processing of lot No. 5258 at the Kelly Canning
Company. Dickey reported to the owner of the cannery, John
Kelly, that "questionable" strawberries were being packed.
Following the processing operation in Prairie Grove, Arkansas,
the strawberries were loaded on a truck and transported to the
Rogers Ice and Cold Storage Company in Rogers, Arkansas.
Dickey followed the truck to Rogers, and quarantined the 233
tins in lot No. 5258. The following day Mr. Dickey took
samples of the berries he had quarantined and submitted them
to the Arkansas State Board of Health.
On June 23, 1958, Loren Gibson, agricultural grader for the
U.S. Department of Agriculture, stationed in Fayetteville,
Arkansas, took samples from 10 of the questioned tins located
at the Rogers Ice and Cold Storage Company. Gibson chipped
about 3 pounds from the top of the 10 tins and took the
samples to his laboratory where he examined them. He checked
5 of the samples for "quality factors," color, firmness, and
taste, and conducted a mold count on the remaining 5 samples,
using the Howard method. This Howard test revealed a mold
count range of 24 percent to 44 percent, with an average count
of 32 percent. Gibson then certified the 10 tins which he had
sampled, classifying 8 tins as U.S. Grade B and 2 tins as U.S.
Grade C. The certificate issued by Gibson on June 23, 1958,
was "reversed as to grade" by the Inspection Division of the
Agricultural Marketing Service of the U.S. Department of
Agriculture on January 21, 1959. The January 1959 certificate
which reversed Gibson's June 1958 certificate bears the
remark, "grade not certified account mold count of some
samples slightly in excess of branch administrative guide."
This occurred after the examination of post-seizure samples as
set forth in finding No. 5.
On August 26, 1958, Everett L. Atkinson, a food and drug
inspector for the Federal Food and Drug Administration,
stationed in Little Rock, Arkansas, took a core sample from 12
of the 233 tins in question and shipped the frozen samples in
dry ice to the Division of Microbiology of the Food and Drug
Administration in Washington, D.C. Four core samples were
taken from each of the 12 tins.
The samples shipped by Atkinson were received in the
Microbiology Division of the Food and Drug Administration in
Washington, D.C., by Frank R. Smith, a microanalyst, who has
held that position since 1937. The samples were hard frozen
when received. Smith thawed the samples and examined them for
decomposition using the Howard Mold Count Method. By this test
the strawberries are pulped, mixed thoroughly, and several
tablespoonfuls are taken out for microscopic examination. The
microscope is set at 100 magnification, and the pulp is placed
on a special microscope slide. The chemist in charge examines
25 tiny fields of view on each slide, and two slides are
examined for each sample. The count of positive fields is
noted, and the percentage of mold in the sample is calculated.
To constitute a positive field, there must be sufficient mold
to extend across 1/6th of the diameter of a field. Smith's
examination revealed a mold count for the 12 samples ranging
from 54 percent to 82 percent, with an average count of 67.9
After making his examination, Smith placed a portion of each
sample in a small bottle containing formaldehyde, so as to
check the growth of any mold or any other decomposition in the
berries, and delivered the 12 samples to Fred Dunn, the Head
of the Inspection Branch of the Fruit and Vegetable Division
of the Agricultural Marketing Service, U.S. Department of
Upon receipt of the samples Dunn examined them for mold,
using the Howard Mold Count Method described above. His
examination revealed a mold count range of from 43 percent to
80 percent, with an average count of 69.2 percent.
On January 13, 1959, in response to an order from this
court, a post-seizure sample was taken from the questioned 233
tins of lot 5258 by Everett L. Atkinson of the Little Rock
office of the Food and Drug Administration, and Loren Gibson
of Fayetteville, Arkansas, referred to in finding of fact No.
3, a grader for the Agricultural Marketing Service of the U.S.
Department of Agriculture. Samples were taken from 13 of the
233 tins. Core samples were taken as in the first instance,
and in addition about 3 pounds of the top of each sample can
was chipped out. The
samples were marked, packed in dry ice, and shipped to the
Food and Drug Administration in Washington, D.C. One of the 13
samples taken was from the same tin that had been sampled in
August of 1958. The other 12 samples were from different tins.
These samples were received in a hard frozen condition in
Washington. The Food and Drug Administration retained the
"core" samples and delivered the chipped samples to the
Agricultural Marketing Service.
The even-numbered core samples were examined for mold by
Frank R. Smith and the odd-numbered core samples were examined
by W.G. Helsel, a long-time microanalyst in this Division. The
Howard Mold Count Method was used in these examinations. The
even-numbered samples examined by Smith had a mold count range
of from 50 percent to 84 percent, with an average mold count
of 68.8 percent. The odd-numbered samples examined by Helsel
had a range of 34 percent to 94 percent, with an average mold
count of 71.5 percent. Following the examination of these
"core" samples, a portion of each sample bottled in
formaldehyde was delivered to Fred Dunn of the Agricultural
Marketing Service where another Howard Mold Count was taken
and revealed a range of 42 percent to 90 percent, with an
average mold count of 71.7 percent.
The chipped-out samples, which were delivered directly to
the Agricultural Marketing Service, were examined for mold,
using the same Howard method by Fred Dunn. His examination
reflected a range of 42 percent to ...