The Federal Reporter with Key-Number Annotations, Volume 182: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States, December, 1910-January, 1911. Page: 48
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182 FEDERAL REPORTER.
ficacy than said true lemon flavor." But an innuendo may not change,
add to, or enlarge the' sense of expressions beyond their usual accepta-
tion and meaning. It may serve as an explanation, but not as a sub-
stitute. Wharton's Criminal Pleading & Practice (9th Ed.) 181a,
and cases there cited. The usual acceptation and meaning of the label
"Flavor of Lemon and Citral--A Pure Flavor" distinctly negatives
the idea that it describes a pure flavor and extract of lemon, and the
expression "a pure flavor and extract of lemon" cannot be substituted
by pleading or proof for that which the defendant actually used, and
then the defendant be convicted upon the substituted label, which it
never conceived. Nor may an averment that a defendant intended
that a label should be understood by the public to mean the opposite
of its ordinary and accepted interpretation make its use a misbrand-
ing or constitute a violation of the law. The truth is that, when the
averments of this count are read and construed together, they clearly
disclose the facts that the fluid made and sold by the defendant was
not a pure lemon extract, or a pure lemon flavor, or any imitation
thereof; that the defendant never placed any label or mark upon it
which indicated that it was, or which could mislead a purchaser, but
that by its declaration through the label that it was a flavor of lemon
and citral it clearly notified all purchasers that the fluid was neither a
pure lemon extract nor a pure lemon flavor. There is no averment of
any facts which disclose any adulteration of this flavor of lemon and
citral, and the averment fails to state sufficient facts to constitute a
violation of the law. United States v. Hess, 124 U. S. 483, 486, 487,
8 Sup. Ct. 571, 31 L. Ed. 516; United States v. Post (D. C.) 113 Fed.
852.
The demurrer to the information should have been sustained; and,
as this conclusion disposes of the case, it is unnecessary to consider
other alleged errors, and the judgment below is reversed, and the case
is remanded to the District Court, with instructions to discharge the
defendant below.
TIBBS v. DEEMER MFG. CO.
(Circuit Court of Appeals, Fifth Circuit. October 3, 1910)
No. 2,050.
MASTER AND SERVANT ( 285, 286, 288, 289*)-INJURIES TO SERVANT--NEGLI-
GENCE--QUESTION FOR JUBY.
Where, in an action for injuries to a servant, there was evidence indi-
cating that defendant was negligent in furnishing plaintiff certain defect-
ive tongs to be used in connection with a log skidder, and that such negli-
gence was the cause of plaintiff's injury, and the evidence did not show as
a matter of law that plaintiff was either negligent or assumed the risk,
the court erred in refusing to submit the case to the jury.
[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. 1110-
1132; Dec. Dig. 285, 286, 288, 289.*]
In Error to the Circuit Court of the United States for the Southern
District of Mississippi.
*For other cases see same topic & i NUMBE in Dec. & Am. Digs 1907 to date, & Rep'r Indexes
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The Federal Reporter with Key-Number Annotations, Volume 182: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States, December, 1910-January, 1911., legislative document, 1911; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38228/m1/59/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.