Opinion
October Term, 1901.
Erwin S. Plumb, for the appellant.
John A. Barhite, for the respondent.
The action was brought to recover of the defendant a penalty for exposing and offering for sale "unclean, impure, unhealthy, adulterated, colored or unwholesome cream" in the city of Rochester in June, 1900, in violation of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1900, chap. 101), and especially section 22 thereof.
There is no question but that upon the trial evidence was produced from which it might have been legitimately found that the cream in question contained formaldehyde and, therefore, came within the prohibition of the statute. Evidence was also offered tending to prove that said substance in said cream would be injurious in its effects.
The question which has been largely discussed upon this appeal as it was upon the trial, and the decision of which in favor of the defendant led the learned trial justice to rule in favor of a nonsuit, is and was whether sufficient evidence was produced to permit a jury to find that defendant was engaged in selling or exchanging or offering or exposing for sale or exchange the cream in question.
As has been stated, the trial justice held that there was not. In this, however, we are of the opinion that he erred.
It was admitted by the answer that the defendant was doing business as a dealer in milk and cream in Monroe county at and prior to the time in question. The city milk inspector of Rochester testified that he issued licenses to milk peddlers, and that he issued a license to defendant. The number upon the milk wagon from which the sample of cream was taken corresponded with the number of this license, and there was other evidence tending to connect the ownership of the horse and said wagon with defendant. The man named Schako, who was in charge of this wagon at the time of taking the sample, had been seen before that at the place of defendant handling milk, rinsing cans and doing work around the creamery. One of the inspectors called by plaintiff in response to defendant's counsel testified in substance that he had taken samples from milk which he was selling at various times for a year preceding, thus showing that the man had been engaged before this in selling or peddling milk. The defendant admitted upon the stand that this man was in his employ upon the occasion in question.
Under these circumstances, the plaintiff's inspectors at about six-forty-five o'clock upon the morning in question found Schako driving this milk wagon through the streets of Rochester with a can containing the cream in question. We think that taken together they would have warranted a jury in finding that the defendant was the owner of the wagon and cream; that the driver was his representative and agent, and that he was engaged in selling, or offering for sale, this cream. It is true that no one saw the defendant through this driver upon this occasion sell, or offer for sale, any of this cream. But there was evidence abundantly justifying the conclusion that it was his business so to do. All of the surrounding circumstances indicated that that was the business in hand at this time. No apparent object was disclosed for carting the cream through the streets of Rochester at this time in the morning for any other purpose, and we are unable to conclude that a jury would have overstepped its powers in finding that the cream was being peddled or offered for sale.
It was urged by respondent upon the argument that the act under which this action was brought is unconstitutional. We are, however, of the opinion that the present weight of authority is so conclusively against this contention that we do not deem it necessary or profitable to discuss it at length. In accordance with these views the judgment appealed from should be reversed and a new trial ordered, with costs to abide event.
All concurred.
Judgment reversed and new trial ordered, with costs to the appellant to abide event.