Opinion
No. 12033.
February 1, 1949.
Appeal from the United States District Court for the Northern District of Florida; Augustine V. Long, Judge.
Proceeding by the United States of America against 16 articles of device, more or less, labeled "Sinuothermic" etc, as having been misbranded when shipped in interstate commerce, which were claimed by Fred Urbeteit. From a judgment of condemnation and destruction, the claimant appeals.
Judgment reversed and cause remanded for further proceedings.
Hollis O. Pemberton, of Tallahassee, Fla., for appellant.
George Earl Hoffman, U.S. Atty., of Pensacola, Fla., and Vincent A. Kleinfeld and John T. Grigsby, Attys. Dept. Justice, both of Washington, D.C., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
Our judgment in this case, reported 164 F.2d 245, was reversed in United States v. Fred Urbeteit, 335 U.S. 355, 69 S.Ct. 112, and the cause remanded to us for further proceedings in conformity with the opinion of the Supreme Court. The reversal was on the one point, that certain advertising matter shipped separately from any of the machines and held by us for that reason not to have "accompanied" any of them might nevertheless constitute "labeling", if the movements of advertising and machines in interstate commerce were a single interrelated activity and not separate or isolated ones. There were four or five shipments of machines several weeks apart, and only one shipment of advertising. It does not appear whether there was a single interrelated activity in machines and advertising as to each shipment, or as to which shipments. That appears to be a question which should be further investigated.
The Supreme Court did not disturb our former ruling that the district court should have heard all the evidence offered on the question of the falsity of the advertising. We adhere to that ruling. The judgment of the district court is accordingly reversed and the cause remanded for further proceedings in conformity with the opinion of the Supreme Court and with this opinion.
Judgment reversed.