Appendix — Swift & Co. v. Wickham

Supreme Court brief1965

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1964 /76 5

No. 571 7

SWIFT & COMPANY, INC., ET AL., APPELLANTS,

vs.

DON J. WICKHAM, COMMISSIONER OF

AGRICULTURE AND MARKETS OF NEW YORK.

APPEAL FROM THE UNITED STATES DISTRICT COURT

* FOR THE SOUTHERN DISTRICT OF NEW YORK

INDEX

Record from the United States District Court for

the Southern District of New York

Amended complaint A 1

Exhibit A—Regulations Governing the Inspee-

tion of Poultry and Poultry Products (7

C. F. R. Part 81) Issued July 1961, United

States Department of Agriculture, Agricui-

tural Marketing Service, Poultry Division

and amendments L 11

Exhibit B—Sample of plastic wrapper ap-

proved for use by the plaintiff, Armour—

Original Print

Stuffed Junior Young Turkey MM 38

Exhibit C—Sample of plastic wrapper ap-

proved for use by the plaintiff, Swift’s Pre-

mium—Stuffed Young Roaster Turkey —.. NN 39

Order of Chief Judge J. Edward Lumbard des-

ignating a three-judge court 00 41

Answer PP 42

Transcript of hearing, March 5, March 10 and

March 11, 1964 1 44

Appearances 1 44

Recorp Press, Printers, NEw York, N. Y., Apri 9, 1965

ii INDEX

Original Print

Record from the United States District Court for

the Southern District of New York—Continued

Transcript of pearing, March 5, March 10 and

March 11, 1964—Continued

Colloquy, stipulation of counsel and offers in

evidence 2 45

Testimony of Charles Atkin—

direct 7 48

cross 31 61

redirect 79 88

Russell Posegate—

direct 83 90

cross 92 95

William E. Hauver—

direct 115 108

Offers in evidence 121 112

Testimony of William E. Hauver—

cross 137 121

Offers in evidence 172 141

Testimony of William E. Hauver—

; cross 173 141

redirect aE Se ne Ate 222 170

Offer in evidence 223 170

Testimony of William E. Hauver—

recross 227 3=6173

Francis Sniegocki—

direct 230 175

cross 233 177

Kenneth K. Geiger—

direct 234 178

cross ; 238 180

Charles B. Simonetti—

direct 239 181

cross 241 1£2

William R. McKnight—

direct 245 185

cross 249 188

Joseph Rufino—

direct 254 191

cross 257 192

Original Print

Record from the United States District Court for

the Southern District of New York—Continued

Transcript of hearing, March 5, March 10 and

' March 11, 1964—Continued

Testimony of John M. Kerbs—

direct sa 259 194

Offers in evidence 263 196

Testimony of John M. Kerbs—

cross 270 201

Clyde Wensing—

direct 277 205

cross 284 209

Testimony of James A. Van Zetta—

direct 288 212

cross 292 214

Stipulation as to sales of stuffed and unstuffed

turkeys 295 216

Plaintiff rests 296 217

Defendant’s motion to dismiss complaint —. 296 217

Testimony of John F. Madden—

direct 300 219

cross 307 224

Offer in evidence 317 229

Testimony of John F. Madden—

redirect 328 236

Offer in evidence 333 238

Testimony of John F. Madden—

recross 333 239

redirect 335 240

Esther E. Hendler—

direct 335

cross 346 246

redirect 347 247

recross wie 348 248

Both sides rest 349 248

Plaintiffs’ motion to amend complaint and col-

loquy thereon 349 248

Reporter’s certificate (omitted in printing) 352a 250

Record from the United States District Court for

the Southern District of New York—Continued

Plaintiffs’ Exhibits:

1—Plzintiffs’ request for admission, dated Feb-

ruary 20, 1964

2—Deposition of John F. Madden, dated De-

eember 19, 1963

Exhibit 1—Notice to take deposition upon

oral examination

Exhibit 2—Letter from John F. Madden,

Director to Mr. J. Edward Dean, Scaler

of Weights and Measures, dated October

10, 1963

5—Swift & Company application for Label Ap-

proval; temporary approval dated May 16,

1962

6—Swift & Company Application for Label

Approval COMMENTED ON ONLY May

28, 1963

7—Letter of United States Department of

Agriculture to Earl Spiker, Swift & Co.,

dated July 24, 1963

8—Armour & Company Application for Label

Approval—COMMENTED ON ONLY May ig

395

axgust 19, 1963

9—Letter of United States Department of

Agriculture to Basil M. Vastola, dated De-

cember 12, 1963

10—Exchange of correspondence between John

M. Kerbs and John F. Madden dated Feb-

ruary 10, 1964 and February 25, 1964 ____

11—Memorandum of H. G. Ehrhardt, Suffolk

County Department of Weights and Meas-

ures, dated February 6, 1962 _.___

12—Letter from George W. Gloning, Jr., De-

partment of Agriculture and Markets to Mr.

E. E. Palmer, dated August 21, 1963 _.__.

Original sew

353 251

361 259

376 270

377-271

378 278

389 279

393 283

285

398 288

399 - 289

401 291

402 292

INDEX

Record from the United States District Court for

the Southern District of New York—Continued

Defendants’ Exhibits:

A—Answer to request for admissions _______.

B—Deposition of Robert William Burke, dated

December 4, 1963

C—Deposition of H. W. Maidlow, dated Janu-

ary 31, 1964 -

D—Label of Idle Wild Farm, Rock Cornish

Game Hen—Boned & Stuffed —

E—Idle Wild Farm Applications for ap-

proval—Temporary Approval dated March

26, 1963; June 24, 1963 and August 23,

1963

F—Letter of B. M. Vastola, Canada Packers

to Philip Kayner dated October 30, 1963 en-

closing letter of United States Department

of Agriculture to Basil M. Vastola dated

December 7, 1962

G—Idle Wild Farm Rock Cornish Game Hen

Label

Opinion of three-judge court, Friendly, J...

Judgment

Order of Judge Croake amending judgment

dated June 12, 1964

Notice of appeal

Order authorizing transmission of original pa-

pers

Affidavit of William J. Condon —

Clerk’s certificate (omitted in printing) ——.

Order postponing jurisdiction

Original Print

404 295

407 297

470 337

519 367

521 369

524 372

526 374

527a 376

554 396

555 397

556 398

561 401

562 402

564 403

565 404

Orn 8

[fol. A] [File endorsement omitted]

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

63 Civil 3085

Swirr & Company, Inc. and Armour anp Company,

Plaintiffs,

—against—

Dow J. WicxHam, Commissioner of Agriculture and

Markets of the State of New York, Defendant.

Amenpep CompLtarint—Filed November 7, 1963

Plaintiffs, for their amended complaint against defen-

dant, allege:

First: Plaintiff Swift & Company, Inc., hereinafter re-

ferred to as Swift, is a corporation duly organized and

existing under the laws of the State of Illinois and is

qualified to do business in the State of New York.

Second: Plaintiff Armour and Company, hereinafter

referred to as Armour, is a corporation duly organized

and existing under the laws of the State of Delaware and

is qualified to do business in the State of New York.

Third: Defendant is Commissioner of Agriculture and

Markets of the State of New York whose duties include

the enforcement of the Agriculture and Markets Law of

the State of New York and the promulgation and enforce-

ment of rules and regulations pursuant to that law.

Fourth: Under USC, Title 28, Sections 2281, et seq.,

provision is made for the convening of a three-judge dis-

trict court where the relief requested is an interlocutory

or permanent injunction restraining enforcement, opera-

tion or execution of any state statute by restraining the

action of any officer of such state in the enforcement or

execution of such statute. As appears more fully below,

plaintiffs seek such relief and request the convening of

such court.

{fol.B] Fifth: This action is brought pursuant to the

Federal Declaratory Judgment Act, 28 USC, Sections 2201

and 2202, to protect the rights bestowed on plaintiff under

Article I, Section 8, Clause 3, and Article VI, Clause 2,

of the United States Constitution, Amendment XIV, Sec-

tion 1, to the United States Constitution, and by the

Poultry Products Inspection Act, 21 USC, Sections 451,

et seq., and the regulations issued thereunder as more fully

appears below. The amount in controversy, exclusive of

interest and costs, exceeds the sum of Ten Thousand and

No/100 Dollars ($10,000.00).

Sixth: Plaintiffs are engaged, inter alia, in the business

of the manufacturing, processing, distributing, offering

for sale and selling food products, including poultry and

poultry products, throughout the United States. Among

the products manufactured, processed, distributed, offered

for sale and sold by plaintiffs are frozen stuffed turkeys.

Plaintiffs ship in interstate commerce several hundred

thousand pounds of said stuffed turkeys throughout the

United States from their plants located in Minnesota, Wis-

consin and California. Such interstate shipments of frozen

stuffed turkeys are an important part and represent a sub-

stantial portion of the business of plaintiffs.

Seventh: A frozen stuffed turkey is a poultry product

consisting of the eviscerated carcass of a turkey whose

visceral cavity has been filled with an edible dressing and

which is frozen at the manufacturing plant immediately

after stuffing and remains frozen until its sale to the ulti-

mate consumer. The frozen stuffed turkeys produced by

plaintiffs in their manufacturing plants in Minnesota, Wis-

censin and California are enclosed and sealed in a flexible

plastic wrapper prior to freezing. The frozen stuffed

turkeys are intended to remain and do remain enclosed

in these plastic wrappers oon after their sale to the

ultimate consumers.

[fol.C] Highth: The Poultry Products Inspection Act,

21 USC, Sections 451, et seg., prescribes a comprehensive

detailed scheme for regulating the processing and distribu-

tion of poultry and poultry products in interstate com-

merce. The following are pertinent provisions of that law:

“The term ‘Secretary’ means the Secretary of Agri-

culture.” 21 USC 453(b).

“The term ‘immediate container’ includes any consumer

package ....” 21 USC 453(p). ' r

“The Secretary whenever processing operations are

being conducted, shall cause to be made by inspectors

post mortem inspection of the carcass of each. bird

processed ...” 21 USC 455(b).

“Bach immediate container of any poultry product in-

spected under the authority of this chapter and found

to be wholesome and not adulterated shall at the time

such product leaves the official establishment bear, in

addition to the official inspection mark, in distinctly

legible form, the name of the product, a statement of

ingredients, if fabricated from two or more ingredients

including a declaration as to artificial flavors, colors,

or preservatives, if any, the net weight or other ap-

propriate measure of the content, the name and address

of the processor and the approved plant number of

the’ official establishment in which the contents were

processed.” 21 USC 457(a). (Italics supplied.)

“The following acts or the causing thereof are hereby

prohibited : i

(a) The processing, sale or offering for sale, trans-

portation or delivery or receiving for transportation,

[fol. D] in commerce or in a designated major con-

suming area of any poultry product, unless such

poultry product has been inspected for wholesome-

ness and unless the shipping container, if any, and

the immediate container are marked in accordance

with the provisions of this Act.

(d) Using in commerce or in any designated major

consuming area, a false and misleading label on any

poultry product.” 21 USC 458. (Italics added.)

Ninth: Pursuant to the authority granted by the Poultry

Products Inspection Act, the Secretary of Agriculture of

the United States has issued regulations governing the

manufacture and distribution of poultry and poultry prod-

‘ucts, including detailed regulations with respect to the

labeling of such products. The pertinent sections of such

regulations are set out below:

7 CFR 81.1 provides, in part:

“‘Administrator’ means the Administrator of the Agri-

cultural Marketing Service of the Department of Agri-

culture or any other officer or employe of the Depart-

ment to whom there has heretofore been delegated or

to whom there may hereafter be delegated the au-

thority to act in his stead.

‘Department’ means the United States Department of

Agriculture.”

7 CFR 81.125 provides:

“Except as may be authorized by the Administrator

with respect to shipments of products between official

{fol. E] establishments, each shipping container and

each immediate container of any product shall at the

time it leaves the official establishment bear approved

labels containing information in accordance with the

provisions set forth in Sections 81.126 to 81.146, in-

clusive, and the act.”

7 CFR 81.127 provides, in part:

“No label, except printer’s proofs bearing official iden-

tification shall be printed until the printer’s proof or

a photostatic copy has been found by the Administra-

tor to be acceptable...”

7 CFR 81.130(a) provides:

“Bach label approved for use on an immediate con-

tainer for poultry products shall bear in distinctly

legible form the following information: (1) the com-

mon or usual name of the poultry product.

(2) a statement of ingredients if fabricated from two

or more ingredients, including a declaration as to arti-

ficial flavors, colors or preservatives, if any. Such in-

gredients shall be listed by their common or usual

names in the order of their descending proportions.

(3) the net weight or other appropriate measure of

the contents, except that the Administrator may ap-

prove the use of labels for certain types of immediate

containers which do not bear the net weight...” -

(4) the name and address of the packer or distributor

and, when the name of the distributor is shown, it

shall be qualified by such term as ‘packed for’, ‘dis-

tributed by’ or ‘distributors’.

[fol. F] (5) the official inspection mark...”

A copy of the full text of the regulation issued by the

Secretary of Agriculture pursuant to the Poultry Prod-

ucts Inspection Act is attached to and made a part of this

complaint as Exhibit “A”.

Tenth: The manufacture, labeling, disiributiou and sale

of frozen stuffed turkeys in interstate commerce are sub-

ject to all the provisions of the Poultry Products Inspec-

tion Act and the regulations issued thereunder. Plaintiff

Armour’s plants at Barron, Wisconsin, and Turlock, Cali-

fornia, and plaintiff Swift’s plant at Detroit Lakes, Min-

nesota, are operated within the authority of the Poultry

Products Inspection Act and under the jurisdiction of the

United States Department of Agriculture. Every operation

in these plants is conducted under the continuous super-

vision of United States Department of Agriculture in-

spectors. The facilities of the plants and every label ap-

plied to every product produced therein is required to

have and does have the prior approval of said Department.

Eleventh: Under Article I, Section 8, Class 3, of the

Constitution, Congress has the power to regulate the label-

ing of products moving in interstate commerce until the

product has come into the possession of the ultimate con-

sumer. In the exhaustive provisions of the Poultry Prod-

ucts Inspection Act and the broad grant of power to the

Secretary of Agriculture to issue regulations thereunder,

the Congress has exercised its power to the fullest with

regard to poultry and poultry products.

Twelfth: The plastic containers in which plaintiffs wrap

their frozen stuffed turkeys are consumer packages and,

as such, are governed by the provisions of the Poultry

Products Inspection Act and the regulations issued there-

under which regulate the labeling of the “immediate con-

tainer” of poultry or poultry products. The wording of

the labels of said plastic wrappers has been approved by

[fol. G] the United States Department of Agriculture pur-

suant to the Poultry Products Inspection Act and the regu-

lations issued thereunder. A sample of the plastic wrapper

approved for such use by the plaintiff Armour is attached

to and made a part of this complaint as Exhibit “B” hereof.

A sample of the plastic wrapper appreved for such use

by the plaintiff Swift is attached to and made a part of

this complaint as Exhibit “C” hereof.

Thirteenth: The labels on said plastic wrappers of frozen

stuffed turkeys approved by the United States Department

of Agriculture provide for a statement of the net weight

of the contents on said labels.

Fourteenth: By reason of the foregoing plaintiffs have

a right under Federal law to manufacture, process, dis-

tribute, offer for sale and sell their frozen stuffed turkeys

in interstate commerce enclosed in individual plastic wrap-

pers bearing the appro’ <d label containing a statement of

the net weight of the contents.

Fifteenth: Section 193 of the Agriculture and Markets

Law of the State of New York provides, in part, as follows:

“2. All food and food products which are sold, offered

or exposed for sale by wholesalers, packers, distribu-

tors, or jobbers shall be sold or offered for sale by

net weight, numerical count or standard measure,

whichever term shall be applicable . . - “3

3 All food and food products offered for sale at

retail and not in containers shall be sold or offered

for sale by net weight, standard measure or numerical

count under such regulations as may be prescribed by

the Commissioner.”

Sixteenth: Pursuant to the authority granted under the

above-quoted Section, the Commissioner of Agriculture. and

Markets of the State of New York has promulgated the

following regulation:

[fol. H] 221.40 Meat, Poultry and Fish. Meat, poultry

and fish shall be sold or offered for sale as food at

retail by net weight only.

Seventeenth: Defendant has invoked Section 193 of the

Agriculture and Markets Law of the State of New York

and the quoted regulation to require that frozen. stuffed

turkey bear on its label a separate statement of the net

weight of the turkey, the net weight of the stuffing and

the total net weight. Furthermore, defendant through his

authorized agents, as well as weights and measures offi-

cials of the political subdivisions of the State of New

York, has notified actual and potential wholesale and retail

customers of plaintiffs that the sale of frozen stuffed

turkeys whose labeling does not comply with his said inter-

pretations will constitute a violation of the law and will

result in prosecution. In addition, he has condoned and

acquiesced in publicity releases furnished to newspapers

within the State of New York which advised the consuming

public not to buy frozen stuffed turkeys unless they bear

labels stating the separate weight of the turkey, the stuffing,

and the total weight. Bi

Highteenth: Early in 1962, plaintiff Swift sold its‘frozen

stuffed turkeys to a retail dealer in New York City who

resold to the public. This sale and resale resulted in the

successful prosecution of both Swift and the retailer in

the Criminal Court of the City of New York for violation

of Section 193 of the Agriculture and Markets Law. The

violation consisted of a failure to state separately the net

weight of the turkey, the net weight of the stuffing and

the total net weight.

Nineteenth: Prior to the activities alleged in paragraph

Seventeenth herein and the incident alleged in paragraph

Eighteenth herein, the Metropolitan New York City area

was the largest single market in the country for plaintiffs’

[fol. I] frozen stuffed turkeys. As a result of the activities

and incidents referred to, plaintiffs have been unable to

make any sales of these products in New York City and

many other areas of New York State since early 1962.

Furthermore, the increased activities of defendant and his

authorized agents in the past several months will shortly

and inevitably result in plaintiffs being totally barred from

the sale of their frozen stuffed turkeys in the entire State

of New York.

Twentieth: Because of the severe injury caused to their

business by the foregoing, both plaintiffs herein applied

separately to the Department of Agriculture of the United

States for approval of a label on their frozen stuffed

turkeys which would separately show the net weight of

the turkey, the net weight of the dressing and the total net

weight. These applications were not approved, the De-

partment of Agriculture holding fast to its requirement

that the net weight statement on the labels be confined

to the net weight of the contents.

Twenty-First: Thus, plaintiffs are placed in a position

whereby it is impossible for them to label their frozen

stuffed turkeys in compliance with both Federal and New

York requirements. If the product is labeled in accordance

with Federal requirements, it is barred from sale in the

State of New York. On the other hand, if labeled to comply

with New York requirements, the product will not be

permitted to be shipped in interstate commerce.

‘9

Twenty-Second: By reason of the foregoing, plaintiffs

have been irreparably damaged in that they have been

and are prevented from distributing, offering for sale or

selling their frozen stuffed turkeys in the City and State

of New York, thereby seriously injuring plaintiffs in their

business and legitimate interstate trade.

(fol. J] Twenty-Third: Section 193 of the Agriculture

and Markets Law of the State of New York and the afore-

said actions of defendant constitute a wrongful interference

with the exclusive power of Congress over interstate com-

merce and a constitutionally prohibited burden thereon in

violation of Article I, Section 8, Clause 3, of the United

States Constitution; are illegal, arbitrary, discriminatory

and in direct conflict with the statutes of the United States

and the regulations promulgated thereunder in violation

of Article VI, Clause 2, of the United States Constitution ;

and deny the plaintiffs due process and the equal protection

of the law in violation of Amendment XIV, Section 1,

of the United States Constitution.

Twenty-Fourth: There is an actual controversy existing

between plaintiffs and defendant under the Federal De-

claratory Judgment Act and no adequate remedy is avail-

able at law to plaintiffs.

Wherefore, plaintiffs request:

1. That this court take jurisdiction of this matter; that

a special three-judge court be cuailed to hear and de-

termine this case as by law provided in 28 USC,

Sections 2281, et seq.

9. That the court declare that Section 193 of the Agri-

culture and Markets Law of the State of New York,

as invoked by the defendant to require a label on

frozen stuffed turkeys showing the separate net

weight of the turkey and the stuffing together with

the total net weight is unconstitutional as violative

of Article I Section 8 Clause 3, Article VI Clause 2

and Amendment XIV Section 1 of the United States

Constitution.

. That the court declare that plaintiffs have the right

to sell their frozen stuffed turkeys to their distribu-

{fol. K] tors and customers in the State of New York

for resale at wholesale or retail therein bearing labels

approved for use on the consumer packages thereof

by the United States Department of Agriculture.

. That the court declare that retailers, wholesalers and 7

distributors who are customers of plaintiffs may re-

sell at wholesale and retail in the State of New York §&

and advertise for sale therein, said stuffed turkeys ~~

bearing labels approved for use on the consumer pack- #

ages thereof by the United States Department of 7

Agriculture. =

. That defendant be enjoined from committing the acts 7

herein complained of or from interfering in any man- ~~

ner with plaintiffs’ business in the sale and distribu-

tion of frozen stuffed turkeys sold or shipped in

interstate commerce in consumer packages bearing

labeling approved by the United States Department

of Agriculture or with resale and advertising thereof

in the State of New York.

. That the court grant such other and further relief

which may be deemed just and proper.

William J. Condon, Attorney for plaintiff Swift & &

Company, Inc., Office and FP. Address, 19 West ©”

44th Street, New York 36, New York.

Evans, Orr, Gourlay & Pacelli, By: Evans, Orr, 7 |

Gourlay & Pacelli, Attorneys for plaintiff Armour

and Company, Office and P.O. Address, 15 Park

Row, New York 38, New York.

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and sale thereof:

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c on or

> the i o3 product.

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a circle. The form

and arrangement of such wording shall

be exactly as indicated in the example

in Figure 1, except that the appropriate

plant

plant number shall be shown, and if the

use or dispo-

official identifi-

cancellation of the that the Administrator

label, ex

appears elsewhere on the

Wording and form of the

con-

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en” os

e pur or ch a Vv

ll not be disposed of from the

mprints for shipping containers or con- by an appropriate adjective,

uch labels or imprints shall be used until meat:

by the Administrator, except that ap- by their common or usual names in the

samples of stenciled and rubber stamped term “chicken meat,” unless

roval may be given to printer's final

r samples thereof have been approved any. Such ingredients shall be listed

roofs or photostatic copies of labels or

wording as follows: “Inspected for —

cation shall be used until finished copies fic

sition of approved iabels. Labels or im-

approval of the Administrator. Any un-

authorized use or disposition of approved

r ;

uir

spected poultry préducts shall include the by

wholesomeness by U. S. Department of furti

labels or labels bearing

Agriculture.” This wording sh

or which approved except with written

contained within

' 81.126 Preparation of mar

vices bearing the official inspection

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by the Administrator.

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sEReaSee

import

Agriculture, except

WARNING

gps to beggee rl with these instructions

“Approved for Import Under

the supervision of an inspector or a cus-

and this warning notice

deface, mutilate, remove, or destroy any

oe ane

case of a or ™

United States, shall

sanitary condition.

product offered for

cars,

transporting any

car, truck, means

conveyance, may be. broken

jer, and, if necessary,

into

tion

the

the ts

(d) No person shall affix, break, alter,

If the product is found to be acceptable

upon inspection, the package will be

marked

P.P.LA.”

defaced.

sealed with a specia)

Department of

Agriculture.

. States, and all chu

rom

but

the

i —

ed to

« 5~

tll

(b) Inspectors shall take, without cost

to the United States, from each consign-

ultry product required by this subpart

dressed poultry has to be inspected shall be released f

sanitary manner in customs custody prior to inspection,

products offered for importation from against the holder of the customs entry bond.

ny foreign country shall be inspected

n accordance with established inspec-

ion procedures, including the examina-

ion of the labeling information on the

first unloaded at such port, to any place

r 4

no product shall be conveyed in any

cates for dressed poultry .

exported to the United e

States)

§ 81.305 Imported products; -eten-

oan tion in customs custody; delivery under

$ 81.304 Inspection of imported prod-

pana BOnd; movement prior to inspection;

- x ussist-

ucts. (a) Except as provided in § 81.311,

containers, by an inspector, before the

same shall be admitted into the United

States. Importers will be advised of the

-- point where inspection will be made,

ment offered for importation, samples of

any product which is subject to analysis,

except that samples of any product

offered for importation under § 81.311

and in case of small

such product may be deliv

where the same shall be

v . ':

- arriving by water, from the wharf where

this subpart.

sue inspection certifi-

oultry

products exported to

the United States

poultry

such ante mortem po

EY GSES A PR

rtify that the dressed

here

ribed

was derived from poultry

CERTIFICATE

laughtered poultry other than manner other than in compliance with

poultry is involved the word

“dressed” shal’ be deleted throughout *the

certificate.

ived ante mortem inspection at

of slaughter and that such dressed

sound, healthful, wholesome, clean

r huma a no

certificate for dressed poultry or other

slaughtered poultry ' shall be as follows:

Forgicn Darssep Pou.ttry INSPECTION

Number of pieces

or packages

inspection, and that said

been handled only in

this country.

Identification marks on

neignor ..

¢Official title)

could be determined

(Official title)

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__ Proof of Service (omitted in printing).

[fol. OO] [File endorsement omitted]

In THE Untitep States District Court

SovuTHErN District or New York

63 Civil No. 3085

[Title omitted]

Orper DesigNaTinG THREE J upGE CourT—

November 21, 1963

Having been notified by the Honorable Thomas F.

Croake, United States District Judge for the Southern

District of New York, that an application has been filed

in the above matter for relief pursuant to Title 28 United

States Code Section 2281, pursuant to Title 28 United

States Code Section 2284 I hereby designate the following

judges, in addition to the Honorable Thomas F. Croake,

to hear and determine said cause as provided by law:

Honorable Henry J. Friendly, United States Circuit Judge

and Honorable Inzer B. Wyatt, United States District

Judge for the Southern District of New York.

It Is Hereby Ordered that this order be filed in the above

entitled cause in the said District Court.

J. Edward Lumbard, Chief Judge, United States

Court of Appeals for the Second Circuit.

21 November 1963

[fol. PP] [File endorsement omitted]

In THE Unitep States District Court

SoutHERN District or New York

63 Civil 3085

[Title omitted]

Answer—Filed December 5, 1963

The defendant, by his attorney, Louis J. Lefkowitz, At-

torney General of the State of New York, answers the

amended complaint as follows: ra

22 ¥

First Defense

This Court lacks jurisdiction over the subject matter

of this action.

Second Defense

The amended complaint fails to state a claim upon which

relief can be granted.

Third Defense

This Court should abstain from adjudicating any issues

respecting the state statutes and regulations and inter-

pretation thereof challenged by the amended complaint

until their construction and interpretation have been dt-’

termined by the New York State Courts. Plaintiff, Swift &

Company, Inc. failed to appeal from a judgment of the

Criminal Court. of the City of New York obtained in

November, 1962, by the Department of Markets of the

City of New York for violation of § 193 of the Agriculture

[fol. QQ] and Markets Law nor has either plaintiff re-

sorted to other remedies available in the state courts in

order to determine the issues raised in the amended com-

plaint herein nor has either plaintiff resorted to the reme-

dies available to them in the Poultry Products Inspection

Act, 21 U.S.C. $451 et seg.

Fourth Defense

1. Defendant denies knowledge or information sufficient

to form a belief as to the allegations contained in para-

graphs “First”, “Second”, “Fifth”, “Sixth”, “Seventh”,

“Tenth”, “Twelfth”, “Thirteenth”, “Fourteenth”, “Kight-

eenth”, “Nineteenth”, “Twentieth”, “Twenty-First” and

“Twenty-Second” of the amended complaint.

2. Defendant denies each and every allegation contained

in paragraph “Eleventh”, “Twenty-Third” and “Twenty-

Fourth” of the amended complaint.

3. Defendant denics each and every allegation contained

in paragraph “Fourth” of the amended complaint except

admits as the statute indicates.

4. Defendant denies each and every allegation contained

in paragraph “Seventeenth” of the amended complaint ex-

cept admits that defendant has interpreted $193 of the

Agriculture and Markets Law of the State of New York

and Regulation 221.40 promulgated in connection there-

with to require that frozen stuffed turkeys selling at retail

bear a label separately stating the net weight of the turkey,

the net weight of the stuffing and the total net weight of

the entire package.

{fol RR] Wherefore, defendant demands judgment that

the amended complaint herein be dismissed and that he be

avrarded costs and disbursements of this action.

Louis J. Lefkowitz, Attorney General of the State

of New York, Attorney for Defendant.

Philip Kahaner, Assistant Attorney General, Office

& P. O. Address, 80 Centre Street, New York,

New York 10013.

[fol.SS] Affidavit of Service (omitted in printing).

—

(fol. TT]

[fol. 1]

[File endorsement omitted]

In THE United States District Court

SoutHErN District or New York

No. 63 Civ. 3085

Swirt & Co. and Armour & Co., Plaintiffs,

vs.

Dow J. WickHam, Commissioner of Agriculture & Markets

for the State of New York, Defendant.

Transcript of Hearing—March 5, 1964

New York

2:00 o’clock p.m.

Room 905

‘Before: Hon. Henry J. Friendly, Circuit Judge, Hon.

Thomas F. Croake, District Judge, and Hon. Inzer B.

Wyatt, District Judge, Sitting as a statutory court.

APPEARANCES:

William J. Condon, Esq. and William J. Colavito, Esq.,

Attorneys for Plaintiff Swift & Co.

Evans, Orr, Gourlay & Pacelli, Esqs., Attorneys for

Plaintiff Armour & Co., E. Gordon Robbins, Esq., of

Counsel.

[fol.2] Louis J. Lefkowitz, Esq., Attorney General of the

State of New York, Attorney for Defendant State of New

York, Philip Kahaner, Esq. and Lester Esterman, Esq.,

of Counsel.

The Clerk: Swift & Co. and Armour & Co. versus Don J.

Wickham, Commissioner of Agriculture and Markets for

the State of New York.

Gentlemen, are you ready?

Judge Friendly: Gentlemen, I understand that the plain-

tiffs want to adduce some evidence, which I take it is neces-

sary since some of the allegations in the complaint are

denied.

How do you wish to proceed? Who wants to go forward?

Mr. Condon: If your Honor please, before we begin,

if I may ask your indulgence, I would like to introduce

to the Court Mr. E. Gordon Robbins, attorney from the

State of Illinois, admitted to practice in the Northern Dis-

trict of Illinois, and I ask that he be admitted to practice

in this court for the purpose of this case only, representing

Armour.

Judge Friendly: Yes.

CoLLoquy, STIPULATION oF CoUNSEL AND OrFers IN EvipENCE

Mr. Condon: Secondly, I might say this, your Honor—

[fol.3] this is in response to your earlier question—in

order to put on an orderly presentation as quickly as we

can, it has been agreed between counsel that I will pre-

sent all the evidence on behalf of both plaintiffs and we

will put it on as one case, if that is satisfactory to your

Honor.

Judge Friendly: Yes, it is very satisfactory. Do you

want to call a witness, or offer your depositions, or do you

want to proceed?

Mr. Condon: First, if I may, I am authorized by the

Assistant Attorney General to state that it has been stipu-

lated between counsel that Swift & Co. is a corporation

duly organized and existing under the laws of Illinois and

duly qualified to do business in the State of New Yor; that

Armour & Co. is a corporation duly organized and existing

under the laws of Delaware and is duly qualified to do

business in New York.

Finally, it is stipulated between counsel that the testi-

mony of Mr. Burke of Armour & Co. in his deposition

given before trial, referring specifically to page 15A

thereof, wherein Mr. Burke testified that-Armour & Co.

does not sell stuffed turkeys in any part of the State of

New York, is erroneous.

{fol.4] It is stipulated the fact is that Armour & Co,

does sell in some parts of New York State, as is the case

with Swift & Co.

Mr. Kahaner: At the present time we are agreed, up

to the time that this had been going on, up to the present

time they are still selling them, both plaintiffs are still

selling stuffed turkeys in certain parts of New York.

Mr. Condon: Right.

Judge Wyatt: What was the page?

Mr. Condon: 15A, your Honor.

Judge Friendly: In other words, the answer to “Do you

sell these turkeys in any other part aside from New York

City” is “No, sir, we do not”—it is stipulated that is

sen San

Mr. Condon: That is correct.

At this time, for the record, your Honor, I would like

to offer in evidence the original request for admissions

which were served upon the defendant by the plaintiffs.

(Plaintiffs’ Exhibit 1 received in evidence.)

Judge Friendly: Any objection?

Mr. Kahaner: Your Honors, we have complied with the

(fol. 5] request as much as possible and we have filed the

original. We had three here for each of the members of

the Court, which I would like to hand up.

Judge Friendly: Very good.

The Clerk: Are you offering those?

Mr. Kahaner: Yes.

Judge Friendly: Are you offering that?

Mr. Kahaner: I am offering that in compliance with

the notice to admit. .

(Defendant’s Exhibit A received in evidence.)

Mr, Condon: I call to your attention also at this time—

I offer in evidence the deposition of John F. Madden, taken

by the plaintiffs, copies of which have already been filed

with the Court, I understand.

Judge Friendly: Is there any objection?

‘Mr. Kahaner: No objection.

Judge Friendly: It will be received.

Mr. Kahaner: . We are also producing in evidence copies

of an examination before trial of plaintiffs’ witness or

witnesses which have already, been filed with the court.

Judge Friendly: That is Mr. Burke and Mr. Maidlow?

[fol.6] Mr. Kahaner: Yes, sir.

Judge Friendly: You want to offer those as your ex-

hibits?

Mr. Kahaner: I beg your pardon?

Judge Friendly: Are you offering those as defendant’s

exhibits, or is the plaintiff offering them?

Mr. Kahaner: We are offering them as defendant’s ex-

hibits. We can wait until our case goes in, then.

Judge Friendly: Well, don’t you think that the plain-

tiff—we may as well receive them now.

Do you have any objection?

Mr. Condon: I have no objection to receiving them.

Judge Friendly: The clerk will mark Mr. Burke’s ex-

amination as Defendant’s Exhibit B and Mr. Maidlow’s as

Defendant’s Exhibit C.

Mr. Condon: They have already been filed. The orig-

inal and three copies have been filed.

The Clerk: Yes.

Judge Friendly: Then Mr. Madden’s will be Plaintiffs’

Exhibit 2.

[fol.7] Judge Wyatt: And Defendant’s Exhibit A are

the answers to the requests for admission?

Mr. Kahaner: Yes.

Judge Wyatt: All right.

Mr. Condon: I call Mr. Charles Atkin.

Cartes ATKIN, called as a witness by plaintiffs, having

been first duly sworn, testified as follows:

Direct examination.

By Mr. Condon:

Q. Mr. Atkin, will you state your position, please?

A. I am a superintendent of the turkey plant of Swift

& Co. at Detroit Lakes, Minnesota.

Mr. Kahaner: A little louder, please.

A. Superintendent of the turkey plant for Swift & Co. at

Detroit Lakes, Minnesota.

Q. Now, in that position, Mr. Atkin, what are your re-

sponsibilities?

A. The production and operation of the plant.

Q. What products do you produce at that plant?

A. We dress turkeys and put up stuffed turkeys and also

dress a few fowl.

Q. Will you describe for us the operation from the be-

ginning of your responsibility to the end of it of stuffing

[fol. 8] the turkey?

A. After the turkeys are bought by buyers, who go out

in the country and inspect flocks, then it’s my responsibility

to get the trucks out, pick them up and bring them into the

plant and dress them. —

We bring them in on trucks, weighed—and try to bring

those scales into the plant—and defeathered, first hung on

shackles running through the plant, defeathered and_ then

eviscerated—

Mr. Kahaner: Excuse me. I find it difficult to hear the

witness.

Judge Friendly: Will you talk a little louder, please.

The Witness: Yes.

A. (Continuing) Brought into the plant, hung on con-

veyor chains or shackles, as we call them, go through the

dressing operation, which is the defeathering operation;

then they go from there through another part of the plant

where they are eviscerated and then go from there into

slush ice and water in a tank where they are chilled over-

ight.

spre from there they go to different departments which

might be the stuffing department or just the regular turkey

department where they are packed in Cryovac bags and

[fol. 9] frozen.

Q. All right. Now, this—

A. It’s roughly the summation of it.

Q. What do you mean by “dressing”?

A. Dressing—I refer to dressing as defeathering.

Q. Defeathering?

A. Yes.

Q. Do you ever kill these turkeys?

A. Yes, we do. That’s part of the dressing operations.

They are killed, throats cut, shocked with electric shocker

and throats cut and they bleed to death and they are scalded,

run through a machine where the defeathering operations

take place.

Then we have girls working for finishers that get what-

ever feathers that the machines don’t get and then the—

after coming out of the machines, the tendons are pulled.

That’s the first operation we do after the bird is de-

feathered.

Then they go into the next operation. They are washed

again.

Then they go through—the girls defeather, finisher’s

work, singed.

{fol.10] After they get any hair that might be on them

off, then they go where the hocks are cut off in the joint

and then the next operation would be they would remove

the oil sac, slit the necks and then they are hung in three-

point suspension, that is, the legs are hung up for hanging

by the heads, the necks.

While all this is going on, the girls open the abdominal

cavity and pull out part of the intestine and washes it so

that if it is handled it won’t contaminate the bird.

Then it goes to—the intestines are pulled out the right

side when they are presented to the U.S.D.A. inspectors

for post-mortem examination in which they check the vis.

cera, the condition of the bird and general conditions and

the birds are either passed or rejected and then they go

on to the next operation.

We have girls that are called trimmers. Any small de-

fects that may be on a bird is removed by the trimmers,

The inspectors inspect them, point them out to them. They

treat them in this manner and then they go through the

giblet cleaners where the hearts and livers and gizzards are

[fol. 11] cleaned and then they go next to the machine where

you remove the lungs by a vacuum machine, which removes

the lungs, and any particles that might be missed by the

hand pullers.

Then the heads are removed. Then the crops—then we

have our own inspector at this: point where the birds are

washed inside thoroughly by high pressure injection and

then the next operation is our own house inspector which

inspects them again to see that they are all cleaned prop-

erly inside.

Then they go through one other washer and the necks

are removed, and then they go to packing, dropped off the

line where they are butterballed, we call it, or trussed.

Then they go into the tanks for chilling overnight.

Q. What do you mean by “trussed”?

A. The legs are tucked into the abdominal straps, trussed

them up so they don’t protrude.

Q. Now, after they have been in the tanks, the crushed

ice tanks overnight, the next day they are ready for stuffing,

is that correct?

A. Well, the birds that are selected for stuffing—we have

a man at the end of the line that selects only the birds

(fol. 12] that will do because of sizes and conformation, of

course; we only stuff certain sizes of birds on orders, as

a rule, and whatever size is selected; also for their quality,

they are inspected for quality to be sure that we have

nothing but the best quality going into the stuffed bird

operation.

Then they are chilled overnight for the stuffing opera-

tions.

Q. How do you prepare your stuffing?

A. Well, the stuffing is prepared from ingredients that

we buy our ingredients of red croutons, Preem, a vegetable

shortening manufactured by Swift, and spices, and these

ingredients are stored in a freezer where they are chilled

down to a low temperature, and then they are brought out

into—these two people work on this operation in our plant,

a man who makes, runs the mixture.

Then we have what we call a spice girl that she mixes the

spices and sterilizes them in a steam cabinet, and as he is

mixing puts the bread in the mixer and adds the oils, and

while he is doing this, she sterilizes the spices and they go

from the sterilizer—spice sterilizer into the mixer and

{fol.13] they are mixed until they are thoroughly mixed

and then they are dropped off into steamless steel vats, the

mixer, and put back in the steamer until it is held at least

40 degrees or lower before it is used for stuffing into the

bird.

And this whole operation is under the control of our

quality insurance department who have a bacteriologist and

two technicians that supervise the department all the way

through.

They take samples of all ingredients as they are received

into plants and bacteriological samples are run on them and

moisture contents because our specifications are no more

than ten per cent bread crumbs, and the powder and the

other ingredients no more than four per cent.

And then they look at them and when they meet specifica-

tions, they are approved for use.

When the spices are mixed and sterilized, they take

periodic samples of that to see there is no bacteria and/no

contamination, and they are ready.

Q. Now, let’s go back and pick up the turkey again that

we selected and it is ready for stuffing. Let’s bring the two

things together.

Will you describe the stuffing operation from the time the

(fol. 14] turkey comes out of that tank?

A. Well, at the time the turkey comes out of the tank,

there is a U.S.D.A. man at that point, a licensed man work-

ing under Mr. Klein, the government employee on the plant,

and he grades all the turkeys that goes on to the line so

nothing but A-grade turkeys are offered for stuffing and

he is also responsible for—to Mr. Klein for sanitation, that

everything is in order when the bird is offered to the stuffing

department.

It is hung on this line.

The first thing is it is washed thoroughly with sprayers

and then it goes from there to another inspector down the

line who looks to see that there is no pinfeathers that might

have been overlooked, and then it goes through the washer

again and then it—the cavity of the bird is sterilized by

pressure for ten seconds and then it goes from there direct

and taken out the line and offered to the people who are

running the stuffing machines. .

We have two stuffing machines, and at this point there is

a stuffing injected into the bird by a little logger.

Water is also incorporated with the dressing at this time,

{fol. 15] moisture, and then the bird from there is taken

off the line and passed across the table to a girl who tests

it over to see that it’s not overly stuffed.

In other words, we stuff the conformation of the bird

and no dressing is left, crumbs that get on the outside of

the bird.

You see, girls who handle the turkeys at all times wear

surgical gloves and continuously sterilize and wash their

gloves. continuously.

After, handling each bird their hands have to be rinsed,

dipped in a chlorine solution, and picks up the bird.

This is followed closely all down the line.

After picking up the bird to see if any crumbs might be

on it, styles it, we call it, to see that the conformation is

not out of proportion; remove the dressing.

Then it’s passed down to the girl who puts it in the bay,

and from there passed down to the conveyor where the

‘girl puts the giblets which have been packaged in a foil

package down the back of the bird in between the wings.

Then it goes to a machine which evacuates the air

(fol. 16] through the bag, sets the bird up.

Then it goes to our scaler, who weighs the bird.

Then it goes to a shrinking tank which the bag is shrunk.

Then it goes into our liquid freezer.

It takes it about thirty minutes to go through the liquid

freezer and it comes out the other end and goes imme-

diately into the blast freezer—

Judge Wyatt: Mr. Atkin, is there only one department

of agriculture for post-mortem inspection?

The Witness: No, there is two men working on the line,

double line, and one works on the one side of the line and

the other on the other.

Judge Wyatt: Yes. Each in the same step or process?

The Witness: Yes.

Judge Wyatt: You told us about that.

The Witness: Yes, sir.

Judge Wyatt: Now, after that department of agriculture

inspection, none of the other steps are inspected?

The Witness: Yes, Mr. Klein, under the supervision—

{fol.17] Judge Wyatt: No, the Department of Agricul-

ture. Mr. Klein is your man.

The Witness: No, sir.

Judge Wyatt: Oh, he is the Department of—

The Witness: The Department of Agriculture em-

ployee.

Judge Wyatt: Isee. Thank you.

The Witness: He has licensed inspectors operating un-

der him. .

Judge Wyatt: And he is the man who is there at the

stuffing operation?

The Witness: Yes, sir.

Judge Wyatt: And he is from the Department of Agri-

culture?

The Witness: Yes, sir.

Judge Wyatt: All right.

Judge Croake: Do you weigh the birds in any way be-

fore they go through the stuffing operation?

The Witness: Well, I was afraid there would be possi-

bilities of the—when moving it across the seule—

Judge Croake: Would it be sterilized in the same man-

ner as with the other?

{fol. 18] The Witness: It would take a number of scales

to handle—

Judge Croake: I am just talking about the bird just be-

fore it goes through the operation of being stuffed and the

giblets—

The Witness: I don’t know.

Judge Friendly: I suppose you are going to try to de-

velop that, Mr. Condon. I assume that is what all this is

leading up to.

Judge Croake: Yes, I won’t ask it then.

Judge Friendly: It is interesting to hear this, but I as-

sume you are leading up to this, some showing as to

whether it would be practical from your point of view to

do this, do what Judge Croake has suggested.

Mr. Condon: Well, I will develop that a little bit, if your

Honor please, but our claim is not so much impracticability

as it is government refusal to permit it.

Judge Friendly: I will hear about that, too.

Mr. Condon: We will get to that, too.

IT have a little small problem at this point. I would like

the witness to use this in his testimony. It’s a frozen tur-

key. May I ask that it be marked for identification?

{fol.19] Judge Friendly: I hope we have some means for

keeping it frozen; otherwise, we might have to move it out

of the courtroom.

Mr. Condon: Counsel is concerned, he told me, lest we

turn this into a food-poisoning case before we get through.

(Plaintiffs’ Exhibit 3 marked for identification.)

By Mr. Condon:

Q. I show you Plaintiffs’ Exhibit 3 for identification, Mr.

Atkin. I ask you, first of all, if that turkey was produced

at your plant?

A. It was.

Q. How can you tell that?

A. Government No. P576. That’s us.

Q. That’s what?

A. Government plant number.

Judge Wyatt: Where is that?

The Witness: Right here. And then again right here on

the clip: P576.

Judge Wyatt: That is the Department of Agriculture

mark?

The Witness: That is the rating stamp and there you

[fol. 20] see also a stamp on the Cryovac bag.

Judge Wyatt: That is the official designation?

The Witness: Yes, sir, U.S. Department of Agriculture.

Q. Would you hold that up and tell us where the stuffing

is put into that thing?

A. First the stuffing is—the stuffing horn, we call it, a

tube is inserted in the abdominal cavity at this point and

the stuffing is put in there as lightly as we can.

We fill the cavity, but don’t cram it.

And then as the stuffing—bird is pushed off the machine

and pushed off by its own weight, packed and cleaned, and

the girl raises the skin with a horn and then pulls it down

over and then it’s passed over. The stuffing is put in the

bag.

O. You referred in your description of this operation to

styling the bird, I think you said.

A. Yes.

Q. What do you mean by that?

A. You see, the conformation here is not deformed look-

ing. It looks like the conformation of the bird.

_ The girl can remove it, or, if it is—send it back if it isn’t

- [fol. 21] properly stuffed, so it has a natural look, a stuffed

look, but not a great big gob of dressing up in front.

Q. I will take it out of your hand so it won’t freeze.

A. It’s cold.

Judge Croake: I am sure we would let you substitute

pictures.

Mr. Condon: I would be delighted, if I may. I wasn’t

going to offer it in evidence, solely for the reason I didn’t

know how to preserve it in evidence.

Judge Friendly: You may substitute a photograph; if

you think it is necessary. I don’t know whether it is.

Mr. Condon: May I have your indulgence to substitute

the photograph at a later time, your Honor?

Judge Friendly: Yes.

By Mr. Condon:

Q. All right, Mr. Atkin. Will you now tell us—I think it

is clear to all of us how this operation was done—will you

now tell us what would be involved if you were to mark

separately on this product the weight of the turkey and

the weigut of the stuffing?

[fol. 22] A. Wecouldn’t do it because it’s—

Mr. Kahaner: I object to that, your Honor. I don’t know

what he means by “involved.”

Mr. Condon: I will rephrase it.

Mr. Kahaner: Is the witness going to testify—

Judge Friendly: He is rephrasing it.

Mr. Condon: I will rephrase the question.

Q. What changes would be entailed in your operation in

order to permit you to mark the separate weight of the

turkey and the stuffing and the whole of this stuffed turkey

product?

A. The first thing, we couldn’t because the Department

of Agriculture won’t give us approval.

Mr. Kahaner: I object and move to strike out the an-

swer.

Judge Friendly: Yes, the answer may be stricken.

In answering the question, limit yourself for the time

being to the physical operation. Mr. Condon will develop

the other point later, I am sure.

The Witness: Yes.

A. Well, it would involve three—at least for us at our

plant, it would involve about four scalers-—

[fol. 23] Q. No, I am not concerned now with the people

or the cost, or anything. I want to know what would you

have to do.

A. We’d have to weigh the bird at least three times in

order to do that, accomplish that.

Q. Where in the operation would you have to weigh the

bird three times?

A. We would have to weigh it—before it was stuffed,

we'd have to weigh it again after it was stuffed, and then

we would have to weigh the gibiets and make a computa-

tion to add that on to the bird, which would be—and then

add the weight of the stuffing, giblets and dressing to come

up with the total weight of the bird.

Judge Friendly: You have to have four—four weighing

operations—three of the bird and one of the giblets. Is

that right?

The Witness: One of the bird before it is stuffed and

one after it is stuffed; then the weight of the giblets; then

the total weight would be a computation.

Judge Friendly: It would be a computation?

The Witness: Of the three.

[fol. 24] Judge Friendly: The second and the third—

The Witness: Either way. As I say, it would be either

way you arrive at the same—

Judge Wyatt: Well, how do you do it now?

The Witness: We make one weighing. We weigh the

bird after it is bagged with the giblets and dressing.

Judge Wyatt: Now, in order to show the weight before

stuffing, why wouldn’t you have to weigh it only once, that

is, once before you put the stuffing in and weigh it at the

end of the operation, two weighs?

Judge Croake: And then subtract it.

The Witness: Well, I would have to know the weight of

the giblets because the giblets don’t always weigh the same

and they still have to be weighed and taken off, added either

to the weight of the bird after it is stuffed because they

are separately packaged, and there wouldn’t be any way

that I know of at our operation to handle it until you get

the bird in the bag.

Judge Wyatt: Mr. Condon, am I correct in supposing

that what New York wants you to show is the total weight

and separately the net weight of the turkey?

{fol. 25] Mr. Condon: Yes. Well, there is a litle con-

fusion about that, but I think that is correct.

I would prefer the attorney general tell you exactly what

New York requires. It is either that, the weight of the

turkey and the whole, or the weight of the turkey,. the

stuffing and the whole.

_ Judge Wyatt: I am just not able to see why Mr. Atkin,

by adding one thing to what he does, can not come out with

the answer.

Mr. Condon: Mr. Atkin’s point is that the giblets are

properly part of the turkey, but they are not with the tur-

key prior to stuffing. They are not put into this package

until after the turkey is put in the bag.

By Mr. Condon:

Q. It might be well, Mr. Atkin, if you would take Plain-

tiffs’ Exhibit 3 for identification and show the Court where

those giblets are placed in that package.

A. The giblets are included in a foil bag right here on the

outside of the turkey, this exhibit.

Judge Wyatt: It is under the outside wrapping?

[fol. 26] The Witness: Yes, and it is on top—between the

bird—laying on the top, at that point.

Judge Friendly: The weight of those varies?

The Witness: Yes, sir, they do vary.

By Mr. Condon:

Q. Mr. Atkin, do you run, in the course of your produc-

tion of stuffed turkeys, do you run any tests on the amount

of stuffing that is being put in turkeys?

A. Yes, our quality insurance man tries to follow it, does

follow it and makes tests every—each horn, each hour, two

tests an hour, for percentage of dressing going into the

bird, and he does that by—at random.

In other words, he doesn’t have it set up, comes to a

certain time to take it because after all we want a fair

operation.

He steps in sometime during the hour, or one of his tech-

nicians, takes the bird after it has been on the line and

ready to go, just before it is sealed, takes it to the labora-

tory and removes the dressing and figures the percentage

of dressing in that bird.

[fol. 27] Q. And do those tests indicate that the same size

turkey will always take the same kind of stuffing?

A. They won’t; it varies.

Mr. Kahaner: I object, your Honor. This seems to be

hearsay evidence. He is trying to tell us what somebody

else does.

Judge Friendly: I take it the witness is familiar with

this.

Have you seen this operation?

The Witness: Oh, yes, I am superintendent and I do

follow the quality insurance man in the plant.

Judge Friendly: Overruled. You may answer.

Q. You may answer. Do you remember the question?

A. Well—

Mr. Condon: Would you read it back to him, please.

(Question read.)

Q. The same amount of stuffing, I believe is the question.

A. No, the tests indicate there is quite a variance in the

amount of stuffing that goes into a bird, whether it be small

turkeys, which take a higher percentage as a rule, or

whether it be a hen turkey—a tom turkey.

[fol. 28] There is quite a variance. Just like the confor-

mation of people varies, there is a variation.

Q. You referred to this area, but let’s go back to it.

More specifically, will you tell me what the activities of the

United States Department of Agriculture inspectors are in

your plant? What do they do?

A. Well, the first inspection in May whicli I didn’t—on

the part of the previous—they do inspect, take a look at

the birds, the live birds that’s in the trucks, an ante-mor-

tem inspection, to the extent if the bird don’t look healthy

they could be turned down and not used and as they look

at it, the post-mortem inspection, where they examine the

viscera of the bird, outside, inside, for disease or bruises or

contamination, and they also run sanitary inspections.

Every morning one of them is there about a half an hour

to an hour ahead of our operations on the sanitariness of

the plant, looking at all phases of the machinery, the clean-

ing up, and then they follow the Cryovac bagging opera-

tion and stuffing operation.

[fol.29] He goes in there, makes his inspection in there.

I don’t know if he goes there several times during the day.

He doesn’t have any set time to go in. Of course, the boys

would be ready for him, but he makes drops unexpectedly

into the stuffing room himself and Mr. Klein—he works as

close with his inspector or grader at the end of the line and

he is in there quite often looking the operation over, and

with the one man they could do this.

The way it is now, they can make this inspection that

way, and then they also—they check weighing. I don’t

know what the percentage is, but every hour or two they

make check weighs of all of our birds as they come off the

Cryovac line.

Q. How many Federal inspectors are there in your plant

at Detroit Lakes?

A. There is three full-time, three men there all the time,

and then there is two off-the-premises men—Dr. Noland

and Dr. Westlake—who drop in twice of a morning as a

rule and twice in the afternoon, and they:are the veterinar-

ians in charge.

Dr. Westlake is the inspector in charge, and Dr. Noland

is his partner.

Q. Now, are there inspectors in your plant at all times

[fol. 30] when you are operating?

A. There is.

Q. Well, now, suppose you are ready to open in the morn-

ing and the inspectors haven’t arrived?

A. We don’t start.

Q. You never operate when there are no inspectors in

the plant?

A. No, sir.

Q. How many turkeys, Mr. Atkin, of all kinds do you

process in your plant in a year, pounds, if you can give

it to me?

A. In excess of 18 million pounds last year—I would

say about 18,700,000 is about the best I can remember. It

may be off a little bit, but in that neighborhood.

Q. Do you know how many pounds of stuffed turkeys

you processed last year?

A. It would be a round figure. I could estimate. About a

million pounds.

Judge Wyatt: You said 18 million pounds total.

The Witness: Total.

Judge Wyatt: And of the 18 million, one million is

stuffed turkey?

The Witness: That’s right.

{fol. 31] Mr. Condon: I have no further questions.

Judge Friendly: Cross-examination.

Cross examination.

By Mr. Kahaner:

Q. Mr. Atkin, will you tell us when the turkeys are

brought to the plant of Swift, are they brought in coops,

brought alive, is that it?

A. Our turkeys are brought in in trucks that are caged

trucks. They are built especially for hauling live turkeys.

. Lsee.

: There are layers, they are caged.

Q. And are they all of different weights?

A. The trucks?

Q. No, the turkeys when you buy them.

A. Yes, they are of different weights.

Q. And then when you slaughter the turkeys, at that

time when they are brought in the inspectors are there

from the Department of Agriculture to examine the birds .

to see if they are healthy, free from disease, is that it?

A. Yes.

Q. That’s very important. And if they find any that are

not so, they will discard them?

A. They will throw them back.

{fol.32] Q. And then the turkeys are slaughtered there-

after, is that it, at one time?

A. I don’t get your question. Are you asking about ‘the

ante-mortem inspection?

Q. Well, I am saying that these turkeys, when they come

into your plant on trucks, or how they come in, they are

examined by these—

A. Live, yes.

Q. Live. '

A. Yes, he looks at them and if they are healthy in ap-

pearance he lets us process them.

Q. In other words, a superficial examination?

A. That’s right.

Q. To see they don’t look sick?

A. Yes.

Q. And then when that happens, if there are any sick,

they will take them out of there, is that it, out of the—

A. Well, it never happened at our plant in Detroit

Lakes. We haven’t had live ones turned down, but I know

it has happened.

Q. Not at your plant, but other plants?

A. I know it has happened in other plants I have been

working at, but not at Detroit Lakes because we have very

[fol. 33] close inspection on our buying.

Q. Are the turkeys bought from farmers in the vicinity?

Is that how it works?

A. Yes.

Q. Then wher you get the O.K. from the inspector, these

turkeys are processed, killed and plucked?

A. Right.

Q. And during that process there are inspectors there,

too, is that right?

A. Yes, sir.

Q. To see that after they are killed the turkeys are siill

healthy; in other words, they are opened up, the gizzards

are examined?

A. Yes, post-mortem examination.

Q. Nobody is interested particularly in weight when the

turkeys come in alive, or anything like that, neither you

nor the inspectors, is that it?

A. Yes, I am interested in weight.

Q. Do you weigh the turkeys when they are brought in

alive?

A. Yes, they are weighed at the city scales.

Q. Each one?

A. Each truck of turkeys.

Q. Iam talking about the individual.

[fol. 34] A. The individual, no.

Q. You are not interested in the weight of any particular

turkey and neither is the U. S. Government inspector?

A. That’s right.

_ Q. They are interested in healthy turkeys. And then—

Judge Croake: The answer is yes?

The Witness: Yes, they are interested in healthy

turkeys.

Q. And after they are slaughtered, the inspectors are

still interested in seeing that those turkeys are healthy?

A. Right.

Q. And they go through minute investigation, make sure

that there are no sick turkeys there and, as a matter of

fact, the whole poultry inspection act is based on whole-

someness of the turkey, is that it?

Mr. Condon: I object, your Honor. This witness isn’t

qualified to testify about that. .

Judge Friendly: I think you can ask as to what the in-

spectors do. I don’t think the witness can tell us what the

philosophy is.

Q. Well, the inspectors, anyway, are administering this

[fol. 35] poultry inspection, aren’t they?

A. Yes.

Q. They operate the federal poultry inspection and all

they are interested in is wholesomeness from the time the

turkeys come to the plant alive and at the time the turkeys

are slaughtered and processed ?

Mr. Condon: I object to that, your Honor. I don’t think

he is qualified to say what someone else did.

Judge Friendly: He can tell what they do. He doesn’t

have to know waat is in their minds.

Q. Well, do you see how they look at the turkeys after

they are killed?

A. Yes, sir. .

Q. And they look in the turkey, they look in the gizzards

and every part of the turkey to see that the turkey is free

of some disease, is that right?

A. That’s correct.

Q. And if they find any turkey that is suspicious, that

turkey is discarded, is that right?

A. Correct.

Judge Wyatt: But I think the witness told us, if I am

not mistaken, that they check the net weights at some point.

[fol. 36] The Witness: They do. The finished product.

‘Mr. Kahaner: They do that at the end of the process.

Judge Wyatt: Yes.

Mr. Kahaner: I am going now to the beginning of the

process.

Q. Do you at the time that the turkeys are processed, do

you weigh the individual turkeys?

A. When we are selecting birds for stuffing, we weigh, or

have a competent man with a scale collecting birds of that

particular size we need as near as possible, but you can't

get it exact, that’s for sure.

Q. Well, what kind of a leeway do you permit; in other

words, you are looking, say, for five turkeys, approxi-

mately five, or eight, or seven, is that what it is, about on

the same poundage?

A. Well, in the neighborhood, yes.

Q. And you are attempting to get these turkeys of al-

most a similar weight, give or take a few ounces, is that it?

A. No, give or take a couple of pounds.

Q. I see.

Judge Friendly: How does he do that: by visual inspee-

[fol. 37] tion, or by putting them on a scale?

The Witness: Well, most of the time a man weighs a

bird or two, it’s a man used to handling it, and he will

weigh a bird or two to see how he is judging and then he

goes on from there, just for judgment, because it’s not sold,

it’s just merely for sorting.

Q. In other words, he uses the weight to check up on him-

self, is that it?

A. Yes, to see that he is sorting them out right.

Judge Wyatt: He doesn’t weigh each bird?

The Witness: No, sir.

Q. You mean, he might not know the difference between

a five-pound, or seven-pound bird, something like that, is

that it; he wants to make sure?

A. Yes, he wants to be sure he is within the range.

Q. Are you picking these birds for stuffing in the groups

that weigh a certain weight, is that it?

A. What do you mean?

Q. When you pick these birds, when your man is there

picking up the birds—

A. You mean, sorting the birds?

Q. Sorting the birds, you pick them for weight?

[fol.38] A. Yes, as near as possible for a certain size,

within about a two-pound range, give or take.

Q. What does he do: take a five-pound bird and put it

aside in one batch and an eight-pound bird in another

batch?

A. No, they just go into the same batch because he can’t

sort them that way. He sorts within a two-pound range,

tries to sort them within a given range, within about a

two-pound range.

Q. These birds, after they are slaughtered, do they come

to him on some sort of assembly line?

A. Yes, on a chain conveyor.

Q. I beg your pardon?

A. Ona chain conveyor.

Q. I see. And he picks these birds from this conveyor

and—

A. No.

Q. What does he do?

A. They are dropped on a table where they are dressed

and he is there and sorts out the bird he wants, as near as

possible, so we won’t have any undergrade going for re-

handling at the stuffing line that the grader would have to

rehandle there.

That’s another thing he does at that point, more or less

[fol. 39] sorting, just a sorting operation, size.

Q. Does he sort the turkeys from this conveyor just

weighing a certain poundage, or does he take all the birds

off the conveyor?

A. No, he doesn’t take all the birds on the conveyor. He

—just depending on what size we want to take. If we want

to put up a six to ten-pound bird that day on stuffing, that’s

about the range it runs, two pounds either way—in other

words, a six-pound bird, six to ten—eight pounds to six and

eight to ten—takes them within that range, approximately.

There will be some over, some under.

Q. And if the bird comes down weighing twelve or four-

teen pounds, somebody else gets that?

A. That’s right.

Q. He is just taking the birds away between six and tea

pounds?

A. Ata given size we want that day.

Q.. Now, these birds are laying on a table, is. that right?

A. Yes, conveyors—conveyor table.

Q. Conveyor tablet

A. Right.

{fol.40] Q. They are not frozen, or it still—what are the

conditions in the plant? Is it air-conditioned, the plant? Is

that a freezer type of operation that he is working in, or is

this an ordinary type operation?

A. Well, it’s a room, just an ordinary room under—the

air is not air-conditioned; don’t happen to need an air-con-

ditioned room. Our plant is cool enough. But there is posi-

tive pressure on the room from filtered air brought in that

is required by the Department of Agriculture.

Q. I see. So there is nothing special about this room to

keep the birds at a certain temperature, it’s an ordinary

temperature, is that it?

A. No, we move them along as fast as possible to get

them chilled quick.

Q. How long after your man takes them off the con-

veyor—he takes his six to ten-pound birds, eight pounds,

he takes them off the conveyor, is that right?

A. Off the conveyor onto a table.

Q. Onto the table?

A. Yes.

Q. How long will they stay at the table?

A. Oh, I would say they’re coming off at the rate of

{fol. 41] about thirty a minute.

Q. And then what happens after he takes his birds off

on his table? What happens to those birds?

A. The birds come off the conveyor table directly into ice

slush for chilling.

Q. And this is a slush of—

A. Ice and water. |

Q. And how long do they—

Judge Wyatt: Wait—excuse me—the birds he selects

for stuffing, they 4n’t go at that point?

The Witness: Yes, they go right into slush ice.

Judge Wyatt: What happens to the birds he doesn’t

select for stuffing?

The Witness: They go into another vat the other people

are working at for regular production. They go into slush

icewater.

Judge Wyatt: Isee. But they are different vats?

The Witness: Yes.

Judge Wyatt: All right.

By Mr. Kahaner:

Q. How long do they stay in this iced water?

[fol.42] A. Overnight as a rule.

Q. And these birds get waterlogged, don’t they?

A. No.

Q. They don’t?

A. No.

Q. There is no absorption of water?

A. There is tolerances prescribed by the Department of

Agriculture. They run tests on that daily to see that there

is not an excess amount of water.

Q. How much water does the turkey pick up after being

there all day and all night?

A. Sir, I couldn’t tell you, I don’t know.

Q. You don’t have any test on it?

A. No, the Department of Agriculture runs them and

tells them the tolerances.

Q. That turkey will weigh much more than if it hadn’t

been laying in icewater all day and all night, wouldn’t it?

A. There is an absorption, but it’s a percentage. I

couldn’t tell you exactly.

Q. How much, ten per cent?

A. No, it would be under that because there are toler-

ances.

[fol.43] Q. You say you know it is under ten, but you

don’t know for sure. Could it be more than ten?

A. No. Their tolerance is—

Q. What?

A. They have—

Q. What is their tolerance, if you do know or don’t

know?

A. I don’t know. You will have—the Department of

Agriculture man can give you that information. I don’t

recall the exact—

Q. You are not interested i in knowing that?

A. Yes, sir, I am interested in knowing, but I don’t recall]

what it is at the present time.

Q. Well, then, after this bird with its accretion by water

—it has some extra water in its system now, the body, the

meat has absorbed water after being waterlogged all day

and night, is that it, it has some percentage of extra

weight?

A. Yes, it has some percentage of extra weight.

Q. What happens after that?

A. After what?

Q. Well, after it lays there all day and all night in water,

what happens to the turkey after that?

A. Well, it’s graded.

[fol. 44] Q. It’s what?

A. The grader works—when it goes to the stuffing depart-

ment, the government grader checks it for grade. Nothing

but A-grade stuff goes to the stuffing department. And it

is hung on a line for draining. The neck skin is squeezed

out for water. Then it’s washed. ;

Q. You said it’s graded into what, different—A, B and C,

according to the type of bird?

‘A. Yes, but nothing but the A-bird goes to the stuffing

department. The rest of the stuff goes back to the other

operation where it will be packed as under-grade.

Q. In other words, for stuffing purposes, you use the best

type of birds, is that Tight?

A. The best we can get.

Q. And then it’s put on an assembly line again ready for

stuffing, is that right?

A. Yes.

Q. And is anything done between that veiled and the

_ time that the turkey is stuffed?

A. What do you mean “is there anything done”?

Q. Well, you said something about somebody squeezes

water out of it?

[fol. 45] A. Well, it’s hung on and when a man hangs—

the grader, or his men working with him—they generally

pull on the neck skin, which has been removed. They pull

on the neck skin which permits draining and the bird is

drained.

Oh, the drain line, I imagine—

Q. I don’t want what you are imagining. What do you

know about the process of getting the water out of the bird

after it has laid there the whole day and night? What do

you know personally that they do to drain this—

A. The drain—

Q. What?

A. We drain it on a line. We call it a draining line.

Q. What do you do, bring it along the line and a few

drops drip down, is that it?

A. They hang down and the bird—the hanger hangs it

on, straightens out the neck skin, squeezes it, sees that it’s

open, the cavity of the bird, goes down this line, this drain-

ing, oh, I would say about six or eight minutes.

Then it’s washed, and in the meantime, while it’s on the

line, a girl checks it to see that there is no pin feathers or

[fol. 46] anything like that, that has been overlooked.

Then it’s washed. Then it’s steamed, the body cavity

sterilized, we call it. And then it—

Q. In other words, for this six or eight minutes it’s go-

ing along a conveyor?

A. That’s right.

Q. And whatever water drips out, drips out, is that it?

A. That’s right. |

Q. And there is no special effort made by any machinery

to press, do anything to get any additional water out, is

that it? Whatever drops down—

A. It drains out.

Q. —out on the conveyor belt, is out?

A. Yes.

Q. When it gets to this girl who does the stuffing—you

say girls do the stuffing?

A. Yes

Q. How do they stuff the bird?

A. We have—the first girl—it’s taken off the line, passed

to the girl, to the stuffers.

These girls are all wearing surgical gloves.

Q. Yes, I grant you that.

[fol.47] A. These machines are little hoppers and: the

girl feeds it with a stainless steel scoop, feeds the stuffing

into this little hopper, and then it’s augered into the bird,

and while it’s being augered in, it automatically injects the

percentage of water into the stuffing that’s required.

Q. So that when the bird is ready for stuffing and comes

right to this girl who has the actual job of stuffing the

poultry, she doesn’t know what this bird weighs, is that

right?

A. No, she doesn’t know what it weighs, no.

Q. All she has got is a cavity in front of her to be filled?

A. Yes, sir.

Q. Is that it?

A. Yes.

Q. And this stuffing is available to her. Wat does she

do, take it with her gloves and stuff the bird with it?

A. Oh, it’s on a machine, it’s scooped into the hopper of

the machine and it’s augered into the cavity of the other

birds by machinery.

Q. Is this something like a gun?

A. No.

{fol. 48] Q. Is it shot into the bird? -

A. No, no.

Q. How is this thing—how is this stuffing put into the

bird? I mean, is it a gentle tap, or does it go in with force?

How is it done?

A. Well, our stuffing machine is a little auger and a little

stainless steel pipe about two inches around—

Q. In circumference?

A. Circumference, and this water is injected, this auger

—the bird is stuck on this auger, back into the bird.

The girl steps on the switch which activates the machine,

opens the valve that lets the water into the dressing, and

then just grabs it—the weight of the bird is holding it on—

and pushes it off ar. she turns it into the body, the crop

cavity the same way, and that’s it.

Q. You mean she has got dry stuffing which is sup-

posedly mixed with a certain amount of water before being

stuffed, is that it?

A. The dry stuffing is mixed with water as it goes into

the auger. The auger mixes the water in it as it is augered

into the bird.

[fol.49] Q. How much water or how much stuffing goes

into this particular bird when the girl doesn’t have the

weight of the bird?

A. They stuff to appearance.

Q. What’s that?

A. Just stuff to appearance. We don’t know how much

1s—

Q. You stuff it, is that what you mean, as much as it will

take?

A. To appearance, no.

Q. Whose appearance governs: yours or the inspector’s?

Who is supposed to—

A. Quality insurance man. We have a quality insurance.

Q. You have a quality insurance man?

A. Yes, sir.

Q. And he is your employee?

A. Yes, sir, he is Swift & Co.’s employee. He doesn’t

work for me.

Q. You work for Swift & Co.?

A. Yes, sir, but under a different division.

Q. I see. And this man would naturally like to see as

much stuffing in a bird as would be possible, wouldn’t he?

[fol.50] A. I don’t think so.

Q. He doesn’t want less stuffing than the bird would

ordinarily take? —

A. I don’t know what he wants, but he wants the bird to

look nice.

Q. Nice, round, fat, look more than it actually is, is that

right?

A. No, as natural in appearance as possible.

Q. He wants to improve on the bird’s natural appear-

ance?

A. No.

Judge Friendly: I think we have the point, Mr. Kahaner.

Q. So actually the bird will take as much stuffing as the

girl wants to give it?

A. The what?

Q. The bird will take as much as the girl, this girl who is

applying this stv‘fing into the bird, wants to give it? Can

she stop it any way, or is it automatic?

A. It’s grabbed—the way the bird is, she holds the bird

lightly on here and it’s pushed off and whenever it’s filled,

she stops.

Q. How does she know when it’s filled?

A. Shuts off the end of the stuffing.

[fol.51] Q. Automatic?

A. Yes, holds it lightly and sets it like that.

Q. In other words, it is governed by the machine itself,

if you want more stuffing in the bird—

A. No.

Q. —you would adjust the machine to put it in; if you

want less, you would adjust it for less?

A. No, the girl is the operator. The girl is a trained

operator. She puts the birds on the stuffing horn, holds it

lightly, and as the machine pushes it off, she holds it lightly

and it comes off, lifts off the turkey.

Q. How do you know she holds it lightly?

A. In other words—

Q. What’s that?

A. If she would hold it up tight, she would pack it. We

don’t want our stuffing packed in the bird.

Q. Oh, there is a possibility of packing the bird with

stuffing if she holds it tight?

A. Yes.

Q. So it depends on the girl, whether she holds it light or

tight, as to how much stuffing that bird gets?

A. Yes.

[fol.52] Q. Are you interested in seeing that the bird is

fully stuffed?

A. Yes, to a nice appearance and looks nice and plenty

of stuffing, but not too much.

Q. I see. What—how much stuffing would go into a five-

pound bird?

A. Oh, you could go around 16 to 21 per cent of the

weight. 21 per cent average, I imagine, for that size bird.

Q. About a little over a pound of stuffing will go into a

five-pound bird, is that it?

A. 21 per cent of the body weight, yes.

Q. And is that machine regulated so that a five-pound

bird will take a little over a pound of stuffing?

A. No, the girls—the operators are trained. They are

the ones that regulate the stuffing.

Q. So, in other words, you have to leave it to the girls to

determine that?

A. They and the quality insurance man, who takes a

sample every fifteen minutes, to see how they’re coming

along on the amount of stuffing and moisture analysis.

Q. After the bird has been stuffed, he takes it off the

[fol. 53] assembly line and brings it to his office?

A. Takes it into a laboratory.

Q. Why doesn’t he take it in to weigh the stuffing, if you

say that is all he is interested in?

A. What?

Q. Is he interested in the quality or the weight of the

stuffing?

A. He is interested in the quality of the stuffing, bac-

teriological condition of the stuffing, and the weight of the

stuffing in the bird and the moisture in the stuffing.

Q. So he has got to do all that: the quality, the bacteria?

A. Yes.

Q. Has he a scale?

A. Yes.

Q. Did you ever see him do that?

A. Yes.

Q. When was the last time you saw him do that?

A. I think we operated last in—well, this fall. I don’t

know the last time we operated, but I think it was in Janu-

ary we operated, I believe, the last time.

Q. That is the last time you saw him do that?

[fol. 53a] <A. Yes, that’s the last time we stuffed turkeys.

Q. And you watched this, you were there all the time and

watched ?

A. Not all the time. I watched him make these tests dur-

ing the day. I have the whole plant to look after and I

watch each department.

Q. You watch every part of this test, is that it?

A. Sometimes during the day, yes.

[fol. 54] Q. What are you, checking up on this man?

A. No, I am interested in what’s being done.

Q. If you see—

A. The quality of the bird.

Q. If you see it once, you know what is being done. How

many times do you have to see it?

A. No particular reason other than interest in =

quality of the operation. —

' Judge Wyatt: Mr. Atkin, tell me, do you stuff every

turkey that meets your specifications, or is the number of

turkeys that you stuff determined by demand? Which is it!

The Witness: Well, I imagine that’s in the sales end of

the business. We are usually told in the operating—Swift

—the manager of the plant generally tells me this: he

wants so many head stuffed and have these birds by special

sizes, as near as possible, so and so want the turkeys, get

that order, and as a rule it will be continued because some-

body else wants another and we will keep on going.

Judge Wyatt: But I am not to conclude from the 18 mil-

lion and one million pound figures that you stuffed all the

turkeys that were acceptable to you?

{fol. 55] The Witness: No, no, no.

- Judge Wyatt: All right.

Go ahead.

Q. Well, did this inspector of yours ever find that there

was more stuffing than was permitted in a certain turkey

A. Yes, he has found that.

Q. How much did it vary? Instead of « pound of stuffing

to a 5-pound turkey, how much was it over?

A. I don’t recall. I couldn’t tell you the exact weight be-

cause I couldn’t tell.

Q. Was it sufficient for him to go back and tell the girls

they weren’t doing the job right?

__ A. Yes, and make corrections in his—in the procédure.

—-Q In other words, you can manipulate this machine to

put in stuffing, more or less?

A. The machine is constant, no, but the girl could be~

could do it.

Q. You mean, she is holding it tighter than she should!

A. She could be holding it together.

Q. So there is a possibility that the girls—

A. Possible, yes.

[fol. 56] Q. They don’t do their jobs the way they should,

is that it?

A. There’s times. They are human.

Q. Now, then, you have the turkeys stuffed, well stuffed

or nicely stuffed, and then the bird is weighed?

A. No, the next thing, the bird is checked to see that

there is no crumb left on the outside of the bird that might

detract from its appearance and the girl looks at the con-

formation of the bird and if it should be overstuffed, an-

other inspector—our own house people—if it looks like it’s

overstuffed, why, it’s passed back for correction, and if a

bird is satisfactory at this point, why, then, it’s washed off,

rinsed off to see if there is any crumb on it, and passed on

to people who put it in the bag and then from that girl it’s

passed on to the girl who puts these giblets down between

the wings sad then evacuated and sealed on the end and

then it’s weighed.

Q. in other words, even after your safety inspector

checks these things, the bird still can be overstuffed, you

have another inspector checking that, is that it?

A. Yes.

[fol.57] Q. And could a bird be overstuffed without

showing it?

A. I don’t know how it could.

Q. Well, you say you can only tell it is overstuffed by

the looks of it?

A. That’s right.

Q. In other words, if it will be bulgy?

A. Yes.

Q. Could there be more than the amount of the stuffing

without a bulge?

A. I don’t think so.

Q. Suppose a bird of five pounds was supposed to have

a pound of stuffing and suppose it has a pound and a quar-

ter or three-eighths, do you think that difference of a quar-

ter of a pound is going to bulge out the bird?

A. No, I don’t think it would.

Q. So there could be everstuffing without being shown?

A. No, I said the 21 per cent is the average.

Q. How about 25 per cent?

A. There would be some chances some would have 25

per cent.

Q. You couldn’t tell that from looking at the bird?

[fol. 58]. A. No.

Q. I mean, when you are telling about overstuffed, you

probably have a—instead of a pound stuffing, it might be

two or two and a half pounds stuffing could squeeze into

that bird, is that right? That you could see from the con-

tour of the bird, it would be stuffing a 5-pound bird out of

proportion?

A. No, I don’t think you could put that much more in

without telling.

Q. You couldn’t put in an extra pound?

A. Without telling, without noticing it on the bird.

Q. How about with a quarter of a pound, you could?

A. Chances are you could.

Q. How about three-eights of a pound?

A. I wouldn’t know exactly.

Q. How do you know an extra pound of stuffing would

make the bird look out of proportion?

A. Well, if a pound of stuffing is for a normal conforma-

tion and you had another pound, I am sure twice as much

would show.

Q. Are you sure or are you guessing?

[fol. 59] <A. Iam sure.

Q. You just said before you wouldn’t tie yourself down

to it exactly, but now you are sure of the extra pound?

A. Extra pound, yes.

Q. Not three-quarters of a pound?

A. I don’t know because getting down to small weights

; oe

Q. You don’t know about three-quarters of a pound, but

you are sure about a pound?

A. I think it would show, yes.

Q. You do know about three-quarters of a pound, is that

it?

A. That’s what I think.

Q. So it could happen that idiehiaiininies of a pound

could not show on a bird?

A. I don’t think—I think it would show.

Q. I don’t want to go over this again. Are you sure—

Judge Friendly: It is clear the witness has given his

best judgment, that he thinks it would, and you are not go-

ing to—

- Q. Do you know Mr. Maidlow?

A. Yes.

[fol.60] Q. Was he part of Swift & Company?

A. Yes. a

Q. Suppose I were to tell you that he was examined be-

fore trial and he was examined as an expert and knew all

about the operations of Swift & Company and in his exami-

nation he said he saw the girls take the bird and there was

some kind of an apparatus that resembled a gun and this

was filled, this gun shot the stuffing into the bird.

Mr. Condon: I am going to object.

Q. (Continuing) As much as it would take.

Mr. Condon: I object to the question, if I may, because

of the characterization of Mr. Maidlow as an expert. He

was examined as a witness, in response to a notice. The

notice didn’t ask for an expert witness and he wasn’t of-

fered as one and he isn’t one.

Judge Friendly: Well, the record will show.

What is his official title, Mr. Kahaner?

Mr. Condon: Mr. Maidlow is the district poultry man

for the New York sales territory of Swift & Company.

Judge Friendly: You can ask your question, Mr. Ka-

haner, without characterizing Mr. Maidlow. Or why don’t

{fol.61] you refer to the page of the deposition that you

are interested in?

‘Mr. Kahaner: On page 5 and 6, your Honor.

Mr. Maidlow said all he saw there was one girl working.

“I don’t know whether it was one girl. I mean, the same

methods were used, as far as I could see.”

The question was:

“Would you say the amount of stuffing that went into a

5-pound bird was the same as went into a 14-pound bird?”

He said: “No, sir.”

Iasked him: “How would you know?”

He said: “There is no way to tell because the turkey is

stuffed.”

I said: “As you watched this girl stuffing the bird, did

you notice her spend more time stuffing the bird with a

larger turkey than with a lighter weight turkey?

“A. Only stuffing it until it was full of stuffing, regard-

less of the size of the bird. They were just stuffed, that’s

all I would say.

“Q. In other words, it was up to the girl to determine the

amount of stuffing in the bird?”

[fol.62] He answered: “The interior was filled with

stuffing.”

Judge Croake: What page is that?

Mr. Kahaner: Page 6.

By Mr. Kahaner:

Q. Would that be a description, a fair description of

what happened in the stuffing of a bird, of a turkey at your

plant?

A. State your question again, please.

Q. Is that a fair description of what Mr. Maidlow said?

Judge Friendly: It is obviously what Mr. Maidlow said.

You want to know whether the witness thinks it is a good

description.

Q. Is it a fair description of what happens at your

plant?

A. No, I don’t think it is.

Q. Would you say he didn’t know what he was talking

about?

A. No, I wouldn’t say he didn’t know what he was talk-

ing about. Maybe he is not too familiar with stuffing op-

erations.

Q. Well, he came here as a witness on the part of Swift

to tell us about stuffing. You say he doesn’t know his job, is

[fol. 63] that it?

A. I am not saying he doesn’t know his job, but the de-

scription—that isn’t the way I would—the description is—

Read that again, if you may.

Q. It says in one place “It is up to the girl to determine

the amount of stuffing in the bird.”

. Judge Croake: Are you trying to have this witness pass

judgment on the testimony of another witness, whether he

disagrees with it?

Mr. Kahaner: Well, I want to find out whether Mr.

Maidlow’s testimony as a witness is the correct one, or is

Mr. Atkin’s.. They seem to be diverging as to what actually

happens in the stuffing.

Judge Friendly: I Paon’t see where there is a divergence.

Obviously Mr. Atkin is much more detailed, but if there is

some inconsisteney perhaps you want to point it out more

clearly because I don’t detect it at the moment.

Q. At the time, after the stuffing of the poultry, you say

that they are vat on a scale and weighed after the giblets

are put in ud there is one weighing, is that it?

A. One veighing, yes, sir.

[fol.64] Q. Did you ever make an attempt to have two

weighin,,s?

‘A. No, sir, I didn’t.

Mr. Condon: Keep your voice up, please.

Q. Louder.

A. No, I never did.

Q. How long have you been in your present position with

Swift?

A. As superintendent for 17 years.

Q. How long have they been stuffing turkeys?

A. If my recollection serves me right, I think we started

in 1955.

‘Q. And that was the method, the method you described

has been the same method since 1955?

A. With some improvements of machinery and equip-

ment.

Q. There was never any question about having a bird

weighed prior to stuffing?

A. No, not that I know of.

Q. Nobody ever discussed it with you?

A. You mean—

Q: I'mean, discussed having both weights on the bint,”

A. At the plant level?

(fol. 65] Q. Yes.

A. No.

Q. In other words, you don’t know of any attempt by

Swift & Company to actually go and ee with two

weights on the bird?

A. No, I know of none.

Q. They never discussed it with you?

A. Other than since I have been—came here, I heard this

case, this is the first.

Q. In other words, prior to hearing about this case, did

Swift & Company ever ask you to experiment so that they

could see how this two-weight business could work out?

A. No.

Q. How much time expires from the time the bird goes

on the assembly line, after it is put in this brine for a day

and night, comes out the next day, from the time it’s on

this conveyor until the time it actually is frozen?

A. From the time it hangs at the line, the point it comes

out to be chilled?

Q. Yes, that’s it. How much time elapses before this

turkey is actually frozen?

Judge Friendly: You mean, before it gets into the

[fol. 66] freezer?

Mr. Kahaner: Yes, before it gets into the freezer, before

it is actually frozen.

A. I would have to give you the approximate time be-

cause I don’t have it stopwatched to an exact time.

I would say 25 to 30 minutes from the time it’s hung on

the line until it goes into our liquid freeze and it’s in the

liquid freeze approximately 30 minutes, so it would be

about an hour from the time it’s hung on the line until it

comes out with a good hard frozen shell on it about three-

quarters of an inch deep.

Q. Before it goes into the liquid freeze, it is actually ex-

posed to the elements about 30 minutes?

A. Yes, in that neighborhood.

Q. How long does it take to weigh the bird after it fin-

ishes the process you just described?

A. Well, one scaler will handle, oh, about 200, 300 birds

an hour.

Q. 200. You’re a fast mathematician. Ordinarily what

would that be, about three birds a minute or more? About

that, is that right? It would be approximately around

three birds a minute, a little more or less?

[fol.67] A. That’s right.

-Q. I think my arithmetic—

Judge Friendly: Perfect.

Judge Wyatt: Does he weigh the birds after they have

been frozen?

The Witness: No, sir, the birds are weighed before they

are frozen.

Judge Wyatt: Just before they go into the liquid—

The Witness: Into the spray tank, this CRYOVAC bag

shrinks, and just before they go into that they are weighed

‘at that point. °

Q. So, Mr. Atkin, if the weighing process is three birds a

minute, it means each bird takes about a third of a minute,

so if there had to be another weighing of this bird before it

is stuffed, it would take about the same time, in other

words, a weigher could do three birds in a minute?

A. Yes, that’s about right.

Q. Would you say anything could happen to that sage in

the extra time it took to weigh that turkey?

A. What do you mean “could anything happen”?

_Q. I mean, could deterioration set in?

[fol. 68] <A. Well, any time, any additional hiendiiny is is a

risk—

Q. Imean—

A. —increases the risk of contamination.

Q. It’s no risk to keep these birds for 30 minutes?

A. That’s right.

Q. But this one-third of a minute extra could be the risk?

“A> Well, it’s just an additiona] risk. There is a risk all

the time in handling food and packages.

Q. With the one weighing, how many birds are rejected

because’ of deterioration? I am talking about before stuff-

ing, in that haif hour.

A. None that I know of.

Q. None? —

A. No,. there is bacteriological tests made by swabbing

the cavity of the birds. To date, this past season we have

had no rejections at that point.

Q. There are no rejections after the birds are out in

the open for 30 minutes, you haven’t had one rejection

for how many—say, within the last year?

A. Last year we didn’t, no.

Judge Croake: Mr. Kahaner, when the weight is indi-

(fol. 69] cated on the specific bird, the individual bird,

how is it put on after this scaler weighs it?

Mr. Kahaner: All right.

Q. Prior to the bird being frozen, you say it’s put in

this bag and then weighed with the giblets and the stuffing?

A. Yes.

Judge Friendly: And the bag on it?

The Witness: The bag on it, and sealed.

Q. Sealed and with the stuffing and the giblets and every-

thing, weighed, and actually comes out—

A. Yes, that process goes through the shrink tank and

the bag does shrink and then it’s frozen.

Q. Who puts the weight on this?

A. The scaler.

Q. As the bird is weighed, has this scaler got a crayon

or ink that marks the bird?

A. Indelible—

Q. Beg your pardon?

A. They use an approved ink pencil or pen to write

the weight of the bird on the bird.

Judge Wyatt: On the flesh of the bird, you mean?

The Witness: On the bag.

[fol. 70] Judge Friendly: How does he allow for the

weight of the bag? oe

The Witness: The scale is set for an ounce and a half,

we set it for an ounce and a half tare weight.

Judge Wyatt: He writes on the plastic surface?

The Witness: Yes, sir, there is a spot on there.

Q. In other words, if there is a larger turkey, then the

bag is more than an ounce and a half, is that it?

A. Yes, it depends on the size of the turkey.

Q. In other words, he does this subtraction as soon as

he weighs the bird?

A. He does it, takes it off, the weight of the bird because,

well, say, a 6-pound or 8-pound bird takes an 11 by 18

size bag, we call it, and you get one over 10 pounds, it

would take a 12 by 19 size bag, and people are familiar

with the size of these bags, they allow different tare

weights for it.

Q. In other words, he is familiar with it, he knows just

how to figure it, he ‘deducts from the amount?

A. Seale that much short—I mean, as ean: as that’s con-

{fol. 71] cerned—

Q. He puts that right onto the bag in whatever, water-

proof crayon, or something?

_A. Waterproof ink, pencil or crayon, screws—

Q. Then what happens? How does it get onto the pack-

age itself? Is this the way, this bird here that’s marked

for identification—

Judge Croake: Hold it up, will you please. —

Mr. Kahaner: This is marked here Plaintiffs’ Exhibit 3

for identification, marked 7 pounds 2 ounces in blue ink.

The Witness: That’s right.

Q. Is that what the final weighing—

A. That’s right.

Q. That’s put right on that way?

Judge Wyatt: Let’s take a look at it. I can’t see it.

Where is the 7?

Mr. Kahaner: There it is, 7 and 2.

Judge Wyatt: And this is labeled, Mr. Atkin, on the

outside? It looks as if it is written directly on the label.

The Witness: Written on the label, written right on

the CRYOVAC bag.

‘Judge Wyatt: There is a place there?

[fol. 72]: The Witness: Yes, sir.

Judge Wyatt: Is specially prepared?

The Witness: Yes, sir.

Q. After that weight is put on, the bird is acai

A. The bag is shrunk, goes through the shrink tank and

goes into the liquid freeze and frozen.

Q. And that’s the weight that stays on until the bird is

sold?

A. Yes, until sold.

Judge Wyatt: Sold at retail?

Mr. Kahaner: Sold at retail.

Q. Do you know whether Swift has many retail stores

in New York?

A. To my knowledge, Swift has no retail stores.

Q. They sell these birds to wholesalers, is that it?

A. What do you mean?

Q. I mean, when these birds—who buys these birds from

Swift?

A. Well, the chain stores and people like that. They are

shipped to our sales unit like Mr. Maidlow here and he

sells them out to some others, to retailers. I don’t know

to whom they are sold.

[fol. 73] Q. And you usually do stuff these birds at par-

ticular times of the year?

A. Yes.

Q. Do you have a heavy demand, is that it?

A. Yes.

Q. Around Thanksgiving and Christmas?

A. Before the Thanksgiving—

Q. Before? |

A. Yes, I would say along in October when the stuffing

operation takes place.

Q. You are not doing any stuffing at the moment, are

you?

A. No, sir, we are not.

Q. No demand for it?

A. No, sir.

Q. Actually it’s a holiday bird, is that it?

A. It seems to be more demand at that time of the year.

Q. You sell turkeys all through the year, you sell 18

million pounds of turkey a year, don’t you?

A. I have nothing to do with the sales. Iam merely in

the processing end of the business.

Q. You did say that there is 18 million pounds sold?

[fol. 74] A. Processed.

_Q. There is one million pounds of stuffing?

A. Approximately.

Q. Actually most of the turkey that you do sell is un-

stuffed?

A. That’s right.

Q. And that’s sold all during the year?

A. Yes.

Q. While one million pounds is concentrated on a holi-

day, is that it, on a specific—

A. No, it’s sold the year round.

Q. You don’t process them all year round, is that it?

A. If the stocks would get low, we would be asked to start

up the stuffing operation. It has happened.

Judge Friendly: Are you going to have much more, Mr.

Kahaner? I think the reporter would like a recess.

Q. I just wanted to know, Mr. Atkin, are you familiar

with the process of the shipping, how it’s shipped into New

York, or any other state?

A. Yes, we ship in refrigerated cars or trucks. There is

refrigerated rail cars or trucks that will carry zero or

lower temperatures. °

[fol.75] Q. And how are these turkeys packed after they

are taken out of the freezer? Are they put in‘a shipping

box or container?

A. They come out of our liquid freezer, they are packed

in cardboard cases that have holes in the sides of them and

they are packed with the lids off, slats between each layer,

and put into our freezers 18 to 24 hours before they are

moved out.

Then they are moved out into the storage department,

into a storage house where it’s 10 below or better until they

are ready to be shipped.

Q. And these turkeys, stuffed turkeys, are shipped to

your different sales agents with or without an order, is

that it?

A. With what?

' Q. With or without an order; in other words, do you-ship

them the birds and te:! them to sell them?

A. I don’t ship—I only ship on orders. Everything that

goes out of our plant has to go out on an order and what

this manager has in the way of sales, I don’t know, I am

not familiar with that.

Q. Whatever the manager tells you to ship, you ship?

A. That’s right.

[fol. 76] Q. And it’s his headache to sell it, is that right?

A. I would think it would be sold before he ships it. [

don’t know whether he sells on consignment or not. It’s

not my business, that part of it.

Q. Well, has he got a place to store these turkeys when

they come in to New York?

A. I don’t know. Mr. Maidlow was the New York

poultry man. I don’t know. We ship them to storage

houses—

Q. You are not familiar with what happens to the stuffed

turkeys after they leave your plant?

A. No, sir, I don’t know what happens to them.

Mr. Kahaner: All right, that is all.

Judge Friendly: We will take a five-minute recess.

(Recess. )

Judge Friendly: Gentlemen, we have been discussing

our schedule a little bit.

When we had this case set for this afternoon, I don’t

think we realized we were going to be involved in so much

evidence. Some of us have commitments for the next

couple of days that will get in our way, in the way of pro-

ceeding continuously, and it seems the best thing to do is,

after we adjourn this afternoon, to adjourn to Tuesday

[fol. 77] morning and then hope we can finish it later on

Tuesday, or at the latest on Wednesday.

So let’s finish with Mr. Atkin.

I gather there is another out-of-town witness from

Armour.

Mr. Condon: Maybe we can get through with him this

afternoon. We will do the best we can.

Judge Friendly: Fine.

Do you have anything further? Do you have any further

questions?

Mr. Kahaner: Yes, I just have one question—one or two

of Mr. Atkin.

By Mr. Kahaner:

Q. Mr. Atkin, I believe in reply to Judge Croake as to

how many weighings would be necessary to comply with

New York State law, you said you had to have a separate

weighing for the bird before it was stuffed. Did you say

three weighings would be required?

A. There would be three weighings, I would think that

would have to be made, yes. I don’t know how we could do

it otherwise.

_Q. Do you know what the New York State law requires?

[fol. 78] A. No.

Q. In other words, if the New York State law says they

want the net weight of the turkey, which is the turkey it-

self, and the total net weight of the bird, including the

giblets and the stuffing, how many weighings would be

necessary ?

A. What is it now?

Q. If the New York—

_. Judge Croake: Let him read the question.

(Question read.)

A. Well, we’d have to weigh the bir.—the way I take it

—we’d have to weigh the bird before it’s stuffed and then

to determine how much dressing there is, we’d have—

Q. Wait a minute now. The law says that the net weight

of the turkey and the total net weight, that’s all it says,

which means that the total—after you set forth the net

weight of the turkey, you can put the total net weight of

the bird, which includes the stuffing and the giblets. How

many weighings would be necessary?

A. Well, two weighings that way, on that basis, under-

standing on that basis.

Judge Wyatt: One other than the weighing that Mr.

[fol. 79] Atkin talked about.

Mr. Kahaner: That’s right.

Q. You don’t need three weighings, just two, an extra

weighing, it would be an extra process, is that it? There

would be one extra weighing?

A. To determine—

Q. To determine the weight of the bird prior to the

stuffing, you would have to weigh it once?

A. Yes.

Q. And then you do the same thing as you do later?

A. That’s right.

Q. So, in other words, that would be three birds in a min.

ute would be the extra time involved, is that it?

A. Yes.

Mr. Kahaner: Thank you.

Judge Wyatt: The last answer of the witness was “Yes.”

Redirect examination.

By Mr. Condon:

Q. Mr. Atkin, are the giblets part of the turkey?

A. Yes.

Q. Part of the net weight of the turkey?

A. Yes.

Q. Irrespective of what any law requires, if you want

[fol. 80] to show the net weight of a turkey on a stuffed

turkey package, how many times do you have to weigh it?

Mr. Kahaner: I object to that, if your Honor please. I

don’t know whether it is material. We are talking about a

New York State law.

Judge Friendly: Nobody knows what the law means.

Mr. Kahaner: Before anything is discussed, I would like

counsel to be specific. We are discussing—

Mr. Condon: I am not going to ask the witness about

the New York State law. He is not a New York lawyer.

He is a turkey processor.

Judge Friendly: Whether the New York State law in-

volves the net weight of meat, poultry or fish to be sold or

offered for sale as food at retail by net weight only, now,

if that means net weight of the bird ex giblets, you need

only two weighings; if it means only three weighings of the

bird ex giblets, you need three weighings.

Isn’t it as simple as that?

Mr. Kahaner: Yes, your Honor, but they have an inter-

pretation. Defendant’s interpretation of that section and

his interpretation is two weighings.

[fol.81] Judge Friendly: Well—

Mr. Kahaner: That’s all we are interested in, is what

New York State requires.

Mr. Condon: This is the first time that I heard that New

York State requires that the giblets not be included in the

weight of the turkey. This is new to me.

Judge Friendly: Until we know what New York State

requires, I think we better just let the witness state the

facts and later on we can find out what it required.

By Mr. Condon:

Q. Mr. Atkin, we were talking a moment ago before the

recess about the extra time involved in additional weighing

or weights.

Now, if the concern that you express from a sanitary

standpoint, is that concern involved with deterioration of

the bird?

Mr. Kahaner: I object to that, if your Honor please.

Mr. Condon: I am just using your word, Mr. Kahaner.

Judge Friendly: What’s the objection? ,

Mr. Kahaner: I don’t know what that means. Is it his

[fol. 82] concern we are talking about or the U. S. inspec-

tors’ concern?

Judge Friendly: Will you rephrase your question.

Q. In the additional few seconds involved in an added

weighing, is there danger of deterioration of the turkey?

Mr. Kahaner: I object to that. I don’t think the witness

is an expert on that.

Judge Friendly: Overruled. You may answer.

A. I don’t think the point of deterioration so much as

contamination might be involved.

Judge Friendly: Why would that be, Mr. Atkin, if the

weigher had rubber gloves, and so on?

The Witness: Just the possibility of contamination.

‘Anny time you handle any food product—

Judge Friendly: You regard it as a serious possibility

The Witness: No, not serious, but it could be possible.

Judge Friendly: Anything further?

Mr. Condon: I have no further questions of Mr. Atkin.

{fol. 83] Judge Friendly: Anything further, Mr. Ka.

haner?

Mr. Kahaner: No, sir.

Judge Friendly: You are excused, Mr. Atkin. I thank

you.

(Witness excused. )

Judge Friendly: Next witness.

Mr. Condon: Mr. Posegate.

RussE_L Posgeate, called as a witness on behalf of the

plaintiffs, being first duly sworn, testified as follows:

Direct examination

By Mr. Condon:

Q. Mr. Posegate, by whom are you employed?

A. Armour & Company.

Q. What position?

A. Iam supervisor of poultry processing.

Q. Where do you have your office?

A. Chicago, Illinois.

Q. And in that position, what are your responsibilities!

A. I work with the establishing of and maintaining and

enforcing quality control procedures and production tech-

niques, processes and costs.

Q. Of what product, sir?

[fol. 84] A. Poultry and egg products.

Q. And in that connection do you have responsibility

with respect to turkeys?

A. Yes.

Q. And with respect to stuffed turkeys?

A. Yes.

Q. Where does Armour & Company process stuffed

turkeys?

A. Turlock, California and Barron, Wisconsin.

Q. How long has Armour & Company been in the stuffed

turkey business?

A. Nine years.

Q. Since 19551

A. Right.

Q. Did you have any responsibility with respect to

stuffed turkeys at the time that Armour & Company went

into this business?

A. Yes.

Q. Specifically, did you have any connection with the

establishment of the processes in the two plants which you

named?

A. Yes, directly.

Q. What connection did you have there?

A. My responsibility is to set up production methods,

[fol.85] quality control procedures, and enforce these

procedures.

Also I have charge and am responsible for the costs of

production.

Q. Did you establish the procedures that are used at

Turlock and Barron, Wisconsin?

A.. Yes.

Q. Were you present at those plants when the pro-

cedures were established?

A. Yes, I was.

Q. Mr. Posegate, you have heard Mr. Atkin’s testimony,

have you not?

A. Yes.

Q. And with respect to the receipt of live poultry and

dressing and evisceration and chilling, is that operation

substartially similar in the Armour plants as Mr. Atkin

described in his plant?

A. Yes.

Q. So that if we then would start at the beginning of the

stuffing operation—by the way, before I go on, where

would the stuffed turkeys offered for sale by Armour &

Company in the New York area originate?

A. Barron, Wisconsin.

Q. All right, fine. So let’s confine ourselves to Barron,

(fol. 86] Wisconsin, in answering the next series of ques-

tions.

Would you describe the stuffing operations and proce-

dures and operation from the time your turkeys come out

of these chill tanks preparatory to stuffing?

A. The turkeys which have been graded U.S.D.A. Grade

A are placed on a drain line. This drain line is an over.

head conveyor having special equipment for holding the

bird erect for drainage so that all free moisture is drained

from the bird which takes about 18 to 20 minutes prior to

the bird being stuffed.

Now, the stuffing is mixed in a mixture. It is mixed three

to four minutes.

The stuffing consists of Pepperidge Farms dried bread,

water, vegetable oil and, of course, the incorporated spices

in the dressing.

This is placed in the birds with an apparatus known as a

Moyno pump which is a food type pump designed not to

break up particles or to put excess pressure on products

pumped to this system.

The bird is placed over the stainiess steel pipe emanat-

ing from the pump. The pump is controlled by a foot-

operated electric clutch type switch which aids in starting

[fol. 87] and stopping it quickly.

So once the amount of dressing that is put in the bird is

reached, the pump will stop without exuding excess dress-

ing on to the table or other equipment.

The bird is filled by holding it and the dressing moving

the bird away to the point where we know the body cavity

is filled.

We aim for all body cavities to be filled, but without ex-

cess pressure.

After these body cavities are filled, the bird is placed on

a belt conveyor. It’s a white rubber belt that goes down

the center of the table and it goes from there to girls who

re-examine the body cavity at the abdominal opening to

take and remove—in fact, they cut back some of the stuffing

that was left by the pump pipe.

We do this so that we will have a place to place the gib-

lets between the legs and into—starting into the abdominal

cavity.

This limits the amount of stuffing that we can have exud-

ing from the abdominal cavity.

After we get through with this, we truss the birds with

a string which ties the wings down and also holds the legs

[fol. 88] in position.

We do not bark-truss, as is commonly known in the

trade, when the legs are inserted in the abdominal strap.

After this is done we then move to the girls or the work-

ers who have pans of dressing. This dressing is put in the

crop cavity, in layman’s language, and it is filled till the

contour of the bird is-normal. .

If this was not filled, this crop cavity would be indented

and detract from the appearance of the bird.

After the stuffing has been completed, the bird moves on

to the CRYOVAC application station. Bags are slipped

over each bird. The birds are put on a vacuum apparatus,

air removed; they are slipped, sealed, they are weighed.

The weight is marked on the bag.

The bag goes through the shrinker. From the shrinker,

they go into packages. From packages into an air blast

freezer.

Q. Let me see if I understand this. Do you add the

moisture—

[fol.89] A. We add the moisture—

Q. —to your stuffing before it goes into this?

A. Yes, we do.

Q. Does it go in automatically?

A. Measured amount, exact amount.

Judge Wyatt: Mr. Posegate, what is the object of put-

ting the birds in this tank which somebody called slush

ice?

The Witness: Slush ice.

Judge Wyatt: What is the object of that?

The Witness: That is a common method of chilling poul-

try, all types of poultry in every poultry in the United

States, whether it’s chickens, turkeys, or what.

Judge Wyatt: You mean to make it easy to work with?

The Witness: No, to make the animal, immediately after

the bird is stuffed—when it’s slaughtered it’s about 102-de-

grees, and to protect it, keep it, it is necessary that we

freeze it rapidly, and if we don’t cool it, we have a bird

that is dried up, looks terrible, because the epidermis ig

removed in today’s process.

We used to leave the epidermis on poultry which re.

(fol. 90] quired a lot of people, but today it is all removed

and so, therefore, our bird has skin removed.

Mr. Condon: I will ask that this be marked for identifi.

cation.

(Plaintiffs’ Exhibit 4 marked for identification.)

Judge Wyatt: This is going to bean Armor ‘arkey?

Mr. Condon: This is an Armour turkey, yes, -r.

By Mr. Condon:

Q. I will hand you Plaintiffs’ Exhibit 4 for identification

and ask you to tell us what it is.

A. It’s Armour Star stuffed junior young turkey.

Q. Can you tell me where that was processed?

A. Packed at plant P-190, which is Barron, Wisconsin.

Q. Now, will you show us on that package where Armour

& Company places the giblets.

A. Under this tag between the legs is the foil-wrapped

package of giblets.

The giblets consist of heart, gizzard and liver; no neck.

{fol.91] The neck is not included with this bird.

That package is under there displacing that amount of

dressing.

This tag over there, is, of course, the cooking recipe, so

when she removes it she has this for her instructions, how

to prepare it.

Q. And that location of the giblet cavity—of the giblets,

rather, is that over the abdominal cavity?

A. It’s partially in the abdominal cavity. The end is in-

serted slightly. That’s why I told you that we had removed

some dressing.

Q. Where then is the dressing in the crop cavity?

A. The dressing in the crop cavity is in this neck skin

which you can see here ws put back, this bird, the dressing

is put in here with a spoon. This is pulled back and only

enough dressing is put in there to keep the natural contour

of the bird.

We have to do that because if we put in more than we

should, if we would have a bulge there, this would break

and pop out in the roasting process.

If we put too much stuffing in the bird itself, this bone

will come up out when cooked, so we are limited—

[fol.92] Judge Croake: It doesn’t have to be cooked in

the CRYOVAC bag?

The Witness: No.

Q. Do you know, Mr. Posegate, the volume of stuffed

turkeys produced by Armour & Company annually?

A. It has been between 4 million and 5 million pounds

annually.

Q. Ever since 1955?

A. Right.

Q. Is your plant at Barron, Wisconsin, also under

United States Department of Agriculture inspection?

A. Yes, it is, both inspection and grading.

Mr. Condon: I have av further questions.

Cross examination

By Mr. Kahaner:

Q. Mr. Rosegate, did you say you heard Mr. Atkin

testify as to the manner which Swift stuffs their turkeys?

Would you say your company is similar or different?

A. The process is different.

Q. As I gather from what you testified, the machine that

does this stuffing is controlled ; is that what happens?

A. Start and stop control.

Q. And Swift hasn’t got that, is that it?

[fol.93] A. Idon’t know.

Q. Well, he didn’t testify to that at all, did he? Did you

hear him testify to that type of a machine?

A. No, I didn’t.

Q. Well, why do you use that? Is that better than leav-

ing it for a girl to determine how much stuffing should go

into a bird, as Swift does? Would you rather have done it

mechanically ?

A. You misunderstood me, sir.

Pea tage

Judge Wyatt: Yes. I didn’t understand him to say it

was done mechanically. There is a clutch, a foot clutch that

the girl operates to determine when it starts and when it

stops; isn’t that right?

The Witness: That’s right.

Judge Wyatt: It is the same system as the Swift’s.

Q. The girl steps on this clutch?

A. That’s right.

Q. And this stuffing is injected into the cavity of the

bird?

A. Right.

Q. When she takes her foot off the clutch, it stops?

[fol. 94] A. Yes.

Q. No more stuffing goes in?

A. Right.

Q. Then, in other words, it is up to the girl to determine

just how much stuffing goes into the bird?

A. Yes.

Q. The longer she keeps her foot on this pedal, the more

stuffing goes into the bird?

A. No.

Q. What—

A. More stuffing may come out of the pump, but it won't

go in the bird.

Q. So there is an automatic cut-off?

A. Not automatic.

Q. What then?

A. No, it is not automatic.

Q. If she co

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