FEDERAL REPORTER. vol. 49. MEYER etAl. CADWALADER, Colrector.1

tJ.

(Circuit COUrt. 1i1. i). Penn81/ZVania. July So 1891.}
1. CusTOM.!! DU1JBs-:-HAT

,,,, ,the of the tariff act of 1881l providing for "bl'Qlds, plaits, flats, ,laces,' trimmings, tissues, wUlow"sheets, and squares used for making or ornament111g hats, bonnets. ,and hoods Of straw, chip, grass. palm-leaf, willow, hair, or any oth,er ,substance or. material not speoil/olly enumerated or '·prov.tded for," Inoludes oertaln orepons, orepe, satins, and velvets, depends upon two conslderatons, viz.: First, whether tbe partioular goods in suit were "trimmings;" aud, secondl whether their chief use WllS for making or ornamenting hats, bonnets, and hooas. . aRurs. . . ..The defendant having conc,eded that. unller the evidence, the goods in suit wer& : "trimmings," this questlon'ls narrowed to ,thl!' single inquiry as their ohief use. , The bUrden 'of proof is upon the plalntltts, and 'it is Incumbent on them to estab,lishtheir allegatioDi by sumoieni evidence. In considering the question of chief use, It Is the dutr of the jury to give more attention to tbe course of trade In the orlfinal distributIon of the goods among those who hnport them than to the gllesses 0 individuals as to the various uses to which the articles may be put by individual consumers.
OF PROOF. ' , TRIl\tMJNGS. . " ·

..

'- SAMll-EvIDBNOB-COURSJII OJ' TIUDB.

At .A88Umpmt to recover an excess of duty alleged to have been exacted, by, the, collector upon certain velvet ribbons" gnuzes, crepon, crepE'S, satins, and velvets imported by the plaintiffs in 1886. The facts are sufficiently set forth in the charge of the court. The defendant admitted tlllitithe duty' collected on the velvet ribbons was excessive, and that ,was due on that account $244.01, but denied that anything was due po ,the other itews. The verdict was for plaintiffs for the amount admitted to be due 011 the velvet ribbons only.2 Ji'rank P. Prichard, HtmryE. Tremain, and John G. Johnson, (Cyrus E. Woods, Harry T. Kingston, .Augustus R. Stanwood t Oharles Ourie, and .Alexander P. with them,) for plaintiffs. W. W. Carr, Asst. U. S. Atty., John R. Read. U. S. Atty., William H. Taft,. Sol. Gen., and W. P; Hepburn, Sol. of Treasury, for defendant. ACHESON, Circuit Judge, (charging jury.) This is an action brought by Meyer ,&:, J)ickinson, against the collector of the port of Philade)pbi,a, to recover an alleged excess of duties pnid under protest on goods entered at ,the custom-house on various days in the months of March, April, and May in the year 1886. While the collector is the defendant named on the record, the United States are the re.al defendants. It is conceded under the evidence that an excess of duty was colleoted from the plaintiffs on the article of velvet ribbons, and there is no dispute as to the amount of such exceBS. As to that item, therefore, you will render a verdict for the plaintiffs. This amount is admitted to be 8244.01.
Reported by :Mark Wilks Collet, Esq., of the Philadelphia bar. Dew trial was afterwards granted by the court. OD motion of plaintlffa. Fed. Rep. ll2.
1

Law.

IA

see"

. MEYER

ALADEB.

27

The articles whicbare here th", subject of dispute are gauzes, crepons, crepes, satins, and velvets. These goods are made either wholly of silk, or of silk and cotton, silk being the component material 'of chief value. The collector assessed upon the goods, 'and. required the. plaintiffs to pay, 50 per centum ad valorem, under the last paragraph of Schedule L of the tariff act of March 3, 1883, (22 St. 510,) namely: "All goods, wares, and merchandise not specially enumerated or provided for in. this act, made of Bilk, or of which silk is the component material of chief vahle, fifty per centum ad lJalol'em." The plaintiffs claimed in their protest, and in this suit claim, that th& goods were liable to only 20 per centum duty, under the provision in Schedule N of the act of March 3, 1883, which reads thus: "Hats, and so forth, materials plaits, flats, laces, trimmings, tissues, willow-ahet'ts, and squares, used for making or ornamenting hats. bonnl'ts. and hoods composed of straw, chip. graBs, palm.leaf, Willow, hair. Whalebone, or any other substance or material not specially enumerated or provided for in this act,-twenty per centum ad valorem." The act of 1883 does not impose any duty upon the several articles which are here the subject of dispute; that is to say, gauzes, crepons, crepe, satins, and velvets, or any of them, by those names. The position of the plaintiffs is that those goods were classifiable under the clause of the act I have last read, which begins with the words, "Hats, and so forth, materials for," as being "trimmings" chiefly "used for making or ornamenting hats, bonnets, and hoods," and hence were 8ubjectto a duty of 20 per centum only. Whether the goods came under that clause, and were dutiable at the rate of 20 per centum, instead of at the rate of 50 per centum, as the collector held, is the question involved in this case. This question (permit me here to say) should be approached and considered in a spirit of perfect fairness. Everything like prejudice or prepossession should be banished from the mind. We should all be animated by the earnest desire that the result reached shall be consonant with the law and in accordance with the evidence. If the plaintiffs' goods were rightly classified, they have no jUbt cause for complaint. But if the collector was wrong in his classification, and exacted from the plaintiffs an excessive duty, then the government cannot honestly withhold from the plaintiffs the money so paid in excess of the legal rate of duty. . Two considerations enter into the decision of the question whether the plaintiffs' goods were dutiable under the 20 per centum clause of the act : .F'il'st. Were the goods "trimmings?" Seccmdly. Were they chiefly used for making or ornamenting hats, bonnets, and hoods? If they were "trimmings," and their principal use was for making or ornamenting hats, bonnets, and hoods, then the plaintiffs are entitled to a verdict. But if they were not "trimmings," or,being "trimmings," if their principal use was not for making or ornamenting hats, bonnets. ond hoods, the verdict should be for the defendants. This instruction applies to the goods as a whole, and to each particular kind here in dispute, and represented by the several samples. Your verdict might be in favor of the

.
28

FEDERAL REPORTER,

vol. 49.

plaintiffs as respectR some of the articles, and in favor of the defendant as respeots other articles, according to your findings of fact under the evidence as to' the several articles involved in this controversy. Upon the proofs in this case the defendant 'concedes that all the articles here in. vOlved, namely, the gauzes, crepon, crepes, satins, and velvets, are "trimmings." There i,a therefore no longer any dispute on that point. You will then assume that all these articles belong to the general class of" trimmings," and your deliberation will be confined to the single inquiry as to their chief use. What 'was the chief use of these several arWas it for making 01' ornamenting hats, bonnets, and hoods? Or was, their chief use for other purposes? In dealing with this subject you will carefully note that the question relates to the chief use of articles of the particuhn kinds and grades shown by the samples in evi· dence,-the numbered samples so often referred to by the counsel and. The question is not as to lhe chief use of gauzes, crepon, crepes,satins, and vehrets generally, but of goods the same as the samples. This is a point of primary importance, tlnd in your consideration of the testimony must not be lost sight of. I do not deem it necessary for me to recite at any length the evidence, or to attempt any particular analysis of it. The counsel of the respective parties have discussed the testimony very fully, and you have had the benefit of their views as to its bearing on the one side or the other of the question upon which yO]l are to pass. The observations I shall submit to you will be brief and of a general nature. There is evidence in the case tending to show that the ,manufacture and trimming of hats. bonnets, 'and hoods is a very large industry in the United States; that thereisJ8.Jgcneral class of articles known to the trade under the designation of "trimmings," specially adapted for and chiefly used for making or orhamentinghats, bonnets, and hoods, which class includes gauzes, crepes,saiins,and velvets, and many other articles; that these articlee are imported'into this country in large quantities; and that there is in trade a class of persons who are dealers in these various articles under the general name of "hat trimmings."· The plaintiffs have called and examined a large number of the importers of such goods and their employesntnd also other persons in trade who deal in and distribute these imported articles among the original purchasers, namely, the millinery houses and dry goods houses and other dealers in hat trimmings. These witnesses have testified that the chief use of the articles here in dispute is in the making or ornamenting of hats, bonnets, and hoods. Some of those witnesses, not all of them; who are importers, are themselves interested in the question involved in this litigation, and that is a fact to be ()onsideredby you in estimating the weight to be given to their testimony. You have seen the witnesses last referred to, and have had an opportunity: of observing their manner of testifying and their degree of intelligence, and itis for you to say what credit shall be given them. The plaintiffs have also .examined a number of other witnesses who are engaged in the business of manufacturing or trimming hats for men and. women, and who ,are connected with that industry, and those wit-

MEYER V. CADWALADER.

29

nesses have testified that the chief use of the articles here in question is for making or ornamenting hats, bonnets, and hoods. All these witnesses, as it to me, (although this is a matter for you to determine,) by reason of their connection with the trade, have a good opportunity of the use to which these articles are generally applied. The plaintiffs also ,called another class of witnesses, three in number, who are connected with the customs service of the United States, namely, Mr. Sharretts, a member of the board of general appraisers, Mr. Corbett, assistant appraiser at the port of New York, and Mr. Clark, assistant appraiser of the por;t of Philadelphia. You will recall the testimony of these witnesses. I ought, however, to add that while Mr. Sharretts testified that thechlef use of gauzes, satins, and velvets, represented by the numbered 4, 5, 9,11, and 12, was for making or ornamenting hats, bonnets, and hoods, he expressed the opinion that the crepon and crepe, represented by samples numbered 6 and 8, were not chiefly used for that purpose. The defendant has examined a very large number of witnesses belong.. iI).g to. various trades and occupations, dry goods men, dressmakers, manufacturers of novelties, undertakers, and others, who have testified that the chief use, of the goods here in dispute was for purposes other than that of making or ornamenting hats, bonnets, and hoods. These witnesses, as you will recall, testified that these goods were chiefly used for making or trimming dresses and fancy articles of different kinds, and for various other special purposes by them named. A great many of the defendant's witnesses, perhaps the greater number of any class testifying, are connected with the .dry goods trade, and acquired the knowledge upon which they te'3tify in that line of business. The:¥" s,peak. more particularly of satins and velvets', and testify as to their comparative sales. of such articles to dry goods houses and to milHIlery houses.. But you will reIllember that some of them state that many of the large dry goods houses to which they sell satins and velvets have lpillinery departments; and, further, that throughout tre in 'sm.aller towns alia communities, those in the dry goous business supply the local deIllandfor millinery articles. Do these witnesses, then, certainly k.now the.ultjmate use to which the satins and velvets are applied? Some of them admit that they do not know, and have no certain melins of knowing. The article of velvets calls for special . Witnesses on both sides of the case speak of and describe "millinery vEllvets," which they state are particularly adapted fOf trimming hats, bonilets, and hoods. There seems to be no difference between the witnesses on the two sides of the case as to the characteristics of mUlinery velvets. It is testified that they are made of ighter material and are softer and more pliable than dress velvets and velvets for other uses. The witnesses further state that the millinery are intended more for show than for evidence tends to !:!how, are of a wear. .SQme of the millinery low grade and price,and others are of a much higher grade and price.

F]i:DERAL! 'REPORtER,

vol. 49.

1'2; ;are undoUbtr. edlY,of a' many witnesses state that they are light, soft, and pliable; arid belong to the low grade of millinery velvets. You can yourself handle the samples, and thus form some judgment as to whether they do not have the characteristics which, all the ascribe to millinery velvets. Now, if these velvets; repres(:JDted by samples Nos. 11 and 12, are velvets, (and whether they are or not is; foi-your determination,) the fact ought to be taken into consideration in connection with the testi:monyof those witnesses who f.E)stify that tbeifQhief use is for millinery PUl'posea,or to rpake'and trim hats; bonnets(dnd'noods. For, if they velvets,what would naturally and probably be their chief use?' ' , "10 determining the question 'of chiefuse,-which is the only question now open,-you should give effect to and be governed by the preponderatingiveightof theevidence'in the case. The weight of the evidence always lie on the side having the greater number of witnesses. does Only such value should be given to the opinion of any witness as it deserves by reason of his means ofknowledge, whereby he can form a correct Regard should be had not only to the character, disinterestedness, and intelligence of the witnesses, but also to their opportunities of becoming acquainted with the subject-matter now under investigatiotl; namely, the chief use made of the several articles involved in this controversy. I will" now read to you and answer certain points which have been submitted to me by counsel for the respective parties. ' 1 am requested by deflmdant's counseltocharge you as follows: "(I), Y:our verdict must be for the defendant if yOIl believe that the goods and merchandise in suit were chiefly used. in March, 1883, for purposes other than for makIng and ornamenting hats, bonnets, and hoods, even if you believe that they were ·trimmings' used for making and ornamenting hats." That point is affirmed. "(2) It is the .purpolle for which ,these articles are chiefly used that determines their dutlabllity, Within the meaning of this clause of the tariff act. It would not be 'a 'proper construction of the meaning of this act to say that, because certain articles are indifferently adapted for use for different purposes. either of tllesepurposes may det!,rmine the rate of duty·. It is the predominant use to which these goods and merchandise are applied that determines their If you lind the goods and merchandise to. be chietly used for other purposes than for making or ornamenting hats, bonnets. and hoods, you will find for the defendant. The question is purely ODe of fact, namely. what is tbepredominant use to which these articles are deyotedP" " That point is taken frOlD the charp;e of my distinguished predecessor in a cause tried here in this court, and I affirm it, and give you the instruction prayed for by the point. "(3) Tp... b.urden of proof isupoD the plaintiffs in this case to that the of the goods and'merchandise in suit. was erroneous, and that they are' trimmings,' chiefly used f01' making 01' trimluing hats, bonnets. or hoods."

The 'V'elvets, of which we havtrsamples Iltlm,bered 11'

,. CADWALADEB.

81

. This point la affirmed. The meaning of the point is simply this: that it is incumbent upon the plaintiffs to establish by sufficient evidence the allegations made by them, and uponwnich their case depends. I am asked by counsel to .answer .a number of points, but 1 shall answer but four of them, because the others, as I understand them, relate to the question whether these articles are trimmings, whichha.s been from the case by the concessions of the defendant at the close ofthete8timony: ' "(1) If the jury find that any ot the articlell in controversy are hat materials. so known and recognized in trade and commerce, and are distinctively adapted for. as weU as cbiefly used as trimmings in making or ornamenting bats, bonneta,' and hoods, the verdict should be tor the plalnti1fs upon such articlell... The point is affirmed. "(2) If the jury find that any ot the artlclesln questfon are adapted to ule and. are various purposes other than for trimming hats. but also find that the use the]: are 1:1Iie6y applicable Is in.ll1aklng or ornamenting bats, bonnets. and boods. the verdict should be for the,pla.intiffs upon sucb articles 88 are chiefly so used." This point is affirmed. "(8) Tbe'clrcllJllstarice thatabY ot the articles in question may be used forpurposl's othl'r tban the making or ornamenting ot bats. bonnets. and boods is not controlling, and doos not of itseif subjllct thllJll to the higher rate of duty, if the tact lie that the distinctive feature of. the articles consists in to use for making or ornamentillg bats, bonnets, and hoods, their and thll.t they are chiefly so used." The ill affirmed. "(18) 1D considering the question of chief use, it Is your doty to glve lIlore attention to the course of trade in the original distribution of the goOlts.among those who import them. thaJl to the g,uesses of individuals as to the various usestowbicb the articles maybe put by individual con8umers." The point.is affirmed. " . And now; in t have only'to remind you that the "ingle question submitted to you is, what is the chief use of the several articles represented by the samples Nos. 4, 0, 6, 8, 9, 11, and 121 and as you determine that question 1I8 respects each of these articles 80 should your verdict be. I commit the:case to you,confident that it will receive the careful consideration which it deserves, and that your verdict will be in ltith the law an.d the evi<lencein the case,

nDERAL BEPo:aTER,

voL 49.

MEYER

et al.

tI. CADWALADER,

eonector.'

(w

Court, E. D. Penmuliliania. Ueciember 8,1891.)

t.

Jl'IIWTBI.u,.;-NEWllPAPIIB COMMENTS, Dt1RIi'G TluAL-PtmLIsmm REpOB'l'I
TIlIWS WITH

Where evidently inspired newspaper cOmments and reports of interviews. 01 so gross a nature as to be well oaloulated to prejudice a juryagainst.one of the parties tQ a cause, have been published during a trial, and presumably seen by the jury,;. _Ii.... trial will be granted where the'verdict is agamsUhe parties attacked. e.aoh .. .,trial was taking place daily MSl!lop.,lellding neW!i.Papers in the oity in ealoulated to prejudioethe jury against'one Of the parties, it Will pUblished be presumed that the jury saw the matter published. & Bum-WAIVEB OJ' OB1ECTION. " ., After the publioation during a trial of the flrst of a series of newspaper artioles reflecting against one of ;theparties,motion by that party WlIoll made for withdrawal of a jurOr oontinqanoe, whioh motion was refused. .Held, he was not bound to. motion upon the subsequent of other and more offensiveartioles;' and tbat hi' failure to do 10 was no groUnd' for refusing his appll;cation·'fora·tl'ew,trial..' '. .. ,
8.ula-;.i.PaESWPTION THAT .JURY READ A.BTICLES. ... n.1f 8 trial over. sereral day-s, the. iU..r'7 'separating after ..

P J,BTIES.

11l'l'llJlo

At Law. This motion by plaintiffs for,,, llew trial action at law to recover an excess of duty alleged to have been-exacted on hat trimmings. Reported, 49 Fed. Rep; 26. The grounds of the motion were that the verdict the"weight of the evidencei /lnd tbat,. dUring' the · progress of'tbo'trial, staterbimts had been publicly made on behalf of defendant calculated to prejudice the minds of the jury. In support of the latter ground, various newspaper articles and reports were relied on. Ofthesaj thcr'tW'o followil,g,'publishedduring th4 'trial in leading daily as iIlustrations: Raia on the Treasury-'-SpecialAgent Hanlon Tells Some of Its Inner History-The Twelve . under Close Dress Trimmings, Linings, and Almost EVerything EISe' Imported; .Asked to be ClaSsified as Hat Trimmings, to the GreatDJlis afthe Government. "There was much comment in mercantile circles yesterday over the verdIct in the celebrated Hat-Trrimmings Case, decided on Friday against the gOvernment·. 'Tbe prompt notice of government officials ,that the case would be n.ot a surprise to .the victors in the first.stage of the warfare, while those who had battled to save the government millions of dollars were confident that the verdict"would not s'tand. Amoli'g those who, officially, have given the subject under dispute the gravest study. is Special Agent Marcus Hanlon. He plainly showed yesterday how earnest he was in his endeavor to prove that the suits of the importers were such as should not secure verdicts for them from intelligent jurymen. and, concerning the cases now on trial, said: ·I am only too glad to give my views, as I think that the people should know all of the facts in this attempt to loot the United States treasury. The issue is simply a question of fact,-whether the goods were chiefly used for making or ornamenting hats. There is no question of law involved; all such questions having been raised in the case that was decided on Friday.
I

Reported by Mark Wilkll Collet, EllQ.., of the Philadelphia Dar.