The opinion of the court was delivered by: DUSEN
In this suit under the Perishable Agricultural Commodities Act (7 U.S.C.A. 499b(4)) for failure of a buyer to account and make full payment promptly for perishable tomatoes purchased by him, the jury brought back a verdict for the defendant partnership. This verdict was contrary to the findings of the representative of the Secretary of Agriculture, who had made an award to plaintiff in an administrative hearing under the Act on the grounds that the tomatoes were of the No. 2 U.S. Grade specified in the contract, the defendant had no right to reject them for failure to conform with the contract, and no subsequent contract or novation had been made. The post-trial motions raise these two issues:
A. The plaintiff is not entitled to judgment n.o.v. even though the defendant's witnesses testified in the same way that they had in the administrative proceeding.
'Such suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated.'
In making this contention, plaintiff cites the terms of the Administrative Procedure Act, 5 U.S.C.A. 1009(e), for the proposition that agency action, findings and conclusions can only be set aside if they are unsupported by substantial evidence. However the general language of this later Act of Congress is not sufficient to negative the clear intent of the above sentence in the Perishable Agricultural Commodities Act, requiring a trial de novo in all respects like other civil suits for damages in the district court. In Meeker & Co. v. Lehigh Valley R.R., 1915, 236 U.S. 412, 35 S. Ct. 328, 334, 59 L. Ed. 644, the Supreme Court of the United States had before it 16 of the Interstate Commerce Act, 34 Stat. 590, which contained this sentence:
'Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the Commission shall be prima facie evidence of the facts therein stated.'
At page 430 of 236 U.S., at page 335 of 35 S. Ct. of the opinion, the court made clear that the presumption involved in the above-quoted language from 16 only created a rebuttable presumption, as follows:
'This provision only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. At most, therefore, it is merely a rule of evidence.'
The jury was entitled to disbelieve evidence which was accepted by the hearing representative of the Secretary of Agriculture and to accept the testimony of defendant's witnesses that the tomatoes were not of proper quality under No. 2 U.S. Grade.
Although there are no cases directly in point, the United States Court of Appeals for the Third Circuit would appear to support the foregoing conclusion. See Roghenberg v. H. Rothstein & Sons, 1950, 181 F.2d 345, and 1950, 183 F.2d 524, 21 A.L.R.2d 832; California Fruit Exchange v. Henry, 1950, 184 F.2d 517; Wesco Foods Co. v. De Mase, 1952, 194 F.2d 918. See, also, Angeles Brokerage Co. v. Carlo Panno Fruit Co., 9 Cir., 1954, 211 F.2d 341, 345 where the court said:
'In the trial de novo provided by the statute, the evidence, testimony and claims of the parties with respect to these fact issues were again fully presented in the lower court and there subjected to a new appraisal and evaluation of probative weight by the district judge. As to these issues the statute leaves no doubt that the district judge is empowered to determine from the record before him whether the prima-facie case resting on the findings of fact and order of the Secretary was adequately supported or was overcome and/or discredited by the evidence and testimony adduced in his court.'
Cf. Barker-Miller Distributing Co. v. Berman, D.C.W.D.N.Y.1934, 8 F.Supp. 60, 62.
B. The plaintiff is not entitled to a new trial in view of the terms of F.R.Civ.P. 51, 28 U.S.C.A., and F.R.Civ.P. 61.