Jurisdictional Statement — Orkin Exterminating Co. v. Gulf Coast Rice Mills

Supreme Court brief1963

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SUBJECT INDEX

Page

Opinions Below 2

Jurisdiction 2

Questions Presented 5

Statement of theCase 6

j. Procedural History of the Case 6

li. Facts Material to the Questions Presented 6

Il. Federal Question was raised timely below in

Appellate Court 14

Argument 17

. Summary of Argument 17

Il. The application of the state and city laws, as

construed by the Court below, prohibiting the

praetce of any“ amount of Lindane in

processed food, violates the Due Process 2nd

1 gual Protection Clauses of the 14th Amend-

ment and the Supremacy Clause of the Federal

Constitution 18

II. hese Federal questions are substantial 21

Proof “of Service 23

Appendix A" ° 25

\ppendix B“ 40

Appendix UC" 90

Appendis “DY? $3

LIST OF AUTHORITIES

Cases Page

Boynton v. Virginia, 364 U.S. 454, 5 L.Ed.2d 206,

81 S.Ct. 182 4

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

U.S. 673, 74 L.Ed. 1107, 50 S.Ct. 451 3

Cloverleaf Butter Co. v. Patterson, 315 U.S. 148

86 L.Ed. 754, 62 S.Ct. 491 21

Herndon v. Georgia, 55 S.Ct. 794, 295 U.S. 441,

79 L.Ed. 1530 3, 14, 15

Metlakatla Indian Community v. Egan, 80 S.Ct.

1321, 363 U.S. 555, 4 L.Ed. 1397 3

Michigan Wisconsin Pipe Line Co. v. Calvert, 74

S. Ct. 396, 347 U.S. 157, 98 L. Ed. 583 4

Missouri ex rel. Missouri Insurance Co. v. Gohner,

281 U.S. 313, 74 L.Ed. 870, 50 S.Ct. 326 3

Oregon-Washington R. & N. Co. v. Washington,

270 U.S. 87, 70 L.Ed. 482, 46 S.Cr. 279 21

Saunders v. Shaw, 244 U.S. 317, 320, 61 L.Ed.

1163, 1165, 37 S.Ct. 638 3. 16

CONSTITUTION OF THE UNITED STATES

Fourteenth Amendment 5, 6, 11, 13

Supremacy Clause (Art. 6) X.

UNITED STATES STATUTES

21 U.S. C. A. 342 „ , 1. , 0

21 U.S. C. A. 346 7, 11. 12, 16, 17, 18, 19

28 U.S.C.A. 1257(2) 3

CODE OF FFDERAL REGULATIONS

Title 21, Sec. 3.41 . 4, 20

Title 21, Sec. 120.1 $, 20, 22

Title 21, Sec. 120.101 4,22

REVISED CIVIL STATUTES OF TEXAS

Article 4472 4

—

PENAL CODE OF TEXAS

Article 707 4

IN THE

Supreme Court of the Anited States

October Term, 1963

) iS

ORKIN EXTERMINATING COMPANY, INC.,

Appellant

GULF COAST RICE MILLS, Appellee

JURISDICTIONAL STATEMENT UPON APPEAL

FROM THE COURT OF CIVIL APPEALS FOR

THE FIRST SUPREME JUDICIAL DIS-

TRICT OF TEXAS

Appellant Orkin Exterminating Company submits here-

with its statement particularly disclosing the basis upon

which this Court has jurisdiction on appeal to review the

judgment of the Court of Civil Appeals for the First Su-

preme Judicial District of Texas, entered in the above-

entitled cause Number 13,998 in such Court on November

8, 19862.

OPINIONS BELOW

The opinion of the Court of Civil Appeals herein sought

to be reviewed is reported in 362 S.W. 2d 159, and is ap-

pended hereto as Appendix “A”. An earlier opinion, upon

the first appeal of this case to the Court of Civil Appeals

for the Tenth Supreme Judicial District of Texas, was

reported in 343 S.W. 2d 768 and is appended hereto as

Appendix “B”. The appeal from the earlier decision was

dismissed by the Texas Supreme Court (upon jurisdictional

procedure issues not relevant here) in 347/S.W. 2d 250.

JURISDICTION

I. The proceeding below was an ordinary damage suit

based on negligence and breaches of contract and of war-

ranties, and therefore it was not brought pursuant to any

particular statute but only pursuant to the common law.

The various statutes involved therein, by virtue of .

lee's pleadings and laws judicially noticed, are quoted in

Appendix C“ and in subparagraph 5 below.

The specific ruling which raised the questions here on

appeal was the ruling of the Houston Court of Civil Ap-

peals substantially to this effect: That the use of the pesti-

cide Lindanc“, in the processing of food in Texas, is pro-

hibited as being in violation of both federal and loc 9

statutes, notwithstanding federal regulations which sanc-

tion the use of such pesticide in food in certain quantities.

2. The judgment sought to be reviewed herein was ren-

dered and entered by the (Houston) Gourt of Civil Ap-

peals for the First Supreme Judicial District of Texas on

November 8, 1962. A Motion for Rehearing was over-

ruled by that Court on November 29, 1962. Application

for Writ of Error to the Supreme Court of Texas was re-

fused by the Supreme Court of, Texas on March 6, 1963.

A Motion for Rehearing was overruled by the Supreme

Court of Texas on April 10, 1963. Notice of Appeal to this

Court was filed by Appellant in the said Court of Civil

Appeals on July 1, 1963.

3. The” jurisdiction of this Court is invoked under 28

U.S. C. A. 1257 (2). Appellants challenge the validity of

Texas statutes and City of, Houston ordinances, as con-

strued by the Texas appellate court, on the ground that

such statutes and ordinances as so construed are repug-

nant to the Constitution and statutes of the United

States, and the decision of the highest court of the state

was in favor of their validity.

Review is also being sought herein by Certiorari, and this

Court is respectfully asked to consider this appeal in con-

junction with the Petition for Writ of Certicrs:i bearing

the same caption as this statement.

4. Cases believed to sustain the jurisdiction of this Court

on appeal include the following:

(a) The questions were timely raised after unantici-

pated appellate court rulings: Herndon v. Georgia, 35 S. Ct.

794, 295 U.S. 441, 79 L.Ed... 1530; Saunders v. Shaw, 244

U.S. 317, 320, 61 L.Ed. 1163, 1165, 37 S.Ct. 638; Missouri

ex rel. Missouri Insurance Company v. Gobner, 281 U.S.

313, 320, 74 L.Ed. 870, 875. 50 S.Ct. 326; Brin verbo

Faris Trust & Savings Company v. Hill, 281 U.S. 673, 677,

678, 74 L.Ed. 1107, 1111, 1112, 50 S. Ct. 451.

(b) An asserted conflict between state law and federal

regulations presents questions reviewable by this court on

appeal from state : Metlakatla Indian Community 5

Egan, 80 S.Ct. 121, 563 U.S. 555, 4 L.Ed. 1397.

(e) An appeal is properly taken from intermediate

appellate court where its judgment upheld validity of state

statute and Texas Supreme Court refus d writ of error:

Michigan-Wisconsin Pipe Line Co.. v. Calvert, 74 S.Ct.

396, 347 U.S. 157, 98 L.Ed. 583.

(d) All questions having the same substantial core

as those specifically preserved below may be considered by

this Court: Boynton v. Virginia, 364 U.S. 454, 5 L.Ed.2d

206, 81 S. Ct.. 182.

5. Lengthy statutes involved herein are quoted in Ap-

pendix “C”; their citations are: Penal Code of the State of

Texas, Chapter 2, Title 12 (Vernon’s Annotated Statutes,

2 Penal Code 37-38) Article 707; Civil Statutes of the

State of Texas (12A, Vernon’s Annotated Civil Statutes

325) Article 4472; Ordinances of City of Houston (City

Code of Houston, Texas, 1942, page 454) Section 868.

The principal statutes involved are the following ‘sections

of the Code of Federal Regulations (1955) Title 21:

Section 3.41. “(a) The amendment in clause (2)

of Section 402 (a) of the Federal Food, Drug and

Cosmetic Act shall become effective on the dates spe-

cified for the following pesticide chemicals:

* * (2) Effective date October 31, 1955: * * *

Lindane: . . . Grain (from treating storage bins)“

Section 120.101 “* * (a) (1) This section desig-

nates the poisonous or deleterious substances. that. fdr

the purposes of section 406 of the Federal Food, Drug

and Cosmetic Act, are found to be required in the

production of the fresh fruits or vegetables named in

paragraph (e) of this section. * * (c) * * * (2)

For the purposes of this section, where a tolerance of

parts per million for benzene hexachloride is set, it

shall be deemed applicable to commercial benzene hexa-

chloride, which is a mixture of several isomers. If the

gamma isomer, known as Lindane, is used exclusively

of other isomers, the tolerance shall be 10 parts per

million.” (emphasis added)

Section 120.1 “*.* (f) Where raw agricultural

commodities beating residues that have been exempted

from the requirement of a tolerance, or which are

within a tolerance permitted under section 408 are

used, the processed foods will not be considered un-

safe within the meaning of section 406 if (1) The

poisonous. or deleterious pesticide residues have been

removed to the extent possible in good manufacturing

practice; and (2) The concentration of the pesticide

in the preserved or processed food when ready to eat

is not greater than the tolerance permitted on the raw

agricultural commodity.”

—

QUESTIONS PRESENTED

I. Are the Due Process and Equal Protection clauses of

the Fourteenth Amendment, and the Supremacy Clause

(Art. 6) of the Constitution of the United States violated

by state and city “pure food laws” which provide, as con-

strued by the Texas Court of Civil Appeals, that food may

be condemned upon the basis of a jury finding that any,

amount of a pesticide chemical may render such food in-

jurious to health, in view of the conflict between such laws

and Federal regulations which provide that such food con-

taining 10 parts per million of such pesticide chemical

shall not be considered injurious to health under the Fed-

eral Food, Drug and Cosmetic Act?

2. Does the Texas Court of Civil Appeals’ judgment,

holding that the use of a pesticide chemical in “any” amount

in procesxd food is prohibited in Texas by federal and

local law, violate the Immunities, Due Process and Fqual

Protection clauses of the Fourteenth Amendment to the

Constitution of the United States by denying to food

processors the right to rely upon federal regulations which

sanction the presence of such chemical in such food?

STATEMENT OF THE CASE

I. Procedural History of the Case

Respondent sued petitioner, in an ordinary damage suit

upon theories of negligence and breach of contract. for

damages incurred by respondent in obeying compliance

orders issued by Federal and State food inspectors and city

health inspectors. Respondent claimed that petitioner was

legally liable for the consequences of such violations. After

one jury trial and an appeal therefrom in which this suit

was remanded for retrial, a second jury trial resulted in

a District Court judgment for respondent upon a jury

verdict finding petitioner negligent.

This District Court judgment was affirmed by the Texas

Court of Civil Appeals in the opinion herein presented

for review. Petitioner’s motion for rehearing in such Court

was overruled, and petitioner duly filed its application for

a writ of error to the Supreme Court of Texas, which

was refused by the Supreme Court, endorsed “Refused”—

no reversible error“ on March 6, 1963. Petitioner's mo-

tion for rehearing was overruled by the Supreme Court

ot Texas on April 10, 1963, after which action this peti-

tioner had no further remedy for appellate review in the

State courts of Texas.

II. Facts Material to the Questions Presented

(Parenthetical references, S. F.“, are to trial court’s

STATEMENT OF FACTS in the record presented with

this staternent. }

The incident from which this suit arose occurred on

August 24, 1955, at the Gulf Coast Rice Mill, when a

Federal Food and Drug Administration inspector found

that respondent’s milled rice contained traces of 2 pesticide

chemical, Lindane, which he believed to be prohibited for

use upon such rice by the Federal Food and Drug Act

(S. F. 48, 64, 75, 132, 401-402). The federal inspector

declared the rice contaminated and adulterated (S.F. 402).

The opinion of the Texas Court of Civil Appeals, presented

herein for review, correctly states the facts in this con-

nection: 362 Southwest 2d at Page 162. The quantity of

Lindane found in the rice ranged from zero (S.F. 284-285,

290) to 3.6 parts per million parts of rice (S. F. 286-282).

The inspector threatened to-seize the rice if it were shipped

(S.F. 75).

The Federal us and Drug Administration had been

given authority to establish “tolerances”, regulating amounts

of pesticides used in foods, in 1938 by Section 346 of the

Federal Food and Drug Act; however, this power was not

exercised and Section 346 remained in disuse. In 1954,

the Pesticide Amendment to the 1938 Federal Food, Drug

and Cosmetic Act was passed, authorizing the Administra-

tion to establish tolerances for the use of pesticide chem‘cals

upon “raw” agricultural commodities (Clause (a) (2) (B)

of Section 342, Title 21 U.S.C.A.). The Administration

began fixing such tolerances in 1955, but had not set

any tolerance for the use of Lindane upon rice (or any

other “grain” in its raw state) as of the time of the in-

spection and compliance orders given by the Federal in—

spector on August 24, 1977.

Local state and city inspectors also advised respondent .

that its rice was adulterated under the law. and would

have to be cleaned by remilling in order to be brought

into compliance with state statutes and city ordinances

(S.F. 74-75); the facts in this respect are correctly stated

by the Texas court below. The respondent acceded to the

orders of all officials and incurred damages in the sum

(not disputed by petitioner) of over $36,000 (not in-

cluding interest) in bringing its rice into tompliance with

the food statutes of the federal, state and city govern-

ments (S. F. 61-62). Respondent thereafter, nearly two

years after such incident (1 Transcript 2), filed this suit

against petitioner to recover the money expended in obey-

ing such compliance orders, alleging that it had neces-

sarily obeyed such inspectors’ orders under such threats of

prosecution (I Transcript 2-11).

Respondent’s allegations in its suit set forth à negli-

gence action in the usual form and also actions for breach

of warranty and breach of contract, which alleged not

only breaches based upon the use of the Lindane, but also

based upon faulty methods of insect control allegedly caus-

ing the same damage (I Transcript 4-11). Pleading in

reply thereto, petitioner alleged a general denial and only

such affirmative defenses, i. e., statute of limitations, laches,

estoppel, waiver, and contributory negligence as was re—

quired by Texas Rules of Pleading (I Transcript. 13-19).

In a jury trial, re.pondent introduced evidence of faulty

insect control (S. F. 65-66) as well as of the government

inspectors’ administrative findings of adulteration by the

“prohibited” pesticide chemical (S. F. 25). While no evi-

dence of any other administrative finding by the federal

inspector was adduced, there was testimony offered by the

Director of the Division of Food and Drugs, Department

of Health for the State of Texas, that his Department

was prepared to take action against respondent on account

of the presence of the Lindane (S.F. 278) and that in

his Scientific opinion, ay amount of Lindane in such rice

“might render it injurious to health“, no matter what

the amount [S. F. 298-299]. Medical witnesses also testi-

fied that trace amounts, as little as .06 parts per million,

might have rendered the rice “injurious to health” (S.F.

305-310, 311-315).

The jury verdict was upon special issues finding that

the Lindane “tmay have rendered the rice injurious to

health”, that the application of it by petitioner was negli-

gence, and that such application was a proximate cause

of the damages claimed (I Transcript 55-56). The jury

verdict is quoted in the judgment rendered thereon, and

such Trial Court judgment is appended hereto as AP-

PENDIX "D”. Judgment was entered on the verdict alone,

and without any legal conclusions or findings of law

(I Transcript 54-59).

Petitioner asserted the only grounds appropriate under

Texas law as grounds for its motion for judgment non

obstante veredicto, to-wit: that there was no evidence”

to support the verdict and that all pleadings and evidence

showed that no cause of action had been made out.

(J Transcript 45-50).

There being no findings made against petitioner with

respect to its having been guilty of violations of any food

or health statutes or other law, petitioner appealed from

uch judgment by relying upon its motion for a judgment

N.O.V. upon the theory that no cause of action had been

made out in tort or contract (BRIEF FOR APPELLANT

ORKIN EXTERMINATING COMPANY, pages 1 d

44).

The Court of Civil Appeals (Houston) affirmed.

The judgment of the Court of Civil Appeals complained

of herein was based upon two specific legal conclusions:

1. Since no tolerance for Lindane on milled rice as

applicable to the facts of this case had been estab-

lished by the Secretary of Health, Education and

Welfare, the addition of any amount of Lindane to

such milled rice was in violation of Section 342 (a)

(2) of the Federal Food, Drug and Cosmetic Act.

and especially so if it may have rendered the rice

injurious to health.” (Opinion, at 362 S. W. 2d 164,

paragraph (1, 2) ).

.. * There is substantial evidence showing that

Lindane in any quantity on rice may render such ar-

ticle injurious to health.“ (Opinion, at 362 S. W. 2d

163, last paragraph).

Further, that Court held generally that all local laws, as

pleaded, had been violated.

These legal findings of law vielations, the first such

findings made by any person or agency since those made

on August 24, 1955, against Respondent, were contested

by Petitioner in its Motion for Rehearing in the Court

of Civil Appeals (Houston) upon the following grounds

(a certified copy of original MOTION FOR REHEAR-

ING is contained in the record filed herewith) :

(1) The holding that “there is substantial evidence

showing that Lindane in amy quantity on rice may render

such article injurious to health” violates the Constitution

of the United States in that it conflicts with the Federal

Food. Drug and Cosmetic Act and regulations promul-

gated thereunder. (paragraph 1 of such Motion).

(2) The holding that the evidence supported à finding

that .02-to 3.6 parts per million of Lindane may have

rendered the rice injurious to health, violated the Con

stitution of the United States in that it conflicts with

the Federal Food, Drug and Cosmetic Act (paragraph 2

of such Motion).

(3) The holding that no tolerance had been established

for Lindane, and that therefore any quaatity of Lindane

was prohibited as being possibly injurious to health, con-

flicts with the Federal Food, Drug and Cosmetic Act, and

thus violates the Constitution of the United States (para-

graph 3 of such Motion).

(4) The holding that a jury fact question was raised,

by evidence of Lindane in the rice in amounts ranging

from none to 3.6 parts per million, conflicts with the

Federal Food, Drug and Cojmetic Act and therefore vio-

lates the Constitution of the United States (paragraph 4

of such Motion).

(§) The holding that state and city laws were violated

by application of Lindane in such amounts was in con-

flict with the Federal Food, Drug and Cosmetic Act,

and therefore violated the Constitution of the United

States; further, such holding conflicts with federal statutes

which have pre-empted regulation of such matters, and

such holding violates the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution

in that it is arbitrary, unreasonable and discriminatory

(paragraphs 5, 6 and 7 of such Motion).

(6) There is no evidence to support any cause of action

and a verdict should have been directed and judgment

rendered for Defendant (Petitigner) (paragraphs 8-11 of

nich Motion).

Petitioner's Application for Writ of Error to the Texas

Supreme Court asserted the \ constitutional questions as

follows:

POINT 1: The Court of Civil Appeals erred in hold-

ing that Section 346 of the federal food laws was ap-

plicable herein, and that since no tolerance for Lindane

had been established thereunder, the rice was adulterated

under Section 342 () (2) of the federal lav.

POINT 2: Such Court erred in construing Section 346

of the federal food laws as applicable herein, when such

statute so construed is unconstitutional as being an invalid

delegation of legislative power to the judiciary under the

United States Constitution and the Court's construction

constitutes a usurpation of legislative power.

POINT 3: Such Court erred in construing Section 346

of the federal food laws as applicable herein, when such

statute so construed is unconstitutional as being a denial

of due process of law under the United States Constitution.

POINT 4: Such Court erred in holding that “any”

amount of Lindane on milled rice may render such rice

adulterated under either federal, state ar city food laws,

because such holding is a judicial act in conflict with

federal law in an area preempted by the federal govern-

ment and is therefore in violation of the Federal Con-

stitution,

POINT 5: The Court of Civil Appeals erred in hold—

ing that there was substantial evidence, supporting the

jury's finding that Lindane in “any” quagtity on rice may

render it injurious to health and therebv/adulterated under

Section 342 (a) (1), where there was evidence to sup-

port such holding.

POINT 6: Such Court erred in construing Section 342

(a) (1) as being violated by the presence of “any” amount

of Lindane to the rice, because such statute so construed

is unconstitutional as being an invalid delegation of legis-

lative power to the judiciary under the United States

Constitution and the Court’s construction constitutes a

usurpation. of legislative power.

POINT 7: Such Court erred in holding that there is

substantial evidence showing that Lindane in “any” quan-

tity on rice may render it injurious to health, because

such adjudication is an unconstitutional denial of due

process by such State tribunal in violation of the Four-

teenth Amendment of the United States Constitution.

POINT &: Such Court erred in construing the state

statute and city health ordinance as rendering the rice

adulterated by the presence of “any” quantity of Lindane,

because such statute and ordinance so construed are un-

constitutional as being in conflict with the Federal Food,

Drug and Cosmetic Act and regulations promulgated

thereunder, in violation of the United States Constitution.

POINT 9:<Such Court erred in construing the state

statute and city ordinance as rendering the rice adulterated

by the presence of “any” quantity of Lindane thereon,

because such statute and ordinance so construed are un-

constitutional in that they deny due process of law in

violation of the United States Constitution.

POINT 10: Such Court erred in construing the state

statute and city ordinance as rendering the rice adulterated

hy the presence of “any” quantity of Lindane thereon.

because such statute and ordinance so construed are un-

constitutional in that they deny Equal Protection of law

in violation of the United States Constitution.

Ill. Federal Question Was Raised Timely Below in

Appellate Court:

Petitioner relies upon the exception to the general rule

that the Federal question ‘must be raised in the trial court

to be timely, in that the federal questions raised in this

case were presented for the first time by the rulings. of

the Texas C&yrt of Civil Appeals, as stated in Herndon 1.

Georgia, $5 S. Ct. 794, 295 U.S. 441, 79 L.Ed 1530, re-

hearing denied 56 S. Ct. 82, 296 U.S. 661, 80 L. Ed. 471,

by Mr. Justice Sutherland:

“Petitioner, however, contends that the present ‘case

falls within an exceptian to the rule—namely, that the

question respecting the validity of the statute as ap-

plied by the lower court first arose from its unantici-

pated act in giving to the statute a new construction

which threatened rights under the Constitution. There

is no doubt that the federal claim was timely if the

ruling. of the state court could not have been antici-

pated and a petition for rehearing presented the first

opportunity for raising it.”

Mr. Justice Cardozo carefully analyzed this exception to

the general rule in his dissent in the Herndon Case, and

phrased the rule in this language: :

“The settled doctrine is that when a constitutional

dvr or immunity has been denied for the first

time by a ruling made upon appeal, a litigant thus

surprised may challenge the unexpected ruling by a

motion for rehearing, and the challenge will be

timely”. (Emphasis added)

While the Herndon decision held that the federal ques-

tion was not raised timely under the facts therein, that

decision was based upon the undisputed circumstance that

the Georgia statute therein questioned had previously been

construed, shortly before petitioners opportunity for chai-

lenging it in the trial court, by the Supreme Court of the

State of Georgia in another lawsuit. But the majority opin-

ion by Mr. Justice Sutherland noted the fact that in the

appeal to the State Supreme Court in the other lawsuit

“the court in substance construed the statute as it did

in the present cae’, and therefore the petitioner in the

Herndon case sliutild have anticipated what the state ap-

pellate urt wou do in his suit.

In the case at bat, the facts were exactly the opposite.

After.the first trial of this case, the judgment for respond-

ent was reversed upon this first appeal herein, and this

reversal by the other Texas Court of Civil “Appeals, sitting

ag] aco. Texas, was based upon à construction of these

fegleral statutes herein involved contrary to the construc-

tion placed upon them by the Houston’ Court of Civil

Appeals in the second appeal. While there were differences

in the evidence in the second trial, the statutes and alleged

violations were the same; as the Houston Court said at

the outset of its opinion at page 161 in 362 S.W. 2d, the

respondent’s pleadings “were identical on both trials”.

Thus this Petitioner was faced with the Same claims as to

which statutes had been violated, and · the manner in which

they had been violated. The Waco Qourt’s opinion (Ap-

pendix B) was quoted by the Houston Court’s opini

as having been based upon the same essential fact wit

respect to whether the Lindane could have rendered the

rice injurious to health, namely the fact that such rice \

had contained quantities of Lindane ranging “from sone

up to 3.6 parts per million parts of rice”, and the Waco

Court held that such amounts are not injurious to health,

in any manner

—

The extraordinary nature of the litigation at bar is such

that there was never any legal ruling or order issued by

any government official to which this Petitioner could

possibly have objected, until such rulings and orders were

made in the opinion of the Houston Court of Civil Ap-

peals. The original administrative rulings made by the food

inspectors in 1955 were not evenadirected to this Peti-

tioner. The charges leveled against petitioner by the re-

spondent in its lawsuit were only the widely assorted allega-

tions of various breaches of civil duties that are customary

in “shotgun pleadings” designed to cover every possible

cause of action that respondent might be able to prove

by the evidence. Petitioner complied with Rule 94, Texas

Rules of Civil Procedure, in specially pleading every af-

firmative defense required under such Rule. Petitioner

was not required to anticipate the construction to be

placed by the Court upon each one ot the statutes alleged

in respondent's pleading, and to plead that it would be

‘unconstitutional if so construed. The basic federal statute

mvolved, Section 342 of the Federal Food, Drug and

Cosmetic Act, had been held constitutional as written,

and Petitioner herein only claims now that it is uncon-

stitutional as construed by the Houston Court of Civil

Appeals. Petitioner “was not bound to contemplate a

decision of the case” before the verdict was reached, nor

to anticipate how the Courts would construe the statutes

alleged. Saunders v. Shaw, 244 U.S. 317, 320, 61 L. Ed.

1163, 1165. 37 S. Ct. 638.

Petitiorier could not even anticipate whether the Court

would construe many of the statutes alleged in respond-

ent's pleading. For example, two statutes were alleged

inconsistently as having been violated; a finding of a viola-

tion of Section 346a, 21 U.S. C. A., would have to be

based upon a finding that the milled rice was a “raw”

agricultural commodity. Respondent had alleged that the

rice was subject to such Section, and even, in the second

trial, offered an inspector’s testimony that milled rice was a

“raw” commodity (S.F. 298-299). At the same time, a

violation of Section 346 of that Act was also alleged, and

the respondent thus sought a ruling that the rice was a

“processed food” in spite of its own proof to the con-

trary. Petitioner could not reasonably be expected to spegu-

late as to every possible construction of every one of the

dozens of inconsistent statutes alleged in the hope of guess-

ing the one ultimately to be applied by the Courts.

\ ARGUMENT

I. Summary of Argument

Two fulings form the 4 for judgment “eos They

are combined in this single statement by t ouston

Court of Civil Appeals: \

“Since no tolerance for Lindane on milled rice as

applicable to the facts of this case had been estab-

lished by the Secretary * * *, the addition of any

amount of Lindane to such milled rice was in viola-

tion of §342(a) (2) , and especially so if it

may have rendered the tice injurious to health.”

The first holding is based upon the absence of a toler-

ance under Section 346 (although possibly the Court

referred also, in this particular passage, to Section 346a—

this will not seriously affect the ultimate isswes).

The second holding is based upon the possibility of injury

to health, and applies equally to the state and city laws as

well as federal statutes. This ruling is the particular basis

i8 *

for the repeated conclusions by the Texas Court that the

rice was adulterated and subject to condemnation under

state and city, well as federal, food statutes. To this

second holding we answer: Federal regulations sanction

the presence of up to 10 parts per million of Lindane on

many foods, including rice after it has been processed and

“when ready to eat,” and this sanction precludes any state

or city agency, whether legislative, judicial of administra-

tive, from establishing or enforcing a more strict regula-

tion of either pesticides or foods.

II. The application of the state and city laws, as

construed by the Court below, prohibiting the pres-

ence of “any” amount of Lindane in processed food,

violates the Due Process and Equal Protection Clauses

of the 14th Amendment and the Supremacy Clause

of the federal Constitution.

If the food and pesticide industries follow federal sanc-

tions, the entire public of the United States may ingest

Lindane directly with its everyday food in ready-to-eat

form with at least 42 daily foods such as common fruits

and lettuce. See C.C.H. Food, Drug, Cosmetic Reporter,

Vol. 1, pages 1781-1830, and the 42 tolerances listed in

Federal Register for March 11, 1955.

Lindane is one of the common-place economic poisons,

the Gamma Isomer of Benzene Hexachloride, which means

it is the pure B.H.C. and is given a tolerance of 10

P. P. m. in all instances where commercial B.H.C.” is given

a tolerance of § p. pm. (21 CF. R. 120.101¢b) and (c)

(2) ). Lindane has a tolerance of 10 p.p.m. on “Grain

(from treating storage bins)” under Section 341, Title 21

C.F.R. (1958). This was established on October 31, 1955,

)

and meant that xamilled rice was allowed to have that

tolerance, since it is a grain. —

It is true that all of these tolerances were promulgated

under the raw agricultural commodity” provisions, §346a,

and that such section does not apply to milled rice in the

sense that prosecutions can be brought under such section.

But the logic or rationale of the Court of Civil Appeals’

ruling that 346a is not applicable in that respect, and that

for this reason “no tolerance had been established” for

milled rice under such section, supplies no reason for ignor-

ing the fact that such section provides sanction for the

reality that Lindane may be eaten with food every day.

The regulation explaining the practical application of

§346a states this in express terms:

“Where raw agricultural commodities bearing resi-

dues * which are within a tolerance permitted

under §408 (meaning 346a of 21 U.S.C.) are used,

the processed foods will not be considered unsafe within

the meaning of 406 (meaning 342 (a) (2) if * * *

the poisonous or deleterious pesticide residues have

been removed to the extent possible in good manu-

facturing practice and (2) the concentration of the

pesticide in the preserved or processed food when

ready to eat is not greater than the tolerance permitted

on the raw agricultural commodity.” (21 C. F. R. 120.1

(f) (Emphasis added)

Thus, any unmilled rice containing Lindane will be

deemed safe if it contains 10 p.p.m. after milling. The

federal administrative agencies actually recommended . the

use of Lindane in taw food in these amounts. The reason

for the use of pesticides is to rid food of filth and infesta-

tion and the massive effort of the Federal Food and Drug

Administration includes affirmative steps in providing this

sanitation. The only scientific means of ensuring such sani-

tation in food is to encourage the use of these poisons.

Thus, so long as Lindane is used in such amounts that leave

only permissible residues in the processed food, it is used

not only by sanction but in furtherance of the public

policy which is evidenced by this administrative effort.

Apparently the Court of Civil Appeals did not reject

these factual aspects of the “raw” commodity amendment

merely because the tolerance for grain had not been estab-

lished prior to the date of the threatened prosecution

(which, in effect, constituted the damage complained of

by Respondent). The Court noted that such amendment,

§346a, was in full force and effect in August, 1955”.

Further, the Court actually did apply that section to this

case when it held that “Since plaintiff’s grain had been

milled and was not a raw agricultural commodity, no

tolerance had been established for it”. The time of the

establishing of such individual tolerance could have no

bearing upon whether the ingestion of “any” amount of

Lindane was in fact harmful. In any event, the tolerance

(21 C.F.R. 3.41) that was established for Lindane on

“grain” (which includes unmilled rice) was effective on

October 31, 1955, when Respondent was just getting

started in remilling its grain (S.F. 118). So it is indis-

putable as a matter of law that the very rice the Respond-

ent was remilling on October 31 (see S.F. 118, 84-117)

could have contained 10 p.p.m. of Lindane “when ready

to eat” and it would have been considered “safe” by the

Federal Food and Drug Administration.

The Court below made no mention of section 120.1 (f)

which permits Lindane to be present in milled rice “when

ready to eat”. But this regulation constitutes a part of the

statutory law of the United States which cannot be ignored;

it must be judicially noticed and respected. Since the federal

government has pre-empted the field of government reg-

ulation of food sanitation, at least in that portion of such

field wherein fixed tolerances are the method of regulation,

its regulations are the supreme law of the land. This judg-

ment of the Court of Civil Appeals and the statutes en-

forced by it are in direct and positive conflict with such

regulations and are therefore unconstitutional. Oregon-

Washington R. & N. Co. v. Washington, 270 U.S. 87, 70

L. Ed. 482, 46 S. Ct. 279; Cloverleaf Butter Co. v. Patter-

son, 315 U.S. 148, 86 L.Ed. 754, 62 S. Ct. 491.

Finally, the local laws as so construed by the Court be-

low violates the due process clause of the federal constitu-

tion because they unreasonably and arbitrarily discriminate

against manufacturers and users of Benzene Hexachloride

in particular, and pesticides in general, by prohibiting their

use without any classification or distinction upon bases of

degrees having any rational basis. The effect of such con-

struction is that the jury has been allowed to find a “fact”

which is contrary to laws of nature, to public policy and

to the federal law, and to all concepts of what is sub-

stantial evidence” under the federal law.

III. These Federal Questions Are Substantial.

The presumption that public officials will properly and

faithfully perform their legal duties is an elementary iegal

presumption of compelling seriousness in this case. The

Texas court has, by its use of absolute terms, declared a

broad prohibition against the presence of an) Lindane in

processed food. Lindane is absolutely contraband in food

processing. It must be presumed that all food inspectors

will enforce the loca! and federal laws in Texas in accord-

ance with this construction pronounced by this Texas

Court. Accordingly, it is now the duty of every attorney in

Texas, whose clients possess processed food ‘containing a

residual of Lindane, to advise them that they are guilty of

violating these food laws and that they must clean or destroy

such food—notwithstanding the fact that such food dealers

may have used such pesticide in reliance upon Sections

120.101(c) (2) and 120.1(f) of the federal regulations.

The area of law governing chemicals in food is in need

of clarification, and this case provides the appropriate

occasion for meeting this need which it demonstrates. The

questions here presented therefore require plenary con-

sideration.

Petitioner requests that this statement, if not properly

before this Court on appeal, be considered as an applica-

tion for certiorari, and be considered in conjunction with

related questions presented in the Application for Writ of

Certiorari heretofore filed, drawing into issue the consti-

tutionality of sections of the Federal Food, Drug and Cos-

metic Act.

Tur Kempers

Joun D. Ric HARDSON

319 Shell Building

Houston 2, Texas

Telephone: CApitol 8-5213

Attorneys for Orkin Exterminating

Company, Inc., Appellant

John D. Richardson

Proof of Service

I. John D. Richardson, one of the attorneys for Orkin

Exterminating Company, Inc., Appellant. herein, and a

member of the Bar of the Supreme Court of the United

States, hereby certify that on the __ day ot Auguste,

1963, I served copies of the foregoing jurisdictional state-

ment upon the following:

1. On Gulf Coast Rice Mills, Appellee, by depositing

same in a United States mail box with first class postage

prepaid, addressed to Carnes & Martin, counsel of record

for such Appellee, at their last known post office address

at Bank of the Southwest Building, Houston, Texas.

2. Upon the Solicitor General, Department of Justice,

Washington, D.C., by depositing same in a United States

majl box with air mail postage prepaid, addressed to him

at his post office address at Department of Justice,

Washington 25, D.C.

John B. Richardson

APPENDIX “A”

ORKIN EXTERMINATING COMPANY, INC.,

Appellee, ;

GULF COAST RICE MILLS, Appellee.

NO. 13998

Appeal from District Court of Harris County

This suit was brought by plaintiff, Gulf. Coast Rice

Mills, against Orkin Exterminating Company to recover

damages allegedly growing out of breach of contract and

negligence of the defendant. Both plaintiff and defendant

have perfected appeals to this Court from the judgment

rendered by the trial court on the second trial of the case.

From the judgment of the District Court rendered on the

first trial an appeal was taken by the defendant and the

judgment was reversed and the cause remanded by che

Waco Court of Civil Appeals. Orkin Exterminating Com-

pany, Inc. v. Gulf Coast Rice Mills, 343 S. W“. 2d 768,

dism. w. o. j.

A summary of plaintiff’s pleadings, which were identical

on both trials, is given in the opinion of the Waco Court.

We quote from such summary as follows:

“Plaintiff alleged that it entered into a written con-

tract with Orkin in 1992 under the terms of which

Orkin was to exterminate and control insects, rodents,

and pests in plaintiff’s mill; that in August, 1955,

Orkin sprayed plaintiff’s mill with an insecticide or

pesticide known as Lindane; that Lindane is poisonous

and prohibited by law to be so used; that the appli-

cation of Lindane to the mill rendered the rice un-

usable; that the use of Lindane on the interior of the

mill was negligence; caused the rice to be unfit for

use and adulterated; caused the Federal authorities to

prohibit sale of the rice; caused the rice to be in-

jurious to health and unsafe within the meaning of

the Federal Food and Drug Act. 21 U.S.C.A. §301

et seq.; that the foregoing were proximate causes of

damages suffered by plaintiff which were alleged to

be some $96,000 (expense for remilling the rice and

loss of profits incurred while so remilling the rice.)”

The plaintiff also alleged violations of certain provi-

sions of the laws of the State of Texas and ordinances

of the City of Houston, and pled that Orkin had de-

faulted and breached its contract in some 17 particulars.

These breaches are summarized in the opinion of the Waco

Court of Civil Appeals. That Court on the record before

it held that the trial court erred in granting the partially

instructed verdict for the plaintiff, thereby withdrawing

from the jury any issues as to whether defendant breached

ite contract, or defaulted upon its express or implied

warranty, since there were numerous disputed fact issues

in the contract and breach of warranty phases of the con-

tract. With respect to the tort phase of the case, the Court

held that the record did not support any recovery.

On the second trial, the court overruled plaintiff’s and

defendant's moticrs for an instructed verdict, and sub-

mitted the case on seven special issues to which the jury

found in substance: (1) that the application of Lindane

in August, 1985, to the rice and premises of plaintiff was

a proximate cause of damages sustained by plaintiff; (2)

that such application to the rice may have rendered it in-

jurious to health; (3) that such application was a proxi-

mate cause of plaintiff's damages, and (4) was negligence;

(5) that such negligence was a proximate cause of plain-

tiff's damages; (6) that $27,790.07 was the sum of money

that would fairly and reasonably compensate plaintiff for

such damages as were caused by application of Lindane

to the rice and premises of plaintiff, taking into account

(a) cost of remilling the rice, (b) cost of cleaning plain-

tiff’s premises and (c) difference between reasonable mar-

ket value of rice before and after remilling, directly re-

sulting from the application of Lindane in August, 1955;

and ) that $15,000.00 would fairly and reasonably

compensate plaintiff for such damages as were directly and

proximately caused by loss of use of plaintiff’s mill rea-

sonably and necessarily consumed in remilling the milled

The trial court on hearing defendant’s motion for judg-

ment non obstante veredicto, reduced the jury’s finding of

$27,790.07 in answer to Special Issue (6) to $21,245.32

because plaintiff’s pleading limited such items of darnages

to that amount, and otherwise overruled such motion and

entered judgment for plaintiff in the total sum 3 $36,-

246.32, being the reduced amount of the verdict plus

$1.00 nominal damages for breach of contract insurance

provisions.

Orkin contends that the trial court erred in overruling

its motion for an instructed verdict and judgment non

obstante veredicto when there was no evidence to support

any cause of action or legal theory of recovery, and the

law of the case and the evidence showed that the record

did not support recovery on the tort phase of the case.

Orkin states that the statement of the nature of the case

on pages 768-772 of the opinion of the Waco Court is

correct and it adopt the same. It asserts that the plead-

ings and evidence were the same in both trials, except

for defendant's additional allegation as to the law of the

case made in its third amended original answer filed sub-

sequent to the opinion handed down by the Waco Court.

The Waco Court’s summary of the evidence adduced on

the first trial is as follows:

The record reflects that plaintiff Rice Mills entered

into a written contract with defendant Orkin Ex-

terminating Company in 1952, under which Orkin

was to exterminate insects and rodents in plaintiff's

mill; that the insect and rodent situation became so

bad that in August, 1955 Orkin sprayed with an

insecticide known as Lindane. Thereafter, the Federal

Food and Drug Administration and the State Health

Department and the City of Houston made some in-

vestigation of the use of Lindane at the Rice Mill.

All agencies finally in effect delegated to Inspector

Moses of the Federal Food and Drug Administration

the right to act for them. Inspector Moses told the

Rice Mill that the use of Lindane had violated the

law; that the Mill was in serious trouble; that the

Mill could ship no rice; that such rice was unfit

for human consumption; that the rice would be con-

demned; the buildings padlocked and the Mill and its

offices subject to prosecution both civilly and crimi-

nally. Inspector Moses’ (and the government's) posi-

tion was that no amount of Lindane was permitted

on rice; that no tolerance was established for it, and

for that reason the rice was contaminated, and would

have to be remilled. The plaintiff Rice Mill relied

on what Inspector Moses told it (speaking for the

Federal, State and City Health Departments), and

without contesting, disputing, or litigating, the va-

lidity or legality of the claims of Inspector Moses and/

or the 3 Health Departments, plaintiff proceeded to

remill the rice at an expense of some $46,245. and

during such period lost profits which the jury found

to be $40,000.

“As further pertinent, we note that the rece d

reflects that some 95°; of the plaintiff’s rice was in-

tended for export to a foreign country. The record

further reflects that a great many samplings of the

rice were tested for Lindane and that the result of

such samplings ran from none up to 3.6 parts of Lin-

dane per million parts of rice. It is furthegs reflected

that such amounts are not injurious to health, in any

manner.”

It is Orkin's contention that the facts in evidence per-

taining to the negligence phase of the case are substantially

the same as on the first trial, and that for such reason

the specific findings of law made by the Waco Court are

binding upon this Court as the law of the case. We think

it unnecessary to set out such. findings since they may be

found on pages 771-2 of the Court’s opinion. It is our

view that there are some substantial differences between

the evidence adduced at the first trial and at the second

trial. Several medical witnesses testified on the first trial

who did not testify on the second trial. The applicable

ordinances of the City of Houston were not introduced

on the first trial but were introduced on the second trial.

On the second trial, there is no evidence that the City

and State agencies delegated to Inspector Moses the right

to act for them, although they may have agreed that

Federal, State and City food laws had been violated. Other

differences will appear in the course of this opinion

Pla ntiff asserts that the answers of the jury to the

specia issues submitted constitute findings against Orkin

on beth the contract and tort phases df the case. Plain-

tiff requested certain tore specific issues with respect to

breaches of contract by Orkin, which were refused by the

trial court. Any error of the trial court in refusing such

issues has not been preserved by plaintiff and cannot be

considtred by this Court. The special issues submicted

are limited to the use and application of Lindane and do

not encompass any damages resulting from infestation of

the rice by insects or rodents.

The contract dees not make specific mention of Lin-

dane. It specifies the scépe of work and controlled service

to be rendered by Orkin, and with respect to material

to be used provides: “The materials used shall conform

to Federal, State and local ordinances and laws and shall

be acceptable to the rice milling industry.” Plaintiff argues

that Orkin in using Lindane violated the provisions of the

contract and breached its implied* warranty to use proper

materials, and was guilty of violations of the Federal Food.

Drug & Cosmetic Act, in that (1) it violated 21 U.S. C.,

Sec. 342(a) (2) since no amount of Lindane whatever was

permitted on milled rice; and (2) it violated 21 U.S. C., Sec.

342(a)(1) in that it contained a poisonous and deleterious

substance “which may render” the rice injurious to health.

Plaintiff further contends that the undisputed evidence

alsa, shows violations of the Pure Food laws of the State

of Texas and violations of the City of Houston ordinances.

Our inquiry is limited to alleged violations of the con-

tract in the use and application of Lindane and to deter-

mining whether there is any evidence supporting the find-

ings of the jury with respect thereto on either or both

the contract and tort phases of the case. We are unable

to say as a matter of law that Orkin breached its con-

tract and implied warranty with respect to the infestation

ot the rice. In this respect we are in accord with the law

of the case as determined by the Waco Court. But even

if we were to hold that there were such breaches as

a matter of law, we would still be unable to determine

how much damage resulted therefrom in the absence

of a jury finding, and no issues were submitted with

respect to such damage, although there was some evidence

that the rice would probably have been remilled because

of the infestation regardless of the use of Lindane.

Plaintift pleaded that the spraying of an insecticide or

pesticide on plaintiff's rice, rendering it unfit for sale,

was a violation of Sections 861-880 of the Houston City

Ordinances of 1942. Section 868 of such Ordinances pro-

vides that for the purpose of Article IV, entitled “Pure

Food & Drugs,” an article shall be deemed adulterated

other added deleterious ingredient which may render such

article injurious to health . . .” Section 866 provides: No

person shall, within the City, manufacture for sale have

in his possession with intent to sell or exchange, any article

of food or drugs which is adulterated or misbranded with-

in the meaning of this article.” Section 873 provides for

prosecution and punishment for violations of the fore-

going sections.

The record in this case reflects that Lindane is a poison-

ous ur deleterious ingredient and that it was added to the

rice by Orkin in blowing Lindane dust all over the rice

in plaintiff’s mill. It was not necessary. to show that the

food containing an added poisonous or deleterious sub-

—

stance must affect the public health in order for it to be

condemned. All that need be established is that the added

poisonous or deleterious substance must be such as may

render such article injurious to health. United States v.

Lexington Mill & Elevator Co,, 232 U.S. 399, 34 S. Ct.

337, 58 L. Ed. 658. There is substantial evidence showing

that Lindane in any quantity on rice may tender such

article injurious to health. The jury's finding to Special

Issue- No. 2 finds support in the evidence. There is no

assignment that any of the jury’s findings are against the

weight and preponderance of the evidence,.and if there

were such assignment, we could not consider it since de-

fendant appeals from the court's refusal to grant an in-

structed verdict and judgment non obstante veredicto.

Plaintiff also pleaded that by spraying such rice and

adulterating it and rendering it unfit for sale, Orkin vio-

lated Articles 4471 and 4472 of the Texas Revised Civil

Statutes, and Articles 706, 707 and 717 of the Texas

Penal Code. These provisions are substantially the same

as those provided in the City of Houston ordinances. The

violation of such statutes would subject plaintiff to crimi-

nal prosecution by the State, and to confiscation of the

rice. |

There is evidence in the record before us that Orkin

applied Lindane to plaintiff’s stores of rice, including both

milled and unmilled rice. No claim for damages has been

made by plaintiff for the unmilled rice, since it would

necessarily have to be milled and milling would remove

the Lindane. ö ——

The Waco Court on the ä before it found in effect

that there had been no violation of the Federal statutes

relied upon by plaintiff. We think the record on this

appeal shows certain violations. Sec. 342 provides: “A food

shall be deemed to be adulterated—(a)(1) If it bears or

contains any poisonous or deleterious substance whic.

may render it injurious to health...; or (2) (A) if it

bears or contains any added poisonous or added deleterious

substance . . Which is unsafe within the meaning of

‘section 36442 The exceptions in Section 342(2) (A)

do not apply to milled rice and are inapplicable to the

facts of this case. Section 346 with respect to tolerances

for poisonous ingredients provides: “Any poisonous or

deleterious substance added to any food, except where such

substance is required in the production thereof or can-

not be avoided by good manufacturing practice shall be

deemed to be unsafe for the purposes’ of the application

of clause (2) (A) of section 342 (a) of this title.“ The

evidence and the record before us show that Lindane was

not required in the production of rice and that its use

could have been avoided. Indeed, Lindane had been used

only once in connection with -plaintiff’s mill from 1940

to 1955, and then it was used without the knowledge

of the plaintiff or the health authorities. From the time

of the application in August, 1955 Lindane has not been

used down to the date of the second trial in 1961. More-

over, no allowance or tolerance was established for the

use of Lindane on milled rice.

Plaintiff asserts that on the second trial the evidence

shows that Lindane was on all the samples of rice that

were taken and analyzed, except one sample that had been

remilled. Even if plaintiff is mistaken in such assertion,

there is nevertheless evidence showing that a number of

samples were taken and that the results of many samplings

showed from 0.2 to 3.6 parts per million of Lindane, and

that the addition of such parts of Lindane to milled rice

may render it injurious to health. Manifestly it would be

impossible to segregate from the stores of contaminated

milled rice in question some unknown quantity of rice

that might not have had Lindane on it in such quantities.

Since no tolerance for Lindane on milled rice as appli-

cable to the facts of this case had been established by the

Secretary of Health, Education & Welfare, the addition

of any amount of Lindane to such milled rice was in

violation of Section 342(a) (2) of the Federal Food, Drug

& Cosmetic Act, and especially so if it may have rendered

the rice injurious to health. The Act in question is quite

specific, as stated by the Supreme Court o. the United

States in th recent case of Flemming v. Florida Citrus

Exchange, 358 U.S. 153, 79 S. Ct. 160:

“Here again, in our construction of this explicit

Act, we must be sensitive to what Congress had

written, and recall that ‘It is for us to ascertain—

neither to add nor to subtract, neither to delete nor

to distort.” 62 Cases of Jam v. United States, 340

U.S. 593. 596, 71 S. Ct. 515, 518, 95 L. Ed. 566.”

Section 3.41, Title 21, 1955, Code of Federal Regula-

tions, provides: (a) The amendment in clause (2) of

section 402 (a) of the Federal Food, Drug, and Cosmetic

Act shall become effective on the dates specified’ for the

following pesticide chemicals: ... (2) Effective dite

October 31, 1955: . Lindane: . . . Grain (from treating

storage bins).”” On the second trial it was established that

plaintiff had never had any treating storage bins. The 1954

amendment to Section 342(a)(2) as provided in Section

§ of the Act of July 22, 1954 as applicable to e facts

of the case before us, became effective one vear following

the date of the enactment of the Act or on July 22, 1955,

and was in full force and effect in August, 1955, when

the Lindane was applied to plaintiff’s rice. Section 120.1

(e), Title 21, 1955, Code of Federal Regulations, entitled

“Definitions, Interpretations, and Exemptions,” provides

in substance that the terms “Raw agricultural commodi-

ties” does not include foods that have been processed, fab-

ricated. or manufactured by cooking, freezing, dehydrat-

ing, or milling. Since plaintiff’s grain had been milled and

was not a raw agricultural commodity, no tolerance had

been established for it. Therefore, the application of any

amount of Lindane was prohibited since it would add

to the milled rice a poisonous or deleterious substance

that may. be injurious to health as shown by the evidence

adduced on the second trial.

At the time of the occurrence in question, the Federal

Food, Drug, and Cosmetic Act, Section 381(d), 21

U.S. C. A., provided with respect to exports that a food

intended for export shall not be deemed to be adulterated

or misbranded if it accords to the specifications of the

foreign purchaser, is not in conflict with the laws of the

country to which it is intended for export, and is labeled

on the outside of the shipping package to show that it

is intended for export. “But if such article is sold or

offered for sale in domestic commerce, this subsection

shall not exempt if from any of the provi- ens of this

chapter.” While there is some evidence that as much as

95° of plaintiff's rice had been exported during some

prior years, the evidence does not show that the rice in

question was labeled for export or that it would necessarily

be exported. It was held subject to sale in domestic mar-

kets as well as foreign markets. Furthermore, the undis-

— —

puted testimony of plaintiff's general manager Smith,

who negotiated contracts with foreign buyers, we to the

effect that he could not have sold to any foreign pur-

chasers any nce containing Lindane.

Defendant contends, however, that plaintiff voluntarily

remilled its rice, and that it was not forced to do so by

the Federal, State or City authorities. We think this con-

tention is without merit. Under the evidence! adduced on

the second trial, it appeared that plaintiff was placed in such

position by Orkin that it could not keep the rice in its

possession, sell or exchange the same without being sub-

ject to criminal prosecution and punishment under Sec-

tion 873 of the Ordinance of the City of Houston, and

under Article 717, Texas Penal Code. Additionally, the rice

could be condemned, confiscated, forfeited and destroyed

under Article 4470, Texas Revised Civil Statutes. The

evidence shows that the State agency was prepared to take

action if plaintiff’s rice was sold or, offered for sale with

Lindane on it. Also, the shipment of such rice in interstate

commerce would have subjected plaintiff to penalties under

Sections 333 and 334 of the Federal Act. Having placed

the plaintiff in the situation where it could neither retain

nor sell the rice in question without violating the Pure

Food laws of the City, State and Federal governments,

and subjecting itself to prosecution .and penalties, the

defendant is not in a position to urge that plaintiff acted

voluntarily and not under coercion in remilling the rice

and thereby preventing such prosecution and penalties,

and at the same time mitigating the damages which might

have resulted from confiscation and destruction of the

rice by the State or other governmental authority.

The cases cited by defendant with respect to voluntary

payments are ‘imapplicable to the factual situation in the

present case. The retention or sale or offer to sell the rice

in question constituted a violation of law, making plain-

tiff’s action necessary to avoid prosecution, penalties and

seizure of che rice. Under these circumstances plaintiff's

act in remilling the rice was not voluntary but coerced

as a matter of hw. When one risks prosecution, penalties

and fofeiture of his property for noncompliance with

law, his act in complying cannot be said to be voluntary.

National Biscuit Co. v. State, 134 Tex. 293, 135 S. W. 2d

687; Crow v. City of Corpus Christi, Tex. Sup. 1948, 209

S.W. 2d 922; District of Columbia v. American Security

& Trust Co., D.C. Cir. Ct. App. 1953, 202 F. 2d 21;

St. John’s Electric Co. v. City of St. Augustine, Fla. S. Ct.

88 So. 387; 17-A Amer: Jur., Duress and Undue Influ-

ence, Secs. 7, 14, p. 875; 21 Tex. Jur. 2d, p. 116, Duress

& Coercion, §2.

Plaintiff on its appeal complains that the trial court erred

in excluding certain evidence relative to lost profits and in

denying its motion for lost profits before judgment. We

have been unable to find in the record any request by plain-

tiff for submission of any issue on lost profits as such. The

answer of the jury to Special Issue No. 7 awarding damages

in the sum of $15,000.00 for the loss of use of plaintiff’s

mill S onsumed in remilling the milled rice, necessarily in-

cludes lost profits. No judgment for lost profits in any

other amount could have been entered without plaintiff's

compliance with rule 301, Texas Rules of Civil Procedure.

There was no such compliance.

Piaintiff has cited a number of cases in support of the

rule that where a business is already established and making

a profit, it is permissible to show the amount of business

done in corresponding periods of time not too remote, and

the rule that uncertainty of proof as to the amount of lost

profits will not defeat recovery so long as there is no un-

certainty as to the fact of legal damages. These general

rules are, not questioned by defendant. In the instant case

plaintiff’s witness was asked to give*aral testimony from

some records as to the amounts of rice purchased by plain-

tiff in October, November and December of 1953, to which

question defendant objected because there had been no

showing of any comparison between conditions during such

period of time and the period of time in issue in this law

suit. The objection was sustained. Plaintiff’s witness was also

asked whether he had an opinion as to the amount of rice

he would have bought, to which question the defendant ob-

jected as not being based upon facts. No other evidence

along such line was offered, although in its bill of exception

in the jury’s absence such witness testified that he thought

‘tit would be reasonable to suppose” that they would have

bought at least 100,000 additional barrels and that he

thought “it is reasonable to suppose we would have made

at least 50 cents a barrel”. We cannot say that the court

improperly excluded such testimony, but if there was any

error in such connection, we think the exclusion was not

harmful in view of all the records and testimony relative

to earnings and profits of the business that were admitted

in evidence.

In its sixth Point, plaintiff asserts that the court erred in

denying interest before judgment upon its damages. Plain-

tiff sued not only for ‘ts damages but for interest thereon

as damages. It states in its brief that it continyed to sustain

damages until June 7, 1956. It is our view that the plain

tiff is entitled as a matter of law to 6% interest as damages

on the $36,246.32 from that date until date of judgment,

such interest amounting to $12,239.17. The Texas Co. v.

The State of Texas, 154 Tex. 494, 281 S. W. 2d 83; Watkins

v. Junker, 90 Tex. 584, 40 S. W. 11; Tortuguero Logging

Operation, Ltd. v. Houston, 349 S. W. 2d 315; Ewing v.

Wm. L. Foley, Inc., 116 Tex. 222, 280 S. W. 499, 44 A. L. R.

627.

We think there is no merit in plaintiff’s contention that

it was entitled to a directed verdict or its contention that

the court erred in granting a partial summary judgment

for defendant in connection with plaintiff’s claim for gross

negligence and exemplary damages. A careful review of

the record shows that there is no evidence that would war-

rant submission of an issue in connection with alleged gross

negligence on the part of the defendant.

The judgment of the Trial Court is reformed by adding

thereto interest to date of judgment in the sum of $12.-

239.17, and, as reformed is affirmed.

Ewing Werlsin,

Associate Justice.

Judgment rendered, and opinion filed November 8. 1962

APPENDIX B“

REVERSED AND REMANDED

9 FEBRUARY, 1961.

NO. 3798

IN THE

Court of Civil Appeals

FOR THE TENTH SUPREME JUDICIAL DISTRICT OF TEXAS,

AT WACO

ORKIN EXTERMINATING COMPANY INC.,

Appellant

GULF COAST RICE MILLS, Appellee

Appeal from District Court

Harris County

OPINION

Gulf Rice Mills filed this suit against Orkin Exterminat-

ing Company. Plaintiff alleged that it entered into a

written contract with Orkin in 1952 under the terms of

which Orkin was to exterminate and control insects,

rodents, and pests in plaintiff's mill; that in August, 1955,

Orkin sprayed plaintiff's mill with an insecticide or pesticide

known as Lindane; that Lindane is poisonous and pro-

hibited by law to be so used; that the application of Lin-

dane to the mill rendered the rice unusable; that the use

of Lindane on the interior of the mill was negligence;

caused the rice to be unfit for use and adulterated; caused

the Federal authorities to ubit sale of the rice; caused

the rice to be injurious tO health and unsafe within the

meaning of the Federal Food and Drug Act. 21 U.S. C.,

Sec. 301, et seq.; that the foregoing were proximate causes

of damages suffered by plaintiff which were alleged to

be some $96,000 (expense for remilling the rice and loss

of profits incurred while so remilling the rice).

Plaintiff further alleged that Orkin defaulted and

breached its contract in some 17 particulars, summarized:

1) in not controlling insects and mice; 2) in not ex-

terminating in a manner to minimize the possibility of U.S.

Food and Drug Administration citing plaintiff; 3) that

it did not conduct inspections as agreed; 4) that it did

not fumigate as needed; 5) that it used Lindane which

did not conform to Federal, State and local laws and ordi-

nances; 6) that it used Lindane which was not acceptable

to the rice milling industry because it would contaminate

the rice and the mill and subject the mill to civil and

criminal proceedings; 7) that it failed to furaich a cer-

tificate of insurance showing public liability in amount of

$250/560,000; and property damage insurance in amount

of $100/100,000.

By reason of the foregoing breaches of contract, plain-

tiff alleged its damages at $96,000.

- Plaintiff further alleged that Orkin defaulted on the

express warranty, and impliéd warranty of its contract,

in failing to provide effective insect and rodent control

in a safe manner, acceptable to the rice industry; for breach

of which plaintiff alleged its damages at $96,000.

Plaintiff prayed for interest from January, 1946; as

well as $200,000 exemplary damages for employing Lin-

dane, which plaintiff alleged Orkin knew was a harmful

poison, use of which was prohibited by Federal, State ind

local laws.

Defendant Orkin answered by general denial; contribu-

tory negligence; unavoidable accident; alleged that the in-

juries were caused solely by government agencies operat-

ing independently of defendant; alleged that plaintiff's

damages resulted from plaintiff’s voluntary shutting its mill

down and remilling the rice, without legal liability to do so;

that the government inspector of the Food and Drug Ad-

ministrator requested plaintiff to remill its rice, threatening

suit if it did not do so, alleging violation of the law in

use of Lindane; and that plaintiff voluntarily compromised

and settled the government’s threatened suit, without be-

ing legally bound to do so, and without seeking a judicial

determination of the government’s claims.

Trial was to a jury.

Defendant filed motion for instructed verdict contend-

ing, among other things, that no negligence was shown on

defendant's part; that there was no evidence to justify a

finding of facts supporting any legal theory of recovery

against defendants; and that plaintiff voluntarily remilled

its rice without seeleaing a judicial determination of its lia-

bility to do so. This motion was overruled by the Trial

Court.

Plaintiff made motion for instructed verdict, contending,

among other things: 1) that defendant breached its con-

tract with plaintiff in a number of partic lars, and that

the undisputed evidence establishes defendant’s liability

for plaintiff's damages which arose out of these breaches;

2) that the undisputed evidence shows defendant breached

its express and implied warranty in its written contract

in failing to provide effective insect and rodent control in

a safe manner; 3) and in failing to carry out the provi-

sions of its written contract, in using Lindane, which was

prohibited by law to be so used.

The Trial Court entered an order granting in part and

denying in part plaintiff's motion for instructed verdict.

In such order the Court ordered the submission to the jury

of issues inquiring whether Orkin’s actions regarding the

use of Lindane constituted negligence; whether such negli-

gence was a proximate cause of the dan.ages of plaintiff;

and what damages, if any, plaintiff suffered from loss of

profits. The Court found that plaintiff’s damages for re-

milling the rice were $46,245.32. (The Court further

ordered issues concerning the plaintiff’s right to recover in-

terest as damages and punitive damages).

The Trial Court then entered an order in Limine, in

which the court ordered defendant Orkin not to make

argument to the jury “upon the following matters which

have been found and concluded as mattets of law by the

court”; 1) counsel may not argue, comment or remark

in any way so as to question the legality, validity or pro-

priety of any acts or omissions of Walter R. Moses or ihe

Federal Food apd Drug Administration. 2) Counsel may

not argue, comment or remark in any way concerning the

necessity of the remilling of the rice by the plaintiff. 3)

Counsel may not argue, comment, or remark in any way

upon what the law is, or whether any violation of law oc-

cured on the part of any person. 4) Counsel may not argue,

comment, or remark on any issues contained in the breach

of contract case herein.

Defendant requested the submission of a number of

issues, among which were: 1) issues inquiring if plaintiff

acted as a volunteer without legal objection to do so, in

incurring the expense in remilling the rice; 2) and whether

or not the actions of Inspector Moses in requiring the

remilling of the rice was the sole proximate cause of plain-

tiff's injury.

The Trial Court refused all issues requested by defend-

ant and submitted issues to the jury which, in answer

thereto, found: |

1’ Application of Lindane by Orkin to plaintiff's rice

mill in August, 1955, was negligence.

2) Such was a proximate cause of plaintiff's damages.

3) Gulf Rice Mill lost profits as a result thereof in the

amount of $40,000. ;

4) Orkin’s application of Lindane to the rice mill was

gross negligence. 3

5) For which $10,000. exemplary damages should be

granted.

6) and 7) Gulf Rice Mills should recover interest from

June 7, 1956. \

Defendant movéd for judgment non obstante veredicto

and alleged, among other things: 1) the findings of the

jury cannot afford a valid basis for judgment for the plain-

tiff; 2) the undisputed evidence and the law conclusively

show that no legal liability did exist as asserted by the

Federal Agency; further that plaintiff incurred its damages

by voluntarily compromising the litigation threatened by

the Federal Agency, when no legal validity existed as to

such threats; and plead for disregard of the findings on

«xemplary damages.

The Trial Court overruled such motion, except as to

the findings on gross negligence and exemplary damages.

The Trial Court then entered judgment:

and the Court having found breaches of their contract

by the defendant, which breaches were proximate

causes of the damages sustained by plaintiff; and the

Court having found that defendant defaulted upon its

express warranty proximately causing plaintiff's dam-

Ages; and the Court further finding that * * its

implied warranty was breached, proximately causing

damages to the plaintiff; and the Court further find-

ing and being of the opinion that notwithstanding the

aforesaid breaches of contract and warranty, the ac-

tual damages of $86,245.32 were proximately caused

by negligent acts of the defendant as shown by the

jury’s answers to the special issues.”

“It is therefore ordered * * that (plaintiff) re-

cover from the defendant * * * $105,219.29, being

composed of actual damages in the amount of $86,-

245.32 plus interest from 7 June, 1956 at 6% in the

sum of $18,973.97 * * *.”

Defendant’s motion for new trial was overruled by the

Trial Court.

Defendant appeals on 42 points, including among which

are: 1) the evidence is insufficient to justify any finding

of facts supporting any legal theory of recovery; 2) the

Trial Court erred in granting the partially instructed ver-

dict for plaintiff, thereby withdrawing from the jury any

issue as to whether defendant breached its contract, and/or

defaulted upon its express or implied warranty.

The record reflects that plaintiff Rice Mills eniered into

a written contract with defendant Orkin Exterminating

Company in 1952, under which Orkin was to exterminate

insects and rodents in plaintiff’s mill that the insect and rodent

situation became so bad that in August, 1955 Orkin sprayed

with an insecticide known as Lindane. Thereafter, the Fed

eral Food and Drug Administration and the State Health

Department and the City of Houston made some investi-

gation of the use of Lindane at the Rice Mill. All agencies

finally in effect delegated to Inspector Moses of the Federal

Food and Drug Administration the right to act for them.

Inspector Moses told the Rice Mill that the use. of Lindane

had violated the law; that the Mill was in serious trouble;

that the Mill could ship no rice; that such rice was unfit

for human consumption; that the rice would be con-

demned; the buildings padlocked and the Mill and its

offices subfect to prosecution both civilly and criminally.

Inspector Moses’ (and the government's) position was. that

no amount of Lindane was permitted on rice; that no

tolerance was established for it, and for that reason the

rice was contaminated, and would have to be remilled.

The planitiff Rice Mill relied on what Inspector Moses

told it (speaking for the Federal, State and City Health

Departments), and without contesting, disputing, or liti-

gating, the validity or legality of the claims of Inspector

Moses and/or the 3 Health Departments, plaintiff pro-

ceeded to remill the rice at an expense of some $46,245. and

during such period lost profits which the jury found to

be $40,000.

As further pertinent, we note that the record reflects

that some 95° of the plaintiff’s rice was intended fot

export to a foreign country. The record further teflects

that a great many samplings of the rice were tested for

Lindane and that the results of such sampling ran from

none up to 3.6 parts of Lindane per million parts of rice.

It is further reflected that such amounts are not injurious

to health, in any manner. .

The Trial Court granted instructed verdict for plain-

tiff on the contract and breach of express and implied

warranty phases of this case. Our examination of the

record leads us to the conclusion that there were numerous

disputed factual issues in the contract and breach of war-

ranty phases of the case, and that the Trial Court erred

in granting an instructed verdict in these respects.

This brings us to a consideration of the tort phase of

the case. The Trial Court’s submission of issues to the jury

is predicated upon the Trial Court's finding that the law

had been violated when Lindane was sprayed by Orkii.

in plaintiff’s rice mill. The fact that Inspector Moses certi-

fied that the law was violated did not foreclose such mat-

ter. (While plaintiff contended that the Federal, State and

City of Houston laws had been violated both as to con-

tamination by Lindane and. contamination by filth, etc.,

the case was actually developed and tried on the theory

that the use of the Lindane violated the Federal law; and

as noted, the State and City of Houston Health Depart-

ments, left the matter for both of their agencies, up to

Inspector Moses of the Federal Agency. In any event,

the proof of violation of the State and local laws. both

as to use of Lindane and filth, ‘s inadequate, The City

of Houston Ordinances were not introduced in evidence).

This brings us to the question of whether the Federal law

was in fact violated—as contended so earnestly by In-

spector Moses on the trial, and by plaintiff's brief in the

instant appeal. The Federal Statutes principally involved

(are Sec. 342; 346 (a); 321; 381 USC. A (See also. 1954

jn S. Code, Congressional and Administrative News: and

1955 Code of Federal Regulations). Sec. (12) 3.41 Title

21. 1955 Code of Federal Regulations provides that such

acts shall not become effective for Lindane on grain until

October 31, 1955. (Application of the Lindane to the rice

was in August, 1955). Moreover, (See Section 1 (321

Title 21 U.S.C.) 1954 U. S. Code Cong. & Adm. News,

p. 2631), it appears that the statute does not attempt

to regulate residue from pesticide chemicals which remain

in or on processed commodities; and that food processed

by operations such as milling are not subject thereto.

Finally, 99% of plaintiff's rice was intended for export,

and under Section 381(3) is not deemed adulterated under

the instant chapter U.S.C.

From the record before us, we cannot say that the use

of Lindane, in the quantities used, and under the factual

situation here involved, was violative of the Federal law.

Moreover, as noted, the record fails to reflect the pres-

ence of Lindane in the plaintiff’s rice in any quantity in-

jurious to health.

From what has been said, it is our view that plaintiff

has not shown a violation of Federal, State, or local law,

and that the record does not support recovery on the tort

phase of the case. See also: Florida Citrus Exchange v.

Folsom, Sth Circuit, 246 F. 2d 850; U. S. v. Lexington

Mill & Elevator Co., 232 U.S. 399; Wood Mfg. Co. v.

U. S., 286 Fed. 84.

Defendant’s contentions set up in this opinion, supra,

are sustained, and the cause is REVERSED and RE-

MANDED.

FRANK G. McDONALD

Chief Justice

1) Code of Federal Regulations, Chap. 21, Sec. 120.1

Definitions & Interpretations (12) Section 3.41 “Pesticide

Chemicals: extended dates on which statute shall become

fully effective.

(a) * * * shall become effective on the dates specified

for the following pesticide chemicals * * *.

(2) Effective date October 31, 1955, * * * Lindane

* * * Grain (from treating storage bins)”

2) 1954 Code U.S. Code Congressional & Adm. News, p.

2631 “This bill does not attempt to regulate the residue

from pesticide chemicals which may remain on processed,

fabricated, or manufactured food other than by limiting the

permissible residues on raw agricultural commodities. Food

processed by operations such as cooking, freezing, dehy-

dration or milling would remain subject to Section 406

rather than being regulated by this bill.” (Sec. 406 con-

tains a general declaration that any poisonous or deleteri-

ous substance added to food is unsafe except where the

substance is required in the production thereof and can-

not be avoided by good manufacturing practice.” How-

ever, in any case where such a substance is so required

or cannot be so avoided (and this is so in case of che use

of pesticide chemicals in the production of most raw

agricultural commodities) Sec. 406 directs the Secretary

of Health, Education, and Welfare to promulgate regula-

tions limiting the quantity on the food to such extent

as such secretary finds to be necessary for protection

of public health.“ p. 2632, 1954 U. S. Code Cong. &

Adm. News. 8

3) Title 21 U.S. C. A., Sec. 381 (d). A food, drug, device

or cosmetic intended for export shall not be deemed to

be adulterated or misbranded under this chapter * * *,°

(U.S. C. A. 1961 pocket part, p. 357).

APPENDIX C“

STATUTES, REGULATIONS AND ORDINANCES

1. Federal Food, Drug and Cosmetic Act, Title 21,

U.S. C. A.:

Section 342: A food shall be “deemed to be adulterated

„(a) if it bears or contains any poisonous or deleterious

substance which may render it injurious to health; * or

(2) (A) if it bears or contains any added poisonous or ad-

ded deleterious substance * * * which is unsafe within the

meaning of Section 346 of this title, or (B) if it is a raw

agricultural commodity and it bears or contains a pesticide

chemical which is unsafe within the meaning of Section

346a(A) of this title * * *.”

Section 346: “Any poisonous or deleterious substance

added to any food, except where such substance is required

in the production thereof or cannot be avoided by good

manufacturing practice shall be deemed to be unsafe for

purposes of the application of clause (2) (A) of section

342(a) of this title; but when such substance is so required

or cannot be so avoided, the Secretary shall promulgate reg-

ulations limiting the quantity therein or thereon to such ex-

tent as he finds necessary for the protection of public health,

and any quantity exceeding the limits so fixed shall also be

deemed to be unsafe for purposes of the application of

clause (2) (A) of section 342(a) of this title. While such

a regulation is in effect limiting the quantity of any such

substance in the case of any food, such food shall not, by

reason or bearing or containing any added amount of such

substance, be considered to be adulterated within the mean-

ing of clause (1) of section 342 (a) of this title. In determ-

ining the quantity of such added substance to be tolerated

in or on different articles of food the Secretary shall take

into account the extent to which the use of such substance

is required or cannot be avoided in the production of each

such article, and the other ways in which the consumer may

be affected by the same or other poisonous or deleterious

substances.”

Section 346 (4): (a) Any poisonous or deleterious pesti-

cide chemical, or any pesticide chemical which is not gen-

erally recognized, among experts qualified by scientific

training and experience to evaluate the safety of pesticide

chemicals, as safe for use, added to a raw agricultural com-

modity, shall be deemed unsafe for the purposes of the

application of clause (2) of section 342(a) of this title

unless—

(i) a tolerance for such pesticide chemical in or on the

raw agricultural commodity has been prescribed by the

Secretary of Health, Education, and Welfare under this

section and the quantity of such pesticide chemical in or

on the raw agricultural commodity is within the limits of

the tolerance so prescribed; * * *.”

2. Penal Code of the State of exas, Chapter 2, Title 12

(Vernon’s Annotated Statutes, 2 Penal Code 37-38):

Article 707. For the purposes of this chapter an article

shall be deemed to be adulterated: * * * (c) In the case

of food * (5) if it contains an added poisonous

or other added deleterious ingredient which may render

such article injurious to health, * * *.”

3. Civil Statutes of the State of Texas (12A. Vernon’s

Annotated Civil Statutes 325) :

Article 4472. “The terms ‘adulterated’ and ‘misbranded’,

as used in this chapter, shall be held to have the same

meaning as is given those terms in chapter two of title

12 of the Penal Code.” —

4. Ordinances of City of Houston (City Code of Houston,

Texas, 1942, page 454):

Section 868. “For the purposes of this article, an article

shall be deemed adulterated: * * () ho * * *

(5) If it contains any added poisonous or other added

deleterious ingredient which may render such article

injurious to health; * * *.”

APPENDIX “D”

NO. 488,534

IN THE

DISTRICT COURT OF HARRIS COUNTY, TEXAS

127TH JUDICIAL DISTRICT

GULF COAST RICE MILLS

ORKIN EXTERMINATING COMPANY, INC.

JUDGMENT

On December 4, 1961, the above entitled and numbered

cause came on to be heard. There appeared Gulf Coast

Rice Mills, a partnership composed of R. L. Williams and

J. M. Chumney, as plaintiff in person and by their attorneys

of record; and came Orkin Exterminating Company, Inc.,

as defendant, in person and by its attorneys of record. All

parties announced ready for trial, A jury of 12 good and

lawful men and women having been duly impaneled and

sworn and having heard the pleadings, the introduction of

testimony began.

Having heard the evidence and the argument of counsel,

the jury upon their oaths did, for their verdict, in response

to the following special issue submitted to them by the

Court on December 11, 1961, make the following respec-

tive findings:

The Court submits this case to you on special issues and

your answers to these issues, which you will make on a

separate sheet of paper, will be your verdict. You will

— 54

answer such issues without reference to the effect your

answers may have upon the judgment to be rendered in

this case. If your deliberations you must not discuss any

fact or matter which is not based upon the evidence

d mi te before you under the rulings of the Court.

Let hour verdict be signed by your Foreman. whom

you will select from your number.

Your verdict must be my uganimous vote.

By the term “negligence”, as used in this charge, is

meant a, failure to which a person of ordinary

prudence in the exercise of )drdinary care would do under

the same or similar circumstances, or the doing of that

which a person of ordinary prudence in the exercise of

ordinary care would not do dhder the same or similar

_ circumstances.

hy the term “proximate cause,” as used in is charge.

meant à cause which in a natural and continuous

“sequence, unbroken by any new and independent cause,

produces an event, and without which the event would

not have occurred, and to be a proximate cause of an

event, it should have been reasonably anticipated and fore-

seen by a person of ordinary care and pru ence in the

exercise of ordinary care that the event or some similar

event would occur as a natural and probable consequence.

There may be more than one proximate cause.

By the term new and independent cause”, as that term

is ured in the foregoing definition of “proximate cause”,

meant the act or omission of a separate and independent

agency, which destroys the causal connection between

the negligent act. if any, or omission, if any, and the in-

jury complained of, and thereby becomes, in itself. the

immediate cause of ch injury.

By the term “preponderance of the evidence” is meant

the greater weight and degree of credible evidence ad-

mitted for your consideration.

‘SPECIAL ISSUE NO. |

Do you find from a preponderance of the evidence that

the application of Lindane in August of 1955 to the rice

and premises of Plaintiff was a proximate cause of the

damages, if any, sustained by Plaintiff?

Answer: "We do” or “We do not”.

Answer: We do.

SPECIAL ISSUE NO. 2

Do you find from a-preponderance of the evidence that

the application of Lindane to the rice of Gulf Coast Rice

Mills in August of 1955 may have rendered the rice in-

jurious to health?

Answer: “We do” or “We do not”.

Answer: We do.

In answering the above special issue, you are to use the

word “may” in its ordinary meaning and io consider

that the rice when prepared as a food may be consumed

by the strong and the weak, the old and the young, the

well and the sickeand it is intended that if the rice be-

cause of any added pbisonous ingredient may possibly

injure the health of any of t t ome within

the meaning of injurious to .

ingredient cannot by any possibility. when the facts are

reasonably considered, injure the heaith of any consumer,

such rice, though Laving a small addition of poisonous

ingredient, may not be considered injurious to health.

SPECIAL ISSUE NO. 3

Do you find from a preponderance of the evidence that

such application which may have rendered the rice in-

jurious to health, if you have so found, was a proximate

cause of the damages sustained, if any, by the plaintiff?

Answer: “We do” or We do not”.

Answer: We do.

If you have answered Special Issue No. 2 “We do”,

and only in that event, then answer:

SPECIAL ISSUE NO. 4

Do you find from a preponderance of the evidence that

such application which may have rendered the rice in-

jurious to health, if you have so found, was negligence?

Answer: “We do” or “We do not”.

Answer: We do.

If you have answered Special Issue No. 4 “We do”,

and only in that event, then answer.

SPECIAL ISSUE NO, 5

Do you find from 2 preponderance of the evidence that

such negligence, if any, was a proximate cause of the

damages, if any, sustained by plaintiff?

Answer: “We'do” or “We do not”.

Answer: We do.

57 :

SPECIAL ISSUE NO. 6

What sum of money, if any, do you find from a pre-

ponderance of the evidence would fairly and reasonably

compensate the plaintiff for such damages, if any, as were

directly and proximately caused by reason of the ap-

plication of Lindane to the rice and premises of the plain-

tiff in August of 195%, taking into account such of the

following elements which you find are established by a

preponderance of the evidence, and none other:

(a) The cost to plaintiff of remilling rice, if any, di-

rectly -resultin, from the application of Lindane to the

rice and premises of the plaintiff in August of 1955;

(b) The cost to plaintiff of cleaning plaintiff’s premises,

if any, directly resulting from the application of Lindane

to the premises of the plaintiff in August 1955;

(e) The difference between the reasonable market value

of the milled rice before ‘remilling and the reasonable

market value after remilling, directly resulting from the

application of Lindane to the rice in August of 1955.

Answer by stating the amount, if any, in dollars and

cents.

Answer: $87,790.07.

SPECIAL ISSUE NO. 7

What sum of money, if any, do you find from a pre-

ponderance of the evidence would reasonably and fal ly

compensate, the plaintiff for such damages, if any, as were

directly and proximately caused by the loss of the use of

his mill reasonably and necessarily consumed in remilling

the milled rice? 5

Answer by stating the amount, if any, in dollars and

cents.

Answer: $15,000.00.

You are the sole and exclusive judges of the facts

proved, the credibility of. the witnesses, and the weight to

be given their testimony. The law you are bound under

your oaths to receive from the charge of the Court as

herein given you and be governed thereby.

/s/ Wiuttam M. Horx

Judge

Such findings were received by the Court and were filed

and entered of record on the minutes of the Court.

The Court being of the opinion that judgment should

be entered for the plaintiff as follows:

It is, therefore, ORDERED, ADJUDGED and DE-

CREED by the Court that Gulf Coast Rice Mills, a

partnership composed of R. L. Williams and J. M. Chum-

ney, plaintiff, do have and recover of and from the de-

dendant, Orkin Exterminating Company, Inc., the sum

of Thirty-Six Thousand Two Hundred Forty-Six and

32/100 Dollars ($36,246.32), being composed of the jury’s

verdict of $42,790.07 reduced by the Court non obstante

veredicto to the amounr of $36,245.32, plus $1.00 nominal

damages for breach of contract insurance provisions; that

the plaintiff have interest upon its judgment from date

of this judgment at the legal rate of 6%, and recover

its costs incurred herein, for all of which let execution

issue,

7 : 7

59 ‘

Defendant duly excepted to the foregoing judgment in

open Court and gave notice of appeal to the Court of

Civil Appeals for the First Supreme Judicial District at

Houston, Texas. :

RENDERED, ENTERED and SIGNED at Houston,

Texas on day of January, 1962.

/s/ MUL M. Hoiianp

Judge

APPROVED AS TO FORM ONLY:

‘CARNES & MARTIN

By Burke M. Martin

Attorneys for Plaintiff

THE KEMPERS

By Jou D. RicHarpson -

Attorneys for Defendant

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.