Motion to Dismiss — Orkin Exterminating Co. v. Gulf Coast Rice Mills

Supreme Court brief1963

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2 A Office-Suprame Court, UX *

petal FILED

SLPR EK eetiiees |

eal. SEP 26 1963

: JOHN F. DAVIS, CLERK

No. 424

IN THE

Supreme Court of the Ruited States

October Term, 1963

ORKIN EXTERMINATING COMPANY, INC..,

Appellant

VV.

GULF COAST RICF MILLS, Appellee

MOTION TO DISMISS

Carnes & MartTIN

LaMAR CARNES

Burke MAaArTIN

Attorneys for Appellant

1125 Bank of the Southwest

Building

Houston 2, Texas

September 24, 1963

Alpha Law Brief Co. 402 M 3M Bide. Homstow 2

INDEX

OPINION BELOW

JURISDICTION

™N

The judgment rests on adequate non-federal

basis, because the judgment would be the same

under state pure food statutes alone, or under

city pure food ordinances alone

. A fact issue, being the only question preserved,

will not be reviewed because its determination

was for the jury and state courts

. There is no basis for appeal because the validity

and constitutionality of statutes were not

drawn in question, not being mentioned until

after the appellate opinion was rendered

There is no basis for appeal because no federal

question was raised in the state court, the first

federal complaint being by motion for rehear-

ing after the appellate opinion was rendered

. There is no basis for appeal because there was

no Texas siate court ruling on the late con-

stitutional claims

. There is no ground to permit the exterm-

inating company to inject constitutionality

after appeal because there was no surprise

. There is no basis for appeal because there is

no controversy; further, the issue is moot

. The appeal has not been perfected because it

was docketed out of time

QUFSTIONS PRESENTED

Page

STATUTES, ORDINANCFS AND RFGULA-

TIONS INVOLVED

STATEMENT

SUMMARY OF ARGUMENT

ARGUMENT ¥

The judgment below was clearly correct be-

cause violations of city, state and federal food

laws were shown

. There is no substantial question because the

outcome here will be immaterial to the public

and the industry

. There is no substantial question because the

issue is foreclosed by Supreme Court decision

There is no question for review because long

settled Supreme Court interpretation has been

followed

. The only issue preserved for appeal, a fact

issue, should not be reviewed because the facts

found have had the concurrence of jury, trial

court and two Texas state appellate courts

. The state food statutes and the city food ordi-

nances are effective because the federal govern-

ment has not pre-empted food regulation

CONCLUSION

APPENDIX: Opimon below, Orkin Exterminating

Co., Inc. v. Gulf Coast Rice Mills, 362 S.W.

189

Page

CITATIONS

Cases Page

Bailey v. Anderson, 326 U.S. 203. 260-7 6

Cloverleaf Butter v. Patterson, 315 U.S. 148 23

Corn Products Refining Co. v. Fddy, 249 U.S. 427 24

Equitable Life Assurance Society v. Brown, 187

U.S. 308, 311 22

Fox Film Corp. v. Muller, 296 U.S. 207, 209, 210 3

Freed v. Bozman, 304 S.W.2d 235, 241 4

Fry Roofing Co. v. Wood, 344 U.S. 157, 160 5

Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275 23

Hebe Co. v. Shaw, 248 U.S. 297, 303, 304 24

Herndon v. Georgia, 295 U.S. 441, 443 6

Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387, 393 9

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 309 6

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

270 U.S. 87 23

Palmer Oil Corp. v. Amerada Petroleum Corp.,

343 U.S. 390, 391 $,22

Quinn v. Wilkerson, 195 $.W.2d 399, 404 6

Radio Station WOW v. Johnson, 326 U.S. 120, 128 6,8

Rice v. Sioux City Cemetery, 349 U.S. 70, 79 9,21

Trice Production Co. v. Dutton Drilling Co., 333

S.W.2d 607, 616, 617 4

United States v. Lexington Mill & Elevator Co.,

232 U.S. 399 8, 17, 21, 22

UNITED STATES CONSTITUTION

Seventh Amendment 5

UNITED STATES STATUTES

21 U.S.C. 301, et seq. 13

21 U.S.C. 324(a) (1) 11, 13

21 U.S.C. 324(a) (2) 7, 13,20

28 U.S.C. 1257 §

CODE OF FEDERAL REGULATIONS

Section 120.1(e)

RULES OF SUPREME COURT

Rule 13(1)

Rule 16(1) (2)

REVISED CIVIL STATUTES OF TEXAS

Article 4466

Articles 4470-4472

TEXAS RULES OF CIVIL PROCEDURE

Rule 279

Rule 324

PENAL CODE OF TEXAS.

Article 706

Article 707

Article 717

CITY OF HOUSTON CODF

Section 861-880

MISCELLANEOUS

Page

13, 14, 20

2,12, 19

2, 12, 19

4,22

2,12, 19

2, 42, 19

2/12, 19

2, 12, 18

Vol. 3 CCH Food, Drug & Cosmetic Law Reporter 3

IN THE ‘

Supreme Court of the Anited State

No. 424, October Term, 1963

ORKIN EXTERMINATING COMPANY, INC.,

Appellant

Vv.

GULF COAST RICE MILLS, Appellee

MOTION TO DISMISS

The appellee Gulf Coast Rice Mills moves to dismiss the

appeal on the grounds that the judgment rests on adequate,

non-federal basis, that no federal question was raised or

preserved below, that the Texas state court did not rule

on the late federal claim, that the issue is moot, and that

the appeal was docketed out of time.

OPINION BELOW

The opinion below is reported at 362 S.W. 2d 159.

See Appendix A.

JURISDICTION

1. The judgment rests on adequate non-federal basis, be-

cause the judgment would be the same under state pure

food statutes alone, or under city pure food ordinances

alone.

The judgment is based upon adequate and independent

non-federal grounds, being the pure food laws cf the State

of Texas and the City of Houston. Texas Penal Code

(Vernon’s) Articles 706, 707, 717. Texas Revised Civil

Statutes (Vernon’s) Articles 4466, 4470-4472. City of

Houston Code, Section 861-880 (PIf. Ex. 26; S.F. 362-

380).*

Breaches of the state law and city ordinances on food

adulteration were pleaded by the tice mill as being vio-

lated and causing its damages.-(Fr. Volt, pp. 4-6, 8-9) **

Proof of their violation was made and is in the record.

(S.F. 44, 45, 245, 233-235, 287, 281, 304-305, 309-310,

314-315, 295-297, 299, 75, 401-402) Te jury found

facts showing their violation ¥nd damages resulting there-

from by its answers to Special Issues No. 2 through 7,

inclusive. (Tr. Vol. II, pp. 49-50) The trial court found

that there was proof showing violation of the State food

statutes and violation of the city’ food ordinances by sub-

mitting issues upon whether the Lindane poison may have

rendered the rice injurious to health, and by refusing the

exterminating company’s motion for judgment non ob-

stante veredicto. The Texas Court of Civil Appeals found

that the jury’s finding, being Special Issue No. 2, has

support in the evidence. The Texas Supreme Court has

concurred with those findings and the breaches af state and

city laws by refusing to grant an application for writ

of error.

Both the state statute and the city ordinance provide

that food is adulterated if it contains any added poisonous

*S.F. refers throughout to the Statement of Facts. the record

which has been filed herein

**TR. refers throughout to the Transcript

or deleterious substance which may render it injurious

to health.

In the opinion below at 362 S.W. 2d, the Court of

Civil Appeals points out at pages 163, 164 the pleadings

that the state law was violated and that the city law was

violated. At page 164 the Court then says:

.. 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 in-

jurious to health.”

The finding that the Lindane application may render the

rice injurious to health constitutes .adulteration of the

food under both the state statutes and the city ordinances.

At page 165 of the opinion, the Texas Court of Civil

Appeals holds that the application of Lindane by the ex-

terminating company had adulterated the rice and rendered

the rice mill partners subject to criminal prosecution and

punishment under both the state statutes and the city

ordinances.

Even if the Federal Food, Drug & Cosmetic Act had not

been pleaded and violations theerunder proven, the judg-

ment below would have been the same under either the

State of Texas pure food law alone, or under the City

of Houston ordinances alone.

A state court judgment will not be reviewed when

based upon adequate, independent, non-federal grounds.

Fox Film Corp. v. Muller, 296 U.S. 207, 209, 210.

2. A fact issue being the only question preserved, will

not be reviewed because its determination was for the

jury and state courts,

A fact question was the only question preserved for

appeal by the exterminating company. It was whether

there was any evidence to support the jury verdict. ,

Under procedure in the state court of Texas, a party

may appeal from the overruling of his motion for judg-

ment non obstante veredicto alone, without moving for a

new trial. Rule 324, Texas Rules of Civil Procedure. How-

ever, where a party elects to appeal from the denial of

motion for judgment non obstante veredicto, he is limited

on appeal solely to the alleged error in overruling such

motion and the points raised therein. Any other claim

or complaint is waived. Rule 324, Texas Rules of Civil

Procedure. Freed v. Bozman, 304 S.W. 2d 235, 241; Trice

Production Co. v. Dutton Drilling Co., 333 S.W. 2d 607,

616, 617.

The exterminating company did not present in its mo-

tion for judgment non obstante veredicto any question

or complaint of a constitutional nature, or of application

of any law, federal, state or city. The exterminating com-

pany’s only complaint was that there was no evidence to

support the judgment. That sole point which was pre-

‘served has been determined against the exterminating

company by the jury, the trial court, the Texas Court

of Civil Appeals and the Supreme Court of the State of

Texas. There is such evidence in the record and it has been

found sufficient. (S.F. 42-49, 51-52, 74-77, 245, 258, 295-

297, 299-315. 362 S.W. 2d 159 at 163-166.)

Jurisdiction is not exercised to review a decision of the

jury and state courts upon a question of fact. Fry Roofing

Co. v. Wood, 344 U.S. 157, 160. Seventh Amendment,

Uniied States Constitution.

3. There is no basis for appeal because the validity and

constitutionality of statutes were not dtawn in question

not being mentioned until after the appellate opinion

was rendered.

The validity or constitutionality of statutes were not

drawn in question in the state court proceedings, as

required by Section 1257, 28 U.S.C.

The exterminating company did not plead * or present

any question on validity or unconstitutionality in the trial

court, either before or after judgment. Further, it did not

present such question in any form upon appeal to the

Court of Civil Appeals.

It was not until after rendition of the opinion on ap-

peal that the exterminating company for the first time,

by way of motion for rehearing, questioned validity or

constitutionality.

Thus, validity was not “drawn in question”, and no

right, privilege or immunity was “specially set up or

claimed”, as ‘required by Section 1257. of 28 U.S.C.

Palmer Oil Corp. v. Amerada Petroleum Corp., 343 U.S.

390, 391.

4. There is no basis for appeal because no federal ,iestion

was raised in the state court, the first federal complaint

being by motion for rehearing after the appellate opin-

ion was rendered.

Rule 279 of Texas Rules of Civil Procedure provides in

part as follows:

“Upon appeal all independent grounds of recovery or

of defense not conclusively established under the evi-

dence and upon which no issue is given or requested

shall be deemed as waived; ¥

The exterminating company first attempted to raise a

question of validity or constitutionality by rehearing after

the decision on appeal. A complaint made for the first

time by motion for renearing in the Texas Court of

Civil Appeals will not be considered. Quinn 1. Wilkerson,

195 S.W. 2d 399, 404; Herndon v. Georgia, 295 U.S. 441,

Radio Station WOW 1. Johnson, 326 U.S. 120, 128.

§. There is no basis for appeal because there was no Texas

state court ruling on the late constitutional claims.

No federal claim or complaint was made until after ren-

dition of the decision complained of, and the state court

opinion is completely silent on the late constitutional claims.

Under these circumstances, jurisdiction should be declined.

Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 309. It is

presumed that the silence is due to the procedural deficiency.

Bailey v. Anderson, 326 U.S. 203, 206-7.

6. There is no ground to permit the exterminating com-

pany to inject constitutionality after appeal because

there was no surprise.

The exterminating company recognizes that it did not

attempt to raise any federal question until motion for

rehearing after the opinion of the State appellate court

was entered. Although the exterminating company has

actively litigated this suit since 1957, it now attempts

to obtain review by claiming surprise.

There was no surprise for the following, among other,

reasons:

fa) The city, state, and federal health authorities noti-

fied the exterminating company’s manager in person im-

mediately following this occurrence in 1955 that any

amount of the poison Lindane contaminated and adulterated

the rice. (S.F. 63-64, 74-78)

> (b) The rice mill’s pleadings cn aie for several yéars

before trial specially alleged in detail and by sections the

particular city ordinances, state statutes and federal stat-

utes that were violated. The manner and circumstances

under which they were violated were pleaded, including

violation of the Federal Food, Drug, & Cosmetic Act by

the application of any amount. of Lindane poison, and

violations of city and state food Jaws by addition of the

Lindane poison*to the milled rice so that it may. be ren-

dered injurious to health. (Tr. Vol. Il, pp. 4-6, 8-9)

cedures were exhausted, so that the exterminating company

was fully apprised of the ‘rice mill’s position, and how

it charged food laws were violated and the exterminating

company was negligent.

(d) As pleaded and proven by the rice mill, the trial

court ruled that the application of any amount of Lindane

poison to the milled rice violated the Federal Food, Drug,

& Cosmetic Act, 21 U.S.C., Section 324(a) (2). This ruling

was known to the exterminating company during trial,

before submission of the charge to the jury and before

entry of the judgment. No complaint of application,

validity or constitutionality was made in either the trial

court or on appeal to the Texas Court of Civil Appeals.

(e) Regarding application and constitutionality of the

“may render injurious” provisions in the city, state, and

federal laws, the trial court submitted to the jury a

special issue on this fact question (Special Issue No. 2),

together -with appropriate instructions thereon taken di-

rectly from United States v. Lexington Mill % Elevator

Co., 232 U.S. 399. The exterminating company made

no cemplaint of validity, application or constitutionality

in the trial court, either before or after judgment, nor

on appeal to the Texas Court of Civil Appcals.

(f) The judgment and opinion in the trial court and

state appellate court found that there was evidence sup-

porting violation of city, state, and federal laws, as the

rice mill had been pleading and urging for 4 vears before

this trial.

There was 0 surprise.

> Federal questions were not claimed in the state courts

until petition for rehearing in the appellate court, which

is too late. Radio Station WOW 2. Johnson, 326 US.

120, 128.

7. There is no basis for appeal because there is no contro-

versy; further, the issue is moot.

The occurrence made the basis of this suit was a single.

isolated episode in 1955. The determination of this suit

will decide nothing insofar as the public is concerned.

The record indicates that the exterminating company

used the poison, Lindane, only this one time. The opinion

below. 362 S$.W. 2d 159 makes this finding at p. 164:

.. . « 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 ap-

pellee’s mill from 1940 to 1955, and then it was used

without the knowledge of the appellee 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.”

Thus, the record reflects that the exterminating com-

pany only once used the poison Lindane on milled rice

and has not used it again since 1955. Its use for this pur-

pose is wholly unnecessary and insects are controlled with-

out it. "

The issue, so far as the public and the industry are con-

cerned is moot. This case itself would be moot, except for

the requirement of payment for the damaged rice by the

- insurance carrier of the exterminating company. By written

contract the exterminating company and the rice mill

agreed that this insurance would be carried. (Plf. Ex. 1-A,

Section H. S.F. 19-23).

Jurisdiction is not exercised to rule upon an isolated

episode of academic interest. Ri¢e v. Sioux City Cemetery,

349 U.S. 70, 79; Layne & Bowler Corp. v. Western Well

Works, 261 U.S. 387, 393.

8. The appeal has not been perfected because it was

docketed out of time.

The appeal should be dismissed because it has not been

timely made.

Rule 13(1), Rules of the Supreme Court, requires that

the case be docketed not more than 60 days after the filing

of the notice of appeal. The notice of appeal was filed on

July 1, 1963. The time for docketing the case expired on

August 30. The case was docketed thereafter on August

31, 1963.

No application for enlargement of time was sought be-

fore expiration of the 60 day period. No enlargement of

time was obtained.

The appeal, not being taken in conformity to the rules,

should be dismissed. Rule 16(1) (a), Rules of the Supreme

Court.

QUESTIONS PRESENTED

1. Whether, after the exterminating company had made

a heavy application of pesticide containing the toxic and

deadly poison, Lindane, directly to milled rice ready for

consumption, and the jury found negligence, as well as

breaches of city, state and federal food laws, the trial court

and both state appellate courts were wrong in refusing to

set aside the judgment as being unsupported by any evi-

dence?

2. Whether the exterminating company may now urge

constitutional claims, when it did not mention constitutional

claims in the trial court, when it did not mention con-

stitutional claims in the state appellate court until after

the opinion was rendered, when the state court has not

ruled upon these late claims, and when there was no surprise

to the exterminating company by the opinion because the

city, state and federal food laws and their application had ~

been pleaded specifically?

Challenges To Appellant’s Statement of Questions.

Besides the objection that the exterminating company’s

“questions presented” were not “presented,” the questions

stated are subject to these additional objections:

(a) The state court in ¢he opinion below did not con-

struc the state and city put’ food laws as prohibiting “any”

amount of the poison Lindane. Such holding is unnecessary

to the decision. The Texas Court of Civil Appeals did hold

that there was support.in the evidence for the jury’s finding

that /the application of the poison by the exterminating

company to the milled rice may have rendered the rice

injurjous to health. That finding and holding sufficed to

show|violations of both state statutes and city ordinances un-

der their “may render injurious” provisions. The additional

statement that there was substantial evidence showing that

Lindane in “any” quantity on rice may render it injurious.

to health was not necessary to support the judgment, but

shows that there was evidence in the record of Lindane

being so toxic and dangerous that any amount on milled

rice miy be injurious. (S.F. 295, 296, 299, 303-306, 309-

310)

(b) There is no conflict between the city and state laws

and the federal regulations. The “may render injurious”

provision of the state and city laws are virt:::lly identical

to the “may render injurious” provision of the federal acr.

21 U.S.C., Section 342(a)(1). The federal regulations

did not provide that “such food”, here milled tice, may

contain up to 10 parts per million of Lindane. The tolerance

was only established upon certain. fruits and vegetables

where use was necessary to production, whc-: the poison

would be dissipated, and where it would be washed or other-

wise removed before consumption. Such tolerance was

available only upon raw agricultural commodities, unmilled

commodities, and was not granted for Lindane upon milled

rice.

Lindane on milled rice in any amount.

STATUTES, ORDINANCES AND REGULATION

INVOLVED*

1. City Ordinances.

The city health ordinances involved are Sections 861-

880, City of Houston Code (PIf. Ex. 26; S.F. 362-380).

Section 868 provides in part as follows:

“Sec. 868. Adulterated Articles.

For the purposes of this article, an article shall be deemed

adulterated: ***

($) fat contains any added poisonous or other added

deleterious ingredient which may render such article in-

jurious to health; .. .” (PIf: Ex. 26; S.F. 362, 366-368.)

2. State Statutes.

The state health statutes involved are Texas Penal Code

(Vernon's Articles 706, 707, 717; and Texas Revised Civil

Statutes (Vernon's) Articles 4466, 4470, 4471, 4472.

Article 707, Texas Penal Code (Vernon’s) provides in

part as follows:

“Article 707. “Adulterated’.

For the purposes of this chapter an article shall be deemed

to be adulterated: ***

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

deleterious ingredient which may render such article

injurious to health, . . .”

3. Federal Statutes.

The pertinent federal statute is the Federal Food, Drug,

& Cosmetic Act, 21 U.S.C., Sections 301 et seq., especially

Section 342,(a)(1) and (2), as they appeared in 1955.

(Plf. Ex. 28; S.F. 421-423.) ‘

Section 342(a) (1) (2) then provided in part as follows:

“Section 342. Adulterated Food.

A food shall be deemed to be adulterated —

(a) Poisonous, insanitary, etc., ingredients.

(1) If it bears or contains any poisonous or de-

leterious substance which may render it injurious

to health, but in case the substance is not an addded

substance such food shall not be considered adul-

terated under this clause if the quantity of such

substance in such food does not ordinarily render it

injurious to health; or (2) if it bears or contains any

added deleterious substance, except a pesticide chem-

ical in or on a raw agricultural commudity, which is

unsafe within the meaning of section 346 of this

title, or if it is a raw agricultural com™cdity and it

bears or contains a pesticide chemical which is un-

safe within the meaning of section 346a (a) of

this title; . . .”

4. Federal Regulation.

The pertinent federal regulations is 21 Code of Federal

Regulations, Section 120.1(e), which provided as follows:

“Sec. 120.1 Definitions and interprétations. ***

(e) Raw agricultural. commodities include, among other

things, fresh fruits, whether or not they have been

washed and colored or otherwise treatef# in their un-

peeled natural form; vegetables in their raw or natural

state, whether or not they have been stripped of their

outer leaves, waxed, prepared into fresh green salads,

etc.; grains, nuts, eggs, raw milk, meats, and similar

agricultural produce. It does not include foods that have

been processed, fabricated, or manufactured by cooking,

freezing, dehydrating, or milling.” (Emphasis added)

STATEMENT

"The rice mill and the exterminating company entered

a written contract whereby, for monthly payments, the

exterminating company agreed to control insects and

rodents, and to use only materials allowed by law and

‘ acceptable to the industry. (Plf. Ex. 1-A, Secs. A., B., C.;

S.F. 12-16)

The appellee is a long-established rice mill business. A

rice mill has been operated on its premises continuously since

1913, and partner R. L. Williams has operated the mill there

since 1935. (S.F. 239-242) In the 1950's, the mill’s

average sales were about $4,000,000 per vear. (S.F. 242)

Since there was great danger in the application of poison-

ous insecticides directly to the processed foodstuff, rice,

(Pif. Ex. 15; S.F. 249), the mill paid for and the ex-

terminating company contracted to carry public liability

insurance in the amount of $250,000/$500,000, contractor’s

liability insurance in the amount of $250,060 $500,000, and

property damage insurance in the amount of $100,000

(PIf. Fx. 1-A, Sec. H: S:F. 19-23).

In the latter part of 1955 the exterminating company

permitted insects and rodents to become completely out of

control. (S.F. 65-68, 134-140, 261, 266).

7 .

In August, 1955, the exterminating company made a heavy

application of pesticide containing the poison Lindane, to

the entire stdres-of rice, the mill and the warehouse. There

was approximately $1,000,000 worth of rice poisoned.

(S.F. 42-48, §1+52,-24-77, 245, 258)

Lindane is théycommon name for the gamma isomer of

benzene hexathloride. It is poisonous and toxic. It can

cause death in humans, (S.F. 296-297, 306, 309-310).

To remove the Lindane poison the rice mill had to remill

rice and thoroughly clean the premises. Over .3,000,000

pounds had to be remilled. The rice mill-was out of the

market for three months at the height of the season. This

Was at great expense to the rice mill. (S.F. 57, 74-77, 120-

132, 384-386, 393-394, 397-399). >

This suit is for damages to milled rice only, which had to

be remilled to remove the poison centamirfafion. (S.F.

42-47, 76-77, 119, 232, 401-402).

The heavy application of the poison was discovered and

a meeting was held by representatives of ,the city health

authorities, state health authorities, federal health author-

ities, the rice mil! and the exterminating company. (S.F.

47-52, 63-64, 69-78). All food and drug agencies, city, state

and federal, notified the rice mill and the exterminating

company that the rice was adulterated by ine Lindane

poison, and that it could not be sold, offered for sale, or

moved in commerce. (S.F. 47-52, 63-64, 69-78, 408-409).

The rice mill was notified that it would be subjected to civil

and criminal provisions of the law. (S.F. 276-282, 401-402,

408-409). 362 S.W. 2d 159 at 165.

The Director of the Texas State Division of Food

and Drugs: testified that the state agency was prepared to

take action by filing suit, obtaining a restraining order and

exercising the seizure provisions of the Texas food law.

(S.F. 277-282).

The Texas pure food statutes provide that food shall be

deemed adulterated if it contains. any added poisonous or

other added deleterious ingredient which may render such

article injurious to health. The Texas statutes also provide.

for seizure, destruction, civil and criminal penalties. Texas

Penal Code (Vernon’s), Articles 706, 707, 717. Texas

Civil Statutes (Vernon’s), Articles 4466, 4470, 4472.

The City of Houston had in effect ordinances containing

similar provisions for adulteration by added poisonous or

deleterious ingredients which “may render such article in-

juricus to health.” The ordinances contained other pro-

visions making violation an offense subject to fine and

subjecting the food to seizure and destruction. City of

Houston Code, Sections 861-880. (Pf. Ex. 26; S.F. 362-

380).

There is abundant evidence in the record that the Lindane

poison adulterated the milled rice. This testimony was received

from a medical doctor specializing’ in poisons, from a

qualified biochemist, from the Director of the Texas State

Division of Food and Drugs, as well as from others. (S.F.

295-297, 299, 304-305, 309-310, 315, 74-77).

The jury found as a fact that the application of the

poison Lindane to the rice may have rendered it injurious

to health. That there is evidence in support of that finding

has been upheld by the trial court, the Court of Civil

Appeals and the Supreme Court of the State of Texas.

The occurrence made the basis of this suit, the applica-

tion of the poison Lindane to the milled rice, represents

a single, isolated occurrence. To the knowledge of the rice

mill, Lindsne had_never previously been applied to its rice.

This is the only instance where it was discovered by health

authorities. Since the occurrence in August, 1955, Lindane

has not been used again. 36% S.W. 2d 159 at 164. The use

of Lindane poison in production of rice is demonstrated

to be unnecessary and undesirable.

SUMMARY OF ARGUMENT

The judgment sought to be reviewed was correctly de-

termined. The “may render injurious” provisions of city and

state food laws, as well as the federal act, were applied and

interpreted in accordance with the Supreme Court’s de-

cision in the United States v. Lexington Mill & Elevator

Co., 232 U.S. 399.

The Supreme Court decision in the United States v.

Lexington Mill & Elevator Co., 232 U.S, 399, which was

followed here, precludes any question. There +: no conflict

of decisions, but rather established law has been followed.

The decision of this case has no significance to other

litigants or to the public. The record shows that during 21

years of rice mill operation, both before and after the

incident made the basis of this suit, the insecticale con-

taining the poison Lindane was applied only one time. There

is no significance in the case to the nation or to the public,

and would not arise again between these parties or in the

industry.

The only issue preserved by the exterminating company

for review was a fact question of whether there was any

évidence to support the jury findings. The jury determina-

tion of fact and the evidence supporting it has been

confirmed by the state trial court and two state appellate

courts.

ARGUMENT -

1. The jndgment below was clearly correct because viola-

tions of city, state and federal food laws were shown.

_ The exterminating company by its written contract

agreed to use only pesticides which conformed to state,

city and federal law, and which were acceptable to the in-

dustry. (PIf. Ex. 1-A, Sections A., C 1; S.F. 12, 13, 15).

It also contracted to minimize the possibility of citation

by the Food and Drug Administration. (PIf. Ex. 1-A,

Sections B. 1., 2; S.F. 13).

The exterminating company made an extremely heavy

application of insecticide containing the poison Lindane

to the entire stores of rice, the mill and the warehouse.

The poison was in a dust carrier, was applied by a power

driven blower, and there was no part of the rice or mill

which was not covered by Lindane. (S.F. 42-49, 51-52,

74-77, 245, 258, 291-295, 299).

The City of Houston ordinances provided that a food

is adulterated and unfit for sale if it contains any added

poisonous or deleterious ingredient “which may render such

article injurious to health.” City of Houston Code, Sec-

tions 861-880 (PIf. Ex. 26; S.F. 362-380).

The state food and drug statutes contained similar

“may render injurious” provisions, with attendant civil

and criminal penalty provisions. Articles 4466, 4470,

4471, 4472, Texas Civil Statutes (Vernon’s). Article 706,

707, 717, Texas Penal Code (Vernon's).

The Federal Food, Drug, & Cosmetic Act likewise had

a “may render injurious” provision that food is adulterated

if it contains any added poisonous or deleterious substance

which may render it injurious to health. 21 U.S.C., Sec-

tion 342(a)(1).. (PIf. Ex. 28; S.F. 423)

The jury found that the application of Lindane to the

rice may have rendered it injurious to health. (Special Issue

No. 2, Tr. Vol. 1). There is abundant evidence in support

of this finding. There is the testimony of a medical doctor,

who is a specialist in poisons and a professor of internal

medicine. His testimony is at S.F. 299-310. There is the

testimony of a biochemist who was familiar with Lindane

and its effect upon humans. His testimony is at $.F. 311-

315. There is the testimony of the Director of State of

Texas Food and Drug Division, who is a registered phar-

macist and chemist. His testimony is at S.F. 269-282,

291-299.

The trial court has found evidence supporting this ver-

dict by his submitting the issue to the jury and entering

judgment upon the verdict. The Texas Court of Civil

Appeals has expressly found evidence supporting the ver-

dict. See opinion below, 362 §.W. 159 at 163-165.

The judgment was correctly entered upon violations of

the “may render injurious” provisions of the city ordi-

nances, state statutes and the federal act.

In addition to the state and city law violations, there

is an independent federal ground to support the judgment.

The Federal Food, Drug, & Cosmetic Act prohibits any

amount of Lindane upon milled rice. 21 U.S.C., Section

342(a) (2). That section provided that a food is adulterated

“if it bears or contains ay added poisonous or added

deleterious substance, except a pesticide chemical in or

on a raw agricultural commodity, which is unsafe with-

in the meaning of section 346 of this title, or 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.” (Emphasis added.)

By definition, milled rice is not a raw agricultural com-

modity and the exceptions in this section do not apply.

21 C.F.R., Sec. 120.1(e). It therefore was adulterated

because it contained avy amount of added poisonous or

added deleterious substance, namely Lindane.

The trial court correctly found this to be a violation,

as shown by submission of Special Issue No. 1 to the jury

on whether the Lindane application was a proximate cause

of the damages, not predicated upon any prior finding.

The Court of Civil Appeals opinion correctly found that

the application of any amount of Lindane poison to the

milled rice violated this section. 362 S.W. 2d 159 at

164-16°.

The case has been correctly decided and does not require

review.

2. There is no substantial question because the outcome

+ here will be immaterial to the public and the industry.

The act of the exterminating company giving rise to

this suit, being the application of the poison Lindane to

milled rice in 1955, was an isolated incident. See the

opinion below, 362 S.W. 159 at 164. The decision will not

affect any other parties and, indeed, will not affect even

these parties in the future since there is no occasion for it

to recur.

For the 6 years of this litigation the fiction has been

preserved throughout that the exterminating company is

the party at interest contesting the outcome. This gives it

the appearance of a controversy over the use of Lindane

on milled rice.

The fact is that its insurance carrier has been the litigant

throughout, and this use of Lindane is immaterial to the

exterminating company.

There being no necessity for using Lindane on milled

rice, the outcome of this litigation will determine nothing

so far as the public or the industry is concerned.

The decision here determines this single incident, and

jurisdiction is not exercised for a single episode. Rice 1.

Sioux City Cemetery, 349 U.S. 70, 74.

3. There is no substantial question because the issue is fore-

closed by the Supreme Court decision.

The interpretation to be given to the “may render in-

jurious” provision of the federal act was established by

the Supreme Court in United States v. Lexington Mill &%

Flevator Co., 232 U.S. 399.

The triai court in submitting its issue to the jury carefully

set out by accompanying instruction the interpretation to

be given to the term “may render injurious”, taking the

instruction almost verbatim from the Supreme Court’s

opinion in the Lexington Mill case. See charge to the jury,

Special Issue No. 2 with instruction, at Tr. Vol. I.

In view of this long established construction by the Su-

preme Court, there is no substantial question or contro-

versy, and jurisdiction should be denied. Equitable Life

Assurance Society v. Brown, 187 U.S. 308, 311: Palmer

Oil Corp. v. Amerada Petroleum Corp., 343 U.S. 390.

4. Tere is no question for review because long settled

Supreme Court interpretation has been followed.

There is no conflict between the case at bar and the

dec ‘sions of this Court. To the contrary, the decision of the

Supreme Court in United States v. Lexington Mill & Ele-

vator Co., 232 U.S. 399, was recognized and applied by the

trial court, including its incorporation in the charge to the

jury. The Court of Civil Appeals in its opinion has recog-

nized and applied this decision. 362 $.W. 2d 159, 163.

The Supreme Court decision has been followed and there

is no conflict to review.

5. The only issue preserved for appeal, a fact issue, should

not be reviewed because the facts found have had the

concurrence of jury, trial court and tao Texas state

appellate courts.

The exterminating company did not make any com-

plaint of the judgment other than by motion for judg-

ment non obstante veredicto. Its appeal was «lely upon

denial of that motion, and it raised only one question,

whether there was any evidence to support the verdict

and judgment. Any other question was waived for appeal.

Rule 324, Texas Rules of Civil Procedure, 362 S.W. 2d

159, 163-164.

The jury determined the facts against the exterminating

company. The trial court and the Court of Civil Appeals

have found that there was evidence supporting the verdict.

362 S.W. 2d 159, 163-164. The Texas Supreme Court

has refused review, stating ‘no reversible error.”

These determinations are binding. The Seventh Amend-

ment to the Constitution of the United States provides

that “no fact tried by a jury shall be otherwise re-examined

in any Court of the United States than according to the

rules of the common law.”

Where the jury’s determination of fact has received

concurrence of the trial court and the appellate courts,

the Supreme Court does not undertake review. Graver

Mfg. Co. v. Linde Co., 336 U.S. 271, 275.

6. The state food statutes and the city food ordinances are

effective because the federal government has not pre-

empted food regulation.

The federal government has not pre-empted the regu-

lation of food sanitation. All 50 states of the Union have

and apply their own pure food and drug acts. See Vol,

3 CCH Food, Drug. & Cosmetic Law Reporter.

The exterminating company has cited two cases under its

pre-emption argument. Oregon-Washington R. % N. Co. v.

Washington, 270 U.S. 87; and Cloverleaf Butter Co. v.

Patterson, 315 U.S. 148. Neither is,applicable here. The

former case is on pre-emption in a limited aspect of the

quarantine field, and the latter case regards pre-emption

by the federal government of the iriterstate transportation

and sale of renovated butter made from packing stock

butter.

It was early held that the state acts were valid and en-

forceable as against the argument of federal government

pre-emption. Hebe Co. v. Shaw, 248 U.S. 297, 303, 304;

Corn Products Refining Co. v. Eddy, 249 U.S. 427.

CONCLUSION

We respectfully submit that the judgment rests on

adequate, non-federal basis, that no federal question was

raised or ruled upon, that there is no substantial question,

that the fact issue was correctly decided, and that the

appeal should be dismissed.

Respectfully submitted,

) /

Carnes & Martin

LAMAR CARNES

Burke Martin

Counsel for Appellee

1125 Bank of the Southwest

Building

Houston 2, Texas

CA 4-9121

September 24, 1963

APPENDIX “A”

ORKIN EXTERMINATING COMPANY, INC.,

Appellant,

GULF COAST RICE MILLS, Appellee

No. 13998.

Court of Civil Appeals of Texas

Houston.

Nov. 8, 1962.

Rehearing Denied Nov. 29, 1962.

WERLEIN. Justice.

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 renders? on

‘the first trial, an appeal was taken by the defendant and

the judgment was reversed and the cause remanded by

the Waco Court of Civil Appeals. Orkin Exterminating

Company, Inc. v. Gulf Coast Rice Mills, Tex.Civ.App.,

343 $.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 von-

tract with Orkin in 1952 under the terms of which

; %

Orkin was to exterminate and contrcl insects, rodents,

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

Orkin sprayed plaintiff’s mill with an inecticide or

pesticide known as Lindane; that Lindane is poisonous

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

tion of Lindane 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 prohibit

sale of the rice; caused the rice to be injurious to

health and unsafe within the meaning of the Fed-

eral 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 provisions

of the laws of the State of Texas and ordinances of the

City of Houston, and pled that Orkin had defaulted 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 its con-

tract, or defaulted upon its express or implied warranty,

since there were numerous disputed fact issues in the con-

tract and breach of warranty phases of the contract.. With

respect to the tort phase of the case, the Court HEM that

the record did not support any recovery.

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

defendant’s motions 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, 1955, 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

injurious 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 (7) 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

reasonably and necessarily consumed in remilling the milled

rice.

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 $21,245.72

because plaintiff's pleading limited such items of damages

to that amount, and otherwise overruled such motion and

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

246.32, being the reduced amount of the verdict plus $1 90

nominal damages for breach of contract insurance pro-

visions.”

Orkin contends that the trial court erred in overruling

its motion for an instructed verdict and judgment non ob-

stante veredicto when there was no evidence fo support

any cause of action or legal thedry 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 &he statement of fe nature of the case

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

correct and it adopts the same. It asserts that the pleadings

and evidence were the same in both trials. except for de-

fendant’s additional allegation as to the law of the case made

in its third amended original answer filed subsequent 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 in-

secticide 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 agenties 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 it<

subject to prosecution both civilly and crim-

\ inally. 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 validity 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 record re-

flects that some 95%. of the plaintiff’s rice was intended

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 results of such sam-

plings ran from noue 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.”

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, ahd that for such reasun

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 771-772 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 ¢rial. Several medical witnesses testified on the

first tri.' who did not testify on the second trial. The ap-

plicable ovdinances of the City of Houston were not intro:

duced on the first trial but were introduced on the second

trial. On the second trial, there & no evidence that the

City and State agencies delegated to Inspector Moses the

nght to act for them, although they may have agreed.

that Federal. State and City food laws have been violated.

Other differences will appear in the course of this opinion.

Plaintitt asserts chat the answers of the jury to the special

iSSUe> suvmMited constitute findings against Orkin on both

the contract and tort phases of the case. Plaintiff re-

quested certain more 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 con-

vdered by this Court. The special issues submitted 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 does not make specific mention of Lindane.

It specifies the scope 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 Fed-

eral Food, Drug, & Cosmetic Act, in that (1) it vio-

lated 21 U.S.C. § 342(a) (2) since no amount of Lindane

whatever was permitted on milled rice; and (2) it violated

21 U.S.C. §342(a) (1) im that it contained a poisonous

and deleterious substance “which may render” the rice in-

jurious to health. Plaintiff further contends that the un-

disputed evidence also shows violations of the Pure Food

laws of the State of Texas anid violations of the City of

Houston ordinances.

Cur inguiry is limited to alleged violations of the con-

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

termining whether there is anv evidence supporting. the

findings 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

contract and implied warranty with respect to the infesta-

tion of the rice. respect we are in accord

with the law of the case as d&germined 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.

Plaintiff 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 Ordi-

nances of 1942. Section 868 of such Ordinances provides

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

& Drugs,” an article shall be deemed adulterated (c)

Food-(5) “If it contains any added poisons or other added

deleterious ingredient which may render such article in-

jurious to health * * *.” Section 866 provides: “No per-

son’ shall, within the City, manufacture for sa! Jhave in

his possession with intent to sell or exchange, any article

of food or drugs which is adulterated or misbranded within

the meaning of this article.” Section 873 provides for

prosecution and punishment for violations of the foregoing

sections.

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

ous or 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 substance

must affect the public health in order for it to be con-

demned. 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,

$8 L.Ed. 658. There is substantial evidence showing that

Lindane in any quantity on rice may render 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 pre-

ponderance of the evidence, and if there were such assign-

ment, we could not consider it since defendant appeals

from the court’s refusal to grant an instructed verdict and

judgment non obstante veredicto.

Plaintiff also pleaded that bv 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 criminal prosecu-

tion 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

- mecessarily have to be milled and milling would remove

the Lindane.

The Waco Court on the record 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 ap-

peal 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 which may

render it injurious to health * * *; or (2) (A) if it bears

or contains any added poisonous or added deleterious sub-

stance * * * which is unsafe within the meaning of sec-

tion 346a * * *.” The exceptions in Section 342(a) (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 cannot

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 re-

quired 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 plain-

tiff or the health authorities. From the time of the appli-

* cation in August, 1955 Lindane has not been used down

to the date of the second trial in 1961. Moreover, no allow-

ance or tolerance was established for the use of ‘indane

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 re-

milled. 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 im-

possible 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.

[1, 2] Since no tolerance for Lindane on milled rice as

applicable to the facts of this case had been established by

the Secretary of Health, Education & Welfare, the addi-

tion of any amount of Lindane to such milled rice was in

violation of Section 342 (a) (2) of the Federa? 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 of the United

States in the recent case of Flemming v. Florida Citrus

Exchange, 358 U.S. 153, 79 S.Ct. 160, 3 L.Ed.2d 188:

“Here again, in our construction of this explicit Act,

we must be sensitive to what Congress has written,

and recall that ‘It is for us to ascertain—neither to

add nor subtract, neither to delete nor to distort.’

62 Cases of Jam v. United States, 340 U.S. 593, 596,

71 S.Ct. $15, 518, 95 L.Ed. 566.”

Section 3.41, Title 21, 1955, Code of Federal Regulations,

provides: “(;) 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 fol-

lowing pesticide chemicals: * * * (2) Effective date Oc-

tober 31, 1955: * * * Lindane: * * * Grain (from treat-

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

thac plaintiff had never had any treating storage bins. The

1954 amendment to Section 342(a) (2) as provided in

Section 5 of the Act of July 22, 1954 as applicable to the

facts of the case before us, became effective one year fol-

lowing 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 24, 1955, Code of Federal Regulations, en-

titled ‘Definitions, Interpretations, and Exemptions,” pro-

vides in substance that the term “Raw agricultural com-

modities” does not include foods that have been processed,

fabricated, or manufactured by cooking, freezing, dehy-

drating, 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 poiscnous or deleterious substance that

may be injurious to health as shown by the evidence ad-

duced 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 ¢xports that a food intended

for export shall not be deemed to be adulterated or mis-

branded 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

it from any of the provisions 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 labelcd for

export or that it would necessarily be exported. It was

held subject to sale in domestic markets as well as foreign

markets. Furthermore, the undisputed testimony of plain-

tiff’s general manager Smith who negotiated contracts with

foreign buyers, was to the effect that he could not have

sold to any foreign purchasers any rice containing Lindane.

[3] Defendant contends, however, that plaintiff volun-

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

by the Federal, State or City authorities. We think this

contention is without merit. Undér the evidence adduced

on the second trial, it appears 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 Section

873 of the Ordinances 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 tice was sold or offered for sale with Lindane

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

merce 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 sub-

jecting 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.

[4] The cases cited by defendant with respect to volun-

tary payments are inapplicable 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

plaintiff's action necessary to avoid Prosecution, penalties

and seizure of the rice. Under these circumstances plain-

tiff’s act in remilling the rice was not voluntary but co-

erced as a matter of law. Where one sisks prosecution,

penalties and forfeiture of his property for noncompliance

with law, his act in complying cannot be said to be volun-

tary. National Biscuit Co. v. State, 134 Tex. 293, 135

S.W.2d 687; Crow v. City sdf Corpus Christi, 146 Tex.

558, 209 $.W.2d 922; District of Columbia v. American

Security & Trust Co., 292 U.S.App.D.C. 33, 202 F.2d 21;

St. John’s Electric Co. v. City of St. Augustine, Fla., 81

Fla. 588, 88 So. 387;.17-A Amer. Jur. Duress and Undue

Influence §§7, 14, p. 875; 21 Tex.Jur. 2d Duress & Co-

ercion §2, p. 116.

[5] 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

plaintiff 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.consumed in remilling the milled rice, neces-

sarily includes lost profits. No judgment for lost profits in

any other amount could have been entered without plain-

tiff’s compliance with Rule 301, Texas Rules of Civil

Procedure. There was no such compliance.

[6] Plaintiff 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 profit ‘will not defeat recovery so long as

there is no uncertainty 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 oral testi-

mony from some records as to the amount of rice pur-

chased by plaintiff 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 opin-

ton as to the amount of rice he would have bought, to

which question the defendant objected 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 “it 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.

[7] In its sixth Point, plaintiff asserts that the court

erred in denying interest before judgment upon its damages.

Plaintiff sued not only for its damages but for interest

thereon as damages. It states in its brief that it continued

to sustain damages until June 7, 1956. It is our view that

the plaintiff 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 vy. Junker, 90 Tex. 584, 40 S.W. 11;

Tortuguero Logging Operation, Ltd. v. Houston, Tex. Civ.

App., 349 S.W.2d 315; Ewing v. Wm. L. Foley, Inc.,

115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627.

[8] We think there is no merit in plaintiff's conten-

tion that it was entitled to a directed verdict or in its con-

tention 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 re-

view of the record shows that there is no evidence that

would warrant 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.

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