Petition for Writ of Certiorari — Ross v. United States

S LimttthRY - Offtre-Sunremie Court, U.S.

SUPREME COURT, U. &

hance mine ‘to iis Stites —

October Term, 1963

ORKIN EXT ERMINATING COMPANY. INC.

Petitioner

GULF COAST: RICE MILLS, Respondent _

ft -

PETITION FOR WRIT OF CERTIORARI

TO THE ‘COURT OF CIVIL APPEALS Sa Son

FOR THE FIRST SUPREME JUDICIAL

DISTRICT OF TEXAS - °

e |

| Tre Kempers “hee

Joun D. RicHarpson

Attorneys for Petitioner

319 Shell Building

Houston 2, Texas

Alpbs Law Brief Co., 402 M & M Bidg., Houston 2

a)

—

- November &, 1962.

“ %

IN” THE

| Supreme Court of the United Biates: :

October Ter ‘rm, 1963

NO..

ORKIN EX’ rr RMIN ATING COMPANY, INC.,

Pe titione r . .

GULF COAST RICE MILLS, Respontent

. & “

PETITION FOR WRIT OF CERTIORARI ;

TO THE COURT OF. CIVIL APPEALS

FOR THE FIRST SUPREME JUDICIAL

DISTRICT OF TEXAS

i)

————-—

-

Petitioner prays that a Writeof Certiorari issue to_re-

view the judgment of the Court of Civi! Appeals for the .

: First Supreme Judicial District of Texas, entered in the

above-entitled scause Number 13,998 in such Court on;

a

cca

OPINIONS. BELOW

— ee

The opinion of the Court “a Civil Appeals eich sought,

to be reviewed, is reported in 362 S.W. 2d, 159. Ane arlier «

opinion, upon the rst appeal of this case to the Court | A Lag te

of Civil. Appeals for the Tenth Supreme Judicial District

to

° 4

of Texas, was reported in. 343 S.W. 2d Z* and the ap-.

peal from that decision was dismissed, in an, opinion by

the Texas Supreme Court in 347 hl 2d 250. ;

. .

JURISDICTION Nee ga

Fhe judgment sought to be reviewed. herein was ren-—

dered and entered by the Court of Civil AppeaJs for the

“First Supreme Judicial District, of Texas on November 8,

1962.-

A Motion for Rehearing was overruled by that Court on

- November 29, 1962. Application for Writ of Error to

the ‘Suprethe Court of Texas was refused by the Supreme

Court of Texas on March 6,-1963. A Motion for. Rehear-

ing was overruled by the Supreme Court of Texas on April

10, 1963, from which date Petitioner has -ninety days, or

until July 9, 1963, within which to file this Petition. .

~ The jurisdiction of this Court is invoked under 28 -U.S..

C.A. 1257(3). gt os i

From the final judgment of the Céurt of Civil Appeals, -

after Motion for Rehearing was overruled by that Court

and Application for Writ of Error was overruled by the

Supreme Court of Texas, Petitioner has no further ap-

pellate remedy under the laws of ,the State-of Texas. This*

Court has held that where a Texas Court of Civil. Appeals

entered its judgment, and the’ Texas Supreme Court re-

fused application for writ of error, an appeal to. this

Court is properly taken from the Court. of Civil Appeals,

in Michigae-Wisconsin Pipeline Company -v. Calvert, 74

S. Cr. 396, 347 U.S. 157, 98 L. Fd. 583. |

Pah - o 3 ; >

} °

Review is also being ‘sought herein by. appeal, and this

Court is respectfully asked to consider this. Petition in

- *onjunction with the papers filed pursuant ‘to the Notice

of Appeal bearing the same caption: as this P ‘tition.

“| QUESTIONS PRESENTED

1. Is the judgment of the Texas Court ‘of Civil Appeals, -

holding that food may be condemned under Section’ 342

(a) (1) of the Federal Food, Drug and Cosmetic Act -and °

-under “pure food laws” of the State of Texas and of a

~ City of Houston, upon the basis of 4 jury finding thar WE

“any” amount of a pesticide chemical may ‘render such _/_-

food injurious to health, in violation of the Supremacy /

Clause_(Art: 6) of the: Constitution of. the “United States,

and therefore groperative, by virtue of a clear colbsion °

between such judgment and the regulation promulgayed by

the Setretary of Health, Education “and Welfaré which

- . provides that such food containing ten parts per million

_—-of such pesticide chemical -shall not be consifered unsafe.

uriden Seetion 342 (a). (2) (B). of such’ federal Act?

fae aur sees ar / :

2. Are the “pure food laws” -of the ptate of Texas and

the City of Heuston, which Provide, As construed by the |.

‘ : Pa |

Texas Court, that . food may “ beyéondemned upon the

e c- ° \ . ee Seits 1

basis of a jurj\ finding that ang? amount of a pesticide

‘chemical may reitder such foogMjurious to health, in vio-

lation of the Supremacy, Clause (Art. 6) of the Constitu-

tion of the’ United States, and therefore inoperative, by

virtue of a clear collisiog between such “pure food ‘laws’

and'the regulations prot ulgated bg the Secretary of Health, °

Education, and_ Welfare which’ provide that such food

containing ten pyfts per million of such pesticide chemical -

shall not be considered unsafe under Section 342 (a) (2) (B)

‘ of the Federal Food, Drug and Cosmg@tic Act?

A 4

@

oa

e

basis’ of. such-jury finding, constitute an invalid usurpa-

_Sion- “by the State judiciary of federal legislative and ad-

ministrative power, in violation of the Due Process Clause

. > . - . .

3. Does such judgment of the’ Texas Court, upon the.

~ of the Fourteenth Amendment of ‘the Constitution of. the.

United States, i in. view of the power delegated by.. Congress

"to the Secretary of Aiealsh, Education and Welfare, and

the administrative regulations promulgated thereunder which

provide that such; foods containing tem parts per milhon

of such pesticide chemical shall not be ‘considered unsafe

under) Section 342(a) (2) (BY ot: the Federal Food, Drug

and Cosmetic Act?. as ; e

4. Does such judement of the Texas Court constitute

a denial of rights ‘and immunities guaranteed by the Four- +

teenth Amendment of the Constitution of the. United

States, by denying the right of food processors to rely upon

administrative regulations promulgated by the Secretary

of Health, Education and Welfare which provide that

processed food containing ten parts per Tnillion of such

pesticide chemical shall not be considered unsafe under See-

tion -342(a) (2) (B) of the Federal, Food, Drug and. Cos-

metic Act? ‘3 a

.5. Does Section 342 (a) (1) Of the Federal Baod: —_

and Cosmetic Act,’ as .so persed "the: Texas: Court,

constitute ‘an unreasonable. é arbitrary delegation of

power to the, judiciary in“ violation of the Due Process

Chuse of the Fifth Amendment to. the Constitution of the

“United States? .

6. Do Sections $42 (a) (2) (A9 in 346 of the Federal

Food, Drug and Cosmetic Act which provide, as-construed

by the. Texas Court of Civil oe that a processed

B-

as 5

: * ‘ bd N

food may be condemned upon the basis of a fact-finding

by such Court: that a pesticide chemicak contained in such

food is not a “required” poison as that term is used in’

.. Such Section 346, constitute: an invalid delegation of feg’.-

ative power to the. judiciary. and a denial of due process

in violation of the Fitth Amendment, of the Constitution

of the United States? a £ 2 hea ieee

7 Does the judgment of the Texas Court, holding that

“Section 346 of the Federal Tood, Drug and Cosmetic Actcis

* *

effective and enforceable upon the basis of findings by* such

Court as to whether this Petitioner's pesticide chemical ‘is.a

“required” poison within the Provisions of such ‘Section,

constitute a denial of due process and of rights’ and im:

munitiés guaranteed “by the Fourteenth: Amendment of the

Constitution of the United States, by’ denying this Peti--

° + «* me wise ° R

tioner the’ ¢ight to hav@ an administrative finding of such

fact, te be made. by. the Secretary of Health, Education

and Welfare as ta whether such pesticide chemical. is 4 -

“required” poison, before this Petitioner becomes subject to

such “Act? |

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS AND “ORDINANCES

The following are quoted in the APPENDIX:

Fifth Amendment, US.C.A.: Constit. Am. 1-13." |

Fourteenth Amendment. U.S.C.A. Constit. Am. 6-14.

.

and (2) (B), page373. ee

--21 ULS.C.A. Section 346, pages 418-419,, |

21 U.S.C.A. Section 346(2) (19, page 420; -

21 CFR. (1955) Section 3.41, page sf.

21 CFR. (1955) Section 120.101(b) and (¢) (2),

: Pages 230-231, ; an es

21 U.S.C.A. Sections 342 (a), Clauses (1) id (2) (A) | :

© Sais “Se

= | = ‘ a. Nig as

21 CER: (1955) Section 138. LOL (e) and (),

pages 2]9-220.

Article. 707, ‘paragraphy (c) ( 5), Volume 2 2, Vernon’s Ann:

Penal Code ‘of the State of Texas, pages 37-38.

es 4472 in. 12A° Vernon’ s Ann. Civil. Statutes of the 3

"State of Téxas, page 325.

Section 868(c) paragraph (5). in City Code of Sienna: os

Texas, ” 1942, at page 454.

« >

STATEMENT OF THE CASE —

|e Procedural. ‘History of the Case

Respondent’ sued petitioner, in an otdinary, damage | ‘suit

‘upon theories of ‘negligence and breach of contract, for:

damagés ‘incurred by respondent in obeying compliance

orders issued by Federal and State food inspectors and city: .

‘health inspectors.. Respondent claimed that petitioner was

Jegally liable flor the consequences of such violations. ° After

"one jury triall.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. preserited

‘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 Iby the Supreme C ourt, endorsed. ' Refused” —

no reversible. error” on March’ 6, 1963. Petitioner’s mo-

tion for. rehearing was overruled bythe Supreme Court

of Texas on April 10, 1963, after which action this ‘peti- |

tioner had mo further reniedy for appellate review in the

State courts of, Texas, ;

. &

P er Ale 4 ° ’ A. 7

. , Yi 5

nl. Facts .Material to the Questions Presented

(Parerthetical references, "S.F.",° are to trial coyrt’s

with this s, Petition. )

>

The incident from - which this suit

' August 24; 1955, at the Gulf Coast

Federal Food and Drug Administration inspector bala

that respondent’ s milled rice contained

“STATEMENT OF: FACTS in the record — presented

ardse occurred: on

Ric Mill, when a_

traces of a pesticide

chemical, Lindane, which’-he believed to be prohibited -for

use upon such: rice by .the Federal Food and Diug Act.

(S.F. 48, 64,; 75, 132, 401- 402). TRe feder al inspector

declared the rice contaminated zed adulierated (S.F. 402),

The opinion of the Texas Court’ of Civil Appeals, Presented

. herein for review, ‘correctly states the

e

-hection: 362 Southwest 2d at Page,.162. The quantity. of -

. Lindane found i in the rice ‘ranged’ from

facts in this con:’

Zero bicep 284- 285.

290) to “3.6 Parts per million parts of rice (S.F. 2 286-288),

The i inspéctor th: eatened to seizé the rice if it were shipped

(S.F. 7$).-- ‘

The Federal Food ‘nd rings Adit

given authority to establish “tolerances

of pesticides used in foods, in: 1938 by

nistration “had been ‘

x regulating amounts

Section 346 of the

- Federal Food and Drug. Act; however, this power was

not exercised’ ‘and Section 346 remained

the. Pesticide Amendment. to the 1938

and Cosmetic: Act. was passed, authorizi

“tidn to establish tolerances for. the use o

upon “raw” agricultural commodities:

. of Section 342, Titlk 21 UC CLA.)

began fixing’ such tolerances jn: 1955.

any tolerance: for the’ ise of Lindane

-

in disuse. In 1954,

Federal Food, Drug

ing the Administ’ra-

f pesticide chemicals:

(Clause (a) (2) (B)

. The Administration

but had not set

upon rice (or: any

2 other “grain” im ats raw state} as of the time of the in:

\ spectiony and compliance orders given by the Tederal ‘in-

‘ . 5

fe esi a on August 245 1955. i S

A \\ Local “state ‘and city inspectors also advised respondent

o

that. its Tice Was adulterated ander’ the law, “and -would °

have to be - cleaned by remilling in order .to” be brought ©

nto compliance with state statutes and city: ordinances

2d SV 74-75)5 the facts in this resp@ct are correctly stated

by the Texas court below.. The respondent acceded to the

orders of al! officials and incurred dama&s in the sum

(not disputed bys Pevitioner ) of over $36,000 (not ima

cluding Mhterest) ‘in bygnging its rite inte compliance with —

the tood statutes of the’ feder al, state and city’ goverit-

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

"+ years after such incident aN Transcript. 2), filed this suit

_ against: petitioner to recove ‘the money incurred in obew-

ing such compliance. orders, alleging that it had neces-

sarily obevedSsuch inspectors’ orders under such threats of

prosecution (| Transcript a-11)..

- Respondent's allegations in its suit set forth “a negh-

gence action in the usual form and also actions for breach -

-ot warranty “aad breach of contract, which alleged not:

* only breaches based upongthe use of the Lindanc, but alse

based upon faulty methods of insect control illegedly caus

ing the same ‘damage (1 “Transcript 4-11). Pleading -inr

reply thereto, petitioner alleged a general deinial and only

such affirmative defenses, icg statute of limitations, laches,

estoppel, waiver, and contributory ig ele was’ re-

Poh anion “py Texas Rules ‘of PlMding (1 Transeript: 13-19).

Ina ty trial, respqndent int®duced evidence of faulty

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

ue vectors” administrative findings of adudteration by the

a a

s

>.

* inspector was adduced, there. was: “testimony offered. by the

ee

a on

&

*

“prohibited”. pesticide oemical (SE: 8 Pa hile no evi-

dence of any other adnifiustrative finding by the federal

zartpy of the Division: of F Food. and Drugs, Department

Health for the State ~ EO Pena that his Department

bas Prepared to take action against respondent on account

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

his scie ¢ Opinion, any amount .of Lindane in sich

rice “night render if INFULIOS te health’, «no matter what

the amount [S.F, 298-2 99 | copes Witnesses aise tests.

fied! that trace amonnts, as little 4° .06 parts per milkon.

ight have rendered the rice enfebjonre to health” (S.F.

ng 310,.311-315), 4 , ia

The jury verdict was upon special issues finding that

the- Lindane ° ‘may have rendered ‘the rice injurious. to

health”, that the application of it by pefitioner ras negli

gence, and that such -apphication Was 2) proxuAte Cause

of the’ “damages claimed (1 ranscrips '$$-$6). The jury

verdict is, quoted jn’ the judgement ‘rendered\thereon, and

such Feral Court. judy ment 15 appended hereto. as AP-

‘PE ND! ae, Judeinent was oe the verdict alone.’

and without any legal conclusions Or findings of. law

aI Transcript 54-59),

Petiticner asserted the only grounds Appropriate under

» “ - ‘ . de, oie

Texas law as rounds ‘tor its. motion for judgement non

- obstante Veredicto, to-wit: that there was “no evidence”?

to support the verdict dnd that all Pleadings and evidence

showed that no cause ‘ot action had been made Out,

"6 Be ranscript 45-50). e

Tire being no findings made agaist. petitioner with

respect to its having been guilty of violations of any food

or health statutes or other Jaw. petitioner appealed from

ro

eS.

, A . : 10 Ae .

such judgment by relying u upon its motion for a judgment

N.O.V. upon the theory that: ne cause: of action had been

madé out: in tort or Contract "(BRIEF POR APPE LI. AN'E

ORKIN. EXTERMIN: AT ING COMPANY, | pages 1 ‘and

44).

The Court of Civil Appeal Glues) athiirmed.

1 he judgment of the Court of Civil Aispsats complained

ot hereii’ was based upon two legal conclusions:

lSince no, ‘tolerance for Lindane on’ milled rice as

applicable vo the facts of this case had been vestab-

lished by the Secretary of ‘Health, Education~ and

Welfare, the addition of any amount of Lindane to

‘such milled rice was in violation ot 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 367 S.W. 2d 164.

paragraph (1, 2) )-

Be ap a es ae substantial viene showing. that

Tindane in any quantity on rice may render such ar

ticle injurious to health.” (Opinion, at 362 SW 2d

163, last. paragraph).

These par findings of law. violations, ‘the’ first dn

‘findings ‘made by any person or agency since those mhde

on August 24, 1935, agairist 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 REHE AR-

ING is contamed in the record filed herewith) :

(1). The holding . that "there is substantial. evidence

showing that Lindane in avy quantity. on rice may render

such article iniurious to health?” violates the Constitution

‘ne,

li .

of the United States in thet wt conthets with the Federal

Food, Drug and Cosmetic Act and ‘regulations promul-

gated’ thereunder, (Paragraph | ot such Motion). -

(2) The holding that the evidence ‘supported a fingins

that .62 to 3.6 arts per million of Lindane may have

rendered the nce injurious to health, Violated. the Con-

stitution of the United. States in that it Conflicts with

the bederal. Food, Drug and Cosmetic Act “(paragraph 2

of stch Motion), hoc ey .

(3) The holdme that no tolerance had been established

for Lindane, and that’ theretore any quanuty- of Lindane

Was prohibited as being possibly injurious to health, con-

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

thus violates the Constitdtion of the United States (para-

graph 3 df Such Motion). %,

(4) The holding that 3 Jury fact question Way raised,

by evidence of ' Lindane in the rice ‘wn amounts ranging

trom fone to 3.6 “parts Per million, conthiets with thé

Federal Food, Drus and’ Cosnictic Act and therefore yio-

lates. the Canstitution of thy United States (paragraph 4

of .such Motion). “. ‘

45}. The holding ‘that strate and city laws were violated *

by appkeation of Eindane in such amounts Was in con-

flict’ with the Bederal Food, Drug: and ‘Cosmetic: Act.

and theretore violated thc Constitution of the United

States; Further, such holding .contlicts with federal statutes

which have pre-empted regulation’ of such matters, and. “

*

lause of the

Fourteenth Amendment to the United States. Constitution

such holding violates the Equal Protection C

in that it is arbitrary, unreasonabk ind discriminator:

‘(paragraphs §,.6 ang 7 of such Motion)

nF \

“1p |

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

‘and a verdict should have been directed and judginiciit

rendered’ for Defendant (Petitioner) (paragraphs 8-11 of

such Motion). ,

Petitioner’s Application for Writ of Error to the Texas

Supreme Court ,asserted the constitutional questions * as

follows: , i

POINT 1: The Court of Civil Appeals erred in

holding that Section 346 of the federal food laws

was applicable herein, and that since no tolerance.

‘for Lindane had been established theteunder, the rice

was adulierated under Section 342(a)(2) of the

federal law.

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: judi~

ciary under the United States Constitution and the

Court’s construction constitutes a .usurpation of

legislative, power. ;

~POINT 3: Such Court erred in construing Sec-

tion 346 of the federal food laws as applicable.

~herein,- when such statute so construed is uncon-

stitutions! as being a denial of due process of law

under the United States” Constitution.

POINT 4: Such Court erred in hulding that

“any” amount of Lindane.on milled rice may ren-

der such rice adulterated under either federal, state

or city food laws, because such holding is a judicial

act in conflict* with federal law in. an area pre-

“2

-_

~~

a!

13

empted by the federal government and is therefore

in violation of the Federal Constitut®on.

POINT 5:'The Court of Civil- Appeals erred in

holding that there as substantial evidence support-

ing the jury’s findire that. Lindane in “any” quan-

“tity on rice may rehder it injurious to health and

thereby adulterated ‘under Section 342 (a) (1), where

there was no evidence to support 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 legislative power to the judiciary

under the United. States Constitution and the Court’s

construction constitutes 4 usurpation of legislative

power. ,

POINT 7: Such Court erred in holding that there

is substantial evidence showing that Lindane in “any”

quanility on rice may. render it injurious to health.

because such adjudication is an unconstitutional de-

nial of ‘due process by such State tribunal in: viola- _

tion of. the Fourteenth, Amendment—of thie United

States Constitution. : ;

POINT 8:.Such Court erred” in constfuine the

state statute and city health ‘ordinance as rendering.

the rice adulterated by the Presence of “any” quan-

tity of Lindane, becauye such statute and ordinance

sO construed ‘are unconstitutional as being in con- ;

flict with the Federal Food, Drug and Cosmetic Act.

and regulations promulgated thereunder, in viola-

“tion of the United States Constitution. | .

. ‘ 4

¢

. ‘14

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 -sugh statute, and ordi-

nance so construed are unconstitbtionalin 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 by the presence of “any” quantity. of

Lindane thereon, because such statute and ordinance

so construed are unconstitutiona! in that they deny

Equal Protection of law in violation of the United

States Constitution. °

, 1

III. Federal Question Was Raised Timely Below in

Appellate Court:

Petitioner relies upon the exception to the general rile

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 Court of Civil, Appeals, as stated in Herndon 1.

Georgia. 55'S. Ct. 794, 295 U.S. 441, 79 L. Fd. 1530. ree

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

by Mr: Justice Sutherland:

“Petitioner, however.. contends that the present case

- falls Within an exception to the kcal, 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-threaténed rights under the Constitution. There

“is no Ppa ig he the federal claim was.timely if the

e

0

2 a .

as

ruling of the state court

oe pated and a petition for

Opportunity tor raising it

Mr. Justice Cardozo careful

the general rule in his dissent

Phrased the rule in this langua

The ; settled ‘doctrine j

coulf not have been antici-

rehearing presented ‘the first

lv analyzed this exception to

wy the Herndon Case, and

ge:

s that when 4 constitutional :

*privilege or, mmunity has been denied for the first

time by a ruling made upon appeal, +a hitigant. thus

surprised may challenge

motion for rehearing, and the challenge will bie’

timely”. (I mphasis added

the unexpected ruling by a

While the Herndon decision held that ee

tion’ .was not raised timely. ander ‘the facts therein,- that

© decision Was based upon the undisputed circumstance that:

the Georgia statute therein qu

estioned had’ previously been

construed, shortly before petuioner’s onp. rtumity for chal-

lenging it. in the trial court, b

V the Sus: eme Court of the :

State of Georgia in another lawsyft. But the’ majority opin- -

ion by Mr. Justice Sutherland

appeal to the State Supreme

“the court in substance * cons

‘in. the Present case”, and the

noted the fact thar in the’

Court in the other lawsuit

trued the statute as it did

refore the petitioner in the

Herndon case Should have antimipated what the state ap-

* pellate court would do in his s

In*the case at bar, the , Fact

After the first trial Of this case, the judgement for respond.

ult.

‘ were exactly the épposite.

ent: was reversed -upon the first appeal herein, and this

‘reversal by the other Texas €,

at Waco, Texas, was based UPON 2 construction of these

federal statutes herein involve’ contrare to the construc-. .

urt of Civil Appeals, sitting

G

16

7 é ;

tion placed upon them-by the Houston Court of Civil

Appeals in the second appeal. While there were differences

in the evidence inthe 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 SMV. 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, jn which

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

pendix ‘"B”), was quoted by the Houston Court’s opinion

eas having . been’ based -upon the same essential fact -with

respect.to whether the Lindane could have rendered the |

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

had contained quantities of Lindgne ranging “from none

up to 3.6 parts per million Parts @f rice’, and the Waco

Court held “that such amounts are not injurious to health,

in wy manner”. —

» The, extraordinary nature of the litigation at bar is spch

that there was never any legal ruling or order issyed by

any government official to which this Petitioner could

* possibly have objected, until such rulings afd 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 even’ directed 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. Petitianer complied with Rule 94,-Texas.

Rules of Civil Procedure, in specially pleading every af-

Q-

.

‘ 17

firmative defense required under such Rule. Petitioner .

was not required to’ anticipate the construction to be

placed by the Court upon’ each one of the ‘statutes alleged»

in respondent’s pleading, and to-plead that it would . be

unconstitutional if so construed. The: basic federal statute

involved, Section 342 of the Eederal Food, Drug and

Cosmetic Act, had. been held “constitutional as written,

and Petitioner herein only claims now that it js uncon-

stitutional as construed by the Houston Court of Civil

* Appeals. Petitioner “was pot 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 US. 317, 320, 61°L. Ed.

1163, 1165, 37°S. Ce. 638: | a >

Petitioner 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 ‘fice was a “raw”

agricultural commodity. Respondent had alleged thar 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 (SF. 298-299). At the samc ‘time, a

violation of Section 346 of that Act was alse alleged. anck

the respondent thué 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 specu-

_ ‘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 rhe Courts.

18

ARGUMENT

I. Summary of Argument ‘

Two rulings form the basis for judgment below. They

are combined in this-.single statement: by the Houston

Court of Civil Appeals: a tie :

ieee ws tolerance for Lindare on milled grice as”

“applicable to the’ facts of this case ‘had been” estab- *

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

amount of.Lindane to such inilled rice was? in 4 93

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

may have rendered the rice injurious to health.”

The Scat, holding is based. upon the sisaaiy of a toley-

_ ance under Section 346 (although possibly the. Court:

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

this will not seriously affect the ultimate issues).

The ‘second holdins apparently was only secondary i

view_of the words “and especially so * * *:” This one is

based, upon the possibility of injury to health, and applies

. equally to the state and city ‘laws as well as federal statutes. -

‘The answér’ to the first holding is his: Sertion 346 was.

not in force. at the time of the, incident, and never, has

been in effect’ except as to one isolated case which oc- :

curred many years ago: only one tolerance was ‘ever pro-

mulgated under this section, -and it is an impossibility,

physically and legally,-for this section to become effective

as to any pesticide or food until the Administrato~ makes

the necessary findings.

To the 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

ae 2

_

4

19

Processed and: “when ready to eat,”. and this sanction

precludes any state or city .agency, whether. legislative,

. judicial or administrative, from establishing or, enforcing.

a more Strict regulation ‘of éither pesticides or foods,

II." The Application of: Section 346 of the Federal

Food ahd Drug Act, as Construed: by the Court:

below, Renders Such Act Invalid and the Court’s

Judgement Invalid, Under the Due Process Clauses .

of the Sch and 14th. Amendments and under the

Supremacy Clause of the Constitution of the United

States. to gk

This holding of the Court below fests upon two bases:

(1) The addition of any Poisonous or deleterious’ sub-

stance to food, for which no tolerance: had been established |

by ‘the Secretary under Section 346, was prohibited if

—* thereafter it could be proven that such substance was not

“required” and “could have been avoided.” ce

(2) The evidence now shows that’ Lindane was never

known (by. respondent) to have been used before or ‘after

the incident involved herein, and therefore it was “not

required” and “could have been avoided” within the mean-

ing of those terms ~; used in’ Section 346.

The basic food statute involved js the “adulteration”

statute, §342(a) which establishes various: /) fes of | tests

whereby food may be determined —either by a Court alone,

or by a Court acting upon fact-findings of an Adminis-

-trator—to bé adulterated.

Clause (1) of such Section is a self-executing provision

which sets out a relative test by which a Court. alone, i

may determine Whéther a food: is adulterated. Clause (2)7

- © * Z

-”

.

2

is in prospective terms (vot self-executing) which sets a

different type of test—an absolute’ standard—whereby 2

Court may ‘determine whether ‘a food is adulterated by

reason of its failing to meet certain: fixed standards which

are to be promulgated. by_“the Administrator.”

By the self-executing provision of Clause (1) ie Legis-

lature has given the Judiciary the power to determine

whether a deleterious substance may have rendered a food .

-. injurious ‘to health whenever a Cour’ has found that such

substance has: been) added ‘to such food in sufficiert

quantities to have such effect. as

The second provision, Clause (2) of the gener ral -adul-

teration statute, differs from the’ first in that it attempts

to supply absolute. tests .to ‘be used in certain cases. How-

ever, as is usually necessary in a statute which classifies

things in considerable detail for the purpose of - fixing

absolute standards of conduct, it incorporated provisions

of §346 -which set up administrative practices to com-

plement its general terms. Section 346 contiins directions

to. thé Administrator to promulgate - regulations by which

its general provisions may be given effect. The legislature

thus delegated ‘its own legislative. power to the Adminis-

trator to “fill in the details” of this clause which defines

adulteration in certain areas, i.c., where the use of added

substances in-food is “required”? by economic conditions

‘and general industrial practices. The Administrator was

-thereby given. the duty to ‘investigate and ascertain the

conditions under. which same deleterious substances (such

_as economic poisons) might be regulated by absolute tests

in the form of “tolerances” to be enacted as administrative

‘

reguiations.

> iene

‘Thus, the jurisdiction of) the Judtciary to adjudicate

food’ as adulterated under * §346 is limited to their. deter-

mination of whether a given food bears a quantity of a,

deleterious substance which ‘exceeds a. tolerance“ fixed #y _

the Administrator. But until such a tolerance has been |

fixed by the Administrator; the Courts have no jurisdic-

tion to apply such section at all, in any case: or . perhaps

it is better to say that! there is nothing in that section to ‘

apply ‘to any facts, §346 is not operative to any “food”. -,

or to any “substance”? until x ‘tolerance has been promuf\Q_— -

gated for such food and substance. This section is simply :

“not in effect as to such’ foods or substances. 7°

No court decision has been reported ‘holding that §346

is. applicable where no tolerance. has been. set, and this

would b@' the natural result’ if all administrative officials

have interpreted the section ‘to be inoperative without

administrative findings as to what poisons are “required.”

~ This is the: correct interpretation under the évidenve of

the legislative intenc as shown by arguments of: legislators

in Congress. In urging these. legislators to pass the 1938

Act, Secretary. Henry -A. Wallace. sent a’ Message to Con-

gress showing what he ufderstood to be the intent of that

- Act as then framed (and as later. enacted) as respects the

Prospective portions’ of it, saying: | oe cae

/

ee

* Because of the, complex and technical na-

ture of the subject matter involved a.number of the

most. important definitions of- adulteration and: mis-

branding are incomplete {nd must have their clearly

_ | stated outlines filled in) with scientifically “accurate

~—* details before they can be enforced. The bill delegates

~.* to the Secretary of Agriculture the juasi-Jegislative

power: to ascertain. the necessary’ rechcal facts “and

supply the details that will complete definitions

so 9 F : a9. | . .>

-@ = .

thus echaaiiak the ieee dinn will.” Volume 83,

Part 7, Congressional Record, bi 7779, for the 75th

Congress, 3rd Session (May 3 » 19KS). ae

Petitioner submits that the only way §346 can, or ever

could have been, enforced is by a method as follows: (1).

The Administrator would -consider’ scientific. evidence con-

cerning industrial conditions, during public hearings, and

would then decide upon such facts whether a-given sub-

stance was “required”. or “could not be avoided”; (2)

“Whenever he were able to seach a decision upon those two

matters (if ever), he would estabheh a tolerance for such

Substance on given foods: (3) Thercafter, “whenes or the’

government found a food ‘containing a substance ‘sted

among those with tolerances so estabkshed, it could convict.

the food as. “unsafe” under § 346 by showing’ ‘that the |

quantity CACeRare the tolerance. .

In the case at bar, the Court has madé the findings shat

the administrative agency was$given the. power to find,

and thereby the Cpurt below has auc’ legislative func-.

tions’ that. were validX\ deiegated by the legislature to the

Administrator. Petitioer beligves the Court has thus mis,

construed §346 and

{ts. holding, resting : solely upon “such

misconstruction, is erNoncous. Tf the legislative ihtent were

otherwise, and the statute has been properly construed,

then the statute is unconstitutional because it affords no

‘reasonable guide ‘for a court’s determination of what is

“required” or “could not be avoided” and thus invalidly

delegated uncontrolled legislative power to the courts;

* -further..it denies due process of law in providing for civil .

| and criminal ‘punishment upon arbitrary. capricious and —

unreasonable grounds, as here, for:‘example, where the

Respondent has succeeded in’ convicting itself by merely

e7

a?

‘com

\.

+ 7 (223

a x. J -

introducing testimony that i can get akong without’ the

-Lindane and therefore, i/ felt that the Lindane was not “fe-

quired” and “could have been, avoided.” ‘|

/

a

ed

After the enactment of the 1938 Act, members of

Congress gave evidence of the legislative intent of that

Act by pointing out its omissions anal deficiences, in their

arguménts for enactment of amendments thereto. On Jan-

wary 11,1954. an address by Congressman A. L! Miller

(Nebraska) in. the House’ otf Représentatives, urged the

carly passage of the “Miller Amendment” (also known as

‘the “Pesticide Amendment”). giving these reasons:

- ; ; . G : *

- “The present procedure for establishing: tolerances

involves the holding of a public hearing af which time

evidence must be presented to show: First, the u&.

of the pesticide chemical / necessary in the production

of food; second, the amount: 6t residues remaining

in or on jhe food; amd, third. tonicity data upon:,

which tolePances adequate to protect the public healed;

may be established.

+ & & : . :

“The bill which ¥ introduced is designed io remedy

this defect by providing a simple, more apprapriate

procedure to Mstablish tolerances. for pesticide chem

icals and to prevent the use ot the new pesticide whem.

cals watil such a ‘tolerance as necded has been estab-

lished.” Volume 1060,- Part 1, Congressional Record,

A Page 153, for the S3ré Congress, 2nd Session. (I m-

phasis added ) pn

Congressman Miller made it clear that he was sponsoring

the new bill because, under the “present procedure” (1954).

a tolerance could not be established until after an adminis.

trative hearing wherein the Adminstrator would make the

fact-finding that a ‘erren pesticide chemical “as neces

.

-

o

sary”. This obviously refers to the provision tor. the fiind-

ing of “required” and unavoidable as ‘those conditions are

“stated in § 346. He was sponsoring this amendment in

1954 in order to do away with the procedures of ‘the 1938

“Act (ih § 346) by which the, Administrator was supposed

to make fact-findings of the rece ssit) of certain substances.

His bill.in 1954 was limited to apply only to “raw” com-.

Modities so its provisions were not applicable to the Re-

spondent’s milled rice in the case at bar; however, it did

pass (it is now 346a) and thereby it did show: that the -

“impracticable -procedures” for determining . whether sub-

stances were “necessary” under’ the. 1938 Act: were being

remedied, ‘at: least as.to raw commodities (while ‘ “processed”

food remained subject to the procedures of § 346 of the

1938 Act). Thus, his bill does “‘prevent the ust of the

new pesticide chemicals wntil such a tolefance as needed ©

has been established” through administrative procedures, and

this was “designed to remed) this defect” of inapracticable

. procedure ‘which had been holding up the operation of § 346.

The. operation of § 346 still had to wait, tor its enforce-

ment upon “processed” foéd such ‘as milled rice, until the

Secretary cuuld determine which economic poisons were

“required”.

‘Since no presecutions upon this issue have been under

takey under § 346 in reported cases, we must ‘rely upon

its: legislative histor, to see that qt did wo/ — the

use offhe new pesticide chemicals” wifi after thé necessity

tor ‘the ise ot each one has been established ad munistratinels.

_ Excerpts from the Congressional Recent. prior to the

enactment of Section 346, showing Uys le *gislative intent,

include the fe Ah Wing:

25. | ke

<A a

1. August 7, 1935 — Address. by: Congressman Hoeppel

urging passage of the 1938 Food and Drug Act: (Senate

Bill 5) in which the numerals 302 (4) (2) and 304(a)

correspond to present Sections 342 (a) (2) and 346 (a):

agninst added

amounts Which may

"The provision of the preset

poisonous. substances in foods i !

remder them injuriow- to health does not lettectivels

guarantee the satety of our foo supply, And is awk-

ward, cumbersome, and tincertain~ed ‘enforcement. _

There is no provision ‘ig the law which authorizes ‘the

fixing of tolerances. Even when identical issues” are

involved in different jurisdictions the Government must

bring to each court trial the foremost toxicologists of

‘the country to present their testimony, and that testi-

mony must show that in the amounts the particular

‘food is consumed it may. because of the-added poison..

be injurious, to the health of ‘the consumer, irrespective

of the amount of Poison “tke consumer mav ingest

from: other foods. The courts and juries are not au-

thorized to take into accourt the med tor the use of

the poison in the production of the food or the

practicability. of avoiding contamination with the

Poison in manutacturing, operations, :

~ The provisions of Section’ 70% set forth the

careful, methodical way in .which toler. nces will be

formulated after a full public hearing. By these pro-

Visions it is insured that tolerances will be based. upon

dll available scientitic facts: that in their establishment

there wilk be due deliberation: that they can’ be -

promptly altered with the discovery of new scientific

facts: that the most liberal Imits will be provided for -

those commodities where, at present, added poisons are

unavoidable; anc that publici health wil} be -effectiveiy

pretected.”” Volume 79, Part le: Congressional’ Record.

Page 12665. for the 74th Congress, st: Session. (E-m-

|

.

rm 4

phasis added ) _

An exhaustive examination of the legislative history ot.

the 1938 Act (Malkan, “Pesticide Residues: A study in

— federal law”, 52 U.C.L.A. Law Review S11, Vol. 2, No. 4,

of June 1955). reviews the reasons tor the tailure of the

Secretary to conclude its hearings upon tolerances, and con-

cludes that § 346 became operative only atter the Secretary:

had made findings as to which pesticides were required tor

particular’ foods: it is then ‘stated therein (p. £19) that:

"When tolerances have not been set, the government

must fall back on the general prohifution of 402(a)

(1) —- (of the Bill, which ts 342(a) (1) of the Act),

and public protection becomes subject to the dithculties

noted under the 196 Act.” (Emphasis added)

As.a matter of logic, it is impossible that § 346 was

-intended to leave to the judiciary the determination as to

whether -a substance is required or unavoidable. It ex-

pressly states that “w/e » such substance is so required «

cannot ‘be so avoided, the Administrator s/all aan

tolerances for it. If the Administrator waits ‘until a. jtiry

‘or a court in a given case has found. that a substance

was not réquired, or was avoidable, then he never could

set a tolerance for that particular substance on that tood.

If he waits until the jury or court has found it is re-

quired, or unavoidable, the: prosecution uAder this section

‘is over befere “he could act thereunder. There could nevir

be, a prosgeution based. upon proof that a tolerance was

exceeded, : : ae ’ Baal

in conclusion, tc Court helow should have held that

since no tolerance had been set under § 346 for PES

on rice, the government's threatened prosecution (against

the Gulf Coast Rice Mill, Respondent) would have had

, = .

| aa eta ae

to Hes back on the aeiie jeral. prohibition of eS 1906 Act—-

. on the’ “injurious-to-health” provision of § 342(a) (1)

ee on this alone.

If § 346 has been correctly: construéd, then it is uncon.

stitutional as an- invalid delegation of legislative power ‘to

the judiciary. Unlimited discretion -is thus granted where-

“by courts can find any pesticide to be cither “required”

or-not, or to be “avoidable” or not, without anv reason-

able legislative guide for its decision. It would also be un- -@.

constifutional as a denial of due process because it arbitrarily

classifies: as prohibited any pesticide that any person may———

feel, as a matter of personal preference, te be not “re

quined” of to be “unavoidable”, and no classification or

: distinction of degree having a rational basis need be used

in such decision. For both of thete reasons such section

as construed and applied by the Court below isin’ Viokv-

“tion of the federal constitution, ;

’

If. The application of, Section 342(4) (1) of tlie Eed

eral Food and Drug Act. and of the state and cit® laws, fs

construed, by the Court below, prohibiting the presence of

“any” amount of Lindane in processed tood, -violages the.

Due Progess and Equal Protection Clauses of the’ 14th

“Amendment, and the Due Process Clause of the 5-h Amend

mént, and: the Supremacy Clause of the federal Constitu

tion. ‘ _*

If the ee and pesticide industties baling federal sanc-

tions, the entire public of the United States mav 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 Rep rter,

- Vol. 4,-pages 1781-1830, and the 42 tolerances listed i

Federal Register for March 11, 1955.

28 .*

Lindane is one of the commd-place econdmic , poisons,

the Gamma Isomer of Benzene Hexachloride, which means

it is the “pure” “B.H.C. and is given a tolerance of 1)

p.p.m. in, all instances where “commercial B.H.C.” is given

a tolerance of 5 p.p.in. (21 C.F.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 2) Cs KR.

- (49559 This was “@stablished on * October, it ii oat

meant that unmilled rice was allowed to have that tolerance, °

since is a grain.

Jt is true: that all of these tolerances ‘were promulgated

under the “raw agricultural commodity” provisions, §3464,

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

sense that prosecutiorts.can be brought under such section.

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

ruling that 346a 4s not applicable in that respect, and thar

for this reason “no ‘tolerance had been established” tor

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

ing the fac? that such section provides the senction for the.

reality that Lindane may be ‘eaten with food every day.

‘The regulation explaining the practical application of

§346u states this in express terms: fas 3 *

“Where raw “agricultural commodities bearing ress

dues * * * which are within a eae pve permitted

—aunder_§408 (meaning 3462 of 21 U.S.C.) are used,

the processe Pibods will 70/ "be considered. ne within

the meaning of 406 (meaning $42(a)(2) 1f * .* *

the poisonous or deletérious 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 cat is not greater than the tolerance permitted

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

(ft) (Emphasis added : ‘

.

-

2

“Tt AED. a,

~sanrtation.. Fhe.only’ scientific means of ensuring such sam

. Ma. sald

“ent was remilline on Octobe: $1 (see S.E.. 118, 84-117)

8 : ;

-® , . » ° ata

RAD) 5 ‘

Thus, any unmilled rice containing Lindane will be

deemed sate if it contains 16 p-p-m.- after milling. The -

tederal administrative agencies actually’ recommend.the use

- ad » a - 2

of Lindane in riw tood in thea amounts. The reason for

_the“use of pesticides is torid food of filth and infestation

‘and the. massive effort of the Federal Food and Drag Ad-

ministration includes afhrmative steps in providing thts

5 ° e s PB Mantgeg = s e

tation in food is to encourage the Tse of these Posions.

. Thus, so long’‘as Lindane is used in such ameunts that leav.

only permissible residues in the processed tood, it is used

not’ only by sanction but in furtherance of the pubic

policy which: is evidenced by this administrative ettort.

Apparently the Court of Civil’ Appeals did not reject

these factual aspects of the “raw” commodity amendmen: ~

therely becquse the tolerance tot grain had fot been estab.

lished prior to the date of’ the threatened prosecution

(which, in effect, constituted. the damage complained ot

by Respondent). The Court noted that such amendment,

§346a, “was in full force and. etfect in August, 1955"

Further, the Court a tually dil apply that section to this

case when ‘it held that “Smee plaintitl’s grain had- been -

milied “and was of a raw agricultural commodigy.. 7

tolerance’ had been established for at. The time of th

establishing of such individual toleranc could have’ no

bearing upon whether the ingestion of “any” amount ot

Lindane was m fact harmful. ty any event, the toleranc

(21 CFR. 3.41) that -was established fo; Lindane on

“grain” (which inchide« unmilled rice) was ethective on

October 31, 1955. wher Respondent Was juse ‘getting

started in remilling ots. gram (S.F. 118). So it as indis.

putable asa matter of law. that the very rick the Respond

30

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

to eat” and its 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 regula-

tion 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 statutés en-

forced by it are in direct and positive ‘conflict with such

regulations and are therefore unconstitutional. Oregon-

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

L. Ed. 482, 46 8. Cr. 279; Cloverleaf Butter Co. v. Patter-

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

If the act of the Court below, in rendering this. judg-

ment which holds to be “‘prohibted” that which 1s sanc-

tioned and even’ encouraged by the Federal Food, Drug and |

‘Cosmeti¢ Act, is not in conflict with the act and. thereby’

‘unconstitutional in itself, then-the said act as so interpreted

by the Court is unconstitutional .as.an invalid delegation

. of legiskative power to the judiciary. As so interpreted,

§342(a) (1) permits the judiciary, through-court and jury,

to establish tixed “tolerances” tor pesticides, in spite of ‘the

clear intent of Congress, that regulation of pesticides by

such absolute standards, as distinguished trom relative tests,

is to be achieved through scientific means by administra-

tive processes of the Department of Flealgh, Education and

- Welfare. The nature of this type of regulation is one which

+ peewee

31

requires more scientific processes than those available in

jury trials.-Further, the act as so construed does :not afford

“reasonable guides to be followed by the judiciary ‘and

Permits it to confiscate property with unlimited discretion.

Finally, §342(a) (1) as so construed by the Court below

- violates the due process clause of «the tederal constitution

because it unreasonably and arbitrarily discriminates against |

manufacturers and users of Benzene Hexachloride in par-

ticular, and pesticides in gencral, by prohibiting their use

without any classification or distinction upon bases of de

grees having any, rational basis. The effect of such con-

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

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. .

; ¢ Se

All of. the state statutes ‘and city ordinances cited in

the Court of Civil Appeals’ opinion contain the same es-

sential provision which that Court found to have been:

violated in ‘the §342(a) (1) of the fedezal statutes to-wit:

a ‘food is demed “adulterated” if it contains any added.

poisonous or deleterious substance which may render stich

food injurious to health. The issue raised by these laws is

the same as under the federal Statute, and these local laws

were invalid for the same reasons, aS so construed by the

Texas Court: . : “. :

IV. Special and ‘Important Reasons<Suggest Allow-

ance of This Writ a .”

The Texas Court determined two questions of substance

in its opinion below, and neither had been theretotore de

termined by the Court. First.sSection (344 of the federal

act had never been applied: thes as apparent. from a glance

*

.

we,

“at the annotations in U.S.C.A. But this section is now

available to any zealous federal officer.

If this decision does” not, by itself, ee ee the zeal of

most officers, many of them. may be expected to become

increasingly zealous by virtue of the public debates-now

taking place in Congressional hearings and in literature

Suth as the best- selling book “The Silent Spring.” The mere

popularity of such’a book proves a growing public sym--

pathy with strict régulation of the pesticide industry, and

over-zealoushess on the part of some regulatory officials:

may be expected if this trend continues.

Sketion 342 ( (a) (1) of the federal act has been given

application in- accordance with the whim’ of a jury, and

certainly not with regard. for the over-all regulatory prac-

tices of the federal government. Probably this Court would

‘not have applied’ it in this way, but we may expect that it

will be so enforced by other state courts. and juries be- -

cause of ‘the, increasing public anxiety over chemicals.

- oe ae] ’ , eee

Therefore Petitioner. respectfully requests that-a writ of

certiorari issue to the Court of Civil - Appeals for the First

Supreme. Judicial District of Texas.

Tre Kemper *

ate - Jorn D. Rictarpson

Attorneys for Petitioner ‘.

319 Sheil Building

- Houston 2, Texas

Uy

ee ececk

John D. ‘Ricks

43

a

13

= CAPPENDIX “A” | -

ORKIN EXTERMINATING COMPANY, INC:.

Appellee,

. | . a ae : 3 °

GULF COAST RICE MILLS, . Appellee.

hes

NO. 13998 _

~ Appeal from District .Court ‘bf Harris County

This suit was brought by plamntiti, 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 actendant

have. perfected appeals to this Court trom the judgment

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

. € ° - t= . oar °

From the judgment of the District. Court rendered on the

first trial an appealswas taken by the defendant and the

: pp int an

judgment was ré¢ersed arid the cause, remanded by the

— Waco Court of Civil Appeals. Orkin Exterminating Com-

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

dism. wij. a |

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:

5 x Cc . i

entered into a written con-

* “Plaintiff alleged that it

nder, the terms of which

tract with Orkin in 195?

Orkin was to exterminate and\control insects, rodents.

and pests in plaintiff's milli. chat in August. 1956

P © “

] pe te a

CH “at

oe peer

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-

* ysable; thar’ 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 bé in- °

jurious to health and unsafe within the meaning of

the Federal Food* and De

et seq.; that the foregorng were proximate causes of

damages suffered by plaintitf which- were alleged to

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

loss of profits incurred while ) 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 om the record before

it held that the trial court erred in granting the partially

“instructed verdict for the plaintitt, thereby withdrawing

from the jury any issues as to-whether defendant breached

its contract, or defaulted upon its express or implied

warranty, since there were numerous disputed fact issues

in the contract and bre ach of w arranty®phases of the ¢on-

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 motions for an instructed verdiet, 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

ar

ug Act. .21-U.S.C.A. §301:

S

35

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

that such application to she 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 plaintifi for.

such. damages ,as Were cused by applica@n of Lindane

to the ricé and premises of plaintiff, taking inté account

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

‘tiff’s premises and (c) ditherence 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 cof plaintiff's mill reas¥*

‘sonably and necessarily consumed im. re er the nike -

rice, ie . . : -. :

“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 Tssue (6) to $21,245. 32

because plaintiff’s pleading limited such items ‘of damages

to that amount, and otherwise overruled such mbtion and

entered judgment for-plainuff in the total sum of $34,-.

246.32, being the reduced amount of the verdict plus

$1.00 nominal damages for breach. of contract. insurance

“4

Pg

_ Orkin ial that the trial court’erred in overruling

Provisions.

its motion for gn instructed verdict and judgment non —

‘ obstante veredicto when there was no evidence to support

any cause of action: or leg zal theory of -recovér¥, and the

jy

,

“

o-

"av

law of the case ard 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 adopts. the same. It asserts that the~ plead-

ings and eviden@ 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 Jyanded down. by the Waco ‘Court.

The Waco Court’s summary 6f the evidence adduced on

the first trial is as follows: es

“The record reflects thar plaintiff Rice Mills entered

into a written centract with defendant Orkin Ex-

terminating Company in 1952, under which Orkin

was to exterminate insects and’ ‘rodents in, plaintiff's

mill; that the inseet and rodent situation became .so

bad that in August, 1955 Orkin sprayed with an

insecticide known a Lindane. .Thereafter, the Federal

Food and Drug Administration and the State Health

Department and the € itv of Houston made some in-

vestigation of the use of Lindané 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 sold the

Rice Millthat thee use of. Lindane had’ violated the

Jaw; 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 coi-

demned; the, buildings padloc hed and: the Mal and its

ofheds 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 rease,, the rice Was contaminated. and-would

- - © . w/

have to be remilled. The plaintiff Rice Mil relied

~

.

7°

37

on what Inspectag Moses told: it (speaking for the

Federai,- 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, plaintitl 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

reflects that some 95‘. of the plaintiff's rice was in-

» tended for export to a fercign 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 trom. voc up to 3.6 parts ot Lin-

dane 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 tq 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 ‘iy our

view that there are some substantial. differences between

the evidence adduced at the’ first triat and at the second

trial, Several medical Witnesses testified on the first trial

who did not ‘testify on thé second trial. The applicable

ordinances ot. the City of houston were not: introduced

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

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

and State agencies ‘delegated to Inspector Moses the right

to. act for them, although they may have lagreed | that

L.

>

38

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

ditferences will appear in the course of this opinion.

Plaintiff asserts that the answers of. the jury to the

Me cee issues submitted. constitute findings against Orkin

ee 6h both the contract and tort phases of the case. Plain- -

- tiff requested 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

considered by this. Court. The special issues submitted

are limited tothe use and’ application of Lindane and do

net encompass any damages resulting from. infestation of

the rice by insects or rodents.

The contract does not make spécific mention of Lin-

was It specities the scope of work and controlled service

» be rendered by Orkin, and with respect to material

» be used provides: “The materials used shall conform

to Federal, State and local ordinances and laws, and shall

. be accep” ble to. the rice milling industry.” Plaintiff argues

that Orkin in using Lindane violated the provisions of the

~ contract and breached its implied warranty t6 use’ proper

materials, and was guilty of violations of the Pederal Pood,

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

Sec. 342(4) (2) since no amount of Lindane whatever was

permitted on milled rice; and (2) it violated 2f U.S.C:, See.

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

substance “which may render” the riée injurious to heaith.

Sg: Plaintiff further contends that the undisputed evidence

also’ shows violations of the Pure Food laws ‘of the State

of Texas and violations of the City of Houston ordinances.

39

“Our inquiry’ is limited to slleacd violations. of the con-

tract in the use and- application of Lihdane 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

of 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

off 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 wicaded that ‘the spraying of an insecticide or

pesticide on plaintitl’s rice, rendering it unfit, for sale,

was a violation of Sectioris 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

4c) Food . . + (5) “Hf it contains any added porons or

other added ddsstions 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 ts adulterated or saprdibseaeoeabe with-

inathe meaning of this article”. Secrion 873. provides for.

prosecution and punishment for violations of the fore.

going sections.

40) -

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

ous or deleterious ingredieat and that at was added to the

. - * : ° ¢ ; _*

nee by Orkin. in blowiag Lindane dust all over the nce

an plainttf’s mill. It was not necessary to show that the

food containing an added poisonous or deleterious sul:

stance must affeet the public healthin order for it, to ve

condemned. All that need be established is that the added

poisonous or deleterious substance must be such-as may

render such article injutious to health. United States. \

Lexington Mill & Elevator, Co., 232 U.S. 399, 34.8. Ct.

337, 58 1. Fd) 658: There is substantial evidence showing

that lindane in any ‘quantity on rice may render such

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

“Issue No.’ 2 finds support m= the evidence. There is no

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

weight and preporiderance ‘of the evidence, and Jit there

were such assignment, we could not consider 1% since de

fendant appeals from the court’s refusal te grant an in:

ms a

structed verdict and judg ‘ment non obstarite: veredieto.

* Plaintit! also pleaded that by spraving ‘such rice and

-adulterating at and rendering it untit tor sale, Orkin vio

fated Articles 4471 and 4472 of the Toxas® 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’ plaintiti to crim

nal prosecution by the State. and to confiscation of the

rice. ° ’ 3

There is evidence in the record betore us that Orkin

apphed TLindane to phiuntith’s stores of rice. inchidine beth

. e “ *

milled and unmilled rice. Ne chim ter damages hae been

*.,

made by plaintitf tor the unmilled rice, since it would

necessarily have to be milled and milling would remove

the Lindane.

The Waco Court on the record betore it found in effect

that there “had been no violation of the Federal statutes

relied upon by .plainuth. We think the record on this

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

shall: be deemed ‘to .be adulterated—(aj (1) Tf it bears or

contains any poisonous or deleterious substance which

Se,

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

bears or contains any added poisonous or added deleterious

substance... whiclt is unsate within the meaning ot

section 346a. ; ." The-exceptions in Section 342(2) (A)

do not’ apply to milled. rice and aré inapplicable to. the

facts of this case. Section 346*with respect to tolerances |

a .

for poisonous ingredients provides: “Any poisonous or

deleterious substance added to any food, except where such

substance ise required in the, production thereof or can-

“not be avoided by good manufacturing practice shall be,

‘deemed to be unsate for the purposes of the appheation

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

evidence and the record before aus show that Lindane was

not required in the production of rice and that ats ws:

could have been avoided. Indeed, “Lindane had been” used

only once in connection with piainttl’s mill from 1940

to 1955. and. then it was used without the knowledge

_ot the plaintiff or the health authorities. From. the tme

of the application m 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.

os

42.

-

*s

Plaintiff asserts that on .the’ second trial the evidinice

shows that Lindane wis on all the samples.of rice that

. Were taken and analyzed, except one sample that fiad been

“remilled. ven it plaintith i mistaken in such assertion

there is nevertheless evidence showing | that a number ot -

samples Were taken and.that tie results of many samplings

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

that the addition of such parts of Lindane to milled. rice

may render it injurious to health. Manitestly it would bé

impossidle to segregate trom, the stores of contaminated

milled rice in. questiot’ some unknown quantity of rice

that might sot hive had Lindane on it in such quantities. :

- Since no tolerance tor Lindarie on milled rice as apph

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

Secretary pf Health, Fducation & Weltares the addition’

of any amount of Lindane te such milled nice: was" in

violatton of Section 342(2) (2) of the Federal Food, Drug *

°. & Cosmetic Act: and especially seo if at-may have rendered

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

‘specific, as stated by the Supreme Court ot) the United

States in the recent case of Flemming ‘ Fjorida Citru.

IKxchange, *58 US. 153, 79 S. Ce. 160:

-

“Here again, ain our “@onstruction of this expla

Act, we must be) sensitive te what Congress had

wrytten,.and recall that ‘he ow ter us te, ascerram

neither tt idd nor te subtract. neither to delete ner

to distort.’ 62 Cases ot Jam +. United States. 340

Ss, $95, $96, 71 8S. Ce Pts... £18,987 ed $66. -

. : ee, ' g

Section 3.41, Tithe 21, 1955. Code of Tederal Reguls.

tiens. provides: “(i) The amendment m chiuse (2). ot

section 402 (4) of the bederal bood. Deae.cand Coemern

.

.

'

a oer

Act shall become ettective on the dates specitied ter: the

“tellowing pesticide chemicals: . . 2 (2) Ettective date

October 31, 1955: .. - Lindane: . Gram (from treauing

sturage bins). ” On the second nia it Was established that

plainutt had never had any treating storage bins. The 19 4

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

5 ot ‘the Ace ot July 22.” L954 as applicable to the tacts

of the case betore us, becdine eticctive one year tollowing"

the date of the enactment of the Act or on july 2 228955,

and was.in tuil torce and ettect inh August, 1955. when

the Lindane was applied to plamntuti’s rice. Secon 120.1

(ce); Lathe 21, 1955, Code ot bkederal Regulations, enutled

“Detimitions, interpretations, and Lxemptons,’ provides

in substance that tie term “Raw agncuitural commod:

ties”. does not include toods that have been processed, tab

ricated, ot manutactured | * Cowhing, tieeZing, dehydrat

ing, oF mulling. Since plamtuths grain had been milled and

Way not.a raw agricultural commodity, no tolerance had °

been established tor at. Theretore,’ the application of any |

mount of Lindance wa, prohibited since it would “add

to the milled rice a pomonous 44 deletencus, substance -

that may, be rnyurious to, Mealth rf shown by the evidene:

adduced en theSsecond trial.

At the time of the occurrence ip, question, the Pederal

vie

beod. Drug, 20! Cosmet <Act.. Section 381d 23

‘LLS.CLA., provided” with respect te exports that a tood

_ intended tor export shalf not be deemed te be adulterated

or musbranded if if accords to the speciticatiofis of th.

turcign purchaser.‘ net in conthee with the laws ot thi

country -to which i is intended tor export. and as labeled

on the outside of the shipping package tot show thar oat‘

oN

44

as intended ror export. “But if such article is sold) or

oifered tor sale in domestic commerce, this subsection °

shall nor exempt it] trem any of the ,provisions of this

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

95°. of plhantift’s mee had been: exported during some

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

question was labeled tor export or that it would necessarily

be exported. Jt was held subjeet to sale in domestic mar-

kets as well as toreign markets. Furthermore, the und:s

. ‘ oaegn . -z ‘ ;

puted testimony of — plaintiti’s ng manager Smith,

who negotiated contracts with foreign buyers, was ‘to the

cfieet that he could not have sold‘to any foreign pur-

“chasers any rice contairiing Lindane.

Detendant contends, huiveever? that plamtit! voluntarits

remilled its mee. ’and that it was notsforeed: to do’ so by

the Federals State or City ‘authorities ‘We think this con

tention istwithour ment. Under the evidence adduced on

tie second tral, it appears that phantit? was placed in such

position by Orkyr that at could nor tkeep the rice in its

possession, sc! of -exchangs the sam without being sub-

eet to ermunal prosecution and punishme nt under ‘Sec

tot 873 of the Ordinance of the City of Plouston, and

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

i te ie ¢ -

could "be condemned, contiseated, torte:ted and destroyed

under Articl 4470, “Texas, Revised Ciwil Statutes. Thre

evidence shows thar gh State ageney was prepared tp taki

action af) plant's rice was-sold or offered tor sale with

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

commerce would have subjected Plaintitt to penainues unde:

Sections 33% and 334 ot—the Federal “Act. Having place!

thy plaintit! an the situation where it could neither ‘retam

45

not sell-the rics in question without’ violating the Pure

«Food laws of the City, State -and Federal governments,

and subjecting itself to \proseeution and> penalties, the

detendant is not in 2 position to urge that plaintiff acted

-voluntarily and not under coercion in remilling the ri¢e

and theseby 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 detendant with respect to vobuntar®

payments are inapplicable to the factual situation in the

present case. The retention ér sale or offer to sell thé rice

‘in question constituted a. violation of law, making: -plain-

_ tiff’s action necessary to. avoid prosecution, penalties and

seizure of the rice. Under these circumstances plaintiff’s

act in remilling the rice. was not yoluhtary but ‘coerced

‘as a matter of law. Where one risks Prosception, penalties

and ‘forfeiture of his property tor 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. Cit. Ct. App. 1953; 202 F.. 3d 21:

St. John’S Electric Co. v. City of Sr. Augustine, Fla. §. Cr.

88 Sa. 387; 17-A Amer. -Jur.. Duress sand Undue Influ

ence, Secs. 7, 14, 9.75; 21 Tex. Jur. 2d. p.-1h6, Duress

& Coercion, §2. ta: ;

- Plaintift on its appeal complains ,that the trial court erred .

in exclyding ceriain evidence relative to lust profits and’ in

denying its motion: tor bost ‘profits betore judgment: We

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

Q . : * \

ge 46 \

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

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

in the sum of $15,000.00 tor the loss of use of ‘ plaintiff's

mill consumed in’ remilling the milled ‘rice, necessarily in “>

cludes lost’ profits. No’ judgment for lost profits in any

other amount could have -beén entered without plaintiff's

compliance with rule pi, Texas Rules of Civil Procedure.

There was no such compliance. 2 ates I

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 proot as to the amount ot dost

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

certainty as to the fact ot legal damages. These general

rules’ are not questioned by detendant. in the instant case

plaintiff's Witness Was asked to-give oral testimony trom

some records as to the amount of rice’ purchased by plain

tiff in October. November aad December of 1953, to which -

question detendant- objected because there had been no

showing of any comparison betv.cen conditions during such

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

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

asked whether he had an opinion as ‘to the amount of rige

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

jected as not being based upon fatts. No other evidence

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

in the jury’s abs:nce such witness testified that he thought

“it wouid be ‘reasonable to suppose” that they would have

bought at least 100,000 additional bairels and that he

thought “it is reasonable to suppose: we would have made

at least §0 cents a barrel”. We cannot say that the court

improperly excluded such testimony,-but if thereswas any

is

47.

‘error in such connection, we think the exclusion was not_

harmful ‘in view of all the records and testimony relative

to egrnings: and profits of the business that were admitted |

in evidence. rs

In its sixth Point; plaintitf. asserts that the court erred in

denying interest before judgment. upon its damages. Plain-

ult sued nor only for its damages but for interest thereon’

as damages. It states in its brief that it continued to sastain

damages untiP 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 trom that date until date of judgment,

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

“The State of Texas, 154 Tex. 494, 281.5:W. 2d 83; Watkin®

v. Junker, 90 Tex. 584, 40 5.W. 11; Tortuguero Logging

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

Wm. L. Foley, Inc., 115 Tex. 222,280 5.W. 499, 44 ALL.R.

627, ' i :

We think there-i is no merit in plaintiff's contention that

it was entitled to a directed verdict or its contention that

the court ‘erred in grarfteng 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 js no evidence that would war-

rant submission of. an issue in corinection with alleged gross

negligence on the part of the defendant.

~The judgment of the Priat Court ts retormed ee adding

thereto interest to date pf judgment in the sum of $12

239.17, and, as retormed 1s athirmed.

,°

/

/s/ Ewing Werlein,

a) . Associate Justice.

Judgment rendered. .and opinion filed November 8, 1962

*

48 i

APPENDIX. **B”’

REV PERSE D AND RE M: ANDE i)

. -9 FEBRUARY, 1961.

. NO. 3798

IN THE

is Court of Civil Anpeids:

¥

| VOR “THE :

TENTED SUPREME. JUDICIAL DISTRIGT OF TEXAS °¢-

. AT WACO

eas

ORKIN £ XTERMINATING € ‘OMPANY, INC., Appellant

i. emer

_GULI COAST RICE MILLS, Appellee

Appeal from District Court. ¢

$,.* Harris County —

: * OPINION

‘

.

Gulf Rice ‘Mills filed this suit against Orkin Exterminat

ing Company: Plauntitt alleged that at entered into a

written contract with Orkuy 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 plantiff’s-mill with an insecticide or pesticiedk

known as’ Lindane; that Lindane is poisonous and pre

hibited by daw to be so used; chat the application of Line

49

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

of Ltndane on the intérior Of the mill was negligence;

gaused the. rice to be unfit for use and adulterated: caused

the Federal authorities to prehibit sale of the rice; caused.

the rice ‘to. be injurious to chealth: and unsafe’ w chin. the

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

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

of. damages suffered by plaintiff which were alleged to

‘be some °$96,000 (expense , tor cremilling the -rice ‘and~ loss

‘ot profits incurred while so remilling the rice).

Plaintiff further alleged that) Orkin dofauleed and

- breached its contract in some 17 parucilars, summarized:

1) im not controlling insects and mice; 2) an not ee

termifating in a manner to minimize the possibility of LU. 5.

‘Food and-Drug Administration citing plaintiff; 3) that

‘at did not condtict inspections as aereed; 4) thar it did.

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

cedid 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 t6 civil and

criminal proceedings: 7) thar at failed to furnish a cer

tificate of insurance showing publ fiabilicy im amount’ of

$250/500,000; and properts damage insurance mn amount

of $100/100,000, ; ; «

.

.

‘By reason of the‘ foregoing breaghes ot contract, plain

.

tiff ‘alleged its damages at »96,000,,

Plaintiff further alleged that Orkin detaulted on- the ,

a \ 5

express warranty. and inyplicd warranty of ats contract.

Jin failing’ tw provide eficctyve insect. and rodent control

ina safe manner, acceptable to the rige industry: for breach

of which plaintiff alleged its damages at 896.006 ;

50,

Plaintiff .prayed fot, interest from January, 1946; as

well as $200,000. exemplary danjages” for employing Lin-

_ dane, which. plaintiff, alleged Orkin knew was a. harmful

poison, use of which was prohibited: by Federal, State, and

local laws.

Defendant Orkin answered bv 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 remull 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, withoug. be- i

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

determination of the government’s claims.

_ Trial was to a jury.” re Rea

Defendant filed motion for instructed verdict contend-

ing, among other. things, that no: negligence Was shown, on —

Court

among other things: 1) thar defendant breached its con- L

ing

defendant's. part; that there was novevidence to justly a

findiyg of facts supparting any legal theory of recovers

against defendants; and that plaintith voluntarily remilled

its rice without secking a judicial detesniination of its lia-

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

.

Plaintiff made motion for instructed verdict, contending,

tree 1,

ae eeee ae ‘* a ati henrearne “7 Ph re ee ee wet

,.

“the mndeauied evidence establishes defendant's liability

a“

ith plaingff in 2. nesembeor: at sarticilaes a” } th a4 4 a»

| 7 eae

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

2) that the undisputed evidenceshows defendant breached its

express and implied warranty in its written contract in failing

provide effective insect and rodent control in a safe

manner; 3) and in failing to carry out the provisions of

its written contract, in using Lindane, which was pro-

hibited by law to be so used.

The Trial Court entered an order granting in ‘part and

denying in part plantiff’s motion for instructed verdict.

‘In such order the Court ordered the submission tosthe jurs

of issues inquiring whether Orkin's actions regarding the

use of Lindane constituted negligence; whether such negli-

gence was a proximate cause of the damages of ‘plaintiff;

ind what damages, if any, plaintiff suffered from foss of

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

milling the rice were $46,245.322 (The court further ordered

issues concerning the _ Plaintiff's riglhit, to recover intere st as?

damages and punitivé 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- beén found ard concluded as matters of Jaw by ‘the:

court’; 1) counsel may not argue,’*comment’or rémark

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

priety of any: acts or gmissions of Walter R: Moses or the

Federal Food and) Drug Administration: 2) Counsel may

not argue, comment or remark in any way concerning the

_ necessity, of the remilling of the rice by the agen, 3)

.5¢ ‘ounsel may not argue, comment, or remark i nan’ way

upon what the law is, or Whether any violation of law oc

_ cured on-the part of any person. 4) Counsebmay not argue,

§2

comment, or remark on ANY issues contained in. the bre ach

: of . contract case herein.

Defendant requested the submission of a number of

issues, among which were: 1) issues inguiring if. phaintitf

acted as a volunteer without legal obligation to do sa, in

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

Or not the actions of Inspector Moses in requiring the

remulling of the rive was the sole proximate cause of plrin-

tifl’s injury. = ieee '

The Trial Court refused all issues requested bw defend-

ant and submitted issues to the jury Which, in answer

thereto, fdynd:

-1) Applia tion of Lindane by Orkin to plaintitt’s rice

mull in August, 1955, was négligence.

2) Such. was a proximate cause of plintitf’s-damages.

3) Gulf Rice Mill lose profits as 1 result thereof in the

amount of $40,000, : ¥

gross negligence. ,

§) for whych $10,690. exemplary damages should be

granted.

6)and 7) Gulf Rice Mill should recover interest from’

June 7, 1956.

Defendgnt moved for judgment non obstante veredicto

@nd alleged, among other things: 1) the findings of the

jury cannot afford a valid basis for judgment for the plain

til; 2) the undisputed evidence and the law conelusivels

show that no legal liability did exist cas asserted by the

Federal Agengy; further that plaintitf incurred its damazes

by voluntarily compromising the litigation threatened by

» 4) Orkin’s application of Lisdane to the rice mille is’

-_

aN

*

the Federal Agency, when no legal validity existed as to.

such threats; and plead, tor disregard of the findings on

exemplary damages.

. . : te tote

_« The Trial Court -overruled such motion, except as to

the findings on’ gross neghgence 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 €auses

of the damages sustained by plaintiff; and the Court

having found tha. defendant defaulted’ upon its ex-

press warranty proximately causing plaintiff’s dam-

ages; and the Court further finding that “i its

implied warranty was breached, proximately causing

damages to the plaintitf; and the Court further find-

‘ing and being of the opinion that notwithstanding the

aforesaid breaches of gontract and warranty. the ac-

tual damages of $86 245.32 vere proximately caused

by negligent acts of thidefe, dant as shown by the

jury’s answers to the special ‘ssucs.”

“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 7 -June, 1956 at 6%, in the

sum of 314,973.97. % * *.”

Defendant's motion for new trial was overruled by the

Trial Court.

Defendant appeals on 42 poirits, including among which

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

of facts supporting any le gal theory of recoye

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, 2° 4/or

‘defaulted upon its express or implied warranty.

.

-

Vs ws Oe

*«

La

54

The record reflects that plaintiff Rice Mulls entered into

a2 written contract. with defendant Orkin Exterminating

Company in 1952, under which Orkin was to exterminate

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

situation became so bad that in August, 1955 Orkir 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 mee was unfir

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) 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 plaintiff Rice Mill relied on what Inspector Moses

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

Departments}, and withour contesting.. disputing, or Jitt-

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

As further pertinent, we note that the record reflects

that some 95‘, of the plaintiff's rice was intended for

export to a foreign country. The record further. reflects

‘ . 55

P e :

that. a great many samplings of the rice were tested for

Lindarie 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 contragt 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 Orkin

in plaintifi’s rice mill. The face that Inspector Moses certi-

fied that the law was violated did aot foreclose such mat-

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

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

tamination by Lindane and contamination by. filth éte.,

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 focal liws, both

as to use of Lindane ‘ind filth, is inadequate. The City

of Houston Ordinances were not introduced in evidence).

This brings vs to the question of whether the Federal law

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

‘ = . -ore Pad ° 7

spector Moses on the trial, and by plintiff’s brief in’ the

j

/

/

36

"instant appeal. The a Statuses principally involved

are Sec. 342; 346(a); 321; 381 U.S.C.A. (See also 1954

U. S. Cade, Cengressional and’ Administrative News: and

1955 Onde of Federal Pegulations). See. (12) 3.41° Title

21, 1955 Code of Federal Regulations provides that such

acts shalt not become effective for bindane on gran until

October 31, 1955. (Appheation of the Lindane té the rice

was in August, 1955) 2° Moreover, i See Section ek G4

Tithe 21 U.S.C.) .1954 U. p> nde Cong, & Adm. News,

p. 2631). at appears that: ithe statute. does not: attempt

to regulate residue from pesticide chennecals which remain

incor on processed Commodities; and that food processed

bey operations such ds milisne are not subject theteto. Pat

Finally, 95°) of plaintat S rice Was intedded for export,

and under Section $8163) 15 “Rot deeme d adulterated under

the instant chapter U. AC, BD

From the reece: rd. betarg us. We cannot sav that the

ot Lindane; in the quantities used. and under the factual

“situation here. involved, was violative, of the Federal law.

° Moreover, as noted, the record tails-to teflect the pres

ence of Lindane in the phantit’sunee in any qusntty in-

jurous to health.

From what has been sad it as our view ‘that, plaintitt

has not shown a violation of poli: State. or local. law, -

end that thee record docs not support recor ery. on the tort

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

Folsom, Sth Circunt; 246 F..2d 850:°U. §. v2 Lexington

Mill & Flewator Co.. 232 US. 399: Wood Mtg. Ca. v.

U_S.. 286 Fed. &4. ‘

Defendant's contentions “t up i this opinion, supra,

are sustained, and the’ cause is REVERSED and RE-

MANDED. ep ee oa eal

af /

PRANK G. McDONALD

Chiet Justice

*

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

Detinitions & Interpretations (12) Section’ 3.41 “Pesticide

Chemucals: extended dates on which statute shall become

fully ctteétive. .

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

for the following pesticide chemicals * * -*.

(2) Effective date October 31, hs Pad * * Tindani

2% Gram (from treating storage bins)”

2) 1954 v. S. Code € Congressional & Adm. News, p, 203,

“This bill does not attempt to regulate the residue from

pesticide chemicals which may femain on processed, fabri-

cated, or manutactured food. other than by limiting -the

pe ‘missible’ residues on: raw agricultural commodities. Food

processed by. Gperations such as cooking. freezing, dehvy-

dration or miloig would remain subject to Sextion 406

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

tains a general declaration’ that any pomonous or deleter

.

ous substance added ty food is unsate escept ow here - the.

substance "16 required in the production thereaf and can-

not be a by good manutacturing practice“ How- °

° ; t

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

cor cannot be so voided (and this is sO in case of the us

‘of pesticide chemicals in the proguction of most. raw.

Q

58

agricultural commodities) Sec. 404 directs the Sceretary

‘of ,Health, Education, and Welfare to promulgate regula-

tions limiting the quantity. op 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,

3) Tithe 21 U.S.C:A., Sec." 381(d). A food, drug,- device

or cosmetic intended for export shall not be deemed tuo

be adulterated or misbranded under this chapter * * *,

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

~

ee

S&-.

59

: APPENDIX "C” =

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS AND ORDINANCES

1. United States Constitution:

Fifth Amendment: “*** nor be deprived of life; liberty

Or property withou. due process of law***.” U.S.C.A.

Constitutional Amendments 6-14. ,

Fourteenth Amendment: “No state shal] *** enforce any

law which shall abridge the privileges or immunity of citi-

zens of the Unired States.” U.S.C.A. Constitutional Amend-

_ ments 1-13. i sa: . |

“Supremacy Clause” (Art. 6): “This Constirution, and -

the Laws of the United States which shaJl be made Pur-

suarce thereof; and all Treaties made, or which shall be

made, under the Authority of the United States? shall be the

supreme Law of the Land; and the Judges in every State

shall be bound thereby, any Thing in the Con.titution °or

Laws of any State to the.Contrary notwithstanding.”

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

U.S.C.A.: 4. * eee

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

7** (a) if.it bears of contains any poisonous or deleterious

substance which may render it injurjuus to health: nee ot

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

ded deleterieus-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 pion x .

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

* .

©

»

GU.

manufacturing practice shall be deemed to be unsafe for.

purposes of the application of clause (2).-(A) of? section

$42 (a) of this title; but’ when such substance is, so required

or cannot be se avwided, the Secretary shall promulgate regu-

Jations- limiting the quantity therein or thereon to such ex-

tent as he finds necessary tor the protection of public health.

and any-quantity exceeding the limits so fixed shall aJso be

deemed to be unsate tor purposes of the application” af

clause (2) (A) of section 342(41)-of this utle. While such |

a regulation is m eftect limiting the quantity of any such —

substance: mn the case of any todd, ‘such: food shall nor, by

reason of bearing or containing “iny added amoutt of Such

‘substance, Be considered. to be additerated within the mean-

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

wie the Quantity of such added‘ subscance tobe tolerated

mi or on ditterenc articles ot tood the Secretary shall take

mite account the extent to which che ase ot such. substance

a required” or cannot be avoided 19 the production ot each

such article, and the other ways im a@vinch the consumer may

“be attected by the same or: other ‘poisonous or deleterious

substances.” . ¢ .

SecuuGn S4oa: (a Any: porsonous or r del eterious pesti-

cide chemical, or any pesticide shitbical Ww rhich is not gen-

erally recognized, among experts squalitied by scientific

traning and experience to evalurteS the satety of pesticide

thémucals, as sate for use, added to & raw agricultural com-

modity, shall’ be deemed uasate tar the purpeses of the.

appheation of clause (2) of section 342¢a+ of this, tutte

“

unless - fi mm §

(1) a tolerance for such pesticd vhemucal re or &n the

raw agnecultural commodity has begn preser bediiby. the

Secrefary of ttealtls, bducation, mh N elrare under this

section and thc quan of such pesticite, chemical wt or

4 . ° yn ~"

. : Re ay - \4l

on the raw agricultural chimmodity/ is wiiaa the limits 7

of the tolerance so* prescribed; ***.”’ ,

3. Code of: Federal Regulations (1955) Tithe dM:

Section 3.41." (a). The amendment in clause (2) of Sec-

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

shall become.effective on the dates specified tor the tollow- : ;

ing pesticide Chemicals: *** “(2) Effective date October = * a

Eee 2 “"Lindane:.... Grain. (trom 4reating storage _

bins}. sia , , in A git hts oe P

Section +120. 11. * -* (a) (1) This section designates

the poisonous eae, substances that, tor the pur

poses of section 406 of the Fedéral Food, Drug and Cos.

we metic Act, are found to be required in the production ot © +

“the fresh fruits or vegetables hamed in paragrapli (ce)

of this section. *-~% * (&) *.* © (2) For the. purpases os

of this section, where a tolerance of 5 parts per million ,

- for benzene hexachloride is set, it Shall be deemed appli

cable to commercial benzene drexachloride, which is a mis

ture of several isomers.“ Tt the gamma omer,’ known as

lindane, is used exclusively of other isomers, tlic tolerance

“shall be 1Q parts per million.”

Section 120.1 °°" * * (¢) Raw agricultural commodities

include,” amang other things, tresh fruits. whethe: or not

they have been washed and colored-or otherwise treated

in ther unpecled natural form; vegetables. im their raw

or natural ‘state, whether or net they have been stripped

of their outer leaves. waxed. prepared into tresh green

. _, Salads, etc.; grains, nuts, eggs. raw milk, meats, and simul

OPN Se . agricultural produce. It does not include foods that have ~~

} pecre processed, tabricated, or manutagtured by cook.ng. ; .

> wefreeving, dehydrating, of milling. ; . .

2" ef)ye Where raw wricultural commodities bearing res:

dues that have -been exited trom the. requirement of

: 7 , ’ g ©

a . - _ ‘” ten

. 4

°. Ww *; im ; i ,

e :% ~ & ° 6 ~ ~ a

.

, s . .

a lerancey or which are within $4, lerance sore

under section 408: are. used, the processtdetood® will’ not-

be cansidered: uNsaAte, svithin’ the Meaning of section 406

if :. ae : Sean's po Coys

“ 1) The poisonous’ * oP delevertirs pest: ide résiduies 5.

have been removed ‘to if extent posible in good m.nu-

sehr Practice, and, : ¢

: ‘ #2) The concentragan of the pesticide in the “pre:

served or processed tood hen’ re ady to-cat is not greater

han the tolerance pe rmitted on the faw- sgricultural com- *

: Sodigy.” ries . ’

ve 4. Penaht: ode of the State of Tehas, iapter 25 Title 12

a 3 (Vernon’s Annotated Statutes, 2 Peng Code 37-38): ,

: Article 707. “For the purposes of. geen ig an article

aia ¢ +

shall be denied to be adulterated: (c) In the case

« e . ” ”,

-of food; * * (5) if it contains an- added are

Foie: tat deleterious itigredient- which may render

NS fy article injurious to healch, ’,*

* 8

Civil Statutes Yi the Srate of Texas (12 A;’ Vernon's

j Ronagesed. ie Statutes 325): : re

Article 4472. “Ths terms “adulterated” and ‘misbranded’,

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

meaning as is “given those terms in —_ er two of gitle)-

12 of the. Penal Code.” q i

.

“8

pd

6. Ordingds of City ‘of Houstan (Cc ity. C ode a Houston,

. Texas, 1942, page 454):

. * Section 868, “For the antag of this article, an article,

shall be deemed adulterated: * * * (c) Food, - Re * o

(5) If. it contains any added’ Poisonous or other’ add d

- déléterious - ingredient which may ‘tender such article

-* injurious to health; * * *."— . 4 Fe -

“>

oo

—<

. @

amen

-

testimony began.

ae 9 ans

APPENDIX *D” *° -. °°

be eae eel a ee

: Sf gs) | NOL 488,534

ea eet :

- ee ‘ IN THE

IN THE pISTRICT COURT OF HARRIS COUNTY, TEXAS |

S.. 127TH JUDICIAL DISTRICT

(@ » GULF COAST RICE MILLS

ORKIN “EXTERMINATING COMPANY, INC.

a — , 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. Chummey, as plaintiff in person and by their attorneys

of record; and cam. Orkin Latesminating Company, Ine.,

as defendant, in person and by

perties announced ready for trial NQ jury of .12> good and

lawful men and women having bee duly impaneled. and

sworn and having heard: the plead the introduction of

Having be ard therevidence sad theirgdment of counsel,

the jury upon their oaths did; for their vekdiet. in response

othe “following special. issue submitted gorekam bye, the

Court on December 11, 1961, maket the following respec

tive findings:

_ The Court subrnitits this case go: you. on special: issues and

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

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

answer such issues without reference to the effect your

>

its attorneys wot record. All

cn

= 6-4 on ”

answers. may have upon the judgment to be rendered in

“this case. In your deliberations you gust not discuss” any

fact or matter which is: not based: upon the evidences

adouited before you under the rulings ef the Court.

Let your ‘verdict be signed. by your Foreman, whom

y you will select: from-your number, .

. eos ;

Your verdict must: be by unanimous vote.

By the term “negligence”, as used in this charge, 1s

- meant a failure to do that which a person of ordinary

produces an event, and without which. the.

>not have occurred, and to be ‘2 proximate’

prudence inthe exerctse of ordinary, care would do under:

the same or similar circumstarices, or the doing of that

which a person of ordanary prudence in the execregise of

. A ‘ ‘

ordinary care would nyt do under the game. or similar

. 3 . 2

.

ra) rcumstances.

‘By the term “proximay

iS Meant a cause which

sequence, unbroken by any new and inddendent cause,

‘ent would

a . oats

use of an

O

event, it should *have been reasonably anticipatf~d and fore-

fen by. a person of. ordinary care and prydence in the

exercise of ordinary gare that the event orksome similar

event would occur as a natural and probable &

There may ‘be more Phan One proximate cause.

. “ ba ss #

Bye the: term: “new agd’ independent cause”, as that term:

is used in.the ‘foregoing definition of? “proximate cause”.

is meant the. act or omission of a separate and independerit

agency, which destroys the causal connection between

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

jury complained of fand thereby becomes, in itself, the

Mediate cause of such injury.

a

a

|

;

* cause,” as used’ in this. charge,

mM a_natural and continuous.

sequence.

oN

eo.

«

cy

_jurious to health?

Os:

Se»

By the. term “preponderance ot. the evidence’ act ‘Me Ant

thee; greater Weight and degree ot credible cevidenge “ad.

mitted for your consideqation. x

SPECLALASSUF NO. 1

Do you find from a prcpomlccahies of the evidence that

the application. of Lindane in August of (955 to the rice

and premises of Plainttt w as a proximate cause of the

damages, if any, sustained by (Plaintitl?

Answer: “We do” "We do not”

Answer: We do. 2°

SPECIAL ISSUF NO.

Do you find noes a " preponderancé of oe evidence that

the application of Lindane to the rice ot Gulf Coast ‘Rice ”

Mills in August of 1955 may have rendered the rice. i

\

Answer: “We do” or

“We Yo not”

Answer: We do. 3

In moat the above special issue, you “are to use the:

word “may?” in its ordinary meaning and to’ consider

~ that ‘the rice when prepared as a food may be consumed

by the strong and, the weak, ‘the eld’ and the young, the

“well and. the sick and it is. intefded that if the rice be-

cause of any added poisionous ingredient may possibly

‘injure the health: of any ot these, it shall come within

the meaning of injurious to health. If the “added poisonous”

ingredient ‘cannot by any possibility; when the facts are

-teasonably considered, injure the health of any ‘consumer,

such rice, though having a small addition’ of poisonous

ingredient, may not be considered anjurious to health.

-

66

» -.. SPECIAL ISSUE NO. 3

~ Do yeu hnd#trom a sicdeidiiaiciine of ‘the eVidence that

such appliation which. may have réndered the rice in-

juriods to ‘health, if you have so found, was a proximate

cause of the damage: sdstained, any, by the plainutt?

Answer: “We do” or “We do not”. <>

Answer: We do.

If you’ have answered Special Issue) No. 2) “We da”;

and only in that event, then answer:

4 SPECIAL ISSUE NO. '4

Do you find from a preponderance of the evidence that

such application which may have rendered thé rice in-

jurious to. health, if. you have. so 400i, was negligence?

Answer: Pull do” or “We do not”

Answer: We do. oe a fe hee

$ : 2] a ‘ .”

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

and only in that a er Bee

‘ SPECIAL ISSUE NO. 5

Do you bea from a piceoeclenaaie of the evidence that

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

damages, if any! sustained ‘by plaintitf?

Answer. “We do” or “We do not”. . e

Answer: We do. .

* SPECIAL ISSUT NO. 6

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

ponderance of the evidence would fairly and réasonably

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

_—

G

c.

directly and proximately caused by reason of the ap-

plication of Lindane to the rice

=

and premises of the plain-

uff in August of 1955, taking into account such ‘of. the

following elements which you find are. established by a

reponde:ance of the evidence* and none other:

P tf

~

(a) The cost ‘to plaintiff of: reimilling rice, if any, de

rectly resulting from | ‘the applic ation of Lindané 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;

(c) The difference between the reasonable markgt value

of. the milled. rice beforé remilling and the reasonab le -

market value after remilling. directly resulting from the.

application of L indane tothe rice in August of 1955.

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

cents.

Answer: $87,790.07.

6

.

°

a ‘SPECIAL ISSUE NO. 7. * * —

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

ponderance of the evidence ‘would reasonably and fairly

compensate the plaintitf for such damages, if any,.as were

directly and proximately caused by the loss of the use of

fis mill re asonably and necessarily consumed in remilling

the milled rice?

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

cents.. 7 we

Answer: $15,000.00.

"@

.

&

68

You are the sole and @xclusive. judges of othe 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.

ee. ~ /s/ "Wirrias M. Hort AND

% Judge. |

e ? *

“Such findings were received by the Court aids were filed

and entered. cof record. on the minutes of the Court.

The Court being. of the opinion that judgntent should

be entered for the plaintitt as ‘follows:

At’ is, therefore, ORDE RED, ADJUDGED - and DE-

CREED by the Court that Gulf: Coast Race Mills, a

partgership composed of R. L. Williams and J. M. Cham- -

ney, plaintiff,-do have and recover of +and trom the de-

‘fendant, 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

—werdict of $42,790.07 reduced by the Court non obstante |

veredicto to the amount 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. = s tag 7 ¥ g™ ; . +f

Defendant duly excepted to the foregoing judgment in.

Civil Appeals for the<First: Supreme cae Distriét ‘at

Houston, Texas. ;

"open Court, and gave notice of appeal to the Court ‘of

xB

69

: RENDERED, ENTERED. and SIGNED: at. Houston,

Texas oh —. day of January, 1962.

_/s/ Wittiam M. Hottanp

Ne * rs es ren i aie : Judge .

APPROVED_AS TO FORM @NLY: © S

p! ¥ 2 . ; . ay” .

CARNES & MARTIN’

_ By Burke M. Martin

Attorneys ‘for: Plaintiff 2

THE KEMPERS

By- Joun BD. Ric HARDSON

| Attorneys for Defendant

. é “” a ona

| Woes oe