Brief for the Respondent in Opposition — Ross v. United States

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“4 No. 283

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IN Ty

| Supreme Court of the Buited States 7

| ) Octobe: Term, 1963 x | : i ie

ORAIN EXTE RMINATING” COMPANY, IN

Pe titioner See mr . :

-GULP. COAST RICE MILLS, Respondent J

. a a

‘On Petition for a Writ. of Certiorari to the Court

of Civil Appeals tor the First Supreme

Judicial District of Texas

_ BRIEF FOR. RESPONDENT IN OPPOSITION

’ a "1 P . 6 ”

. CaAKNES & Martin

‘Laman CARNES. | .

BoRKE Martin .. A

. ; L125 Bank ot the Suintiarest: ‘Bldg

SA Oe FJouston 2, Texas

August 1 1963 ; Attorneys ton Re sponden? os

Alpbs Lan Brirt ae 402 MSM Aldy - Houston 2 ae :

Ny : ae ye . . ' 5 he ae ee i

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EG nl INDEX

ea) , ros . : Page

sc: + © OPINION -BELOW 1

JURISDICTION sae - ee i

‘i. The Petition 1: 5 filed out of time | ; be

“+ 2.° The Judgment is supported on noa- -Federal i

; : grounds 2

me ‘ y, 7 3. A Fact’ Question was the only question pre- |

ea * served for appeal * foie Pe, a ae

ieee) ' 4. No Federal Question. was + claimed in the State ” Ae Ja

Sis . Court ; ee wae ‘

. [oe ner ‘Under State — a. Federal Dueaedos a cs eae

. ~ was not raised - | ose 4% -

fee eases a ie 6. The State Supreme ‘Court did not rule wa.

ere. ; late Federal “Elgin 6 .

aa . There was no surprise on Law: ‘Application 6 ;

‘ ee | pis STION PRESE NTED »

ih | STATUTES, ‘ORDINANCES “AND: REGUTA. . .

. TION INV 8 fs ae , ste

STATEMENT’ moe 9 \

i SUMM ARY OF ARGUMENT ans

ARGUMENT, | , eae Y .

or a The Judgment below was clearly” correct eer" 13.

2. The Decision has no importance to the pub- : |

lic or any other parties, 7 | 15

4. The Question ‘is “foreclosed by ois, Supreme : |

as Court decision ° 16

4. The’ State Court followed Sepremé Court’ . Seen

~ decision; no conflict . 16 wy

‘The only issue: preserved, a \face Issue, ep |

been corrects determined : 17

CONCLUSION

a’

APPENDICES: ¥ |

A. Orkim Exterminating Co., Inc. v. Gulf Coast

Rice Mills, 362 S:W.3d1590 0

B...21 US., Set. 342(2).1) (2)

'C. 120 C.E.R., See: 120.1 (e) oe ae.

a) Ws .

CITA PIONS ¢

i EP ei &h

ae | CASES”

Baiéy vy. Anderson, 726 &S. +203

bquitable ‘Life Assurance Socrety v: Brows, 187

US. 308° :

Fox Film @orp. v. Mulier, 296 U.S. 207

. Freed v. Bozman, 304 S.W.2d 235 oF

Fry Roofing Co. v. Wood, 344 U.S. 157 -

Graver Mfg. \o. vi Linde Co.,- 336 U.S. 271

- Mflutual Life ins. Co. v. McGrew, 188°U.S. 291

«J

Orkin Fxterminating Co. v. Gulf Coast Rice Mills,

362 S.W.2d 159 ;

Palmer’ Oil Corp. vi Amerada Corp:, 343 US. 390

Quinf v. Wiikerson, 195 S.Wi2d 399 *

- Radio Station WOW v. Johnson, 326 U.S. 120

Riky v. Sioux City Cemetery, 349 U.S. 70 |

Trice Produ@tion Co. v.. Dutton, Drilling Co., 333 °

S.W.2d 607° . , .

United States’ v. Lexington Mill & Elevator Co..

232 U.S. 399 ae

@UNITID STATES STATUTES

21-U.S.C. 301, et seq. eee el .

21 U.S.C. 324 26 3 PO

7h ee ORS Ge © > thoy nt,

Sulekha aes

28 U.S.C. 2101(c)°

CODE OF FFDFRAL RULES

21 C.F.RS 128.1 (e) pel S

6, 32;

5, 10.-12, 14,17, 9 tee

5. 36 -—

ag

7

15

4

7

-t

Article 4466 <

~ Articles 4470-4472

REVISED CIVIL STAT UTES OF TEXAS

“TEXAS RULES OF CIVIL PROCEDURE

Rule 279 - ne

Rule 324

- % PENAL CODE OF TEXAS

Article 706 .

Article 707. 3 +

aye, €4,-15

Article 717 ree 24, 141555

a? ; - MISCELLANEOUS t

City of Houston Code (1942), Secs. 861-880 ae

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

_ ‘ .

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4 >

oC. f

IN THE

Supreme Court of the Muited Stairs

October Terna, 1963°

>

ORKIN EXTERMINATING COMPANY, INC.,

) Pe titioner

i bi v.

GULF COAST RICE MILIS. Re pond nt

c

On Petition for a Writ of Certiorari to the Court

of Civil Appeals for the First Supreme

Judicial District of Texas

a

BRIEF FOR RESPONDENT IN OPPOSITION!

OPINION BELOW

The Speed Ot the C ourt ot Civil — ais is report ‘d at.

362 S. . 24 159. ; . | ” - :

JURISDICTION ~— a

of ae gs Petition is Filed d Out.of Teme .

The Supreme Court of the Stare of Texas refused an |

ipplication tor writ of error in the above entitled cause

of

te

on March 6, 1963. The petitioner's timely -filed motion

for rehearing was, overruled by the Supreme Court of the

State of Texas on April 10, 1963. The time for filing a

petition expired 90 days thereafter, on July 9, 1963.

The petition was filed on July 17, 1963, more than 90

panei ie ge ee ;

-days since the final ruling by-the highest court of the ‘State

of Texas, and the period for applying for a writ of certio-

rari has not heen extended by a Justice of this Court.

=

Te. 90-day time limit is pe'risdictional. and this Honorable

Court is without jurisdiction for this reason. 28 US.C.,

Section 2101 (c). :

The Judgment is Supported on Non-Federal Grounds.

The.- judgment is based upon adequate and independent

. _non-federal grounds, being the State of Texas-statutes and

the ordinances of the City of Houston. Texas. Penal Code

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

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

“Houston Code (1942), Sections 861-880 (PIf. Ex. 26;

S.F. 362-380). | .

Breaches of the state law and city ordinarices Were:

pleaded by the respondent as being. violated and causing

damages to the respondent. Proof of their violation: was

made-and is in the record..The jury found facts showing .

their violation and damages resulting therefrom by its

answers to Special Issues No..2 through 7, inclusive." The

trial court- found that there -was proof.showing violation’

of the state law and violation. of the city law by sub-~

‘mitting issues upon whether the Lindane poison may have

rendered the rice injurious to health, and by refusing. pe-

titioner’s motion for judgment non obstante veredicto.

ee

: +e

>.

The Court of Civil Appeals found that -the jury’s finding,

being Special Issue No. 2, has support in the evidence.

The State of Texas Supreme Court has concurred with

those findings and the breaches of state and city law by

refusing to grant an application for writ of error.

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

Appeals points out at pages 163; 164 the” pleadings that

the state law was violated and that the city law was

violated. At page 164 the Court says, “. .. .there is never-

theless evidence showing that a number of samples weré

taken and that the results of many samplings showed

from-0.2°to 3.6 parts. per million of Lindane, and that the:

addition of such parts of Lindane to milled rice may render '

it injurious to health.”

~The: finding that the Lindane application may render

the rice injurious to health constitutes adulteration of the

food under, both the state law and the city ordinances.

At page.165, of the opinion, the Court of Civil Appeals.

in explaining’ why the respondent was _not_a_voluptees——— —

nt was

holds the : epplication of Tindane by the petitione? “had

adulterated the rice -and rendered the réspondent subject

to criminal prosecution and punsliment under both the

state law and the city ordinances.

e

Even if the Federal act had ‘not tees pleaded and viola-

tions thereunder proven, the judgment below would have

been the same. under ‘either the State of Texas pure food

law alone,.or under the City of Houston ‘ordinances alone.”

A state court. judgment will not be reviewed when based

upon: adequate, independent, non-federal grounds. Fox

Film Corp. v. Muller, 296 US. 207.

.

3. A. Fact Question Was the Only ‘Question’ Presi rued for

Appeal. . Reece

~~ A fact question’ was the only. question preserved by the

petitioner for appeal!

Under procedure in the state court of Texas, a party.

may appeal from the overruling of his motion for judg-—

“ment non obstante veredicto alone, without moving for

a new. trial. Rule 324, Texas Rules of Civil Procedure.

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

‘motion for judgment non obstante veredicto, he is limited

on ‘appeal solely to the alleged error in overruling such

motion and the points raised therein. Any other claim or -

complaint is waived. Rule 324, Texas Rules of Civil Pro-

cedure. Freed v. Bozman, 304 SW. 2d 235, Syl. 7 at p.

241; Trice Production Co. vi Dutton Drilling Coa., 333

S.W. 2d 607, Syl. 11, 14 at pp. 616, 617. :

—_ The ‘petitioner: did not- present in its” motion for judg-

-ment non obstante veredicto.any question er complaint of

a ‘constitutional nature, or of application of any law,

federal, state or city. Petitioner’s only complaint was that

there was no evidence to support the judgment. That sole

point which was preserved has. been determined against

the petitioner by the jury, the ‘trial court, the Court ot

Civil Appeals and the Supreme Court of the State of, Texas.

Ehere is such evidence in the record and it kas been’ found :

sufficient. (S.E. 42-49, 51-52, 74-77) 245, 258, 295-297,

299-315) 362 S.W. 2d at 163-166 e . 9

Jurisdiction is not exercised to review a pesear of the

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

Co. t. Wood, .344- U.S.0157, 160. Seventh Amendment,

United States Constitution. re)

4. No Federal Ques stion W as Claime dim the ‘State Court.

No federal question, v was raised in the state court proceed-

ings, as required by 28 U.S.C., Section”1257 (3).

The petitioner did not plead or present any question on

validity or unconstitutionality in the trial court, either:

before or after judgment. Further, it did not ‘present. such |

question in any form upon appeal to the Court of Civil

- Appeals. . ee as

“Tt was not until after «rendition of the judgment and ——

opinion on appeal that the petitioner, for the St time, by =

way of motion for rehearing; \questioned, validity: or con-

stitdtionality. ;

‘ :

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

right, privilege . or immunity was “specially set up) or

claimed”, as required by“ Section 1257 (3) of 28 U.S.C.

ror Oil Corp. 4 ve Amerada © orp. 343 U.S. 390. ‘

- Under State Procedure. a Federal Question Was Not

Raised. re

Rule 279 of Texas Rules of Civil Procedure provides. in.

part as follows:

°

“Upon appeal all independent grounds of recovery,

or ,of defense not conclusively established under the

evidenge and upon which no issue is given or requested

shall be deemed as waived;

‘Petitioner first -attempted_to raise a quéstion of validity

or constitugionality by rehearing after decision on appeal.

A complaint made for che ‘first time by motion for rehear-

ing in the Court of Civil Appeals will not be considered.’

Quinn v. Wilkerson, 195 S.W. 24399 at 404,

6

6. The. State’ Supreme Court Did Not ‘Rule on Late

Federal Claim. ; vet ey

| ee,

No federal: claim or complaint was made until after

rendition of the decision complained of, and the state court

opinion is completely silent on any federal question. Under

these circumstances, jurisdiction should be dechned. Mutual

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

that the silence is due to the seacadiatel deficiency. Baile)

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

. There. Was No Surprise on bs Applicat ation.

. Peticioner recognizes tt it did not “attempt to raisé any

federal question until motion for rehearing after the judg-

ment ef the appellate court was entered. Yet petitioner -

sechs to obtain. review. by claiming’ “surprise. ‘

There Was no surprise for the following, among - “other,

reasons: ° oie . ‘

2 - .

(a) The-city, state, and federal health authorities noti-

fied the. petitioner.exterminating company in person im-

mediately following this occurrence that ay amount of

the poison Lindane contaminated ‘and adulteratgd_ the rice.

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

-(b) The respondent’s pleadings on file for several years

before trial specially alleged the city ordinances, state laws

-and federal laws that were violated? The manner and cir-

cumstances ‘under which they were. violated, were pleaded,

including violation of federal law by the application of amy

‘amount of Lindahe poison, and violation of city and state

laws: by addition of the Lindane poison to the rice-so that

it may be rendered iniurioys to health. « ;

>

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4

| eras ma

(c) Voluminous pre-trial depositions and discovery pro-

cedures were exhausted, so that petitioner was fully: ap-

' prised of respondent’s position, amd how respondent charged

laws were violated and petitioner was negligent.

(d) As pleaded and proven by the respondent, the trial!

court ruled that the application of any amount of. Lindane

poison to the milled rice violated the Federal Food, Drug

& Cosmetic Act, 21 U.S.C., Section 342(a) (2). This ruling

was known to petitioner during trial before submission *

of the charge to the jury and before entry of judgment.

No complaint was made in. the trial ¢ourt or en appeal to.

the Court of Civil Appeals.

(e) ‘dination application and constitutionality of the

“may render’ injurious” provisiens in the city, state, and

federal law, the trial court submitted to the jury a special

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

with’ appropriate instructions. thereon taken directly from

United States v. Lexington Mill’ 3 Flévator Co., 232 US.

399, Petitioner’ made no complaint of validity, ‘application

or coristitutionality: i in the trial. court, either before or after

judgment, nor on appeal to thé Court of Civil Appeals.

(f) The sean and- opinion in the state court found

that there was evidence supporting violation of city, state,”

and federal law, as plaintiff had been pleading and urging

for four years beforé this trial. There was no surprise.

Federal ‘questions were not: claimed in the state courts

until petition for “rehearing in the appellate court, which

is-too late. Radio, Station WOW v. Johnson, 326. U.S. 120,

128.

. . + i - s. .

non obstante veredicto and matters en thgrgin.

following:

QUESTION PRESENTED a

After .a trial by jury, the petitioner filed agmotion for

judgment non obstante veredicte, which was overruled.

Under state law and procedure, a party complaining of the

‘judgment may: file a motion. for new@rial, make all com-

‘plaints desired therein, and urge on appeal any of all of

- those complaints. If the party eleces to aggpeal only from

the denial of motion for judgment non gbstante veredicto’

_ then all other complaints are waived, and the party may

question on appeal only the denial of motion for judgment

Since petitioner has followed this latter course, the only

question presgrved for appeal is:

. Is there any evidence in the record to support the. ver-

ae and judgment which found negligence and breaches

of city ordinances, state statutes and federal statutes? -

STATUTES, ORDINANCES AND REGULATION.

Me pe INVOLVED

. The city ordinances and “state statutes cakes are. the.

7

(City of Houston Code (1942 ed.), Sections 861-880: *

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

and Texas Revised Civil Statutes (Vernon’s), Articles

4466, 4470, 4471, 4472. a

The pertinent SR Ip statute is the Federal Food. Drug,

_& Cosmetic Act, 21-U.S.C., Sections 301 et séq., especially

Section, 324 (a) (1) and (2) as they appeared in 1955.

> * mee | sons

- The pertinent federal regulation is 21 Code of Fedetal

‘Regulations, Section 120.1(e).

.

9

ee ‘STATEMENT

The rice mill and the exterminating company esttered into

"a written contract whereby, for monthly payments, the ex-

‘terminating company agreed to control insects and rodents,

and. to use only insecticides allowed by law and acceptable

to the ney: (PIf. Ex. 1-A, Secs. A., B., C.; S.F. 12-16)

The respondent is a long- established rice mill business.

A rice mill has been operated on its premises - continuously

since 1913, and partner R. L. Williams has operated the

mill there since 1935: (S.P. 239-242) . In, the 1950's, the.

mill’s average sales were about $4,000, 000, per year. (S.F.

242) .

Since there was great danger in the application of poison-

ous insecticides directly to the processed foodstuff, rice (PIf.

Ex. 15; SF. 249), the mill paid for and thé exterminating

company contracted to carry public liability insurance in the

amount of $250,000 $500,000, contractor’s liability insur-

ance in the amount of $250,000/8502,000, and property

damage insurance in ‘the amount of $100,600 $100,000

(Plf. Ex. 1-A, Sec. H; S.F. 19-23). |

. In the latter part of 1955 the exterminating company

permitted insects and rodents to*become completely out

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

In August, 1955, the exterminating company” applied

a prohibited poison, Lindanc, to the éntire. stores of ‘rice,

the mill and the warehouse. There was approximetely

$1,000.00 worth of rice poisoned. The application. ot

Lindane ‘to the rice was'at once a violation of- city ords-

nances, state statutes, and the fedeZal-act. (S.F. 42-49, 51-

$2, 74-77, 245,258, 291-295, 299). ‘

10.

Lindane is ‘thé « common name. for ‘the gamma isomer - of

benzeng¢ hexachloride. It. is highly poisonous and. toxic. It

is KNOWN to-have caused death in humans. (S.F.. 296-297,

306, 309-310), es | aah i

‘To remove the Lindane poison the rice mill had to remill

rice and thoroughity elgan the premises. Over 3,000,000

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

market for three months.at the pra . season. This was

_ at great expense to the rice mill. (SF. 5 , 74-77, -120-132,

“384-386, 393-394, 397-399).

This suit -is for Annes to milled, rice ante, which had

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

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

The heavy application of the. poison ‘was. discovered: and

“a meeting was held by the representatives of the city health

authorities, state health: authorities, federal health author-—

ities, the rice mill and the exterminating company. | (S.F.

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

_ state and federal, notified ‘the rice mill and the extermi-

“nating company that the rice was adulterated - ‘by the

‘Lindane- poison, and that it could not be’ seld, offered for. |

sale, or moved in commerce. (S.F. 47-53, 63-64, 69-78,

408-409). The ricé mill was notified that it would be sub-

jected to civil and criminal. provisions of the law. AS.F.

"276-282, 401-402, 408-409) 362 S.W. 2d 159 at 165.

_ The "inackor. 6 the State Division of Food and Drugs

testified that- the statg agency, was prepared to take action

by filing’ suit, obtaining, a restraining order and. exercising

the seizure Provisions of the Texas’ law (SP. 277 262);

All 50 states of the Union h aVe. and apply their own pure’

food and drug acts. See Vol. 3 CCH com Drug & Cos:

metic Law Reporter,

a

The Texas | puré .food. and drug act provides that foo

shall be’ deemed adulterated if it contains: any added

.. poisonous or other added deleterious ingredient, which. may

render such article injurious to ‘healgh. The Texas statutes

also provide for seizure, destruction, civil and “criminal :

penalties! Texas Penal Code (Vernon’s), Articles: 706, 707

717. Texas Civit Statutes, (Vernon’ Ss), Artivles 4466, 4 4470-.

72. fo :

ret ee

The City of Houston had in effect ordinances containing

similar provisions for adulteration by added poisonous or

deleterious ingredients which “may render -such article

injurious ‘té health.” The ordinances contained other. pro-

visions making violation an offense. subject to fine and sub-

jecting the. food to seizure and destruction. (Plf. Ex. 26;

City: of Houston Code (1942). Sections 861-880.)

In addition to adulter rating the rice and violating, both |

the state statutes ‘and city ordinances, the poison. violated

the féderal act.-This ‘refers to the Federal Food, Drug, &

Cosmetic Act, 21 U.S.C., Section 342 (a) (2). which

“prohibited any amount of Lindane on milled rice.

There is abun@ant evidence in “the eed ‘that the Lin-,

dane poison adulterated. the milled rice. This testimony

was received from z medical doctor specializing in poisons,

from a qualified biochemist, and from the Dirgctor of the .

State ‘Division of Food and: Drugs, as -well as from others

(S-F. dali fe 299, 304-305, 309-310, 315, 74- 77).

that. the application’ of the

wve rendered it injurious

ii jury found: as a fact

‘ poison’ Lindane to the rice mAy:

“to health. That there ts evidence

has been upheld’ by, the trial

Appeals and the Supreme Couft of the State of Texas.’

the Court of Civil

v support of that finding

i

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

tion of the poison ‘Lindane to the milled rice, represents

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

mill, Lindane had never -preyiously been applied or dusted

upon its ricé. This is the only instance where it was dis-_

covered by the health authorities. Since the’-occurrerice

in August; 1955, Lindane’ has not been, used ~ again.

2 362 SW. 2d 159 at 164. The‘use of Lindane poison in

production’ of rice is*both unnecessary and undesirable.

. > ia > . r -« .

To permit. the application of poisonous Lindane ‘to pro-

cesséd rice would be detrimental to the public health.

Prohibition of such use will not affeet the public, the in- -

dustry or evtn the Parties here.

SUMMARY OF ARGU MENT

The judgment: sought. to be gy iewed was correctly de-

termined. The- "may render injufiods” Provisions of ‘city

and state foad laws>as.well as the federal act. were applied

and? interpeeted in acc dance; swith the Supreme Court's

_ decision in United Stdtes v. Eciington Mall 3 Flevater

Co., 232 US. 399. 7 sabi ol ¥y

The decision of this case has no. significance to other

litigants of to the public. The record shows that during

21 years of rice mill operation, both before and after the

‘incident made the basis of this suit, the insecticide con-

‘taining the poison Lindane® was applied. only one time.

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

and .would not -arise again between these parties or in the

industry. : .

The Supreme aera: decision, in ‘a sited States Pi

Lexington Mill 3. Flevator e,. 232 U.S! 39% which was

followed, here, pateeriit any question. There is no conflict

of decisions, but ‘rathes established ‘law has beer? followed. . .

e

‘

SS,

]3-

i!

. The only issue preserved by the petitioner for review

was a fact question of whether there was any evidence

supporting the jury finding. The jury determination of fact”

and the evidence supporting it has been confirmed by the

state trial court and two state appellate courts.

ARGUMENT

1. The Judgment Below .Was Clearly Correct. .

The eXterminating company “by its written contract

agreed ‘to use culy pesticides which conformed to: state.

city and federal law, and which were acceptable to the:

industry. (PIf. Ex. 1-A, Sections A., C: i. S.F. 12,. 13, 15). .

It also contracted to minimize the possibility of citation by

the food and d#ug Administration. (PIE. Ex. .1-A, om

| i oe

The exterminating company made an extremely heavy

application of insecticide containing the paison Lindane

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

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

driven ee there was no part of the. rice or mill

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

74-77, 245, 258, or 233, 297).

The City of Picken Ordinances’ provide that a food

is adulterated and .unfit for sale if ‘it contains any added

poisonous or deleterious’ ingredient “which: may render, '

such. article injurious to health.” City of Houston Code

(1942), Sections 861-880 (Plt. Ex. 26; SP. 362-380).

The state food and drug laws contained similar “may

tender’. injurious” provisions, with attendant.. ‘civil - and

criminal penalty provisions. Articles 4466, 4470, 4471.

4472. Texas Civil Starutes (Vernort’s). Article 706, 707.

- 717, Texas Penal Code (Vernon’s). vg

. 7 - “

= te *

"e

14

The federal ac. tikewise has a “may render i injurious” pro-

vision that foos is adulterated if it contains any poisonous

or deleterious substance which may render it oo to

health: - 21 U.S.C., Section 342(a) (1). (Plf. Ex. :

_ The jury found that the application of Lindane to the

rice may have rendered it injurious to health, ° (Special .

Issue No. 2, Transcript Vol. 1). There is abundant evi-.

dence in support of this finding: There is testemony of a

medical doctor, who is a specialist in poisons and a -pro-

fessor of internal medicine. See his testimony at $.F.. 299-

310. There is. the: testimony of a biochemist who was

familiar with Lindane and its .cffect upon humans. See

his testimony at S.F. 311-315. There is the, testimony of -

the Director of State of Texas Food and Drug Division,

who is a registered pharmacist and chemist. See. his testi-

mony at S.F. 269-282, 291-299. .

The trial court has found evidence supporting cms_

verdict by his submitting the issu¢ to the jury and enter-

ing judgment upon the verdict..The Court of Civil Appeals

has expressly found evidence supporting the vérdict. See

opinion below, 362 S.W. 159 at 163-165.

~The judgment was correctly entered upon violations of

the “may render injurious” provisions of the city ordinances,

state sgtuces and tue federal act.

In addition to tne state and city law, ois is yet another

independent’ federal ground to support the judgment. The

Federal Food, Drug, & Cosmetic Act prohibits a7) amount

of Lindane upon milled rice. 21 U.S.C., Section 342(a) (2).

That section provides that a food is adulterated “if ‘it bears

or contains ay added poisonous or added deleterious sub-

stance, except a pesticide chemical in or on_a raw agricul-

- . a. . . ° -

tural commodity, whichis unsafe within the meaning ot

a

ie 2

Section 346 of thi: title, or if.it is a raw agricultural com-

modity and it bears or contains a pesticide chemical which

is unsafe within the meaning of Sect 46" a(a) 7” this

amount of added’ poisonous or. addeddeletevfous substance.

namely Lindane. ahs mee

The trial court correctly found this to, be a violation,

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

on whether the Lindane application was a proximate cause

of the damages, not predicated upon any prior finding.

‘The Court of Civil, Appeals’ opinion correctly found

that ‘the application of any. amount of Lindane poison

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

164-165. , “

The case has been correctly decided and does not requird

review.

The Decision Has No Importance to the Pabli Or

Any Other Parties.

The. act of the exterminating company giving rise te

this suit. being the application of the poison Lindane to

milled rice in 1955, had not happened before or since.

See the opinion below, 362 S.W. 159 at 164f The decisior

will not affece anv other parties and. indeed, “wall not

affect even thesé parties in the future since there is no

occasion far it to recur. = oe

The decision here ay ceieb this -sing!s PT ee and

jurisdiction is not exercised fdr a single episode” Rac

. Sioux City Cemetery, 349 U.S.170, 74. ‘a

16

3. The Question is Foreclosed By Prior Supren me Court

Decision.

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

jurious” provisions pf the tood laws was established ‘by the

Supreme Court in United States v. Lexington Mill #5 Fle-

vator Cos, 232 U.S. 399.

The trial court in sadihidinine its issue to the jury care

* fullycset out by accompanying instruction the interpreta-

tion to be given to the term “may render injurious”, tak

ing the: instruction almost verbatim from the Supreme

Court’s opinion in that case. See charge to the’ jury, Special

Issue No. 2 with instruction, at Transcript Vol. 1.

In view of. this prior decision of the Supreme Court,

there is no substantial question or controversy, and jurisdic

tion should be denied. Equitable Life Assurance Society 4.

. “Brown, 187 U.S. 308, 311; Palmer Oil Corj. v. Amerada’

Corp. 343 U.S. 390.

4, The State ‘Cour Fovowes sabre me Court Deciswon,

No Conflict. Spite .

There is no conflict between the case at bar and the de.

cisions of this Court. To the contrary, the pertinent de-

cision of the’ Supreme Court in United States v. Lexington

Mill & Eletator Co,, 232 U.S., 399, was recognized and

applied by ‘the trial court, BO CAL incorporation in

charge to the jury. The Court of Civil Appeals in its’

opinion has re¢ognized and applied this decision. 362 5.W.

2d 159 at 163. :

The Sistine Court decision has been iowa and

there is no conflict to review.

in ae Aen tg a

5. The Only Issue Preserved, A’ Fact Issue, Has Been.

Correctly Determined.* 2 .

The petitioner did not - make. any complaint of the

judgment other than by motion for judgment non obstante

veredicto. Its appeal was solely upon denial of chat motion,

and it raised only one. question, whether there was any.

evideace to support the verdict and judgment: Any other

~ question was waived for appeal. Rule 324, Texas Rules of __—

Civil Procedure. 362 wink 2d 159 at ne9* 164.-

' The jury deiecmeundl ‘the facts against the petitioner.

The trial court and the Court of Civil Appeals have found

that there was evidence supporting the verdict. 362 $.W. 2d.

159 at 163-164.

.

These determinations are binding. Amendment: VII to

the Constitution of the United States providesythat “ao .

fact tried by a jury shall be otherwise reexamined in any

Court of the United States than according to the rules

of *the.gommon law.” 7

oe

, Where the jury’s determination of fact has received

concurrence of the trial court and the appellate. courts,

the — Court does not undertake review Grater

Mfc. Co. v. Linde Co., 336 U.S: 271, 275.

oO -

- CONCLUSION

or the foregoing reasons. it is respectfully) submitted °

the petition for a writ of certiorari shoukd be demied.- , ri

i. ;

Respectfully submitted,

std nant mma or eee

.

Or fre At

0 "CARNES & MaartiIN

—_—_ SS

Taxvtanr Carn“is

Burke Margin

Counsel for Respondent."

1125 Bank of the Southwest Bldg.

Houston 2, Texas

rust 10, 1963

->

19

oie APPENDIX A”

.ORKIN: EX TERMINAT ING COMPANY, INC,

Appellant, | :

: .

ae GULF ‘COAST RICE MILLS, Appellee

ie i Se prone. e

No. 13998.

( ourt of Civil Appeals of Texas

- é Houston. cs

Nov. 8, 1962.

Rehearing. Denied Nov. 29, 1962

" WERLEIN, Justice. rs

This suit was brought by phauntiff, Gulf Coast) Rice

Mills, against Orkin Exterminating “Company to recover

damages allegedly growing out of breach of contract and

negligence of the defendant. Both. plaintiff and defendant

have perfected appeals to this Court from the judgment

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

From the judgment « ~ the District Court rendéred on

the first trial, an appea. was taken by the defendant. and

the judgment. was reversed and the. cause remanded by

the Waco Court of Civil Appeals. Orkin Fxterminating -

Company, Inc. ‘v. Gulf Coast Rice Mills, Tex.Civ_App.,

3.43 SW.2d 768, dism. WO].

A summary of plaintiff’s pleadings, which were identical

on both trials, ts given in the opinion ot the W ACO Curt.

We quote from such summary as follows:

“Plaintiff alleged that it entered into a written con-

tract with Orkin in 1952 under the terms of which

20 - =

Orkin was to exterminate and contfol insects, rodents,

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

“Orkin sprayed plaintiff’s mill with: an insecticide or

pestigide known as Lindane; that Lindane is poisonous

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

~ tion of Lindane to the mill rendered the rice unusable;

that the .usé of Lindane on the interior of. the mill

was neghigence; caused the rice to be unfit for use and

adulterated;* caused the Federal authorities to prohibit

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

health and ungfe within the meaning of the Fed-

eral Food and Drug Act. 21 U.S.C.A. § 301 et seq.;:

that the toregoing were proximate causes of damages

suttered by plaintith which were alleged to be some

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

protits incurred while so remilling the rice.).’

The: phuntitf also alleged violations of certain provisions -

ot the laws ot the State of Texas and ordinances of thie

City of Houston, and pled that Orkin had defaulted and

breached its eontrack in some i7 particulars. These bre aches

are summarized in the opinion of the Waco Court of Civil

Appeals. That Court. on the record before it) held that

the trial cSurt- -erred in granting the partially instructed

verdict for the plainttt, thereby withdrawing from. the

jury any issues as to whether defendant breached its con-

tract, or détaulted upon its express or implied warranty,

“since there were numerous disputed fact issues in the con-

tract and breach of warranty phuses of the contract. With

respeet to the tort phase 6ftthe case, the Court held that

the record did not support anv récovery.

‘ wo.

On. the second’ trial, ‘the court overr uled plas nt itt’ ‘ and °

defendant’s motions for an instructed verdict. and) sub-

ammitted the case on seven special issues to which the jury

tound in substance: (1) chat the appheation of Tindine

poe

“s vo 2a

in August, 1955, to the rice and premises of plaintiff was

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

that such application to the rice may have rendered it

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

mate cause of plaintift’s damages, and (4) was negligence;

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

uiff’s damages;°(6) that $27,790.07 was the sum of ‘money

that would fairly and reasonably compensate plaintiff for

such damages as were caused by application of Lindane

to the rice and premises of plaintiff, taking into account

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

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

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

sulting from the application of Lindane in August, 1955;

and (7) ‘that -$15,000.00 would fairly and reasonably

compensate plaintiff for sich damages’ as were directly

and proximately caused by loss of use .of plaintiff’s mill

-vreasnably and necessarily consumed in remilling the milled”

’ rice.

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

ment non obstante veredicto, reduced the jury’s finding

of $27,790. 07 in answer to Special Issue (6) to $21,245. 32

because plaintiff's pleading limited such items of damages’

to that amount, and otherwise overruled such motion and

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

246.32, being the reduced amount of the verdict plus $1.00

nconaial damages. for breach of contract insurance ‘pro-

_ Visions.

Orkin contends that the tria} court érred in overruling

its motion for an instructed verdict and judgment non ob-

stante veredicto when there was no evidence to support

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

22

law of the case and the evidence showéd that’ the secord

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

Orkin states that the statement of the nature of the case

op pages 768-772 of the opinion ofthe Waco Court is

- carrect and it adopts the same. It asserts that the pleadings.

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

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

in-its thrd gmended original answer filed subsequent to

the opinion handed down. by the Wace Court. The Waco

Court's summary of the evidence adduced on the first

trial ‘is as follows: ,

“The record reflects that plaintiff Rice Mills entered

_ into a written contract «with defendant Orkin Ex°

terminating Company in 1952. under. which Orkin

was to exterminate insects and rodents in_ plaintiff’s

mill; that the insect and rodent situation became so.’ ~

chad that in August, 1955 Orkia spraved with an in-

secticide known. as Ll indane® Thereafter, the. Federal

‘Food and Drug Administration aad the State Health

~ Department 4nd the Citv of Heuston-made some in-

“vestigation of the use of Lindane at the Rice: Mill.

All agencies finally in effect delegated to Inspector

Moses of the’ Federal Food and “Drug’*Administration

_ the right to act for them. Inspector. Moses told the

* Rice Mill that the use of Lindane. had -violated, the

daw; that the Mill was in. serious trouble; that the

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

human consumption; that the’ rice .would be con-

demned: the buildings padlocked and the Mill and irs

offices subject to prosecution both civill’ and crim-

inally. daspector Moses’ (arid thy government’s) posi-

- tion wak 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’ remiled. The plaintiff Rice Mill relied on

“what Inspector Moses told it (speaking for the Federal.

%

c

23 - »

‘ - :

. ~ .

State. and City Health Departments), and without,

contesting, disputing, or’ litigating, the validity or

legahty of the claims of. Inspector Moses and/or the

> - ° 9. . .

§ Health Departments,. plaintiff procecded to. remill

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

such period fost: profits which ‘the jury found to ba.

_@- $40,000. .

“As further pertinent. we note that the record re-

flects that some 95/, of the plaintiff's rice was intended

for export to a toraen country. The’record further

‘reflects that a great “many samplings of the fice were

tested for Lindane and that the results of such sam-

plings ran from noe, up to 3.6 parts of Lindane per

million parts of ‘rice. It is further reflected that sug

amounts. are not injurious to health, in any manner.”

Tt is Orkin’s contention that the facts th evidence per-

taining to the negligence phase of the case are substantially

the samg as on the first trial, and that for ‘such reason

‘the specific findings of law made by: the Waco Court

are binding upon the Court (as the law of the: case.” We

: : ae . z - ° ~ 2 : : 2 e

think it unnecessary ‘to set_ out such findings since they

e ; ” eae . :

may be found on pages 7712372. of the Court's opinion. .

Tt as our view. that. there -are some substantial” differences

- between the evidence &dduced at the first trial-and’at the

second trial. Several’ medical witriesses -téstified on the

first trial who did nat. testify. on

: w second trial. The ap-

plicable ordinances of the City of, Houston’ were not intro-

duced on the first trial but were introduced. nf the segond

trial. On the second trial, therel is no Alence that the

oO Inspector Moses ‘the

right to act for them. although ‘th: ‘may - have agreed

that Federal, State and City food laws kave been violated.

Other differences will aPpear in the course of this opinion.

. Mey ee Ss : tA

aa a .

City and State agencies delegated.

aoe.

%

Plaintiff asserts thatthe answers of the yury to the ‘special

“issues submitted cpnstitute findings against Orkin on both

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

‘ quested certain more specific issues with respect to breaches

of contract by Orkin, which were refused by the trial

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

J : Orcas. ° ° . .

has net been preserved by plaintiff and® cannot be con-

sidered by this Court, The special issues, submitted aré-

limited to the use and application of Lindane and do not

encompass any damages resulting from infestation of the

Eice by insects or rodents. ,

,

The contract does not. make specific mention of Lindane.

It specifies the scOpe of work and controlled service to-

be rendered ,by Orkin, and with ruspect to material to

“be used provides: “The materials .used shall conform to

Feder ral. State sind? local ordinances and laws, and shall be

accept able “to ‘the: rice milling *industry.” Plaintiff argues

that Orkin. im using 1 indane violated the. provisions of

the contract and breached its imphed warrapty to use’

proper materials, and was guilty of violations of the Fed »

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

lated 21 U.S.C. § 342 (a) (2) sinee no amount a“ Lindane

whatever was: permitted on milled rice; and | it violated

-2F SK. § 342(a) (1) in that it Sid: a poisonous

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

jurious to health. Plaintiff further corftends that the un-

disputed evidence also shows violations of the Pure Tood

; "

laws of the Scate of: Texas and vidjations of the: City of

Houston ordinances.

Our inquiry is limited to alleged: violations of the con

tract in the use and ‘application of Tindane and toCde-

- termining ‘whether’ there is any evidence supporting the

.

eee”

sections. — Sn le

plaintiff's mill, ft was not necessary to show that the’

findings of the.4ury with respect thereto on either or

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

unable to say as a matter of law that Orkin breached its:

\

contract and implied warranty ‘with respect to the infesta-

tion of the rige. In this’ respect’ we are, in’ accord.

with the law of the case as determined by the W aco 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 &herefrom in the absence ot

a jury finding, and no issues were submitted with respect

to such damage, although there was some evidence that the

rice would’ probably Iiave been remilled because of the

infestation regardless of the use of Lirdane.

Plaintiff pleaded that. the spraying of: an inneeticide One,

pesticide on plaintiff's rice, rendering it unfic for sales Was

‘a violation of Sections 861-s84 ot the Houston C ityOrdi-

nances‘of 1942. Section 868 of such. Ordinances provides

that’ for the purpose of Article IV. entitled * ‘Pure Food ©

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

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

deleterious Es ougaigs which maf render such artitle in-

7 *." Section 866 provides: "No per--,

jurious to health *

son shall, within the City; smanufacture for sale, havé in

his possession with intent to sell or exchange, any article

of food or drugs which is adulterated or misbranded within <4

the meaning ‘of this article. * Seetion 874 provides for

prosecution and punishment for violations of the foregoing

The record mn this Case reflects that | madane IS A porwon-

‘ous or’ deleterious ingredicit and that it was added to the

rice by Orkin in blowing Lindane ‘dust. all over the rice in

-

’

.

tood contaming an added poisonous or deleterious substance.

must uattect the ‘pubhi¢ health inSwrder-tor it to “be con. -

; ‘1 WO demned. All that need- be established 5 thar the added

- posonous oF deleterious. substance must be sugh as mav’

render such article mfious to Pecine United States. v.

rari Mill & Elevator Co.,.232 U.S. 399.34 SC. 337,

58 L.bds 658. There: is HGS evidence showing. thar

bindane in any quantity on rite may render stich article °

inperious to health. The yurs ‘s findin,: os Issue No! ’.

trnds support in the ev idence. There is no Asugnment that

uw of thesyury’s findings are against. ore weight. and pre

ponderance’ ef the evigency, and if there were such-ascen

ment, we could not consider it. since defendant appeals

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

judgment non Obstante veredicto.’ oe

Plaintiff also pleaded that by spraving -such , rice and

adulterating it and rendering it uatit for “sale. Orkin vio

lated Articles 4 4471 and “4472 of the Texds Revised Cri!

Statutes, and Articles 706, 707 and 717 of thé7 7 Pena’.

Code. These Provisions are substantially the same.3 those

© pravided un the Citv.of Houston: ordinances. The SHA

4s ae sues, spatutes woulit subject plamutt to cri minal prosecu-

tion by the State and te contise wien ‘of the rice.

There t evidence in die record before us that Orkin |

ipplid Lindane 0% Plainuff’s stores ofsrice. inch ude bork:

milled . unl unmilled rice. No claim tor damages has been

°

made b+ plaintiti for the unmilled rice: since it would -

erecessarily. have to be milled aid milling would remove

pace the | indane 7 e :

The Wrce Court.on the record before it teund in effegt \

that there had betn no viol on aot the bederal Statutes

Piegior™ : ~My ; are ; : 7 eZ

4 4

. c) 7 ‘

5 = * ; .-

: ae Qq * .

4 ‘

’ = z 3

-tehed upon by plaitit}. We-tiink the record -on this ap-

: 7 . - s. > - <

peal shows certain vieiations. Sec. 342 provides: “A food

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

contains any Ryisonous or deleterious substance which may.

render it ingurious to health © > ” 5H Or (2) «A). if’it bears

or contains any added poisonous or added deleterious sub-

stance * * 2 whith is unsate within the meaning of sec”

tion 3462 * * *.” The exceptions in Section. 342(a) (2)

(A) do hot apply. ‘to milled rice and are inapplicable to

the f tacts of this: Case. Section 546 with eee to tolerances

tor poisonous, ingredients provides:, “Any porsonous er

deleterious substance added to-any food, except where such

“substance ‘is required in the’ production thereof or cannot

be avoided by good manutacturing practice shall be deemed

to be unsate tor the purpose. of “the application of, clause

.. (2) (A) of section 34262) of this tithe.” The evidence.

and the record. Before us show that lindane was not -re-

quired in the production ‘of rice and that its use could

have been avoided. findeed. Lindane had been “used + only

once in-connection with plants mill from 194 co 1955,

and then at was used without the knowledge of the pian

tiff. or the health authorities. trons the time ot. the appl

cation in August, 1965 Lindane has not been used down

*to the date of the second trial nn 196, Moreover no allow

‘ance or toferance Is established tor the us, of Lindane

on amilled rice.” é - : } .

Phaintiti asserts. that on the second trial the evidencs

shows tifit Lindane was op all the sample

ttken and analyzed. except one sample that hid been re

milled: Piven if phamntift om mistaken* im such assertion. there

| i ; : : —

IS ne vertheless evidence showing that i. number of sample

were taken and thatthe results of mans samplings showed

Of Tice that were

.

28

, . J - . - ,

from 0.2 to 3.6 parts per ‘million of Lindane, and that

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

t injarious tO health: Man:testly it would be im-.

“possible to seuregate trom the stores of contamin ated milled.

rice 1 question some unknown quantity of nice that might

not have had Lb ‘indane on at in such as LANLiLes.

, : BF oa Since no tolerance tor. Lindane mt milled rice ap

applicable to the tacts of this case had’ been established by

. the Secretary of Health, Education & Weltare. the adds

; tion of any amount ot ‘Lindane to such tinilled rice was in

violation of Section 342 (4) (2) of the hederal hood. Drug:

& Cosmetic Act, and especially seat it may have rendered |

: the rice injurious to health. The Act 4: question. is “Quite

specific, as stated by the Supreme Court ot the United

; State, in the recent case of. Ulemmine +. ilorida ¢ itrus

* © “Exchange, 358 U.S. 153,79 S. Ce. 160, 3: L.Ed.2a '838:

“Here again, in our construction ot this exphicit Act.

weo must be sensitives-te what Congress has writtes,

and ‘recall that ‘Ir is for ds to ascertain—neither to

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

‘62 Cases of fam v. United States, d4i LS. $95, 596,

71 SA. S15. S18; SE 428s. too.”

« : , : : e

¢ ‘Section.3.41, Tithe 21, 1955, ¢ Aas f Fe feral Regulations.

—- provides: “(a) The amendments, in aes (2) of section

1

,

402(a) of the -bederal Food. Dras. and Cosmetig Act

° _ shall become effective on the dates s«pecitred tor- the tol

lowing pesticad chemicals: * * (2) Frtective date Oc

tober 31, 1855 ° Aindane:. Csrain (hromi treat

: ing storage bins)” On) the second trial it owa established

that plamtith had never had ane treatine Sterage bins, The

1954 amendmen: to Section $42¢2 a i Caeasa

Section fof thy Act of July 22.1984 a0 applicable to th

* My P

-

ow

.

tacts of the case before us, became ettective one year fol-

lowing the date of the enactment of the Act or on july

“2% 1955,-and was in tull torce and effect in August, 1955,

when the Lindane was appl: ted to plaintiff's nee. Section

120.1 (¢)., Tithe 21, 1955, Code of Federal Regulations, en-

tithed “Detinitions, Interpretations, and Lxemptions.” pro-

vides in substance that the term “Raw agricultural com

modities” does not include foods that have been processed,

tabricated, or manufactured by cooking. treezing, dehy

drating. or milling. Since plaintitl’s grain had ‘been- milled

and was‘’not a raw agricultural commodity,-no tolerance

had been established tor it. Theretore: the application of

any amount of Lindane was prohibited since i would add

to the milled rice 2 powondus or deleterious substance that

mis ‘be injurious to health as shown by the evidence ad

duced on the second trial. <

? - © s

At the time of the occurrence in question, the lbederal

Food. Drug, and Cosmetic Act. Section 3$1¢d). 2F aS.

Gite te provided “ ith respect to exports that a tenn mtended

tor export shall: not be deemed to be adulterated’ or mus.

branded if it accords te the specifications of the foreign

purchaser. is now in’ conflict with the laws of the country to

which it is intended for export. “and ws labeled on the

outside of the shipping package fo show that it is uttended

tor export. “But af such artich: as sold or offered tor sale

in domeste commerce. this subsection shall” not exempt

if trom anv of the provisions of this chapter.” While thers

1s some evidence that as much as 9% 0 plaintt?’s rice

had been exported during some prior viears.. the evidences

does not show that the rice m Question was labeled to:

export or that it would necessarihy by exported. lt wa

held subset to sale in domests: market. as well-as foreier

_ *markets. | urthermore, the undisputed testimony of piain-

tif!’s general manager Smith who negotiated contracts with)

‘toreign buvers,.was to the effect that he could not have

sold to.any foreign purchasers any rice confaining: Lindane.

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

tarils remilled its mee, and that it was not forced to do so

by the | ederal,: Siate or C ity authorities. We think this

contention 1s without merit. Under the evidertte adduced

on the second. trial, it appears that plaintitt- was placed 1

such position by Orkin that it could not Keep the rice in

its possession, sell or exchange the samc without’ being sub-

ject to‘criminal. prosecution and punwhment under Section

873 of the Ordinances of the Cate ot Houston, and under

Article 717, Texas Penal Code. Additionally, che rice Gpuld

be conderhned; confiscated, forfeited and destroyed under,

Article 4470, Texas Revised Civil Statues. The evidence -

- shows that the State agency “was prepared to take action’

it plaintiff's ree, was sold or ottered ter sale with Lindane

on it. Also, the shipment of such rice in imgerstate Com,

mere’ would have subjected plamntith co )- penalties ite

Sections 333 ind 334 of the Federal Ace. pivas placed thi

plaintiff-in the situation where it could neither retam nor

sell the rice in question witheut: violating the Pure ood

jaws of the City. Statg and Federal-goveraments. and sub-

pectine itself to prosecution ind penalties. the defendont

js not in,a position’te urge that. plantt! seted voluntarily

and not under coercien in remilling the rice and thereby

preventing such, prosecution and penalties, ahd atthe same

time mitigating the damages which might have resulted

froni confiscation and destruction of theerece by the State

or other governmental authorits

3]

{4} The cases cited by detendan: with respeet to volun-

tary payments are inapphecable to the tactual situation. in

the prasent case. The retention or sale or otter to sell the

rice in question constituted — » violation cof law, making

plaintiff’s action necessary te avoid prosecution, penalties

and sgizure of the rice:. Under these circumstances plain-

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

erced as a matter of jaw. Where one risks prosecution,

penalties and totfeiture of his property fors noncompliance

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

tary. National Biscuit Co. v. State, 144. Tex. 293, 135

S.W.2d 687;.Crow v. City of: Corpus “Christi. 146 Tex.

“$58, 209 SW.2d ee District of Columbia v. American

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

St. Joha’s Eleétricg Co. v. City of St. Augustine, Fla.,

Fla. §88, 88 So. 387: 17-A Amer. Jur. Duress and Undue

Influence 5§ 7. 148 p. 875; 21 Tex: Jur. 2d Duress & Co

ercion § 2. p. 116. -

Plaintiff on its appeal complains that the trial court

erred in excluding Certain evidence relate to Jost: protits

and im denying its motion ‘for lost profits before judgment.

We have been unable to tind in the recotd anv request by »

plaintit} tor submission of any issue on-lost profigs as such.

The answer of the jure te Special Issue No. 7 awarding

“damages in the sum of $15,000.00 for the. loss of use of

plaintiff's mill consumed in remi Hing the milled rice. neces

sarily includes = profits. Ne judgment tor lost profits in

any othe? amount could haye been enteréd without phan

tiff’s comphiance with Rule 301, Texas Rules of Crvil

Procedure. There was no such: compliance:

36% Plaintiff has cuted a number of cases in support of

the role what where a business is alreads established ind

ws .

‘oe

niaking a profit, it is permissible to show the amount of.

business done in corresponding periods of © time not too

remote, and the rule that uncertainty of proof as to the’

amount of Jost profits will not defeat recovery so long as

there. is no ‘uncertainty as to the fact of legal damages.

These generai rules are not questioned by defendant. In the

instant ease plaintiff's witness Was asked to give oral testi-

-mony trom ‘some records as to the’ amount of rice pur-

‘chased by plaintiff in’ October, November and Decémber

of 1953, to which question defendant objected because

‘there bad been nq showing of any comparison between

conditions during such period of time and, the period of

time in issue in this law suit. The objection was sustained.

- Plaintitf’s witness was also asked whether he had ai opin-

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

which question the defendant objected as not’ being based

upon facts. No other evidence along such line was offered,

although in its bill of exception in the jury's absence such

witness testified that he thought “it would be reasonable

to suppose” that they would have bought at least 100,000

additional ‘barrels and that he thought “it is feasonable to

supposes we would have made at least 50 cents a barrel.”

We cannot sav that the court improperly excluded such

testimony. but if there was anv error in such ‘connection,.

we think the exclusion was not harmful in tiew’ of all

“the records and testimony relative to earnings md profits

of the business that were admitted in evidence. . a

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

erred in denying interest before judgment upon its damages.

* Plaintit® sued not-only for its damages but for interest

thereon as glamages. It states in its brief char ir continued

to sustany damages until Pune 7 1986. Tt is our view thar

33

the plaintiff is entitled as a matter of law ‘to. 6", interest

‘as damages on the $36,246.32 from that date until date of

judgment... such interest’ imounting to_ $12,239.17. The

_ Texas Co. v. The State of Texas, 184 Tex. 494, 281 S.W.

2d 83; Watkins v: Junker, 90°Tex. 584, 40. 5.W. 11;

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

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

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

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

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

tention that the court érred in granting a partial summary

judgment for ‘defendant in connection with plaintiff's claim

for gross negligence and exemplary damages. A careful re-

view of the record shows ethat there is no evidence. that

would warrant submission of an issue in’ connection with

aHeged gross negligence on the part-of the defendant.

The judgment of the Trial Court ‘reformed by adding

thereto interest to date of judgment inn the sum of $12.

239.17, and. as reformed is affirmed. ‘5 .

<3

“

34

APPENDIX “B”

HEDERAL FOOD, DRUG G, and COSMETIC. ACT.

21 U.S.C., Section 342

“Section 342. Adulterated Food.

A food shall be deemed to be adulterated—

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

-. (1) If it bears or contains any poisonous -or deleterious

substance: which may render it ‘injurious to health, but in

case the substance is not an added substance such food shall

not be considered adulterated tunder this clause if. the

quantity of such substance in such. food does not ordi-

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

contains any added f¢ visonous er added deleterious substance,

except a pesticide chemical in or on a craw agricultural

commodity, which is ufsafe within the me&ning of ‘sec-

tien 346 of this title, orcif it is a raw agricultural com-

modity and it bears or contains a pesticide chemic al- which

is unsafe within the meaning of section 346. (a) of. this

title:

Pan,

ae |

; a

APPENDIX yor de

(1200. F. R., See. (20.1 :

(e) . Raw agricultural comneibdities include, among -

other aoe fresh fruits, whether or not they have been

washed and colored or otherwisé treated in thir unpeeled

natural form; ‘vegetables in their raw ‘or natural state,

whether or not they have been stripped of their outer

leaves, waxed, prepared into fresh green salads, etc.; grains,

nuts, eggs, raw milk; meats, and similar agricultural

produce. It does not include foods that have been: processed,

fabricated, or * manufactured by cooking, freezing: de-

hydrating, or milling.

‘ s

Y 2. =}