28572. Dried beans, rice, flour, sugar, cornmeal, lima beans, salt, bakery sup¬
plies, and animal and poultry feeds.   /(Inj. No. 364.)
COMPLAINT FOR INJUNCTION FILED : 3-8-60, N. Dist. Tex., against International 
Exterminiator Corp., and Harlan K. Baker, president.
CHARGE : The complaint alleged that the defendants were engaged in the busi- 
ness of providing exterminator and pest-control services for establishments 
such as warehouses, mills, and dryers which store and sell articles such as 
dried beans, rice, flour, sugar, cornmeal, lima beans, salt, bakery supplies, 
and animal and poultry feeds; that the defendants' services were provided in 
Houston, Alvin, Brownwood, and elsewhere in Texas by agents working under 
contract with International Exterminator Corporation and under the super- 
vision of Harlan K. Baker; that the defendants received a percentage of the 
monies received by such agents for the performance of such services; that in 
providing such services, the defendants caused quantities of a water solution of 
a poisonous rodenticide, sodium fluoroacetate, commonly known as Compound 
1080, to be placed in and about buildings in Houston, Alvin, Brownwood, and 
elsewhere in Texas, under conditions whereby foods in such buildings may 
have become contaminated with this poison which has no known antidote. 
It was alleged further that the defendants' agents prepared such water solu- 
tions of Compound 1080 from powdered Compound 1080 provided by the 
defendants; and that the act of causing water solutions of Compound 1080 to 
be placed in such buildings resulted in the foods being adulterated within the 
meaning of Section 402(a) (4) of the Act in that the foods were being held 
under insanitary conditions whereby they might have been rendered injurious 
to health; and that the insanitary conditions consisted of the placement of 
uncovered paper bait cups containing a water solution of Compound 1080 in 
and about such buildings and in close proximity to such foods.
It was alleged further that the defendants violated the Act by causing a 
water solution of Compound 1080 to be placed in and about such buildings* 
whereby the foods in such buildings may have been rendered injurious to 
health prior to being introduced or delivered for introduction into interstate 
commerce.
It was alleged further that the defendants also violated the Act by causing 
a water solution of Compound 1080 to be placed in and about such buildings 
while the foods in such buildings were being held for sale after shipment in 
interstate commerce, whereby the foods in such buildings may have been 
rendered injurious to health.
The complaint alleged also that the defendants had been warned, on several 
occasions, of the inherent dangers of using water solutions of Compound 1080 
without proper precautions, and of the inherent dangers in the careless use of 
Compound 1080, and that the defendants had failed to correct their careless 
use of Compound 1080.
DISPOSITION : On 3-30-60, the defendants filed a motion to dismiss, alleging that 
the complaint failed to state a cause of action.
On 10-29-60, the court heard argument upon the motion and entered an order 
dismissing the complaint for injunction.
On 9-8-61, the United States Court of Appeals for the Fifth Circuit rendered 
the following opinion (294 F. 2d 270) :
JONES, Circuit Judge: "The United States brought suit against International 
Exterminator Corporation and Harlan K. Baker, its president, asserting vio- 
lations of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq., 
and praying for injunctive relief. The district court sustained a motion to 
dismiss on the ground that the complaint fails to state a cause of action upon 
which relief can be granted.   The United States has appealed.
"The complaint which the district court held insufficient alleged that the 
defendants operate an exterminator and pest-control service for establishments 
such as warehouses, mills and dryers which store and sell foods such as beans, 
rice, flour, sugar, meal, salt, bakery supplies and also animal and poultry feed. 
In so doing, it is averred, the defendants are causing quantities of a poisonous 
liquid known as Compound 1080 to be placed in the establishments in uncovered 
paper bait cups in close proximity to the foods. This, the complaint alleged, 
results in the foods being adulterated within the meaning of the Act 'because 
of being held under insanitary conditions whereby they may have been rendered 
injurious to health prior to being introduced or delivered for introduction into 
interstate commerce.' Then the United States alleges that the acts of the 
defendants in placing the poisonous compound in the buildings violates the Act 
'in that said acts are done while said foods in said buildings are being held for 
sale after shipment in interstate commerce and result in said foods being 
adulterated within the meaning of . . . the Act because of being held under 
insanitary conditions whereby they may have been rendered injurious to 
health.' The complaint charges that the defendants have been warned but 
fail to change their method of placing the poison.
"In a Rule 60(b) (1) motion for relief from the order of dismissal, the 
Government states that the dismissal was based on a finding that the language 
'may have been rendered injurious to health' was insufficient and the correct 
test was the 'reasonable probability' that it would have been rendered injurious 
to health. It is this question to which the Government devotes its initial 
brief. In their brief the defendants assert that the complaint does not show 
the interstate character of the transactions so as to bring them under the Act. 
The defendants also assert that it is not shown by the complaint that the de- 
fendants committed any acts which are violative of the Federal Pure Food, 
Drug and Cosmetic Act.
"The complaint will be held sufficient if it shows that the plaintiff would be 
entitled to relief under any state of facts which could be proved in support of 
the claim alleged.   United States v. Goodman, 5th Coir. 1961, 287 F. 2d 871;
Mitchell v. E-Z Way Towers, Inc., 5th Cir. 1959, 269 F. 2d 126; Bruce Construc- 
tion Corp. v. United States, 5th Cir. 1$57, 242 F. 2d 873.
"The defendants urged before the district court that the complaint failed to 
show that there was a reasonable probability that food would be rendered 
injurious to health. The Government contended that the test is whether there 
is a reasonable possibility that food would be rendered injurious to health. 
The authorities cited by the Government seem to sustain its position. Golden 
Grain Macaroni Co. v. United States, 9th Oir. 1953, 209 F. 2d 166; Berger v. 
United States, 8th Cir. 1952, 200 F. 2d 818. The defendants do not, on appeal, 
distinguish between probability and possibility of contamination, but instead 
assert that neither is alleged. Here the defendants rely upon the construction 
in Berger v. United States, supra, that the statutory phrase 'which may render 
such articles injurious to health' contemplates a condition which would, with 
reasonable possibility, result in contamination. The defendants say that the 
absence of an allegation that the defendants created a condition of reasonable 
possibility of contamination rendered the pleading bad and required dismissal. 
It is to be noted though that the rule announced in Berger is that the condition 
of reasonable possibility of contamination must be proved, not that it must be 
pleaded. Berger was a criminal case and it appears that the information used 
..the statutory 'whereby they may have become contaminated' language. A mo- 
tion attacking the sufficiency of the information as not stating facts sufficient to 
constitute an offense was overruled. The correctness of this ruling was not 
¦• raised on appeal. We are here only concerned with the sufficiency of the 
pleading, and not with the scope and reach of the statute as applied to such 
- facts as may be developed by pretrial procedures or by evidence adduced at a 
trial.   The pleading was sufficient.
"There seems to us no question but that the complaint brings the case within 
the interstate commerce requirements of the Act. The statutory purpose 'was 
to safeguard the consumer by applying the Act to articles from the moment of 
their introduction into interstate commerce all the way to the moment of their 
delivery to the ultimate consumer.' United States v. Sullivan, 332 U.S. 689, 
696, 69 S. Ct. 331, 92 L. Ed. 297. See Merritt v. Wisconsin, 228 U.S. 115, 33 
S. Ct. 431, 57 L., Ed. 754, 47 L.R.A. N.S. 984.
"The motion to dismiss was erroneously granted. The order of dismissal 
will be reversed and the cause remanded for further proceedings."
On 11-9-61, written interrogatories were filed by the Government; and 
subsequently, the defendants answered 43 of the questions and objected to 
4 of the 47 questions propounded by the interrogatories.
Trial of the matter took place on November 27, 28, and 29, 1961, before the 
court and a jury. On 1-3-62, the court signed the following judgment of 
permanent injunction:
BKEWSTEE, District Judge:
JUDGMENT OS PERMANENT INJUNCTION
"On this the 27th day of November, 1961, came on to be heard the above 
entitled and numbered cause and came the plaintiff, by and through the United 
States Attorney for the Northern District of Texas, and came the defendants, 
by their attorney, and both plaintiff and defendants having announced ready 
for trial, came a jury of twelve citizens, and both the plaintiff and defendants 
presented their evidence and after the close of such evidence and argument 
by counsel, and after the Court gave his charge to said jury, the jury retired 
to consider its verdict, following which the jury returned and delivered its 
verdict in open court, finding in favor of the plaintiff, and the Court finding 
said verdict proper in all respects and being of the opinion that judgment 
should be entered thereon.
"The nature of this proceeding being an action in equity and the verdict 
of the jury being only advisory to the Court, the Court thereupon having 
heard the evidence and argument of counsel is also of the opinion that 
judgment should be rendered for plaintiff.
"It is therefore ORDERED, ALLEGED and DECREED as follows:
"That the Court has jurisdiction of the subject matter herein and of all 
persons or parties hereto and the complaint states a cause of action against 
the defendants under the Federal Food, Drug, and Cosmetic Act.
II.
"That the defendants, International Exterminator Corporation, a corpora- 
tion, and Harlan K. Baker, an individual, and each and all of their officers, 
agents, servants, employees, representatives, and all and any persons in active 
concert or participation with them or any of them who receive actual notice 
of this decree by personal service or otherwise, be and they are hereby per- 
petually enjoined and restrained under the provisions of 21 U.S.C. 332(a) 
from placing or causing to be placed in any building serviced by defendants 
any quantity of the rodenticide liquid Compound 1080 while such building is 
being used for the storage of foods held prior to shipment in interstate com- 
merce and while held for sale after shipment in interstate commerce unless 
and until:
(1) The owner, manager or other person in active charge of the buildings 
serviced is informed that the rodenticide liquid Compound 1080 is being used, 
is advised of its highly toxic nature and that it must not be removed from 
the premises, and is further advised of the necessity for protecting stored 
foods from contamination by it;
(2) Liquid Compound 1080 is dispensed only in protected bait boxes (except 
as provided in (3) below) and said bait boxes are constructed so as to provide 
for the use of bait containers which cannot be overturned, or to provide a 
leak-proof receptacle for any liquid Compound 1080 which might be spilled 
or to provide for the blotting of liquid Compound 1080 which might be spilled ;
(3) When work or other activity is not being carried on in said buildings, 
small quantities (approximately one-half ounce) of a liquid solution of 
liquid Compound 1080 may be used in open paper cups at floor level in said 
buildings, provided that such cups are firmly attached to the surface upon 
which they rest;
(4) Compound 1080 is prepared by the defendants and their officers, agents, 
servants, employees, representatives, and all persons in active concert or par- 
ticipation with them or any of them at their place of business and is colored 
with 0.5% Nigrosine black dye;
(5) Responsibility for control of Compound 1080 in use in such buildings is 
vested in one person of established reliability, and this person is fully informed 
as to the acceptable procedures for use of Compound 1080 and as to the poten- 
tial hazards of careless use.
III.
"That the defendants, International Exterminator Corporation and Harlan 
K. Baker, shall give written notice of the provisions of this decree to each 
and all of their present and future officers, agents, servants, employees, rep- 
resentatives, and all persons now or in the future in active concert or partici- 
pation with them or any of them who assist or participate in the performance 
of pest-control services.
"That the plaintiff, the United States of America, have and recover from the 
defendants all costs of this action, as taxed herein, and that the plaintiff have 
execution therefor."
Subsequently, the court made the following findings of fact and conclusions 
of law:
FINDINGS  OF FACT AND CONCLUSIONS  OF LAW 
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"1. The defendant, International Exterminator Corporation is a corpora- 
tion organized and existing under the laws of the State of Texas, and has 
its principal place of business at 155 Magnolia Street, Fort Worth, Texas, 
within the jurisdiction of this Court. The defendant, Harlan K. Baker, an 
individual, resides within the jurisdiction of this Court.
"2. The defendant, Harlan K. Baker, is president of the defendant Inter- 
national Exterminator Corporation; and is the person in charge of the opera-
tion of the business. He determines the business policies of the corporation. 
"3. The defendants, International Exterminator Corporation and Harlan 
K. Baker, have been and are now engaged in the business of providing and 
causing to be provided exterminator and pest-control services to establish- 
ments, such as warehouses, mills, and dryers, throughout the State of Texas. 
"4. Some of the establishments serviced by defendants store, sell and proc- 
ess foods such as dried beans, rice, flour, sugar, cornmeal, lima beans, salt, 
bakery supplies, and animal and poultry feeds, both prior to shipment of 
such foods in interstate commerce and subsequent to receipt of such foods in 
interstate commerce. Some of such establishments store and sell such foods 
after receipt of such foods in interstate commerce, but do not hold such foods 
prior to shipment in interstate commerce. ' Some of such establishments store, 
sell and process such foods prior to shipment in interstate-commerce, but do 
not receive such foods in interstate commerce. 
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"5. The services of the defendants are provided to such establishments by 
agents of the defendants, working under contract with defendant,' Interna- 
tional Exterminator Corporation. Defendants receive.a percentage of the 
monies received by such agents for the performance of such services.
"6. In providing the aforesaid exterminator and pest-control services to 
the said establishments, the said agents sometimes use a water solution of 
a poisonous rodenticide known as Compound 1080. 
"7. The Court submitted this case to the jury on the following special issues: 
SPECIAL 188VE NO. 1:   Do you find from a preponderance of the evi- 
dence that, unless prevented by court action from so doing, the defendant, 
International Exterminator Corporation, through its officers, agents or au- 
thorized representatives, will in reasonable probability in the future engage 
in the practice of using, of causing the use of, of participating in the use 
of, or of being responsible for the use of, Compound 1080 in establishments 
where at least some of the food which may be there located is being held 
'for sale prior to or after shipment in interstate commerce, in such manner 
that the Compound may in reasonable possibility contaminate any of the 
food in such establishments 
The form of your answer will be either "YES" or "NO." _    , .
!
SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evi- 
dence that, unless prevented by court action from so doing, the defendant, 
Harlan K. Baker, acting either by himself or through others, will In rea- 
sonable probability in the future engage in the practice of using, or causing 
the use of, of participating in the use of, or of being responsible for the 
use of, Compound 1080 in establishments where at least some of the food 
which may be there located is being held for sale prior to or after shipment 
in interstate commerce, in such manner that the Compound may in reason- 
able possibility contaminate any of the food in such establishments 
The form of your answer will be either "YES" or "NO." 
"8. The jury answered each of said special issues "YES."    < 
,   "9. The plaintiff and the defendants agreed to the submission of this cause 
to the jury on special issues; there were no objections to the issues as 
submitted.
"10. The findings of the jury in answer to said special issues are supported 
by a preponderance of the evidence.
"11. The Court adopts the findings of the jury and incorporates them as 
part of its own findings of fact. 
.        ,
CONCLUSIONS  OF LAW
"1; This Court has jurisdiction of the parties and of the subject matter.
"2. The plaintiff is entitled to the relief granted by the judgment "of pthis 
Court entered herein on January 3, 1962, to which judgment reference is 
here made under the provisions of 21 U.S.C. 332(a)."