Glover Livestock Commission Company v. Hardin

• Decision Date: 26 January 1972
• Docket Number: No. 71-1092.,71-1092.
• Citation: 454 F.2d 109
• Parties: GLOVER LIVESTOCK COMMISSION COMPANY, INC., Petitioner, v. Clifford M. HARDIN, Secretary of Agriculture, and The United States of America, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

454 F.2d 109 (1972)

GLOVER LIVESTOCK COMMISSION COMPANY, INC., Petitioner, v. Clifford M. HARDIN, Secretary of Agriculture, and The United States of America, Respondents.

No. 71-1092.

United States Court of Appeals, Eighth Circuit.

January 26, 1972.

Edward I. Staten, Reinberger, Eilbott, Smith & Staten, Pine Bluff, Ark., for petitioner.

Raymond W. Fullerton, Elliott Metcalfe, Jr., Attys., Department of Agriculture, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Department of Justice, Washington, D. C., R. Stanley Harsh, Asst. General Counsel, for respondents.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Glover Livestock Commission Company, Inc. (Glover) petitions this Court for review of a decision and order of the Judicial Officer of the United States Department of Agriculture. The Judicial Officer held that Glover violated 7 U.S.C. §§ 208 and 213 of The Packers and Stockyards Act,¹ and ordered it to cease and desist from:

(1) Weighing livestock at other than their true and correct weights;

(2) Issuing scale tickets or accountings on the basis of false and incorrect weights;

(3) Paying the consignors of livestock on the basis of weights other than the true and correct weights; and

(4) Failing to operate livestock scales owned or controlled by respondent in accordance with the regulations under the act constituting INSTRUCTIONS FOR WEIGHING LIVESTOCK.

The Judicial Officer also suspended Glover as a registrant under the act for 20 days.

The scope of our review is limited to the correction of errors of law and to an examination of the sufficiency of the evidence supporting the factual conclusions. The findings and order of the Judicial Officer must be sustained if not contrary to law and if supported by substantial evidence. Also, this Court may not substitute its judgment for that of the Judicial Officer's as to which of the various inferences may be drawn from the evidence. Fairbank v. Hardin, 429 F.2d 264 (CA 9 1970); Swift & Co. v. United States, 393 F.2d 247 (CA 7 1968) and Capitol Packing Co. v. United States, 350 F.2d 67 (CA 10 1965). Further, the Packers and Stockyards Act is remedial legislation and must be liberally construed in order to further its life and fully effectuate its public purpose to prevent economic harm to producers and consumers at the expense of middlemen. Bruhn's Freezer Meats of Chicago, Inc. v. USDA, 438 F.2d 1332 (CA 8 1971) and Swift & Co. v. United States, supra, 393 F.2d at 253.

Glover is an operator of a "posted stockyard" in Pine Bluff, Arkansas and is registered under the Act to sell livestock on commission as a registered market agency. On or about June 2, 1964, July 26, 1966 and June 20, 1967, representatives of the USDA conducted investigations of Glover's operations under the act. On each date, the representatives reweighed several drafts of consigned livestock that Glover had weighed for sale on a weight basis at the stockyard. The reweighing apparently disclosed that the drafts had been weighed at less than their true and correct weights. On August 4, 1966 and again on June 26, 1967, Glover was notified of the check-weighing results and was requested to institute corrective action which would assure accurate weighing at the stockyard.

Glover held a livestock auction at its stockyard from 1:30-4:30 p. m. on February 25, 1969. In attendance were two USDA representatives; one a livestock marketing specialist and the other a scales and weighing technician. Following completion of the sale, they selected 29 head of cattle for reweighing in 28 drafts.² Reweighed on Glover's scales, nine of the cattle had gained a total of 75 pounds, ten weighed the same as that shown on the weighmaster's scale tickets and nine had lost weight.³

As a result of this investigation, on May 12, 1969, the Administrator of the Packers and Stockyards Administration instituted these proceedings before the Secretary of Agriculture charging violations of 7 U.S.C. §§ 208, 213(a) and 221, and 9 CFR §§ 201.43(a), 201.55 and 201.71 (1971).

SUFFICIENCY OF THE EVIDENCE

Glover contends that the Judicial Officer's finding that Glover weighed livestock at less than their true and accurate weights is not supported by substantial evidence.

Roy Glover, president of petitioner, testified with support from others that the cattle reweighed could have gone through the auction ring at any time from 1:30 to 4:30 p. m. on February 25, 1969; that it is normal procedure to stop the auction periodically and move cattle from one pen to another; and that some of Glover's pens contained food and water while others did not. Glover contends that this evidence "preponderates towards the finding" that the cattle that gained weight had been given food and water sometime during the three-hour auction, and that this explanation is more feasible than the Department's argument that the cattle were deliberately or carelessly short-weighed.

The Department's evidence was that immediately following the auction the two specialists introduced themselves and announced the purpose of their visit. Endeavoring to select cattle which had been yarded only in dry pens, Baird, a scales and weight technician who has conducted almost 350 check-weighing investigations such as this, was informed by Roy Glover that the cattle to be reweighed were presently penned where they were sold. Baird checked each of the pens from which the cattle were to be taken and, discovering no food or water present, proceeded to reweigh the 28 drafts.⁴

Given that cattle will tend to lose weight when they are penned without access to food and water, and assuming that the scales utilized for the weighing and reweighing are accurate (as will be discussed below), the evidence as presented would obviously allow for either of two conclusions. Either the cattle tested that had gained weight actually had access to food and water subsequent to their weighing and prior to their reweighing or they were weighed at less than their true and accurate weight. As already mentioned, this Court will not substitute its judgment for that of the fact finder where the facts will support various but opposing inferences. The Hearing Examiner and not this Court, had the opportunity to observe the demeanor of the witnesses. The cattle tested were initially weighed at most less than two hours before the reweighing began, a fact which limits the amount of time the cattle could possibly have had access to food and water. Additionally, we note that while discussing the weight discrepancies upon completion of the reweighing with Baird, neither Glover nor his weighmaster, Leonard, offered any explanation or information. We further note that Leonard, the one person in a position to contradict the Department's evidence, was not called by Glover to testify. See Adamson v. California, 332 U.S. 46, 60-61, 67 S.Ct. 1672, 91 L.Ed. 1903 (concurring opinion of J. Frankfurter 1947); Milbank Mut. Ins. Co. v. Wentz, 352 F.2d 592, 597 (CA 8 1965) and Illinois Central R. R. Co. v. Staples, 272 F.2d 829, 834 (CA 8 1959). All evidence considered, the Hearing Examiner, crediting the evidence to the effect that the cattle reweighed had had no access to food and water, could properly conclude that they had been under-weighed by Glover. Such a finding would be neither "hopelessly incredible or flatly contradict either a `law of nature' or undisputed documentary evidence." Fairbank v. Hardin, supra, 429 F.2d at 268.

Glover also contends that the weight discrepancies were caused by a malfunctioning of the scales utilized at the stockyards. Glover, who leases the stockyard facilities including the scales from an unrelated corporation, claims that contrary to the Department's evidence showing the scales were accurate, it was conclusively established they were not.

On June 6, 1969, almost three and one-half months after the investigation, it accidentally learned the scales might be inaccurate. On June 9, a private scales firm authorized by the USDA to conduct livestock scale tests, determined that the scales would print one or two graduations off if the ticket printing handle was slammed too hard. As a result of this report Glover caused the lessor of the stockyards to install a new scale in October. Fred G. Wagner, a field sales engineer for the firm installing the new scales, was asked by Glover to inspect the old one being replaced. Wagner testified that several internal components were worn and rusted, a result of a lack of maintenance which should have occurred over a period of time. His conclusion was that as a result of these defects, cattle running on and off the scale could cause such a thrust or shock that the scale would measure inaccurately; that at times the thrust of cattle running onto the scale could be exactly counterbalanced by the thrust of cattle departing, causing the scale to be properly balanced when not in use, and that at times the scale would also measure accurately. Wagner also testified that the scale testing procedure normally followed, placing weights upon the corners of the scale platform, would not necessarily have detected the distortions he described.

Between May 27, 1964 and February 25, 1969, some 13 scale tests were conducted and each time Glover's scales were deemed accurate and capable of correctly weighing livestock. Twice during this period Glover was notified by the USDA that investigation disclosed they had been short-weighing cattle and was requested to take immediate corrective action. The record discloses Glover did not question the accuracy of the scale until these proceedings were instituted. Furthermore, the report Glover cites dated June 16, 1969, also concluded that the scale would "operate properly if not abused in stamping the ticket." Indeed, Wagner, whose expertise admittedly did not include scale testing and was in fact not testing Glover's scale for accuracy on the day he...