George H. Lee Co. v. United States

• Decision Date: 09 June 1930
• Docket Number: No. 6052.,6052.
• Citation: 41 F.2d 460
• Parties: GEORGE H. LEE CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

41 F.2d 460 (1930)

GEORGE H. LEE CO. v. UNITED STATES.

No. 6052.

Circuit Court of Appeals, Ninth Circuit.

June 9, 1930.

Loeb, Walker & Loeb, of Los Angeles, Cal. (Gaines, McGilton, Van Orsdel & Gaines, of Omaha, Neb., and Martin Gang, of Los Angeles, Cal., and Frank Gaines, of Omaha, Neb., of counsel), for appellant.

Samuel W. McNabb, U. S. Atty., and Harry Graham Balter, Asst. U. S. Atty., both of Los Angeles, Cal. (Elton L. Marshall, Solicitor, U. S. Dept. of Agriculture, and John F. Moore, Asst. to Solicitor, both of Washington, D. C., of counsel), for the United States.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

DIETRICH, Circuit Judge.

For more than twenty years the appellant, George H. Lee Company, has been and it now is engaged in the manufacture of a preparation known as Lee's Lice Killer, which it sells with the representation that it will destroy poultry lice. In 1926 and 1927 it shipped on consignment certain cans of the preparation from its principal place of business at Omaha, Neb., to the Germain Seed & Plant Company in Los Angeles, Cal. Upon the assumption that the cans were misbranded this suit was commenced, in September, 1927, for their forfeiture pursuant to the provisions of sections 8 and 10 of the Insecticide Act of 1910 (36 Stat. 333, 334, 7 USCA §§ 131, 133), and the cans were seized by the United States marshal. Responding to process, the appellant, as owner, appeared, and, after much delay, the reasons for which are not disclosed, issue was joined, on February 5, 1929, upon the filing by it of a supplemental and amended answer to an amended libel. In this pleading it admitted the shipment and all averments of the libel other than those charging that the brands or labels were false and misleading. Affirmatively it set up that the libelant was judicially estopped by reason of a similar proceeding culminating in a decree upon the merits in its favor in the United States District Court for the Western District of Missouri, on November 20, 1928; and thus is presented the controlling issue in the case. The facts are not in dispute, and may be stated substantially in the language of the findings, as follows:

On or about the 27th day of August, 1927, a libel was filed in the District Court of the United States in the Western District of Missouri by the United States against 63 quart cans, 41 half-gallon cans, and 15 gallon cans, more or less, of Lee's Lice Killer, wherein the charge was made that said Lee's Lice Killer, in the labeling thereof, was misbranded within the meaning of the Insecticide Act of 1910. The appellant herein entered an answer in response to the libel, and trial was had thereon to the merits in the month of November, 1928, resulting in a decree in favor of appellant herein. In that case, as here, appellant admitted the shipments and sales and labeling, and the only issue of fact joined therein was whether or not the preparation known as Lee's Lice Killer was misbranded. The labels on the cans in that case bore statements, designs, and devices in the same manner and form as those on the cans involved in this case, and the preparation or insecticide involved therein was manufactured from the same chemical formula as the preparation herein involved, and all cans containing Lee's Lice Killer, including the cans seized and involved in that action, contained said preparation known as Lee's Lice Killer, and said preparation of Lee's Lice Killer consists of substantially the same chemical constituents in the same proportion. In short, it...