Hill v. Federal Trade Commission
| Decision Date | 23 December 1941 |
| Docket Number | No. 9849.,9849. |
| Citation | 124 F.2d 104 |
| Parties | HILL et al. v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. A. Bootle, of Macon, Ga., for petitioner.
W. T. Kelley, Chief Counsel, Joseph J. Smith, Jr., and Martin A. Morrison, Asst. Chief Counsels, Federal Trade Commission, Lunsford P. Allen, Jr., and James W. Nichol, Sp. Attys., Federal Trade Commission, all of Washington, D. C., for respondent.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
Petitioners are engaged in the manufacture of candy and its sale and distribution to wholesale dealers, jobbers, and retail dealers in various parts of the United States, in competition with other individuals, partnerships and corporations, engaged in the candy business. This petition to set aside as invalid, a cease and desist order of the commission,1 or in the alternative, to modify it, presents three grounds for doing so. The ground for setting it aside as invalid is that it was entered, not after a hearing and on evidence, but upon the complaint and answer. The modifications sought are, (1) to strike from it, as not within the scope of the complaint or the findings, Paragraph 4 thereof, and (2) to strike the words "or may be made" from Paragraph 1, because susceptible of the construction that petitioners could be held accountable for acts done by others with which they had nothing to do. (Italics supplied.)
The complaint in a careful and detailed way, sets out the facts as to the complained of activities of the petitioners and charges that they constitute unfair methods of competition in commerce, and unfair and deceptive acts and practices in commerce, within the prohibitions of the Federal Trade Commission Act.2 The gist of the wrongful practices complained of, is the selling to wholesale dealers, jobbers, and retail dealers, of assortments of candy so packed and assembled as to involve the use of games of chance, gift enterprises or lottery schemes, when sold and distributed to the consumers thereof.
A hearing was fixed for May 31, 1940, a notice was given containing, among other things, an excerpt from the rules of practice of the commission.
The matter was set for the taking of testimony, but before any testimony was taken petitioners filed answer. "Come now the respondents, Joe B. Hill and C. O. McAfee, individually and trading as McAfee Candy Company and Liberty Candy Company, and answering the complaint in this proceeding state that they admit all of the material allegations of fact set forth in said complaint and waive all intervening procedure and further hearing as to said facts." Thereafter, in faithful accord with the allegations of the complaint, the commission made the findings and issued the order complained of. Here, pointing out that they are based upon the admissions of the answer, the commission insists that there is no merit in the attack on them or on the order as a whole. It insists too that the attempt to modify the order is no better based, for operating not by way of penalty for past performance, but prospectively, Standard Container Manufacturers' Ass'n v. Federal Trade Commission, 5 Cir., 119 F.2d 262, Clause 4 is reasonably within the scope of the complaint and findings, and the words "or may be made" as used in Clause 1, are not reasonably subject to the construction petitioners would place on them.
We agree with the commission. The statute gives it express authority "to make rules and regulations for the purpose of carrying out the provisions of the Act sections 41-46 and 47-58 of this title."3 These rules have the force and effect of law. National Candy Company v. Federal Trade Commission, 7 Cir., 104 F.2d 999, 1003; Hughes v. Federal Trade Commission, 61 App.D.C. 386, 62 F.2d 362. They were faithfully followed and complied with here. But these rules aside, it is fundamental that judicial admissions are proof possessing the highest possible probative value. Indeed, facts judicially admitted are facts established not only beyond the need of evidence to prove them, but beyond the power of evidence to controvert them. A fact admitted by answer is no longer a fact in issue. Considered as a whole then, the order stands as valid beyond dispute.
The attack upon Clause 4 as prohibiting petitioners from doing that which they are not even charged with, and the effort to excise from Clause 1, the words, "or may be made",...
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...& n. 23 (11th Cir.2005); Fed.R.Evid. 801(c). 16. “A fact admitted by answer is no longer a fact in issue.” Hill v. Federal Trade Comm'n, 124 F.2d 104, 106 (5th Cir.1941). “[A] party is bound by the admissions in his pleadings.” Best Canvas Prod. & Supplies, Inc. v. Ploof Truck Lines, Inc., ......
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