With respect to the item for value of his automobile, the records show that Mr. Rogers purchased his car on March 2, 1938 from the Diehl Motor Co., of Bellingham, Wash., at a cost of $96.90; that there was executed a conditional sales contract between the Diehl Motor Co. and Mr. Rogers whereby the Diehl Motor Co. agreed to sell to Mr. Rogers the car for the sum of $133.77, which amount apparently included carrying charges; that credit for $70 of this amount as a down payment was given by the Diehl Motor Co. for repairing a roof; that on March 10, 1938, Mr. Rogers paid the first payment due, amounting to $8.77. There is no record to indicate that the balance of the payments due amounting to $60 has subsequently been paid by Mr. Rogers. Upon review in the War Department, the claim was not favorably considered, since the driver of the Government vehicle was not acting within the scope of his employment at the time of the accident, a condition necessary to bring the claim within the provisions of any of the acts available to the War Department for the settlement of claims of this nature. Since at the time of the accident the driver of the Government truck was using the vehicle contrary to orders and not on Government business, the War Department is constrained to submit no recommendation and leave the matter to such equitable determination as the Congress in its discretion may deem proper to allow Sincerely yours, HARRY H. WOODRING O SUNCREST ORCHARDS, INC. JULY 13, 1939.-Committed to the Committee of the Whole House and ordered to be printed Mr. HALL, from the Committee on Claims, submitted the following REPORT [To accompany S. 927] The Committee on Claims, to whom was referred the bill (S. 927) to confer jurisdiction on the Court of Claims to hear, determine, and render judgment upon the claim of Suncrest Orchards, Inc., having considered the same, report favorably thereon without amendment and recommend that the bill do pass. The purpose of the proposed legislation is to confer jurisdiction upon the Court of Claims to hear, determine, and render judgment upon the claim of Suncrest Orchards, Inc., against the United States for damages for the alleged wrongful seizure of certain fruit shipped in interstate commerce during the year 1926. The facts are fully set forth in Senate Report No. 312, which is appended hereto and made a part of this report. Your committee concurs in the recommendation of the Senate. [8. Rept. No. 312, 76th Cong., 1st sess.] The Acting Secretary of Agriculture states that the Department has no disposition to oppose such presentation, as the proposed bill merely seeks authority to present the corporation's claims to the Court of Claims. The facts are fully set forth in the following communications, which are appended hereto and made a part of this report Hon. M. M. LOGAN, DEPARTMENT OF AGRICULTURE. Chairman, Committee on Claims, United States Senate. DEAR SENATOR LOGAN: We have your letter of March 23 transmitting a copy of S. 927 and requesting a report thereon. This is a bill to confer jurisdiction on the Court of Claims to hear, determine, and render judgment upon the claim of Suncrest Orchards, Inc., against the United States for damages for the alleged H. Repts., 76–1, vol. 5- -69 wrongful seizure of certain fruit shipped in interstate commerce during the year 1926. This Department in the enforcement of the Federal Food and Drugs Act during the year 1926 brought action under section 10 of that act against shipments of apples and pears by the Suncrest Orchards, alleging that the fruit was adulterated in that it bore excessive arsenical spray residue which might render it injurious to health. These actions are reported in the enclosed notices of judgment 14560, 14727, and 15350. Notice of judgment 14214, also enclosed, also covers fruit packed by Suncrest Orchards, although the corporation's name is not mentioned. It will be noted that no appearance, as provided by law, was made for the Suncrest Orchards, Inc., in the actions reported in notices of judgment 14214, 14650, and 14727, but that in the action reported in notice of judgment 15350 the corporation appeared as claimant and contested the findings of the Government. After trial on the merits of this case a jury rendered a verdict for the Government. Presumably the Suncrest Orchards, Inc., is seeking reimbursement for the loss of the fruit so seized in the proposed suit which it desires to institute in the Court of Claims In the light of the court record showing as it does an affirmation of the Government's charges in the course of a formal trial, this Department can find no justification for concluding that the corporation is entitled to reimbursement from the Government for its losses. However, the proposed bill merely seeks authority to present the corporation's claims to the Court of Claims and this Department has no disposition to oppose such presentation. For this reason we are not making an adverse report on the bill. Sincerely, Enclosure. HARRY L. Brown, SALEM, OREG., January 26, 1939. Re Federal Claim Suncrest Orchards, Inc., Llewellyn A. Banks and family. United States Senator, Washington, D. C. MY DEAR SENATOR MCNARY: Since over 12 years have elapsed since the loss occurred as represented by our Federal claim, and as over 11 years have passed since this claim was first placed in your hands by my then attorney, E. E. Kelly, of Medford, Oreg. (since deceased), without doubt many of the facts and circumstances relative to this claim, may have passed from your memory; therefore, I respectfully submit the following essential outstanding facts and circumstances, as briefly as same will permit. The Suncrest Orchards, Inc., was owned exclusively by Llewellyn A. Banks and family. Some time back in the early part of this century a law or ordinance was passed or adopted, no doubt at the instigation of the horticulture board of the State of Oregon, making it compulsory for orchardists (especially pears and applies) to spray their orchards with arsenate of lead; such a law or ordinance was found necessary to protect the fruit industry from the devastating scourge of the codling moth. That such a law or ordinance was enforceable and recognized as valid is evidenced by the fact that at least two large orchards in Jackson County, Oreg were uprooted when the owners of these orchards refused to abide by such laws; one of these orchards thus uprooted was the property of Mr. John Gore. There was no question as to the necessity for such a law, and for 20 years or more it was adhered to faithfully; the exact formula for the application of this insecticide (arsenate of lead) was prescribed by the horticulture board, for the guidance of growers. In the year 1926, some time in the month of June, we horticulturists heard rumors, that by reason of a certain ruling in Great Britain relating to the content of arsenic allowable in the manufacture of beer, that apples and pears for export from America to British markets, would in some manner not clearly defined, become subject to the British ruling on beer. It is true that no record existed to prove or even suggest, that the content of arsinate (not arsenic) of lead found on apples or pears, had for the previous 20 years proven injurious to public health, yet in the year 1926, without warning, and without the possibility of preparing for new rulings and regulations pertain ing to fruit shipments for interstate commerce, the Department of Chemistry, then under the direction of the then Secretary of Agriculture, Mr. William M. Jardine, seized upwards of 60 or more of our carloads of pears, merely detaining such shipments for inspection. Most unfortunately, and through some error, on the part of agents for the Department of Chemistry, these carloads thus seized, which had been forwarded under full refrigeration and for cold-storage purposes, were detained for a full 10 days or more during the hottest period of the year, without re-icing. When after these carloads had been released, and not found injurious to public health, they were returned to us, in an absolutely worthless condition for cold-storage purposes. As had been our custom, in the year 1926 we had entered into contracts with eastern exporters and operators for delivery to them of most of our entire output of late variety pears, such as the D'Anjou, Bose, and Comice, same to be forwarded under full refrigeration for immediate export, or held in eastern terminal cold-storage warehouses for the spring market or for a later export demand. Our "terms of sale" were invariably "Spot cash-Inspection acceptance at shipping point." Cash payments on such contract sales were made in the shape of bank guaranties; such bank guaranties, when supported by documents, consisting of bills of lading, inspection reports and invoices, were accepted by our bankers, as cash deposits, we receiving credits at time of depositing documents. Forty-one carloads of these late-variety pears, were seized in 1 day; several of such carloads were seized at Le Roy, N. Y., where they were ordered for coldstorage facilities; others at Boston, Mass., also at New York City, and at Philadelphia, Pa. Later approximately 20 additional carloads were seized; after the said carloads were seized, detained by padlocking the cars in the name of the Federal Government, the eastern purchasers regarded such shipments as contraband, and not legal delivery on contracts, and immediately demanded a full reimbursement for all moneys previously wired in the shape of bank guaranties; many of the bank guaranties were canceled before remittances were made to our bankers; this writer recalls vividly, refunding to our bankers, $68,000 in 1 day; later such refunds amounted to over $100,000. We then secured a Federal injunction, preventing further interferences with our interstate shipments; and did proceed throughout balance of season without further hindrances; but the damage had been accomplished. After the aforementioned carloads of pears had been released to us as not being injurious to public health, and after same had been rejected by the original purchasers, we made every possible effort to salvage as much from the wreck, however as these shipments having become overheated, and as same had become worthless for cold storage purposes, and furthermore, as the variety, was not suitable for the fall market, the loss was almost total, after paying freight and refrigeration charges. When our full losses were determined, our bookkeepers assisted by Attorney E. E. Kelly of Medford, Oreg. (since deceased), prepared a carefully itemized statement, giving all facts and particulars, and to the best of the writer's memory, this itemized statement was placed in your hands in the year 1927 by Attorney Kelly. You prepared a bill in 1928, and if the writer recalls, this claim would doubtless have been approved, excepting for the opposition of the then Secretary of Agriculture Mr. William M. Jardine. We were informed that "as the error had occurred under his administration that he declined to recognize such responsibility." This, of course, was mere heresay gossip. If this writer recalls correctly, our actual loss on carloads thus seized amounted to something over $76,000 as of September 1926, which, with interest for the intervening years, might now approximate about $100,000. Our losses, as an indirect result of these seizures, and not represented by our claim, was far greater; as following these seizures the entire pear market became unsettled with losses incalculable. Trusting that the foregoing data may prove of some value in the presentation of our Federal claim, and hoping that same may be found just and equitable, I remain, Respectfully yours, Copy to Hon. Rufus C. Holman. LLEWELLYN A. BANKS. O |