Brown v. American Stores, Inc.

32 A.2d 388, 1943 D.C. App. LEXIS 164

• Court: District of Columbia Court of Appeals
• Decided: June 8, 1943
• Docket: No. 78
• Status: Published

Opinions

RICHARDSON, Chief Judge.

Josephine McCorry filed a consumer action against American Stores, Inc., in the Small Claims and Conciliation Branch of the Municipal Court for the District of Columbia, claiming the sum of $50 for an alleged violation of the Emergency Price Control Act.¹ Her complaint states that on November 14, 1942, at appellee’s store at 17th and Corcoran Streets, N.W., she paid an excess charge on the purchase of a can of Campbell’s soup.

On March 13, 1943, Prentiss M. Brown, Administrator of the Office of Price Administration, filed a petition for leave to intervene under Section 205(d) of said Act.²

Leave to intervene was granted, the case was tried, a finding and judgment for the plaintiff for the sum of $5 was entered, and the following exception noted: “The O. P. A., thru Mr. Hatton notes exception to the Court’s finding and judgment for plaintiff for $5.00 and not for $50.00.”

On March 17, 1943, Prentiss M. Brown, as administrator and intervenor, applied to this court for the allowance of an appeal from said judgment. This application we granted.³ Plaintiff McCorry did not apply for an appeal.⁴

At the trial it was shown that on November 14, 1942, plaintiff purchased a can of so-called “Old Style” Campbell’s soup, the ceiling price for which was 10 cents, for which she paid' the cashier 14 cents.

About four weeks before this sale, Campbell’s Soups had placed on the market a new soup product identified as “New Recipe” on which the ceiling price was 14 cents. The cans containing the old and new products were placed on the same shelf, with the respective price ceilings properly posted and the shelves properly marked. A witness, one Perry, who accompanied plaintiff, testified that the prices were correctly posted and the shelves correctly marked.

For convenience of its cashier appellee had adopted a practice of having its clerks place a crayon mark indicating its price on each article on its shelves. The can purchased by plaintiff was improperly marked 14 cents instead of 10 cents. This it appears resulted from the inadvertence of an employee. There was no evidence of an intent to violate the price ceiling regulations. It does not appear whether the plaintiff, having selected the can from a shelf properly marked, realized at the time that an overcharge was made by the cashier, or called attention to the error.

Upon these facts we think the trial court properly awarded plaintiff judgment for a sum less than the extreme penalty of $50. Its judgment served the purpose of adequately compensating the consumer for the overcharge, and of a warning to this and other storekeepers that the highest degree of care must be exercised to avoid mistakes in ceiling prices.

In Hall v. Chaltis⁵ we held that a consumer’s right to bring an action for the sum of $50, conferred by Section 205 (e) of the Emergency Price Control Act, did not make a judgment for this amount mandatory in the absence of language imposing a fixed liability on the seller. Our decision on that appeal, to which both the plaintiff therein and the administrator as intervenor were parties, covers the instant case. Neither party applied to the United States Court of Appeals for the District of Columbia for a review. After careful consideration of the opinion we then rendered, we adopt it as the basis for. our present decision. The circumstances of the case before us serve to further impress us with the soundness of its reasoning, that Congress could not have intended to penalize alike the inadvertent mistake of the merchant who honestly and intelligently endeavors to comply with the law and the contumacy of one who dishonestly violates it.

Affirmed.

1 Public Law 421 — 77th Congress, Chap. 26 — 2d Session, 50 U.S.C.A. Appendix § 901 et seq.

2 This section provides in part: “In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation, order, price schedule, requirement, or agreement thereunder, the court having jurisdiction of such suit or action shall certify such fact to the Administrator. The Administrator may intervene in any such suit or action.”

3 Act of April 1, 1942, Public Law 512 —77th Congress, Sec. 7 (a), 56 Stat. 190, 195.

4 The appeal here is by the Administrator as intervenor, and not by the plaintiff. The intervenor is not a party to the judgment below. His interest is not in the subject of the particular suit, but in the rule of law involved in its decision. Our statute (Act of April 1, 1942, supra) authorizes an appeal by “any party aggrieved by any final order or judgment”.

A question may hereafter arise as to the right of the administrator to prosecute an appeal under these circumstances, but as counsel have not raised the point either in briefs or argument we have not decided it. See United States of America and Edward Roack v. Dick Johnson, May 24, 1943, 63 S.Ct. 1075, 87 L.Ed. —.

5 31 A.2d 699.