Hilgreen v. Sherman's Cleaners & Tailors, Inc.

225 N.C. 656

• Court: Supreme Court of North Carolina
• Decided: December 12, 1945
• Status: Published

Opinion

Denny, J.

Tbis appeal presents for our determination the following questions: (1) Did the court commit error in overruling defendant’s motion for judgment as of nonsuit at the close of plaintiff’s evidence and renewed at the close of all the evidence? (2) If not, did the acts complained of constitute a single violation of the defendant’s price schedule, within the meaning of the statute, or did they constitute five separate violations of the schedule, giving the plaintiff the right to collect a multiple of fifty dollar penalties? (3) If the plaintiff is entitled to collect but a single penalty of $50.00 and reasonable attorney’s fees, did the Superior Court have jurisdiction of this action?

The plaintiff offered ample evidence to carry this ease to the jury, and the first question must be answered in the negative.

The second question is more difficult. The decisions in various jurisdictions differ widely in construing the statute which gives the plaintiff the right to maintain this action.

The pertinent part of the Emergency Price Control Act of 1942, Title 50, U. S. C. A., sec. 925 (e), reads as follows: “If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course- of trade or business may bring an action either for $50.00 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney’s fees and costs as determined by the court. . . . Any suit or action under this subsection may be brought in any court of competent jurisdiction, and shall be instituted within one year after delivery is completed or rent is paid.”

The appellee insists that the judgment below should be affirmed and is relying upon the case of Thierry v. Gilbert, 147 Fed. (2d), 603, in which case the First Circuit Court of Appeals held that where a landlord leased to a tenant the premises in question, including a mechanical refrigerator as part of the equipment, for a term of seventeen months, beginning 1 April, 1943, at a rental of $55.00 a month and under the Rent Regulation the maximum rent Avas fixed at $50.00 a month, each payment of $55.00 as stipulated in the lease constituted a separate violation of the Rent Regulation. The Court said: “The result is no doubt harsh in this case, where the landlord acted innocently in making the overcharges. But as originally enacted, and as applicable here, the Act gave the tenant the right to recover the same penalty whether the violation was willful or not. The rigors of sec. 205 (e) have been mitigated, but only prospectively, by sec. 108 (b) of the Stabilization Extension Act of 1944, 50 U. S. C. A. Appendix, sec. 925 (e), the legislative history of which clearly indicates that Congress, by such amendment, intended among other things to obviate for the future the hardship in the very type of situation here presented.” There are many decisions in accord with the above opinion, and among them we cite: Lamur v. Yates, 148 F. (2d), 137; Lapinski v. Copacino, 131 Conn., 119, 38 A. (2d), 592; Beasley v. Gottlieb, 131 N. J. Law, 117, 35 A. (2d), 49; Thompson v. Taylor, 60 Fed. Supp., 395.

Under the facts presented on this record, however, the appellant contends that if the plaintiff is entitled to recover anything as a penalty, he is only entitled to recover treble the amount by which the consideration exceeded the prices listed in the defendant’s schedule, or $50.00, whichever is greater. The plaintiff delivered the five garments, at the same time, to the defendant to be cleaned and pressed. The aggregate overcharge is only 85 cents, and the defendant insists that one penalty, and not five, is all the plaintiff is entitled to recover.

In the case of Peters v. Felber (Cal.), 152 P. (2d), 42, in which the plaintiff demanded, and had obtained judgment in the trial court for six penalties of $50.00 each, for excess payments of rent in the sum of $6.00 per month for six months, the appellate court held the plaintiff was entitled to recover treble the total overcharge of $36.00, or $108.00, and attorney’s fees. In the opinion of the Court, it is said:

“The general principle -to be followed in the construction of section 205 (e), 50 U. S. C. A. Appendix, sec. 925 (e), is succinctly expressed by the then Mr. Justice Stone in Haggar Company v. Helvering, 1940, 308 U. S., 389, 394, 60 S. Ct., 337, 84 L. Ed., 340, 344: ‘AH statutes must be construed in the light of their purpose. A literal reading of them which would lead to absurd results is to be avoided when they can be given a reasonable application consistent with their words and with the legislative purpose.’ In Bowles v. American Stores, Inc., 1943, 78 U. S. App. D. C., 238, 139 Fed. (2d), 377, the United States Court of Appeals, District of Columbia, in reviewing a judgment where the award was five dollars instead of the amount authorized by section 205 (e), 50 U. S. C. A. Appendix, sec. 925 (e), took occasion to say this about the purpose of the legislation (p. 379 of 139 F., 2d) : ‘Congress foresaw that the task of enforcing the Act against retailers would be too vast for the Administrator to accomplish without the help of consumers. The plain purpose of the $50 clause is to enlist the help of consumers in discouraging violations. . . . The filing and prosecution of a small suit may or may not cost the plaintiff a substantial amount of money, but any suit takes time and effort. Congress made $50 a floor and not a ceiling in order to give overcharged'consumers the'necessary incentive to sue.’ See also Miller v. Superior Court, 1943, 22 Cal. (2d), 818, 838, 142 P. (2d), 309.

“To interpret tbe section as authorizing the recovery in one action of as many times fifty dollars as there are overcharges pleaded, would lead to results so absurd that the interpretation should be avoided unless required by the language of the section. This is not a fanciful speculation. We have one appeal pending before us where a multiple of fifty dollar penalties is sought because of a succession of weekly rents which exceeded the ceiling price by twenty-five cents each. In another action now on appeal the plaintiff pleads twenty-two purchases in which he was overcharged a total of thirty-four cents, and prays for twenty-two fifty dollar penalties, a total of $1,100. To interpret the section so as to hold out so great rewards for so minor overcharges would serve to foster in buyers a desire to promote price violations rather than to put a stop to them, with the result that the section would operate to defeat rather than further its purpose. Such an interpretation, obviously, is not to be adopted if it may be avoided without doing violence to the provisions of the section.”

The opinions in the following cases are in accord with the construction given the statute in the above case: Brooks, et ux., v. Kalisiewicz, et ux (Pa.), 58 F. Supp., 648; Everly v. Zepp, et als. (Pa.), 57 F. Supp., 303; Link, et als., v. Kallaos, et als. (Mo.), 56 F. Supp., 304; McCowen v. Dumont, et als. (Mo.), 54 F. Supp., 749; Hayes v. Osborn (Okla.), 160 P. (2d), 956; Aronwald v. Sperber, 49 N. Y. S. (2d), 257. In the last cited case, in which two cases were consolidated, the defendant, operator of a retail meat market, had filed a price schedule covering meats and one covering poultry. One of the plaintiffs purchased from the defendant fifteen items of meat on six occasions and one of poultry on another. The other plaintiff purchased an item of meat and one of poultry on different occasions. The plaintiffs alleged 18 separate violations of the maximum prices contained in the defendant’s price schedules and sought to recover 18 penalties of $50.00 each. The Court said:

“The language of Section 205 (e) is clear and hardly leaves room for far-fetched speculation. It calls for a penalty for the violation of a 'regulation, order, or price schedule prescribing a maximum price or maximum prices.’ Those who used this language in enacting the law were aware of the fact that a schedule contains numerous items, yet but a single penalty is prescribed for any violation of such a schedule. To twist this language to mean that each item of the schedule is to be treated as a single schedule, would certainly be doing violence to language itself.

“This Court is reluctant to read words into a penal provision, so as to mulct one of greater damages than the very provisions called for. Had Congress intended to exact a $50 penalty for each sale beyond the prescribed price, it could bave said so in no uncertain vocables. Tbe law deals with reasonable concepts and tbe statute must be so construed.

“Tbe Emergency Price Control Act of 1942 is a salutary war measure. Its purpose is obvious enough; to prevent avarice and cupidity on tbe part of sellers of commodities from getting out of band and thus prevent an increase of tbe consumers’ hardships. The rising tide of prices bad to be checked by legislative enactment. However, no intent can be read into that wise and prudent enactment to establish thereby a sort of gestapo, with each individual consumer an informer, leading to inordinate and unconscionable fines and penalties. Unless tbe section dealing with penalties commands in unequivocal language, that each individual purchase shall carry a penalty of $50, tbe conscience of tbe Court forbids that most harsh interpretation. Since tbe section does not contain such language, tbe construction irresistibly leads to tbe conclusion herein reached.

“Tbe attorney for tbe O.P.A. lays goodly stress on tbe thought that tbe statute referred to is remedial and not penal, and, therefore, calls for a liberal interpretation in favor of plaintiff. With this tbe Court cannot agree. Liberal is not synonymous with violent. A liberal interpretation is not tantamount to being liberal with tbe defendant’s funds. There should not be such a wide margin of demarcation between law and good morals as tbe contrary bolding would produce. ... It is tbe opinion of tbe Court that, since tbe defendant violated but two price schedules, each plaintiff herein is entitled to recover a penalty of $50 for each of such violations, or a total of $100 for each plaintiff.”

In tbe instant case, tbe defendant bad but one price schedule, and we think tbe acts complained of by tbe plaintiff constitute but a single violation within tbe meaning of tbe statute and that tbe plaintiff is entitled to recover tbe sum of $50.00, plus reasonable attorney’s fees and costs.

In view of tbe conclusion reached herein, we come to tbe question of jurisdiction. Under tbe provisions of tbe Emergency Price Control Act of 1942, tbe aggrieved party may bring bis action in any court of competent jurisdiction. In Hopkins v. Barnhardt, 223 N. C., 617, 27 S. E. (2d), 644, we held that a justice of tbe peace in this State did not bave jurisdiction in an action for a penalty plus reasonable attorney’s fees to be fixed and awarded by tbe court. Tbe Superior Court, however, does bave jurisdiction in actions to enforce tbe Emergency Price Control Act of 1942, regardless of tbe amount of tbe penalty or penalties demanded in good faith, if in addition thereto tbe plaintiff seeks to recover reasonable 'attorney’s fees. Jurisdiction is determined by tbe amount demanded in good faith, Tillery v. Benefit Society, 165 N. C., 262, 80 S. E., 1068, or by tbe character of tbe relief sought, Drainage Commissioners v. Sparks, 179 N. C., 581, 103 S. E., 112, and Canal Co. v. Whitley, 172 N. C., 100, 90 S. E., 1. The statute authorizes the court to award reasonable attorney’s fees and the Superior Court, being a court of general jurisdiction, has the power to award such fees. Hopkins v. Barnhardt, supra; In re Will of Howell, 204 N. C., 437, 168 S. E., 671. In a recent decision of the Supreme Court of New York, the Court held the awarding of reasonable attorney’s fees is mandatory under the provisions of section 205 (e) of the Emergency Price Control Act of 1942, if the plaintiff is successful in the litigation. Aronwald v. Sperber, 53 N. Y. Supp. (2d), 352.

Except as herein modified, the judgment of the court below is affirmed.

Let the cost be equally divided between the parties.

Modified and affirmed.