It is, therefore, discretionary with the Court as to the amount for which judgment must be entered where the defendant violator fails to exculpate himself from the inference of willfulness and the failure to take practicable precautions, for such amount as the Court in its discretion may determine, not, in any event, more than three times the amount of the overcharge nor less, it would reasonably seem, than the amount of the overcharge. Bowles v. Ammon et al., D.C., 61 F.Supp. 106, at page 118.
In this case the Court does not believe that the actions of the defendants were willful but the Court is of the definite conviction that the defendants failed to take practicable precautions in an effort to ascertain the maximum ceiling price which can be charged for said gas cooking range.
The defendants contend that they called the Office of Price Administration in the City of Pittsburgh, and talked with a clerk or employee in said office prior to the time that said sale was made and that said call was made in the presence of the purchaser of said stove, Joseph Moser.
It was further proven by the defendants, which was not contradicted, that the individual with whom Mrs. Ann N. Hageal, one of the defendants, discussed the price informed her that the ceiling price on said stove was $ 125.
It is, therefore, argued by the defendants that since reliance was placed on said statement, a violation does not exist.
It appears that Neal Hageal, one of the defendants, was engaged in business under the name of 'Hageal Electric Company,' 2033 Sawmill Run Blvd., and, under the circumstances, since Mr.Hageal had been in business for some period of time, he was certainly aware of the regulations existing in the Office of Price Administration and the Court does not believe that the defendant, Neal Hageal, or his wife, Ann N. Hageal, exercised the practicable precautions intended by the law.
Practicable precaution is commonly defined as follows:
'That the act or responsibility is capable of being done or accomplished with available means or resources, or that the act is capable of being performed, put into practice, or possible of being accomplished, executed or performed, and that by the exercise of ordinary reasonable care and caution being taken, it is possible to avoid the commission of a wrong doing such as by the use of reasonable precaution a person's life has been saved or an accident has been avoided. 49 Corpus Juris, Paragraphs 1309 to 1318, inclusive.'
It appears to the Court that the calling of an employee on the telephone of the Office of Price Administration is certainly not extending practicable precautions to lear the maximum ceiling price which exists on an article of merchandise which is to be sold, and through the business experience of the defendants, they were certainly aware of this fact.
In addition thereto, a person is not entitled to rely upon unofficial oral advice given by subordinate officials in the Office of Price Administration. At first blush, this may seem harsh but obviously the Administrator cannot be bound by various oral interpretations which happen to be made by his hundreds, perhaps thousands, of employees in violation of regulations. The Administrator has prescribed a reasonable procedure by which persons subject to the regulations may obtain official interpretations or information by which all will be bound and, therefore, an individual who sells merchandise is not entitled to rely on unofficial interpretations. Wells Lamont Corp. v. Bowles, Price Administrator, Em.App., 149 F.2d 364; utah Power & Light Co. v. United States, 243 U.S. 389, 37 S. Ct. 387, 61 L. Ed. 791.
The question, therefore, exists as to the maximum recovery which should be allowed in favor of the Government and assessed against the defendants. In this case, it appears that the sale which gave rise to this action was called to the attention of the Office of Price Administration by the purchaser, Joseph Moser, after the defendants had failed and neglected to deliver the new handles for the stove which were promised at the time the transaction was consummated, the value of said handles being Ten Dollars ($ 10). The purchaser, Joseph Moser, also stated that he was satisfied with the price which was paid for the stove and the inquiry which he subsequently made at the Office of Price Administration was due solely to the indifference which he had towards the defendants as a result of their failure to deliver the stove handles as agreed upon by the defendants.
Since the damages to be assessed against the defendants are a matter of discretion with the Court, the trial Judge has endeavored to be fair and equitable to all parties involved in this proceeding, keeping in mind that the Office of Price Administration does not carry the sole burden of the war against inflation and that the courts also have been entrusted with a share of that responsibility. It is, therefore, necessary for the Court to exercise its discretion in light of the major objectives in the act. For the standards of private litigation, measure the propriety and need for the amount of damages which are assessed. That discretion should also reflect an acute awareness of the congressional admonition that 'of all the consequences of war' and the post-war economic re-adjustment period, 'except human slaughter, inflation is the most destructive' and that indifference to the regulations of the Office of Price Administration will be fatal. Hecht Co. v. Bowles, Price Administrator, 321 U.S. 321, 64 S. Ct. 587, 592, 88 L. Ed. 754; Bowles, Office of Price Administration, v. Goebel, D.C., 58 F.Supp. 686.
The Court, therefore, believes that judgment should be entered in favor of the Office of Price Administration on behalf of the United States against each of the defendants, Neal Hageal and Ann N. Hageal, for double the amount of the overcharge together with the costs of this proceeding. An appropriate Order directing the entry of such judgment will be filed with this opinion.
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