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.
The question, therefore, arises as to the maximum amount of recovery which should be allowed in favor of the Government and assessed against the defendant, and as to the granting of injunctive relief in favor of the Government against the defendant.
Under the provisions of Emergency Price Control Act of 1942, Sec. 205(e), as amended, 50 U.S.C.A.Appendix § 925(e), it is provided inter alia, as follows: That any person who violates a regulation, order or price schedule, shall be liable for (1) such an amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based as provided, however, that such amount shall be the amount of the overcharge, or overcharges, if the defendant proves that the violation of the regulation, order or price schedule was neither willful nor the result of failure to take practicable precautions, or (2) an amount not less than $ 25 nor more than $ 50 as the court in its discretion may determine.
This last provision was intended to take priced items at amounts slightly in excess of the ceiling price, and where suit for three times the amount of the overcharge would have no practicable law-enforcing effect because the amounts were so small.
However, few cases are alike in all respects. Degrees of guilt or of wrong doing are varied and wide spread, and the penalty, therefore, should be made to fit the violation. Under the provisions of the Emergency Price Control Act, where a sale exceeds the ceiling price, recovery should be limited to the amount of overcharge if the defendant sustains the burden of proving that the violation was neither willful nor the result of failure to take practicable precautions. In the event the defendant has failed to sustain said burden of proof, recovery should not more than three times said overcharge, and where the amount of the overcharge is less than $ 25, said recovery should be limited to an amount not less than $ 25 nor more than $ 50, as the Court in its discretion may determine. Bowles v. Goebel, D.C., 58 F.Supp. 686; Bowles v. Ammon, D.C., 61 F.Supp. 106.
It is also necessary for the Court to exercise its discretion in light of the major objectives in the act. For the standards of public interest, not the requirements 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, 88 L. Ed. 754; Bowles, Office of Price Administration, v. Goebel, D.C., 58 F.Supp. 686.
In this case, if the purchases had been made by individuals who were not employed by the Office of Price Administration, the Government would have been justified in claiming the amount of $ 100 as damages, since the sales were made on two different occasions to different representatives of the Office of Price Administration. The Government, however, is only claiming the maximum recovery of $ 50 even though two sales had been made and, in view of the circumstances, the Court in its discretion does not feel justified in reducing the maximum penalty provided by law.
The Court, therefore, believes that judgment should be entered in favor of the Office of Price Administration, on behalf of the United States, against the defendant, David Weitz, for the amount of $ 50 together with the cost of this proceeding
It is necessary that the defendant realize in the future that he must comply with all rules and regulations adopted by the Office of Price Administration, which would govern any commodity that he might have occasion to sell at his place of business. It is, therefore, the belief of the Court that the request of the Government for injunctive relief should be granted.
An appropriate Order directing the entry of judgment, and the granting of the injunctive relief will be filed with this opinion.
The above case having been heard by the Court, and the Court having made the Findings of Fact and the Conclusions of Law heretofore filed and made part of the record of said case, now, therefore, pursuant thereto, it is ordered, adjudged and decreed as follows:
(a) Judgment is hereby entered in favor of the Office of Price Administration on behalf of the United States against the defendant, David Weitz, for the amount of $ 50.
(b) The defendant, defendant's officers, agents, servants, employees, attorneys and all persons in active concert or participation with any of them, jointly and severally be, and they are, permanently enjoined and restrained from engaging in or causing, directly or indirectly, any of the following acts or omissions to act:
1. Selling, offering to sell, delivering or offering to deliver any retail kosher beef, veal, lamb or mutton cut at a price in excess of the legal maximum price permitted for such commodities by Maximum Price Regulation No. 394.
2. Directly or indirectly, in any manner whatsoever, violate any other provision of Maximum Price Regulation on.
3. Offering, soliciting, attempting or agreeing to do any of the foregoing.
Costs to be paid by the defendant.
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