costs. Turning to the amended statute, it is provided in Section 205(e), 50 U.S.C.A.Appendix, § 925(e), that ' * * * the seller shall be liable for reasonable attorney's fees and costs as determined by the court, plus whichever of the following sums is the greater: (1) Such amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $ 25 nor more than $ 50, as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges or $ 25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation.'
Prior to the amendment to Section 205(e) now in effect, it was mandatory upon the court to award treble damages (or $ 50, if greater) in case of any violation. Cf. Bowles v. American Stores, Inc., 1943, 78 U.S.App.D.C. 238, 139 F.2d 377, certiorari denied 322 U.S. 730, 64 S. Ct. 947, 88 L. Ed. 1565. The statute as it presently exists, however, lays down a different rule: where a violation occurs the question of the allowance of multiple damages and of the extent of their amount is a question for 'the legal conscience and responsibly exercised judgment of the court on the circumstances of the particular case', except where the defendant is successful in establishing that the violation was neither wilful nor the result of failure to take practicable precautions, in which case the damages assessed can be no more than the amount of the overcharge or $ 25, whichever is the greater. Bowles v. Goebel, 8 Cir., 1945, 151 F.2d 671, 673; Bowles v. Heinel Motors, Inc., D.C.E.D. Pa. 1944, 59 F.Supp. 759, affirmed 3 Cir., 1945, 149 F.2d 815, certiorari denied 66 S. Ct. 141. See Shearer v. Porter, 8 Cir., 155 F.2d 77. It follows, therefore, that in a case such as the one at bar, where the defendant has failed to satisfy the court, functioning as a jury, that the violations were neither wilful nor the result of failure to take practicable precautions, it remains for the Court in the exercise of its discretion to assess damages at least in the amount of the overcharges, but not in excess of treble the amount thereof. Bowles v. Krodel, 7 Cir., 1945, 149 F.2d 398. Bowles v. Heinel Motors, Inc., supra.
It is my opinion that a judgment in the amount of the overcharges is sufficient in the instant case. As noted by the Court in Bowles v. Heinel Motors, Inc., supra, the suit being brought by the government, any judgment is in the nature of a penalty. The defendant filed his report with the Administrator as soon as he learned that the socket handles which he manufactured were subject to regulation. Moreover, the defendant was uncertain as to whether his product was ruled by Maximum Price Regulation No. 136 or Maximum Price Regulation No. 188, under which the Administrator eventually did fix a maximum price. However, the maximum price was not fixed by the Administrator until over three months after defendant had filed his report. Also, the socket handles which the defendant manufactured were of vital importance in the war effort and in continuing their sale evidently the defendant yielded to the demands of his prime contractor and the Signal Corps, for whom the completed instrument was intended.
Concerning the equitable relief sought by the Administrator, in view of the finding of willfulness the prayer for an injunction will be granted.
Accordingly, I state the following
Conclusions of Law
1. Jurisdiction of this action is conferred upon this Court by Section 205(c) of the Emergency Price Control Act of 1942, as amended and extended.
2. Defendant violated the Emergency Price Control Act of 1942, as amended and extended, 50 U.S.C.A.Appendix, § 901 et seq., by selling socket handles at prices in excess of the maximum price established therefore by Amendment No. 1 to Order No. 2963 under Section 1499.158 of Maximum Price Regulation No. 188, as amended.
3. The defendant has failed to prove that the violation of Maximum Price Regulation No. 188 and Amendment No. 1 to Order 2963 to the same was not wilful.
4. The defendant has failed to prove that the violation of Maximum Price Regulation No. 188 and Amendment No. 1 to Order No. 2963 to the same, was not the result of his failure to take practicable precautions against the occurrence of the violation.
5. The plaintiff is entitled to recover damages in the amount of the overcharges made by the defendant on the sale of 12,751 socket handles between June 29, 1944, and November 2, 1944, plus the costs of this action.
6. The evidence is of such character as to warrant this Court, in the exercise of its discretion, to issue injunctive relief.
An Order may be submitted in accordance herewith.
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