Testa v. Katt., 8741.

• Decision Date: 23 May 1946
• Docket Number: No. 8741.,8741.
• Citation: 47 A.2d 312
• Parties: TESTA v. KATT.
• Court: Rhode Island Supreme Court

47 A.2d 312

TESTA

v.KATT.

No. 8741.

Supreme Court of Rhode Island.

May 23, 1946.

Exceptions from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.

Action on the case by Alfred Testa against Harry Katt to recover damages for an alleged overcharge in the sale of an automobile in violation of the Federal Emergency Price Control Act. A motion by Chester Bowles, Administrator of the Office of Price Administration, for leave to intervene as a party for the purpose of safeguarding the interests of the public, was granted. The defendant's demurrer to the declaration and his motion for a directed verdict were overruled and denied, and plaintiff's motion for a directed verdict was granted, and the defendant brings exceptions.

Defendant's exception to overruling of demurrer sustained, and case remitted to superior court for further proceedings.

Arthur N. Votolato, of Providence, for plaintiff.

Philip B. Goldberg, Leo M. Goldberg, and Goldberg & Goldberg, all of Providence, for defendant.

John J. Sullivan, Dist. Enforcement Atty., of Providence, and William B. Sleigh, Jr., Massachusetts Bar Regional Litigation Atty., of Boston, Mass., for intervenor Office of Price Administration.

CAPOTOSTO, Justice.

This is an action on the case to recover damages for an alleged overcharge in the sale of an automobile in violation of the Federal Emergency Price Control Act of 1942, as amended by the Stabilization Extension Act of 1944, 50 U.S.C.A.Appendix, § 925(e), hereinafter for convenience called the act. The defendant demurred to the declaration on several grounds, the principal one being that the portion of the act on which the case is based is penal in its nature and therefore, under the established law of Rhode Island, not cognizable in the courts of this state. A motion duly made by Chester Bowles, Administrator of the Office of Price Administration, for leave to intervene as a party for the purpose of safeguarding the interests of the public was granted. Following the overruling of defendant's demurrer, the case went to trial on his plea of the general issue before a justice of the superior court sitting with a jury.

At the close of the evidence the defendant moved for a directed verdict on substantially the same grounds as those urged in his demurrer. This motion was denied. The plaintiff also moved for a directed verdict and this motion was granted. The case is before us on defendant's exceptions to the overruling of his demurrer, to the denial of his motion for a directed verdict and to the granting of such a motion in favor of the plaintiff.

It appears from undisputed evidence that on August 3, 1944, the defendant sold to the plaintiff an automobile for $1100 and received payment in full for that amount. The maximum legal price established by price regulation No. 540 under the act, as amended, was then $890. The overcharge to the plaintiff was therefore $210. The court awarded the plaintiff this amount plus a counsel fee.

So far as pertinent, the act 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, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. In such action 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 wilful nor the result of failure to take...