Martin v. Burcham
| Decision Date | 06 June 1947 |
| Docket Number | No. 14847.,14847. |
| Citation | 203 S.W.2d 807 |
| Parties | MARTIN v. BURCHAM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.
Suit by J. D. Burcham against A. L. Martin doing business as L. & L. Motor Sales, to recover damages and reasonable attorney's fee under the Emergency Price Control Act. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Martin, Moore & Brewster and Harris Brewster, all of Fort Worth, for appellant.
J. O. Hughes, of Fort Worth, for appellee.
Plaintiff J. D. Burcham brought this suit against defendant, A. L. Martin, doing business as L. & L. Motor Sales, to recover damages and reasonable attorney's fee under the Emergency Price Control Act by the Congress in 1942, 50 U.S.C.A.Appendix, § 901 et seq.
The immediate suit grew out of the purchase by plaintiff of a second-hand automobile from defendant, in which it is alleged that he paid defendant $294.24 above the ceiling price on such automobile as fixed by the Office of Price Administration. Plaintiff sought recovery of three times the amount of the overcharge and reasonable attorney's fees of $275.
Defendant answered by a general denial only. Trial was to a jury on special issues. The verdict was substantially as follows: (1) The ceiling price was $784.07. (2) Defendant sold the car to plaintiff at a sum greater than ceiling price. (3) The amount for which the car was sold exceeded the ceiling price by $210.93. (4) Plaintiff paid defendant for the car $700 in cash besides the amount of a note executed by plaintiff at the time. (The testimony discloses without dispute that defendant received $295 from the proceeds of the note.) The instruction given in connection with Special Issue 5, along with the issue, read: Answer, "632.79." Conditioned upon an answer in dollars and cents in response to Issue No. 5, Issue No. 6 found a reasonable attorney's fee to be $140. All answers except that to Issue No. 5 were upon a preponderance of the evidence, and therefore we have quoted that issue and the instruction given in connection with it, and shall mention it later.
Judgment was entered on the verdict for plaintiff in the sum of $772.79. Motion for new trial by defendant was timely filed and overruled. Exceptions were taken, and notice of appeal given and perfected. The record is before us for review.
The testimony of plaintiff and his witnesses, throughout, shows that defendant sold him the car at $995 and that he paid that amount. The testimony of defendant and his witnesses is equally positive that the sale was for $760 and that is all that plaintiff paid. The material testimony in the case is just as conflicting as it can possibly be. The testimony is abundantly sufficient to support the jury verdict, provided the testimony concerning the ceiling price was competent. We shall notice this later.
Points of Error 1 and 2 relate to the same matter and are briefed together; they are substantially: (1) Error in refusing to submit defendant's requested instruction to the effect that if the jury found that there was an overcharge but that it was neither willful on defendant's part nor the result of failure by him to take practicable precautions against its occurrence, the jury could not award damages greater than the overcharge; and (2) If there was an overcharge was it made willfully and the result of the failure of defendant to take practicable precautions to avoid its occurrence.
U.S.C.A.Appendix Title 50, § 921(a) of the Emergency Price Control Act creates the Office of Price Administration (OPA) and provides for an Administrator and his duties. Subdivision (d) provides that the Administrator can promulgate such rules, regulations and decrees deemed necessary by him for its enforcement. By Subdivision (e) it is provided that the administrator shall exercise the power and authority of making regulations only by formal written orders or regulations which shall be promptly published in the Federal Register.
By Title 44 U.S.C.A. § 305, it is provided that all documents and decrees required to be published in the Federal Register shall be judicially noticed.
The enforcement provision of violations of the Office of Price Administration is found in Title 50 U.S.C.A.Appendix, § 925(e) and in so far as is necessary to quote, reads: * * *"
As we construe the provisions of the OPA Act, the Administrator is authorized to sue and collect the penalties for its violation except in cases where the purchaser may do so. In the latter class is a buyer who purchases a commodity for use or consumption "other than in the course of trade or business." In view of the disposition we are making of this appeal, we think it proper to note just here that plaintiff's petition does not bring him within the class authorized to prosecute such suit; but there were no exceptions taken to the sufficiency of the pleadings and of course no point is made of it here; this requires no further notice.
Points of Error 1 and 2 under consideration involve the provision found in the "Provided however" portion of Sect. 925(e) quoted above. Defendant complains because the court refused to submit that part of the Act. We have already pointed out that defendant's answer consisted only of general denial. As we construe Section 925(e) and that part especially applicable to the points involved here, it presents only a defensive matter in the nature of a confession and avoidance or at most an affirmative defense to a recovery of the treble damage item, and to be available, must be pled. Rule 94, Texas Civil Procedure. Defendant relies upon his affirmative testimony which negates any violation of the Act to support the theory that if there was a violation of the Act, it was neither willful nor the result of a failure to take practicable precautions against its occurrence. If it could be said that such testimony tends to support his contention in the absence of a plea to base the contention upon, it was not a proper issue of fact for jury consideration. Courts will submit the controlling issues made by the written pleadings and the evidence. Rules 67, 277 and 279, T.R. C.P.; also Ellzey v. Allen, Judge, Tex.Civ. App., 172 S.W.2d 703.
Points 3 and 4 are closely related and are briefed together and we shall so consider them. They are, in effect: (a) Error of the court in admitting the testimony of witness Smith, OPA Supervisor in this area, in which the witness testified to the ceiling price fixed by OPA on the secondhand automobile in controversy; and (b) Error in overruling defendant's objections to his testimony.
The asserted errors complained of present a rather unique question. Plaintiff called the witness, who testified as to his official connection with OPA in this area and said he was acquainted with the maximum ceiling prices as fixed by OPA on automobiles at Fort Worth, Texas, and knew the source of such regulations and the authenticity of the Federal Register, Vol. 10, No. 178, which, he said, contained Maximum Price Regulation (MPR) 540, which MPR 540 fixes the ceiling prices on such automobiles as that in controversy. He did not know of his own knowledge independent of MPR 540 the precise amount at which the car was listed since there were perhaps 5000 cars and different conditions affecting the maximum price, such as model, equipment of extras, such as radio, heater, and "as is" or with warranty by the seller. That to ascertain the ceiling price he had to take into consideration the facts with reference to these things, certain discounts, and then consult the Federal Register and MPR 540 and calculate the price. Defendant objected to the witness testifying as to the price under these conditions, because it was hearsay; calls for an answer on a question of law or mixed question of law and fact; his answer will be based...
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