Walker v. Jones

• Decision Date: 28 October 1947
• Docket Number: 6 Div. 437.
• Citation: 34 So.2d 608,33 Ala.App. 348
• Parties: WALKER et al. v. JONES.
• Court: Alabama Court of Appeals

34 So.2d 608

33 Ala.App. 348

WALKER et al. v. JONES.

6 Div. 437.

Alabama Court of Appeals

October 28, 1947

Rehearing Granted Dec. 16, 1947.

Further Rehearing Denied Jan. 13, 1948.

Ward & Ward, Tom B. Ward, Sr., and Tom. B. Ward, Jr., all of Tuscaloosa, for appellants.

Davis & Bealle, of Tuscaloosa, for appellee.

The following charges were refused to defendants:

'D. I charge you gentlemen of the jury that if you are not reasonably satisfied from the evidence in this case that the defendants W. W. Walker, Frances Y. Walker, and Walker Motor Co. did receive the purchase price for said automobile, then you can not render a verdict against said defendants.'

'M. I charge you gentlement of the jury that if you are reasonably satisfied from the evidence in this case that the defendant J. L. Graham received a part of the purchase price paid by plaintiff, in excess of the ceiling price of said car then the other defendants in this case would not in any way be liable or responsible for such excess so received by said defendant J. L. Graham.'

'W. I charge you gentlemen of the jury that as a matter of law the plaintiff is not entitled to recover any damages in excess of the actual damages, he has sustained in connection with the sale of said 1938 Chevrolet automobile. He would not be entitled to recover any treble damages, or any portion of treble damages, as claimed in his complaint, as such damages in excess of plaintiff's actual damages would constitute a penalty provided for by some other jurisdiction than the State of Alabama.'

'X. I charge you gentlemen of the jury that you cannot render a verdict in this case against the defendants W. W. Walker and

Mrs. Frances Y. Walker, and the Walker Motor Co. unless you are reasonably satisfied from the evidence in this case said defendants were the owners of said 1938 Chevrolet automobile and sold the same to the plaintiff.'

'Z. I charge you gentlemen of the jury that the plaintiff is not entitled to recover any portion of treble damages in excess of plaintiff's actual damages, as claimed in his complaint, as any such portion of such treble damages is a penalty provided for by some other jurisdiction other than the State of Alabama.'

HARWOOD Judge.

In the suit below the plaintiff claimed of the defendants damages accruing under the Emergency Price Control Act of 1942 as amended by the Stabilization Extension Act of 1944, 56 Stat. 23, 56 Stat. 765, 58 Stat. 632, 50 U.S.C.A.Appendix, §§ 901 to 946. The damages allegedly accruing because of the claimed purchase of an automobile from the defendants W. W. Walker and Mrs. Frances Y. Walker, doing business as the Walker Motor Company, a partnership, the sale allegedly being made by the defendants M. E. Walker and Frank J. Gary as agents of Walker Motor Company. Counts 3 and 4 of the complaint allege the sale to have been made by D. L. Graham. The court granted Graham's motion to exclude the evidence as to him, and also gave at his request a written affirmative charge in his favor. Further the jury rendered a verdict in favor of Graham.

All the other defendants filed demurrers to the complaint. The only grounds of the demurrer which we think require discussion are grounds 5, 6, and 7, which set out that the complaint shows that the plaintiff is attempting to recover a penalty imposed by a foreign jurisdiction, to wit: The United States of America.

The portions of Section 205(e), 50 U.S.C.A.Appendix, § 925(e), pertinent to this opinion are as follows:

'(e) 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 the 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 that violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation.'

The appellant in his argument cites only the Rhode Island case of Robinson v. Norato, 71 R.I. 256, 43 A.2d 467, 162 A.L.R. 362. This case holds that the provisions of Section 205(e) now being considered are penal in an international sense within the rule that a penal statute of one jurisdiction will not be enforced in another, and further, that while in the sense of public international law the several states of the Union are neither foreign to the United States, nor to each other, they are foreign in the first field of private international law.

In our opinion the doctrine of the Robinson case, supra, is not in accord with the developing, and developed, doctrine of a majority of the courts that have considered the enforcibility of federal penal provisions in state courts. There can be no doubt but that Congress, by the language employed in Acts in question has invited the state courts in this instance to exercise jurisdiction if they see fit. 'A state court, in conformity to state policy, may, by comity, give a remedy which the full-faith and credit clause does not compel.' Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S.Ct. 229, 231, 80 L.Ed. 220.

In a masterful opinion, in which innumerable decisions are reviewed, Mr. Justice Brand, of the Supreme Court of Oregon, in Bowles v. Barde Steel Co., 177 Or. 421, 164 P.2d 692, 162 A.L.R. 328, has shown that no foundation exists for denial of enforcement by a state court of penalty provisions in a Federal Statute, for the reason that federal laws, in their field of operation are the supreme law of the land, and the rule of conflict of laws (private international law) do not embrace the federal-state relationship. See also Regan v. Kroger Grocery & Bakery Co., 386 Ill. 284, 54 N.E.2d 210.

State courts in the following jurisdictions have taken jurisdiction of suits brought under the statute now in question, basing their assumption of such jurisdiction on various grounds, such as that no penalty is imposed, Whatley v. Love, La.App., 13 So.2d 719; or that the provisions are for the suit of a 'civil' nature remedial of a private wrong, and therefore not penal, Schaubach v. Anderson, 184 Va. 795, 36 S.E.2d 539; that jurisdiction attaches if in addition to the 'penalty' plaintiff seeks to recover a reasonable attorney's fee. Hilgreen v. Sherman's Cleaners & Tailors, 225 N.C. 656, 36 S.E.2d 252.

In Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706, 708, a case based on a claim for liquidated damages arising under the federal Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., our court, in considering the question of jurisdiction in a court of this state to entertain such action, wrote:

'The principle is well settled and thoroughly understood 'that lawful rights of the citizen, whether arising from a legitimate exercise of state or national power, unless excepted by express constitutional limitation or by valid legislation to that effect, are concurrently subject to be enforced in the courts of the state or nation when such rights come within the general scope of the jurisdiction conferred upon such courts by the authority, state or nation, creating them.' Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 598, 60 L.Ed. 961, [Ann.Cas.1916E, 505, L.R.A. 1917A, 86]; Pennsylvania R. Co. v. Puritan Coal Co., 237 U.S. 121, 35 S.Ct. 484, 59 L.Ed. 867; Galveston, H. & S. A. R. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516; Grubb v. Public Utilities Comm., 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972; Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833; State of Missouri ex rel. v. Taylor, 266 U.S. 200, 45 S.Ct. 47, 69, L.Ed. 247, 42 A.L.R. 1232; Raisler v. Oliver, 97 Ala. 710, 12 So. 238, 38 Am.St.Rep. 213; Middleton v. St. Louis & S. F. R. Co., 228 Ala. 323(5), 153 So. 256; Lindsey v. Standard Accident Ins. Co., 230 Ala. 633, 162 So. 267; 14 Am.Jur. 440, 441, sec. 247, note 17 et seq.; 21 C.J.S., Courts, § 526, p. 797, note 78, p. 798, note 4.'

'It may also be that Congress cannot by declaration change the nature of a claim to one for liquidated damages when it is but a penalty. But when Congress does that very thing, though it is but a penalty, Congress manifests an unmistakable purpose to exclude it from the operation of a statute which applies to penalties and not to a claim for liquidated damages.'

'The laws of the United States are as much a part of the law of Alabama as its own local laws. Blythe v. Hinckley, 180 U.S. 333, 21 S.Ct. 390, 45 L.Ed. 557.'

It is our opinion that in view of the above expression of our Supreme Court that there can be no doubt of the correctness of the action of the lower court in overruling the demurrer to the complaint.

In the trial below the plaintiff proceeded on the theory, and introduced evidence seeking to show that Frank Gary and M. E Walker were partners in, or the ostensible agents of the Walker Motor Company in the sale of the automobile to the plaintiff. One of the items of evidence introduced over the timely objection and exception of the defendants tending to establish such...