Moody v. Foster

41 S.E.2d 560 | Ga. Ct. App. | 1947

1. A ruling on the demurrer to which no exception is taken becomes res judicata only as to those issues which are either expressly or by necessary implication raised by the demurrer.

2. (a) Section 205 (e) (50 U.S.C.A. Appendix, § 925 (e)) of the Emergency Price Control Act of 1942, as amended by the Stabilization Act of 1944, gives to the consumer a right of action against a seller violating a maximum price schedule, regulation, or order for a period of one year from the date of the occurrence of the violation. For a period of thirty days from the date of the violation, the right of action is exclusively in the purchaser; thereafter the right of action is in either the purchaser or the Administrator for the remainder of the one-year period, but an action instituted by the Administrator, after the exclusive thirty-day period, will bar an action by the purchaser, though the right of action in the purchaser continues for the full one-year period unless an action is instituted by the Administrator.

(b) Although based on an incorrect reason, as a general rule, when the judgment complained of is correct, it will be affirmed.

(c) The court did not err in granting the motion to dismiss in the nature of a general demurrer as the petition failed to negative the statutory exception which was necessary to set forth a cause of action, under the facts of this case.

(d) It is unnecessary for the plaintiff to allege that suit has not been instituted or a recovery has not been had by the Administrator for the same violation. This is a matter of defense and peculiarly within the knowledge of the defendant.

3. The motion to dismiss in the nature of a general demurrer necessarily raised the question as to whether or not a cause of action was set forth, and the question as to whether the purchase was made for use and consumption other than in the course of trade or business was raised for the first time in the court below and not in this court.

4. Under the peculiar circumstances of this case direction is given that the plaintiff be allowed to amend his petition.

DECIDED FEBRUARY 6, 1947. REHEARING DENIED FEBRUARY 28, 1947. H. L. Moody brought an action against Jack B. Foster for damages arising under the provisions of the Emergency Price Control Act of 1942, as amended by the Stabilization Extension Act of 1944. The plaintiff alleged that jurisdiction is conferred on the court by Section 205 (c) of the act; and pursuant to Section 2 (a) of the act, the Price Administrator issued and there was published in the Federal Register, Maximum Price Regulation 540, effective September 6, 1945, which regulation, as amended has been at all times since the date of its issuance in full force and effect; on April 15, 1946, the defendant sold to the plaintiff one used 1937 Ford DeLuxe sedan, "as is," and charged and received therefor the sum of $650; the Maximum Price Regulation for such an automobile, as is, set the price at only $290, and the defendant charged and received for the automobile the sum of $360 in excess of the maximum price; and under the provisions of the act and regulations the plaintiff is entitled to recover three times the amount of the overcharges, plus attorney's fees and the costs of bringing the action.

On the trial of the cause the defendant made an oral motion in the nature of a general demurrer and the court made the following ruling: "The within case coming on for a hearing and the pleadings showing on their face that the within case was not filed within thirty days as provided by law, a motion to dismiss in the nature of a general demurrer is hereby sustained and the case is dismissed upon authority of Porter v. Warner Holding Co., 66 Supreme Court Reporter 1090 (June 15, 1946, Advance Sheet)." The plaintiff excepted to this judgment.

Upon the suggestion of the defendant in error of diminution of record, the following demurrer and the order thereon were ordered from the court below: "Defendant demurs to said suit on the ground that said court has no jurisdiction; that the Civil Court of Fulton County has no jurisdiction in criminal matters and the above suit is of a quasi-criminal nature." "Demurrer overruled on each and every ground thereof." It does not appear from the record that any exception was taken to the overruling of this demurrer. 1. The judgment of the court overruling the defendant's demurrer, which was pitched on the ground that the court was without jurisdiction to try the action as it was of a quasi-criminal nature, was not an adjudication of the sufficiency of the petition. It merely adjudicated that the action brought by the plaintiff, while penal in its nature to some extent, is not such an action as to confer jurisdiction upon a court of criminal jurisdiction. (See, in this connection, Bowles v. Kroger Grocery Baking Co., 141 Fed. 2d, 120 (2): "Emergency Price Control Act is not a penal statute and remedy for its violation is not penal.") The ruling was, therefore, an adjudication of the single issue involved and is not res judicata as to the other issues (Wheeler v. Board of Public Education, 12 Ga. App. 152,76 S.E. 1035; Papworth v. Fitzgerald, 111 Ga. 54,36 S.E. 311; Stevens v. Stembridge, 104 Ga. 622,31 S.E. 413; Dunton v. Mozley, 42 Ga. App. 295, 155 S.E. 794;Ponsell v. Citizens Southern Bank, 35 Ga. App. 460,133 S.E. 351), and did not preclude the court's passing on the defendant's motion to dismiss.

2 (a). The court in dismissing the case on a motion in the nature of a general demurrer assigned as its reason for doing so, the authority of Porter v. Warner Holding Co., 328 U.S. 395 (66 Sup. Ct., 1090, 90 Law. ed. No. 16, p. 994, Advance Sheet). We find no ruling in that case applicable to the facts of this case. Justice Rutledge's statement to the effect that the buyer (tenants in the Porter case) must bring his action against one violating the Emergency Price Control Act of 1942, as amended by the Stabilization Extension Act of 1944, within thirty days from the occurrence of the violation is not a judgment of the Supreme Court of the United States. This statement appears in Justice Rutledge's dissenting opinion. Moreover, had this statement appeared in the majority opinion, it would not be binding on this court, as, under the facts of that case, the statement is in our opinion, obiter; and just as the statement is not binding, neither is it, to us, persuasive in reasoning as an enunciation of the law upon this point. The section of the Emergency Price Control Act of 1942, as amended by the Stabilization Extension Act of 1944, applicable to this case is § 205 (e) (50 U.S.C.A., Appendix, § 925 (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 suchcommodity for use or consumption other than in the course oftrade or business may, within one year from the date of theoccurrence 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 practicable precautions against the occurrence of the violation. . . If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute anaction under this subsection within thirty days from the date ofthe occurrence of the violation or is not entitled for any reasonto bring the action, the Administrator may institute such actionon behalf of the United States within such one-year period. Ifsuch action is instituted by the Administrator, the buyer shallthereafter be barred from bringing an action for the sameviolation or violations. Any action under this subsection by either the buyer or the Administrator, as the case may be, may be brought in any court of competent jurisdiction. A judgment in an action for damages under this subsection shall be a bar to the recovery under this subsection of any damages in any other action against the same seller on account of sales made to the same purchaser prior to the institution of the action in which such judgment was rendered." This section prior to the amendment of 1944 gave no right of action to the Administrator in the event the buyer failed to sue within thirty days of the occurrence of the violation, but contained this language: ". . If any person selling a commodity violates a regulation, order, or price, schedule prescribing a maximum price or maximum prices, and the buyer . . is not entitled for any reason to bring the action under this subsection, the Administrator may institute action under this subsection on behalf of the United States." It is the contention of the defendant that by the amendment of the act in 1944 the purchaser's right of action against a seller violating a maximum price schedule was limited to thirty days from the occurrence of the violation. We do not, and can not in the face of the language of the section of the act, as amended, construe the act, as amended, as having this effect. At the outset, the section says that for a violation of a maximum price schedule "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." Clearly at this stage the purchaser's right of action is limited to one year. However, the section says, "except as hereinafter provided." What are these exceptions? First, if "the buyer . . fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation . . the Administrator may institute such action on behalf of the United States." Second, "or [if the purchaser] is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States. Obviously, we are not concerned here with the latter exception for if the purchaser is not entitled to bring the action the question of a limitation on the right of the purchaser to bring the action can not logically arise. In considering the former exception, we observe that if the purchaser fails to bring his action within thirty days from the occurrence of the violation and the Administrator then institutes an action under this section, "the buyer shall thereafter be barred from bringing an action for the same violation or violations." The section does not say the purchaser shall be barred by a failure to bring the action within 30 days. The plain, unambiguous language of the section says that the right of action in the purchaser shall exist for one year from the date of the occurrence of the violation, but if he fail to bring his action within thirty days from the date of the occurrence of the violation, the Administrator may institute such action on behalf of the United States, and it is only when the Administrator has instituted the action that a bar will arise against the purchaser prior to the termination of the one-year period from the date of the violation, the termination of the one-year period being a bar to both the purchaser and the Administrator. So far as we have been able to ascertain, there has been no decision from any court upon this point, though the case of Kersting v. Hardgrove (N. J.) 48 A.2d, 309, seems as a physical precedent, to support our construction of the section under consideration. Clearly, we think, it was the intent of the Congress and the spirit of the statute that the public, the purchasers, should be given a share in and an incentive for enforcing the statute, and this was for the purpose of assisting the Administrator in a task that would have been otherwise extremely difficult. The amendment of 1944 did not, we think, intend to withdraw from the Administrator, this assistance, but rather instructed the public that unless it performed its share of the task with diligence, the Administrator might institute the action and thus take from the individual purchaser his remedy for having had to purchase at inflated prices. This view finds support in the report of the Committee on Banking and Currency, 78th Congress, Second Session, House of Representatives, Report No. 1593, June 3, 1944, where in reporting on this section the committee says: "The bill further amends this section so as to authorize the Administrator to bring a suit for damages on behalf of the United States in those situations where the present statute authorizes suits only by the consumer, if the consumer does not bring an action within 30 days after the violation. Ifthe Administrator institutes such an action, suit by the consumerwill then be barred." The purchaser is given one year from the date of the occurrence of the violation of the maximum price schedule within which to bring an action against the seller in the event the Administrator does not institute an action after the expiration of thirty days from the date of the occurrence of the violation. During the thirty days from the date of the violation, the purchaser is exclusively given the right to bring the action.

(b) Although based upon an incorrect reason, as a general rule, when the judgment complained of is correct, it will be affirmed on appeal. Summerlin v. Hesterley, 20 Ga. 689 (65 Am. D. 639); Crittenden v. Southern Home B. L. Assn.,111 Ga. 266 (36 S.E. 643), and cit.; Flynn v. East Point,18 Ga. App. 729 (90 S.E. 372); Kendricks v. Millen, 16 Ga. App. 273 (85 S.E. 264); Memmler v. State, 75 Ga. 576.

(c) The court did not err in granting the motion in the nature of a general demurrer. Purchasers of automobiles bringing an action for a violation of the Emergency Price Control Act, seeking treble damages for violation of the ceiling price, must negative the statutory exceptions by alleging and proving that they purchased the automobile for use and consumption other than in the course of trade or business. Crowley v. Hughes,74 Ga. App. 531 (40 S.E.2d 570), and cases cited. And by failure to negative the exception the plaintiff does not set forth a cause of action and renders the petition subject to general demurrer.

(d) It is unnecessary for the plaintiff to allege that suit has not been instituted or a recovery has not been had by the Administrator for the same violation. This is a matter of defense and peculiarly within the knowledge of the defendant.

3. While it is true as a general rule that questions which are not raised in the trial court will not be considered by an appellate court, the motion to dismiss which was in the nature of a general demurrer necessarily raised the question of whether a cause of action was set forth, and in view of what has been ruled in the preceding division of this opinion, the plaintiff's contention, that the defendant could not raise for the first time in this court the question whether the automobile had been purchased for use and consumption other than in the course of trade or business, is without merit.

4. Under the peculiar circumstances of this case, direction is given that the plaintiff be allowed to amend the petition before the judgment of this court is made the judgment of the court below, and upon compliance with this direction by the plaintiff the case stand for trial upon the petition as amended; but upon his failure to do this, the judgment is unconditionally affirmed.

Judgment affirmed, with direction. Sutton, P. J., and Parker,J., concur.