McLAUGHLIN, Circuit Judge.
Appellant was convicted on seventeen counts of an indictment which charged it with violating regulations issued pursuant to the Emergency Price Control Act of 1942, 56 Stat. 23, 50 U.S.C.A.Appendix, § 901 et seq., prohibiting tie-in sales.
The violations occurred at three of appellant's branch houses, two in Philadelphia and one in Norristown. All three branch houses were supervised by a district manager and there was no evidence that he had any knowledge of the offenses. There was some evidence that the assistant manager of the Philadelphia, Noble Street, branch ratified a salesman's violation of the particular regulation. There was evidence that a salesman had stated to a customer that he had received orders from the office in Chicago to make named tie-in sales. There was evidence that the manager at Norristown himself committed the offenses involving that house. There was evidence on behalf of the appellant that the home office of the appellant sent out written instructions to its managers not to force the customers to buy one product in order to obtain another product and that it repeated
"(1) defendant, in good faith, instructed all its district managers, branch house managers and assistant branch house managers, never to make or permit to be made any tie-in sales.
"(2) defendant, in good faith, instructed all its salesmen never to make any tie-in sales."
Following conviction appellant moved for a judgment of acquittal which the trial court denied.
On this state of facts appellant argues that it should not be held responsible for the offenses committed by its employees. It stresses that the violations in question involved the element of wilfulness, that the Price Control Act does not specifically provide that an employer shall be guilty of the employee's offense and that there was no evidence of participation in or knowledge by an officer or high ranking agent of the corporation.
All of the evidence as to the violations by the employees of appellant showed that the offenses were committed deliberately and with knowledge of the pertinent regulations prohibiting such tie-in sales. Appellant's proofs, as indicated, went to considerable lengths in establishing the care it took to familiarize its branch house people with those particular price regulations, among others.
Though the Price Control Act does not expressly state that a corporate employer shall be responsible for an offense under the statute by its employee
The recent excellent opinion of Judge Clark for the Second Circuit Court of Appeals in United States v. George F. Fish, Inc., 154 F.2d 798, certiorari denied 328 U.S. 869, 66 S.Ct. 1377, 90 L.Ed. 1639, is most helpful in this connection. In that matter, almost identical with the instant situation and also involving a salesman as the active offender, Judge Clark after citing a long list of authorities substantiating the proposition that a corporation may be held criminally liable for the acts of an agent within the scope of his employment, says, 154 F.2d on page 801:
"No distinctions are made in these cases between officers and agents, or between persons holding positions involving varying degrees of responsibility. And this seems the only practical conclusion in any case, but particularly here, where the sales proscribed by the Act will almost invariably be performed by subordinate salesmen, rather than by corporate chiefs, and where the corporate hierarchy does not contemplate separate layers of official dignity, each with separate degrees of responsibility. The purpose of the Act is a deterrent one; and to deny the possibility of corporate responsibility for the acts of minor employees is to immunize the offender who really benefits, and open wide the door for evasion. Here Simon acted knowingly and deliberately and hence `wilfully' within the meaning of the Act, Zimberg v. United States, 1 Cir., 142 F.2d 132, 137, 138, certiorari denied 323 U.S. 712, 65 S.Ct. 38 [89 L.Ed. 573] and his wilful act is also that of the corporation. United States v. Union Supply Co., 215 U.S. 50, 55, 30 S.Ct. 15, 54 L. Ed. 87; United States v. Illinois Cent. R. Co., 303 U.S. 239, 58 S.Ct. 533, 82 L.Ed. 773."
The judgment of the District Court will be affirmed.
Appellant relies on some language of Judge Davis in Nobile v. United States, 3 Cir., 284 F. 253 regarding the criminal liability of a principal or master which, if that opinion is carefully read, develops to be simply dicta and not binding on us here. Holland Furnace Co. v. United States, 6 Cir., 158 F.2d 2, is also urged by appellant. That case had to do with the falsification of a certificate required by the War Production Board. The order of the War Production Board provided, as Judge Martin said in the opinion, 158 F.2d at page 3, "that anyone who reasonably relies on the truth of the certificate is not to be held responsible if it turns out to be false." The evidence was that the approval of the contract by the branch manager and the home office had been in reliance upon the said certificate and the case was decided as the court emphasized in its opinion, 158 F.2d at page 8, "on the facts of this case." (Emphasis ours). Those facts presented a far different corporate responsibility situation from the one with which we are concerned.