Blood v. Fleming, 3426.

• Decision Date: 02 May 1947
• Docket Number: No. 3426.,3426.
• Citation: 161 F.2d 292
• Parties: BLOOD v. FLEMING, Administrator, Office of Temporary Controls.
• Court: U.S. Court of Appeals — Tenth Circuit

161 F.2d 292 (1947)

BLOOD v. FLEMING, Administrator, Office of Temporary Controls.

No. 3426.

Circuit Court of Appeals, Tenth Circuit.

May 2, 1947.

Walter W. Blood, of Denver, Colo. (Arthur H. Laws and Harold D. Torgan, both of Denver, Colo., on the brief), for appellant.

Nathan Siegel, of Washington, D. C. (William E. Remy, David London, Albert M. Dryer, and Harold Craske, all of Washington, D. C., and Max Melville, of Denver, Colo., on the brief), for appellees.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This was an action originally instituted by the Administrator, Office of Price Administration, against Walter W. Blood, Kirwin B. Blood, and Mary Ellen Blood, under Section 205(a) and (e) of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 925(a, e), for violation of the maximum price ceiling rentals, to recover statutory damages for excessive rents, a restraining order, and an order of restitution of the amount of alleged excessive rent, in the amount of $375. Kirwin B. Blood was the son of appellant. No service was obtained upon him or his wife, Mary Ellen Blood. A motion by appellant for summary judgment as to the cause of action for damages under Section 205(e) was sustained but was overruled as to the cause of action under Section 205(a). A like motion by appellee for a judgment of restitution was sustained. This is an appeal by Walter W. Blood from the summary judgment entered against him requiring him to restore the actual amount of overage of rent paid, as hereinafter noted.

Paragraph 4 of the complaint in part alleged that the defendants at all times pertinent thereto were landlords within the meaning of the appropriate regulation and were operating the housing facilities in question, and that during all such time Kirwin Blood was a member of the armed forces of the United States and subject to the provisions of the Soldiers' and Sailors' Relief Act of 1940, 50 U.S.C.A. Appendix, § 501 et seq Paragraph 5 of the complaint alleged in substance that the defendants were engaging, and, unless restrained, would continue to engage in acts constituting violation of the Emergency Price Control Act in that they failed and refused to refund excess rent received and demanded from the tenants of the housing facilities in question.

The prayer of the complaint was for a judgment permanently enjoining them from engaging in the alleged violations and requiring them to refund the overcharges, and awarding the Administrator treble damages, or Fifty Dollars, whichever was greater, and for general equitable relief. The administrator also filed a bill of particulars which read as follows:

"1. That during the period commencing April 5, 1944, and ending April 5, 1945, defendants demanded, received and retained from Ferdinand J. Tate the sum of $1,305.00 instead of the sum of $930.00, resulting in the charge of $375.00 in excess of the maximum legal rent established and permitted by law.

"2. That defendant Walter W. Blood, on or about December 21, 1944, filed a registration statement for the housing accommodations known as 1249 Niagara Street, Denver, Colorado; that during the period commencing April 5, 1944, and for each successive month thereafter, to and including March 5, 1945, defendant Walter W. Blood demanded and received the rent for the use and occupancy of the housing accommodations known and described as 1249 Niagara Street, Denver, Colorado."

Appellant filed an answer in which he denied the allegations of Paragraph 4 of the complaint. He further denied that he was the owner or landlord and alleged that Kirwin B. Blood was a member of the armed forces of the United States during the times of the alleged violations and was, together with his wife, subject to and entitled to all the benefits of the Soldiers' and Sailors' Relief Act. He further alleged in his answer that when the Office of Price Administration ascertained that the defendant Kirwin B. Blood had rented the above property and had not and could not, because of his military service, file a registration statement, and he not having any authority to do so for his son, the Office of Price Administration asked him nevertheless to file it in the name of Kirwin B. Blood as a favor and accommodation to it, so that it would have a record of the rental being paid, arrived at voluntarily between the owners and tenants, when no price ceiling was in effect thereto, and that he complied with this request and as an accommodation to it, assumed authority which he did not have, and filed the statement on behalf of Kirwin B. Blood.

A pretrial conference was held, at which the following proceedings took place:

"I

"Plaintiff alleges that Ferdinand J. Tate rented the premises at 1249 Niagara Street, Denver, Colorado, and paid $115.00 per month rent to Walter W. Blood; that the Rent Director reduced the rental to $77.50 per month on January 26, 1946, retroactive to October 10, 1943, the difference between said figures representing an overcharge and subject to refund under Sec. 205(a) of the Act.

"II

Plaintiff introduced the following Pre-Trial Conference Exhibits:

"1 — Duplicate of Registration of Rental Dwellings in the name of Walter W. Blood.

"2 — Carbon copy of Order decreasing maximum rent issued by Rent Director, addressed to Walter W. Blood, which were admitted in place and stead of originals, objections of the defendant being waived except as to their materiality.

"3 — 10 checks drawn by Ferdinand J. Tate to the order of Walter W. Blood, in the sum of $115.00 each, except Check No. 32, which is for the amount of $110.30.

"III

"Plaintiff's witnesses will be:

"Mr. and Mrs. Ferdinand J. Tate

"Herman J. Sticken, OPA Investigator.

"IV

"Defendant Walter W. Blood denies that he received and retained any of these rental moneys, and states that checks were mailed to his office and that he had authority of his son, Kirwin B. Blood, to deposit same to the account of the latter; that at the request of the Office of Price Administration, he, Walter W. Blood, in the absence of his son Kirwin B. Blood, who was in the armed forces, signed the registration statement and thereby assumed authority which he did not have.

"V

"The Court held that Sec. 525 of the Soldiers' and Sailors' Relief Act grants absolute relief, and that Kirwin B. Blood cannot be proceeded against in this action, but that the plaintiff may proceed against the defendant Walter W. Blood as a matter of equity.

"VI

"The case is to be set for trial to the court in 30 days, demand for jury being waived.

"VII

"The defendant is ordered to furnish to the plaintiff a list of its witnesses 10 days before trial."

Thereafter, the pretrial conference order was extended to include Exhibit 5. Exhibit 5 was the lease which was executed between Kirwin B. Blood and Mary Ellen Blood as lessors of the premises, and the lessees. Walter W. Blood was not a party to this lease. Plaintiff thereupon filed its motion for summary judgment and the same was sustained, and the following order and decree was entered:

"This matter coming on to be heard September 30, 1946, upon plaintiff's motion for Summary Judgment, and the Court being fully advised in the premises, it is hereby Ordered and Decreed:

"That defendant Walter W. Blood, within ten days from the date of this order, pay three hundred seventy-five dollars ($375.00) to Lt. Col. Ferdinand J. Tate and Elizabeth Ladd Tate, whose address is United States Army, West Point, New York."

The first contention that merits consideration is that since the suit was not commenced within one year after the last alleged violation, it cannot be sustained under our holding in Matheny v. Porter, 10 Cir., 158 F.2d 478. The Mat...