Cooper v. Ford

• Decision Date: 04 February 1948
• Docket Number: 17667.
• Citation: 77 N.E.2d 124,118 Ind.App. 108
• Parties: COOPER et al. v. FORD.
• Court: Indiana Appellate Court

77 N.E.2d 124

118 Ind.App. 108

COOPER et al. v. FORD.

No. 17667.

Appellate Court of Indiana, in Banc.

February 4, 1948

Appeal from Lake Circuit Court; Felix A. Kaul, Judge.

Judgment affirmed.

Harry Long, of Gary, for appellants.

Stanton & Stanton and James F. Pace, all of Gary, for appellee.

HAMILTON Judge.

This was an action instituted by appellee against appellants in the Lake Circuit Court to recover the statutory penalty of three times the amount of rent charged by appellants as landlords of and from appellee as tenant in excess of the maximum rental value fixed by the office of price administration of the United States for the area in which the city of Gary is situated, as authorized by the provisions of the Emergency Price Control Act of Congress enacted in 1942, 50 U.S.C.A.Appendix, § 901 et seq.

The issues were submitted for trial to a jury, which returned its verdict in favor of appellee and against both appellants and assessing appellee's damages in the sum of $270 and $150 attorney's fees. Judgment was rendered upon the verdict and, upon the overruling of appellants' motion for a new trial, this appeal was perfected.

The first error assigned is the overruling of appellants' motion for a new trial, assigning the following reasons therefor: (a) the verdict of the jury is not sustained by sufficient evidence; and (b) the verdict of the jury is contrary to law. All of the other specifications of the motion for a new trial have been waived by a failure to present the same under the 'Points and Authorities' of appellants' brief. Moore v. Ohl, 1917, 65 Ind.App. 691, 693, 116 N.E. 9; Vandalia Coal Co. v Butler, 1918, 68 Ind.App. 245, 119 N.E. 34; Pittsburgh, etc., R. Co. v. Lightheiser, 1907, 168 Ind. 438, 467, 78 N.E. 1033; Michael v. State, 1912 178 Ind. 676, 678, 99 N.E. 788.

In support of their contention that the verdict of the jury is not sustained by sufficient evidence, appellants insist that appellee failed to discharge the burden resting upon him to prove the following necessary and essential facts before he was entitled to recover in this action, to wit: 1. That the rental board fixed the rental of the property owned by the defendants (appellants) and occupied by the plaintiff (appellee). 2. That the defendants charged and received from the plaintiff an amount in excess of the rental value established by the rental board. 3. The burden was upon the plaintiff to establish that the property was rented by the defendants to the plaintiff and not to anyone else.

Appellants contend that the evidence discloses that the property was rented by the defendants on or about August 9, 1945, to Harriett Ford, appellee's wife, while appellee was in the armed forces of the United States, and that appellee did not return to live in the premises until sometime in February 1946, and that he only paid the rent for three months, February, March, and April, 1946. Appellants contend further that the plaintiff failed to discharge his burden of providing that the rental unit was one for which a ceiling was established prior to the time said real estate was rented to Harriett Ford. They insist that such changes had been made in the rental unit as to completely change its character prior to the date Mrs. Ford rented the same, and therefore the real estate became a new rental unit for which there was no ceiling price established by the O.P.A.

In rhetorical paragraphs I and II of appellee's amended complaint we find the following allegations of fact:

'I. That on the 6th day of August, 1945, the defendants were the owners of certain real estate located at and known as 3790 Mississippi Street, Gary, Indiana, and that on said date the plaintiff was a tenant of said defendants and occupied living quarters situated upon the rear of said real estate.' (Our emphasis.)

'II. That on said date, the said premises occupied by the plaintiff had been duly registered with the Office of Price Administration of the United States as having the maximum rental value of Fifteen ($15.00) Dollars per month, and the maximum rental value of said premises had been established by said Office of Price Administration at Fifteen ($15.00) Dollars per month.'

The first rhetorical paragraph of appellants' answer to said amended complaint, aforesaid, reads as follows:

'Come now the defendants in the above entitled cause of action and for their answer say: 1. That they admit the allegations of fact as set out in rhetorical paragraphs numbered 1 and 2 of plaintiff's complaint.' (Our emphasis.)

The law is firmly settled in Indiana to the effect that admissions of fact made in a pleading filed in a cause of action are solemn admissions, or admissions in judicio, and are not required to be supported by evidence. Such admissions are taken as true against the party making them without further controversy and need not be proved by evidence. Walters v. Cantner, 1945, 223 Ind. 263, 270, 60 N.E.2d 138; Lesh v. Johnston Furniture Co. 1938, 214 Ind. 176, 181, 13 N.E.2d 708, 14 N.E.2d 537; New Albany and Vincennes Plank Road Co. v. Stallcup, 1878, 62 Ind. 345, 347; Pickerill v. Homes Realty Co., 1922, 79 Ind.App. 447, 451, 136 N.E. 850.

The uncontroverted...