Duvall v. Stokes, s. 7224

• Decision Date: 17 July 1954
• Docket Number: 7225,Nos. 7224,s. 7224
• Citation: 270 S.W.2d 419
• Parties: DUVALL et ux. v. STOKES (two cases).
• Court: Missouri Court of Appeals

Page 419

270 S.W.2d 419

DUVALL et ux. v. STOKES (two cases).

Nos. 7224, 7225.

Springfield Court of Appeals, Missouri.

July 17, 1954.

Roscoe C. Patterson and Kirby W. Patterson, Springfield, for defendant-appellant.

Lincoln, Lincoln, Haseltine & Forehand, Wallace N. Springer, Jr., and Leland C. Bussell, Springfield, for plaintiffs-respondents.

STONE, Judge.

This action arises out of eviction of plaintiffs from defendant's house at 613 West Dale Street in Springfield, Missouri, during the Fall of 1951 when those premises were 'controlled housing accommodations' subject to the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, Sec. 1891 et seq. Defendant took separate appeals, which have been consolidated, from the judgment for plaintiffs in the sum of $50 on Count I of plaintiff's petition and the judgment in the additional sum of $200 for attorneys' fees entered upon plaintiffs' after-trial motion. 65 Stat. 147, Sec. 204(b), 50 U.S.C.A.Appendix, Sec. 1895(b). On the appeal from the judgment upon plaintiffs' petition, the sole issue is as to the sufficiency of the evidence to support the judgment.

For a period of several years prior to December 30, 1951, plaintiffs and their children occupied the 5-room dwelling at 613 West Dale Street as tenants of defendant. At all times herein material, the tenancy was on a month-to-month basis. On September 15, 1951, defendant filed with the Area Rent Office in Springfield a 'Petition For Certificate Relating To Eviction' (hereinafter sometimes referred to as 'defendant's petition'), in which defendant stated: 'I desire possession of the property for reason 3 alterations and remodeling. I plan to tear out a petition (sic) and throw the living and dining room into one. Sand and finish all the floor. Have asbestos tiling put on the kitchen floor, put up venetian shades. I have not contracted any work or purchased any material. Will begin work immediately.' On September 26, 1951, the Area Rent Director issued a 'Certificate Relating to Eviction' (hereinafter sometimes referred to as 'the certificate'), the pertinent portions of which were as follows:

'This Certificate authorizes Mrs. Ida B. Monday to pursue his (sic) remedies for the removal or eviction of the Tenant named above from the above-described accommodations in accordance with the requirements of the local law. * * *

'Conditions

'The purpose for which eviction of the tenant is authorized is solely for the purpose of altering and remodeling to such an extent that a tenant could not remain in occupancy while the work was being done. Action to remove or evict the Tenant shall not be commenced sooner than three months from September 15, 1951.

'* * * This Certificate shall remain in effect unless and until changed by the Housing Expediter or the Certificate is otherwise suspended in accordance with Rent Procedural Regulation 2. * * *

'Notice to Court and Landlord. This Certificate shall not be effective to authorize the eviction of the Tenant herein named under the Rent Regulations for any purpose other than that stated above. * * * If the Landlord fails to observe the provisions of this Certificate of the Rent Regulations he is subject to civil action as provided for in the act.'

Believing it necessary to vacate by reason of the certificate, plaintiffs purchased a home about November 1, 1951, and thereafter moved on December 30, 1951. No suit for possession was instituted. After defendant's house had been vacated, extensive repairs and alterations were made during January, 1952, before other tenants moved into the house about the first of February, 1952. Although plaintiffs offered no evidence as to what repairs and remodeling were done in the house after they vacated (excepting only that the partition between the living room and the dining room was not removed), the record contains detailed evidence offered by defendant, and in no wise disputed or contradicted by plaintiffs either in the trial court or upon appeal, as to the nature, character and extent of the work actually done. According to the witnesses, the floors throughout the house were sanded, filled and revarnished, asphalt tile was laid on the kitchen and bathroom floors, involving removal of the bathroom fixtures (which were outside the room for a period of days not definitely shown), the bathroom stool was repaired, the plastering was patched, all of the walls were given two coats of kemtone, all of the woodwork was refinished with two coats, a new gas floor furnace was installed, new electrical fixtures were hung, a new electrical outlet was wired into each room, the cabinet tops were recovered and chrome trim was placed around them, the upper half of the bathroom was papered, the faucets in the lavatory, bathtub and sink were replaced, a flue and an open space (about one yard square) in a closet were closed, new flooring was laid over open vents from the old coal furnace which had been removed, a new sash was put in the basement, the front door was repaired where the lock had been removed leaving an opening, and the garage was braced and covered with a new roof. Plaintiffs' brief lists most of the above alterations and remodeling and plaintiffs' counsel say that 'it is uncontradicted' that they were made.

The gist of plaintiffs' complaint is that, in defendant's petition, she said that 'I plan to tear out a petition (sic) and throw the living and dining room into one'; 'that defendant did willfully misrepresent her reasons for eviction in that she at no time intended to remove said partition * * * and * * * the Area Rent Director would not have granted the certificate * * * in the absence of said allegation'; but, that the partition was not removed, although admittedly other repairs and alterations not mentioned in defendant's petition were made. Defendant's explanation about the partition was that, although she intended to remove it when she filed her petition, although she directed her son (who cared for this and other rental properties owned by defendant and who was in charge of the work done at this dwelling) to remove the partition, and although she never countermanded that direction to her son, the partition was not removed because defendant's son, in accordance with advice given to him by a contractor who inspected the premises and installed the gas floor furnace, decided that the partition should not be removed for several reasons, viz., that it would leave the plastering and flooring 'looking patched up', that removal of the partition would weaken the house to some extent, and that, if the living room and dining room were thrown together, that room would be so much larger than the other rooms that 'it would make the house look out of proportion.'

It appears to be settled and no longer open to question in this state that an aggrieved tenant induced to vacate 'controlled housing accommodations' by reason of his landlord's false representations may, upon appropriate pleadings and adequate proof, recover damages in a common law action for fraud and deceit, whether such false representations may have been made to the Area Rent Director or to the tenant and whether or not the landlord thereby may have procured issuance of a certificate relating to eviction. Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572; Meriwether v. Lumbard, Mo.App., 246 S.W.2d 363, 365(1); Hunter v. Roberts, Mo.App., 267 S.W.2d 368. In any such suit for fraud and deceit, each of the essential elements of that cause of action must be pleaded and proved; and, although it is recognized that fraud is seldom susceptible of proof by direct evidence and usually must be shown by circumstances [Hunter v. Roberts, supra, 267 S.W.2d loc. cit. 372(3); Meriwether v. Lumbard, supra, 246 S.W.2d loc. cit. 367], '[f]acts and circumstances which lead only to a suspicion of fraud or facts and circumstances as consistent with honesty and good faith as with fraud are insufficient to make out a case for the jury.' [Powers v. Shore, Mo.Sup., 248 S.W.2d 1, 6(8)]. Likewise, '[i]f the expression of a state of mind or an existing purpose was true when made and was made in good faith then any subsequent change of purpose made in good faith is not material to the transaction.' Powers v. Shore, supra, 248 S.W.2d loc. cit. 6(7). See also Hunter v. Roberts, supra, 267 S.W.2d loc. cit. 372(2).

Prior to amendent of the Housing and Rent Act as of July 31, 1951, a tenant wrongfully evicted from 'controlled housing accommodations' could seek civil relief only in a common law action for fraud and deceit, for the Act theretofore conferred no right of action for damages for wrongful eviction. 1951 U.S.Code Cong. & Adm. Service, pp. 1650, 1662; Cato v. Silling, W.Va., 73 S.E.2d 731, 742-743(7); Crawford v. Pituch, 368 Pa. 489, 84 A.2d 204, 206(2); Blanchard v. Kemp, La.App., 51 So.2d 639, 641. However, the Act as amended in 1951 [50 U.S.C.A.Appendix, Secs. 1895(b) and 1896(a)(2)], clearly created and thereafter provided a statutory right of action for liquidated damages, attorney's fees and costs for unlawful eviction, similar to the statutory right of action theretofore provided for rental overcharges. Although we have found only one reported case in which a former tenant has, for wrongful eviction, sought to recover liquidated damages, attorney's fees and costs under the Act, Foss v. Ziton, Minn.1954, 64 N.W.2d 47, the nature and basis of the right of action created and conferred by the statutes are perfectly plain from the language of the legislative enactment.

Section 204(b) [50 U.S.C.A.Appendix, Sec. 1895(b)], provides that 'Any person who unlawfully evicts a tenant shall be liable to the person so evicted * * * for reasonable attorney's fees and costs as determined by the court, plus liquidated damages in the amounts of (1) one month's rent or $50, whichever is greater, or (2) not more than three times such monthly rent, or $150, whichever is greater: Provided, That the amount of such...