McCowen v. Dumont, 1562.

• Decision Date: 12 April 1944
• Docket Number: No. 1562.,1562.
• Citation: 54 F. Supp. 749
• Parties: McCOWEN v. DUMONT et al.
• Court: U.S. District Court — Western District of Missouri

54 F. Supp. 749

McCOWEN v. DUMONT et al.

No. 1562.

District Court, W. D. Missouri, W. D.

April 12, 1944.

Theo C. Anderson, of Kansas City, Mo., for plaintiff.

C. H. Bailey and Ira Burns, both of Kansas City, Mo., for defendant.

OTIS, District Judge.

For a certain period plaintiff occupied Apartment 202 in a small building in Kansas City, Missouri, in which the defendant, Marie Louise Dumont, an aged and invalid widow, owned a life interest. Mrs. Dumont was entitled to all lawful rents. Her son, Harry Dumont, a plumber by trade, also sued as a defendant, collected the rents for his invalid mother. (There was a showing at the trial that the mother is now completely incompetent mentally). The plaintiff, believing that the rent collected from her was at a slightly greater rate per week than the rent charged for the same apartment on March 1, 1942, has brought this suit for triple damages and a reasonable attorney's fee. In her complaint she alleges the rent on Apartment 202 on March 1, 1942, was $6.34 a week, that that, therefore, was the lawful rate, but that she paid for the period of her occupancy, from January 7, 1943 to July 22, 1943, at the rate, for four weeks, of $8.25 a week, and thereafter at the rate of $8 a week. Her claim is that she was overcharged for the entire period in a total amount of $39.50.

The suit (the complaint is in twenty-four counts) is for a total of $1,200 and an attorney's fee which the only testimony on the subject indicates also should be $1,200. In other words, plaintiff would punish the widow, who is said to have overcharged plaintiff $39.50, by a judgment against her in the amount of $2,400. Mirable dictu!

Findings of Fact

At the end of the trial tentative findings of fact were announced. They are (somewhat modified) as follows:

1. The owner of the apartment building located at 3033 Forest, Kansas City, Missouri, in which was Apartment 202, on March 1, 1942, was Matthew D. Dumont, who died in September, 1942. At the time of the institution of this suit and at the time of the trial, Mrs. Matthew D. Dumont (Marie Louise Dumont), one of the defendants here, owned a life estate in the building referred to.

2. On March 1, 1942, the rent charged and collected for Apartment 202 by Matthew D. Dumont was $6.34 a week. That was the maximum rent chargeable for Apartment 202.

3. The plaintiff occupied Apartment 202 from January 7, 1943, to July 22, 1943. She agreed to pay rent at the rate of $8.25 a week, which was later reduced to $8 a week, the rent to be payable in advance. Only one agreement was made (except for the modification in the amount of rent). Plaintiff did pay at the rate of $8.25 a week for four weeks and thereafter at the rate of $8 a week. There were twenty-four payments and receipts of rent. The amount paid exceeded the amount chargeable in the total sum of $39.50.

4. The defendant, Harry Dumont, collected rent from the plaintiff on Apartment 202 as agent for Mrs. Matthew D. Dumont (Marie Louise Dumont), who was entitled to receive whatever rent was legally due on any apartment in the building.

5. There is no competent evidence that Marie Louise Dumont did not know that the rent charged for Apartment 202 on March 1, 1942, was $6.34 a week.

Discussion

We do not discuss the question whether Harry Dumont, who collected rent as agent, is liable. It is too clear that he is not. We do not discuss the question whether if Marie Louise Dumont in good faith believed she was not charging more than the permissible maximum that would be a defense. There was no competent evidence supporting such a defense.

The real question in the case is whether every receipt of rent constitutes a separate violation for which triple damages (or $50, if that is more than triple damages) can be sought? Can the plaintiff, having paid rent twenty-four times, recover for twenty-four violations?

The applicable statute, 50 U.S.C.A.Appendix § 925(e) reads:

"If any person selling a commodity violates a * * * price schedule prescribing a maximum price * * * the person who buys such commodity * * * may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is greater, plus reasonable attorney's fees * * *. For the purposes of this section the * * * receipt of rent for defense-area housing accommodations shall be deemed the * * * selling of a commodity * * *."

The thing this statute makes punishable by triple damages is the "selling" of "a commodity" above the maximum price permissible. If we were dealing with...