Meriwether v. Lumbard
| Decision Date | 19 February 1952 |
| Docket Number | No. 28300,28300 |
| Citation | 246 S.W.2d 363 |
| Parties | MERIWETHER v. LUMBARD et al. |
| Court | Missouri Court of Appeals |
Silas E. Garner, St. Louis, for appellants.
James R. Anderson, of St. Louis, for respondent.
Action by plaintiff (respondent) to recover damages resulting from her alleged wrongful eviction from an apartment she occupied as the month to month tenant of defendants (appellants). A jury trial resulted in a verdict and judgment for plaintiff in the sum of $35.04 actual and $1250 punitive damages. Their motion for new trial having been overruled, the defendants have duly appealed.
The petition contains the usual and necessary allegations required to state a cause of action in fraud and deceit. The substance of plaintiff's complaint is that the defendants served notices upon her, terminating her tenancy, stating therein that they, in good faith, sought to recover possession of said apartment for the immediate and personal use and occupancy as housing accommodations by their son, Lewis Lumbard, Jr.; that said statement was false, fraudulent and deceitful, was known by defendants to be false at the time it was made, and was designed to obtain the wrongful eviction of plaintiff, who, relying thereon and believing same to be true, surrendered possession of said premises.
It was alleged and proved that the premises were located in the St. Louis defense rental area and subject to laws governing housing accommodations in said locality.
Plaintiff did not allege that defendants obtained a certificate from the area rent director authorizing them to evict plaintiff for the reasons stated in the notice. However, the statement in the notice was obviously an attempt to convey to plaintiff the information that defendants were entitled to obtain such certificate under the terms of the Federal Law which provided in part: 'No action or proceeding to recover possession of any controlled housing accommodations * * * shall be maintainable by any landlord * * * unless (2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations * * * by a member or members of his immediate family * * *.' The Housing and Rent Act of 1947, Act of June 30, 1947, 61 U.S.Sts. at Large, 193, in Sec. 209(a), as amended in subdivision (2) by Act of March 30, 1948, Sec. 204(a), 62 U.S.Sts. at Large, 98, 50 U.S.C.A.Appendix, Sec. 1899. The 1948 Act in Sec. 204(e) also adds a provision requiring the landlord to notify the tenant of the purpose for which he desires to recover possession. 62 U.S.Sts. at Large, 99.
There is no contention on plaintiff's part that the Federal Act or any law of this state provides a cause of action for wrongful eviction. She argues that such a cause of action exists at common law. There has been a considerable diversity of opinion on this question in other states, but the Missouri Supreme Court has recently adopted the view that there is such a common law action. Bedell v. Daugherty, Mo.Sup., 242 S.W.2d 572. In the Bedell case the petition alleged that the false representations were made to plaintiff and also to the area rental director in obtaining a certificate authorizing eviction. The court held that either was sufficient to give rise to the cause of action. The opinion cites with approval the following cases holding that it is sufficient for the landlord to make the false representation as to intended use, in the written notice to vacate, although no eviction certificate is obtained: Behrendt v. Rassmussen, Minn., 47 N.W.2d 779; Kilroy v. Barron, 326 Mass. 464, 95 N.E.2d 190; Berenson v. Mahler, 326 Mass. 305, 93 N.E.2d 740, and Trepanier v. Hujber, 134 Conn. 24, 54 A.2d 275. See also the recent case of Crawford v. Pituch, 368 Pa. 489, 84 A.2d 204, stating the same rule. This was the situation alleged in the case at bar and we therefore hold that plaintiff's petition states a cause of action.
Defendants strongly contend that their motion to dismiss, filed at the close of all the evidence, should have been sustained because of the failure of plaintiff's evidence to make a submissible case. We therefore deem it advisable to state the facts in some detail. Actually, there is no conflict in the testimony as it pertains to the material facts in issue.
In June, 1948, defendants, after demand had been made that they give possession of the premises they were renting, purchased the residential property in question. It was a duplex consisting of identical apartments on two floors, each with four rooms and a bath.
Defendant Lewis E. Lumbard testified that he and his wife intended to occupy the apartment on the ground floor and their son, Lewis Lumbard, Jr., was to occupy the other apartment, which was then being rented by plaintiff; that at the time of purchase the son was in school at Ohio University, but was expected to complete his work in August and would then return to St. Louis, where he hoped to be employed to teach at Vashon High School. He, planning to marry soon, agreed with defendants to take this apartment, and while the details were not disclosed this agreement entered into the purchase setup. Defendants thereafter signed the written notice which was served upon plaintiff on June 18, 1948, requiring that she deliver to them the possession of the apartment on August 31. The notice recited that it was given under the provisions of the Housing Rental Act of 1948 and by which defendants were seeking in good faith, to recover possession for the immediate personal use and occupancy of their son. This defendant further testified that he did not know plaintiff at that time, although he probably had seen her when he looked at the premises before he made the purchase; that his son returned to St. Louis about September 1 and on the third or fourth day of September received notice of an appointment to teach at Southern University, Baton Rouge, Louisiana. Apparently further negotiations were required and his employment was finally settled, upon receipt of a telegram from the university authorities during the afternoon of September 6 and he left for Baton Rouge on September 7. The father testified that he did not know of any application having been made by his son for a position outside of St. Louis until receipt of aforesaid notice of his employment. It appears further from the father's testimony that Lewis Lumbard, Jr., had continued in this employment until the date of trial, but had maintained his legal residence in St. Louis.
Plaintiff testified that she moved to the apartment in question in August, 1940, and vacated the same September 7, 1948, during which time she paid a rental of $22.50 per month; that she is a widow with three children living at home, the youngest being 13 years of age and the oldest 23; that she received a notice to vacate on June 15, 1948, and a supplemental notice on June 18, both of which were signed by defendants. About a month after receipt of the notice, she had a conversation with defendant Lewis Lumbard and inquired whether she could rent the apartment from his son, but was advised that she could not because defendant's son and daughter needed the entire upstairs; that thereafter said defendant called her on two occasions inquiring whether she would surrender possession as demanded; that during the last week in August she was successful in renting another apartment at $50 a month, but was unable to secure a moving van until the seventh day of September, at which time she moved to her new quarters. It also appeared from the plaintiff's testimony that she received two letters from the defendant, Lewis Lumbard, relating to the matter of obtaining possession at the time required and as to additional rental when it...
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Powers v. Shore
...moved into the apartment were insufficient to show that the representation was false when made and when acted upon. Meriwether v. Lumbard, Mo.App., 246 S.W.2d 363, 367(9); Budd v. Budd, 233 Mo.App. 377, 122 S.W.2d 402, 409. Nor would the evidence in the record have sustained a finding that ......
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...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 th......
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...the fraud of the one charged with its commission may be reasonably inferred. Hunter v. Roberts, Mo.App., 267 S.W.2d 368; Meriwether v. Lumbard, Mo.App., 246 S.W.2d 363. There was evidence from which the jury could find that defendant represented to V. G. Salmon, as agent of plaintiff, that ......
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