Powell v. Anderson

• Decision Date: 27 December 1946
• Docket Number: 32118.
• Citation: 25 N.W.2d 401,147 Neb. 872
• Parties: POWELL v. ANDERSON et al.
• Court: Nebraska Supreme Court

25 N.W.2d 401

147 Neb. 872

POWELL v. ANDERSON et al.

No. 32118.

Supreme Court of Nebraska

December 27, 1946

Syllabus by the Court.

1. The courts of this state will take judicial notice of general rules and regulations, established and published by a federal agency pursuant to law.

2. In an action by a tenant to recover rental overcharges and damages from a landlord under the Federal Emergency Price Control Act of 1942, the establishment by law or order of proper authority of the ceiling price claimed to have been violated must be proven by competent evidence to sustain a recovery.

3. An unsigned and unauthenticated copy of a purported order of a governmental agency, produced from the files of such agency, is secondary evidence, raising no presumption of the actual execution of the original, and is inadmissible without foundational proof that it is a true copy of an original which was in fact executed by a proper officer of the agency and that the original is now unavailable.

4. In an action by a tenant against a landlord to recover overcharges and damages under the Federal Emergency Price Control Act, an instruction to the jury that it should bear in mind 'that this is a vital emergency statute which the Supreme Court has said is not to be administered grudgingly. If a post-war collapse of values is to be avoided, the statute and regulations thereunder must be strictly enforced and you can help do that by an appropriate exercise of discretion in the award of damages' is an improper invasion of the function of the jury and constitutes prejudicial error.

Kennedy Holland, DeLacy & Svoboda, of Omaha, for appellants.

Gross & Welch and John F. MacKenzie, all of Omaha, for appellee.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and WILSON, District Judge.

WILSON District Judge.

This is an action wherein plaintiff and appellee seeks to recover from the defendant and appellant rental overcharges and penalties under section 205(e) of the Emergency Price Control Act of 1942, 56 Stat. 33, 50 U.S.C.A.Appendix, § 925(e). Plaintiff in his petition, alleges, and it is undisputed, that plaintiff as tenant rented an apartment in Omaha from defendant, its owner, and paid him as rent therefor the sum of $32.50 per month for four months beginning January 19 1945. Plaintiff also alleges that this rental charged him was in excess of the maximum rental of $30 per month fixed for said apartment, under said Emergency Price Control Act, by the Office of Price Administration in its Omaha office, and that accordingly plaintiff seeks and is entitled to recover from defendant under the provisions of said Act, the sum of $50 for each of the alleged monthly overcharges, or a total of $200 together with a reasonable attorney's fee and costs.

Defendant's answer admits his ownership and plaintiff's tenancy of the apartment involved, during the period alleged, but denies the alleged overcharges and the other allegations of the petition. Plaintiff's reply is a general denial. Martha Anderson was joined as defendant but the action was dismissed as to her by the court at the conclusion of the evidence, and there is no cross-appeal from this action by plaintiff.

The case was submitted to the jury which returned a verdict for plaintiff in the sum of $150 against the remaining defendant, the admitted owner of the apartment, and judgment was entered against said defendant for said amount and the costs together with an attorney's fee of $100 allowed the plaintiff by the court. Upon the overruling of his motion for a new trial, defendant appealed.

The defendant's assignments of error are that the evidence is insufficient to sustain the verdict and judgment in plaintiff's favor; and that the trial court erred in the admission of evidence and in the giving and refusal of certain instructions. We find that some of these assignments of error must be sustained and require a reversal.

Defendant assigns as error the admission in evidence, over defendant's objection, of exhibit 3, consisting of a copy, in the form of a printed pamphlet, of the rules and regulations of the Office of Price Administration, with reference to rent regulation. This document was not identified or authenticated in any manner except by the testimony of the assistant rent attorney of the Omaha OPA office that it 'is a compilation of the rental regulations for housing applicable to dwelling units rented within the Omaha defense rental area, as well as other areas in the United States.' Obviously this conclusion of the local official did not establish the official execution and promulgation of the document in question or the rules contained therein. It seems to have been conceded that the admissibility of this exhibit 3 depends on whether the courts of this state will take judicial notice of the general rules and regulations promulgated and published by a federal agency, such as the federal Office of Price Administration.

This question appears to have been decided in this state in Larson v. First National Bank, 66 Neb. 595, 92 N.W. 729, in which this court held, with reference to federal regulations of Indian lands as follows: 'Where a statute authorizes executive officers to make general rules for the conduct of public business, and such rules are duly made and published, the courts will take judicial notice of them.'

That state courts will take judicial notice of general rules and regulations, established and published by federal agencies under authority of law, is generally accepted. See National Supply Co. v. Chicago & N. W. Ry. Co., 108 Neb. 326, 187 N.W. 917; In re Estate of Bose, 136 Neb. 156, 285 N.W. 319; Fielding v. Publix Cars, Inc., 130 Neb. 576, 265 N.W. 726, 105 A.L.R. 1306; 7 Ency. of Evid. 990; Caha v. United States, 152 U.S. 211, 14 S.Ct. 513, 38 L.Ed. 415; 20 Am.Jur., Evidence, s. 44, pp. 67, 68; Epstein v. Brook, 43 A.2d 782, 23 N.J.Misc. 267; 222 East Chestnut St. Corp. v. Murphy, 325 Ill.App. 392, 60 N.E.2d 450; Spring v. American Tel. & Tel. Co., 86 W.Va. 192, 103 S.E. 206, 10 A.L.R. 951.

The rules and regulations contained in the document in question, exhibit 3, were duly published in the Federal Register vol. 10, p. 3436, and we decide that the admission of said exhibit was proper.

Defendant also assigns as error the admission, over defendant's objection, of exhibit 8, which purports to be an unsigned copy, typewritten on a printed form, of an order of the Omaha Price Administration office, dated July 25, 1944, increasing the maximum rent for the apartment involved, from $23 to $30 per month. Plaintiff does not contend that the courts of this state will take judicial notice of such an order, which is obviously not a general rule or regulation of the agency, and the only identification of the document was the testimony of the assistant rent attorney of the Omaha OPA office, that the document 'is Form D-35, order increasing...