Sherman Inv. Co. v. United States, 14562.

• Decision Date: 07 November 1952
• Docket Number: No. 14562.,14562.
• Citation: 199 F.2d 504
• Parties: SHERMAN INV. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

199 F.2d 504 (1952)

SHERMAN INV. CO. v. UNITED STATES.

No. 14562.

United States Court of Appeals Eighth Circuit.

November 7, 1952.

Oliver T. Remmers, St. Louis, Mo. (Remmers & Remmers, St. Louis, Mo., on the brief), for appellant.

Isadore A. Honig, Sp. Litigation Atty., Office of Rent Stabilization, Washington, D. C. (Ed Dupree, Gen. Counsel, A. M. Edwards, Jr., Asst. Gen. Counsel, Nathan Siegel, Sol., and John A. McLeod, Jr., Sp. Litigation Atty., Washington, D. C., on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a judgment requiring Sherman Investment Company to repay and refund to certain of its named tenants designated amounts as overcharges of rent collected from them by appellant and enjoining appellant from soliciting or receiving any rent on all controlled housing accommodations owned, operated and managed by it in excess of the maximum legal rent as determined by said judgment, or from otherwise violating the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq. The judgment was entered in an action brought under Section 206(b) of the Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1896(b).

The complaint sought restitution of rental overcharges and injunctive relief, alleging that the housing accommodations of the Sherman Investment Company located at 6188 McPherson Avenue, St. Louis, Missouri, were subject to the Act as amended and the regulations issued pursuant thereto; that appellant received from various persons described in the complaint, for the use and occupancy of their accommodations, rent in excess of the maximum rents established under the Housing and Rent Act of 1947. Appellant, in its answer, denied that jurisdiction was conferred upon the court by the Housing and Rent Act of 1947, denied that its housing accommodations described in the complaint were subject to maximum rentals. It admitted operating the premises and the collection of the rents from various persons as alleged in the complaint. It affirmatively pleaded that the premises operated by it and described in the complaint constituted a hotel as defined in the Housing and Rent Act of 1947 and as such was excluded from control and regulation as controlled housing accommodations, and that the rentals collected by it were collected in good faith under the belief that they were lawful.

The ultimate issue of fact for determination was whether the premises constituted an apartment hotel on June 30, 1947. The building in question is a six-story, reinforced concrete and steel building, located at 6188 McPherson Avenue, in the City of St. Louis, Missouri. It has a lobby and parlors, hotel office and freight and passenger elevators. On the first floor of the building is a grocery and meat market, a cleaner, a drug store, a beauty shop and a food shop, and the space assigned to the manager. The remaining five stories are devoted to residential quarters divided into fifty-two units. On the stipulation of the parties and the evidence produced, the court found the premises within the provisions of the Housing and Rent Act of 1947; that the defendant as landlord charged and collected from named tenants rents in excess of the maximum rentals allowable, and concluded that plaintiff was entitled to recover the excess rentals in behalf of the tenants and to an injunction. In seeking reversal appellant challenges the court's findings of fact and conclusions of law.

In its brief appellant states that "The question to be determined under the pleadings and the evidence: Was defendant operating a hotel at 6188 McPherson Avenue in the city of St. Louis on June 30, 1947, either under the name `Sherman' or `Sherman Apartment Hotel'?" This, we take it, may be accepted as a statement of the question to be determined by the trial court. In this court the action is not triable de novo. As has been observed, the court found the issues against the appellant and these findings are presumptively correct and can not be set aside unless found to be clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; United States v. Beatty, 8 Cir., 192 F.2d 945. Much of the evidence was the oral testimony of witnesses and it was the function of the trial court to decide on the weight of the testimony and the credibility of the various witnesses. We must assume that all conflicts in the evidence have been resolved in favor of the appellee and we must view the evidence in a light most favorable to the prevailing party. If, when so viewed, the judgment is sustained by substantial evidence and is not clearly against the weight of the evidence, the judgment should be sustained.

Whether or not the premises as conducted by appellant constituted a hotel or an apartment hotel was a question of fact. It was the contention of appellant that the premises were exempt from control under the exemption provision of the Housing and Rent Act of 1947. So far as here pertinent the exemption provision reads as follows:

"(c) The term `controlled housing accommodations\' means housing accommodations in

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