Sviadas v. Seelig
| Decision Date | 20 May 1947 |
| Citation | 202 S.W.2d 543,239 Mo.App. 1121 |
| Parties | Frank Sviadas and Helen Sviadas, his wife, Respondents, v. Albert F. Seelig, also known as Alfred Seelig, Appellant |
| Court | Missouri Court of Appeals |
Appellant's Motion for Rehearing, or, in the Alternative to Transfer to the Supreme Court of Missouri, Overruled June 20, 1947.
Appeal from the Circuit Court of the City of St. Louis; Hon. Wm. H Killoren, Judge.
Affirmed.
Henry Elias Haas and John E. Corvey for appellant.
(1) This was a jury case, and a jury not being waived, it was error for the trial court to direct a verdict for the plaintiffs. Renshaw v. Reynolds, 317 Mo. 484, 297 S.W. 374; Baker v. Swearengin, 351 Mo. 1027, 174 S.W.2d 823; Wiener v. Insurance Co., 352 Mo. 673, 179 S.W.2d 39. (2) Where, as here, a party asserts the affirmative of a proposition and proof of it is necessary to sustain the point, the truth and weight of his evidence, though uncontradicted, is for the jury. The jury may believe or disbelieve the testimony of any one or all of the witnesses, even though such evidence be uncontradicted and unimpeached. Wiener v. Insurance Co., 352 Mo. 673, 680, 179 S.W.2d 39; Gluck v. Abe, 40 S.W.2d 558; Rolwing v. Grissom, 40 S.W.2d 752; 1 Houts on Mo. Pleading & Practice, Sec. 316, note 50. (3) (a) It has come to be the fixed rule of law and practice in this State that even though the testimony may be all one way, yet where the issue is one which requires proof, and the party upon whom rests the burden depends upon oral testimony, the other party still has the right to have his case submitted to a jury, and let the jury pass upon the question of the credibility of the testimony and its weight, and whether or not the party upon whom the burden rested has discharged that burden. Dyer v. Tyrell, 142 Mo.App. 467, 472. (b) In such cases all the authorities agree that the Court has no right or power to direct a verdict. To do so "usurps the province of the jury." Liquor Co. v. Railroad, 182 Mo.App. 1, 10; American Packing Co. v. Milwaukee Mechanics' Ins. Co., 35 S.W.2d 956, 958. (4) Again, where as here, damages are to be assessed, it is the peculiar province of the jury to assess such damages, unless a jury is waived which was not done in this case. 25 C. J. S., "Damages," p. 838, Sec. 168; Hoover v. St. Louis Electric Terminal Ry. Co., 227 S.W. 77; Joplin State Bank v. Heaton, 180 S.W. 19; Batterson v. Cims, 73 Mo.App. 351; Grott v. Johnson, Stephens & Shinkle Shoe Co., 2 S.W.2d 785. (5) (a) In actions instituted in Justices' Courts no formal pleadings are required, and the general issue obtains, under which the defendant may interpose any matter which goes to defeat the plaintiff's cause of action. On a trial de novo, on appeal, or on certiorari, the same rule applies. Sherman v. Rockwood, 26 Mo.App. 403; Adler v. Planters' Hotel Co., 181 S.W. 1062; Ray v. Railroad, 25 Mo.App. 104. (b) The general issue or oral denial being always in by law, the defendant was not required to file any written denial of the plaintiffs' cause of action in order to put the plaintiffs to the proof of it. Kelley's Justice Treatise, 5th Ed., Sec. 60; Reed v. Snodgrass, 55 Mo. 180; Farmers' and Drovers' Bank v. Williamson, 61 Mo. 259. (c) Hence, in an unlawful detainer suit where defendant stood upon the general issue, plaintiff's were put to their proof upon every element of their case, and it was for the jury, and not the Court, to say whether the plaintiffs had made out their case. Kaimann v. Kaimann Bros., 182 S.W.2d 458. (6) (a) The manifest purpose of the Emergency Price Control Act was to throw every reasonable protection around tenants so that for this or that reason they might not be thrown out of their homes to add to an already great confusion due to the existence of the war. Siegel v. Bowers, 58 N.Y.S. (2d) 187. (b) Consequently, Courts charged with the responsibility of applying the Office of Price Administration's rent regulations should take judicial notice of the housing shortage, the circumstances of the tenant and the "immediate compelling necessity," if any, of occupancy by the landlord "as a dwelling for himself." Boland v. Beebe, 62 N.Y.S. (2d) 8; Rabkevich v. Gold, 65 N.Y.S. (2d) 31; Nofree v. Leonard, 327 Ill.App. 143, 63 N.E.2d 653. (c) Moreover, whether or not there was an "immediate compelling necessity" for possession of the premises by the plaintiffs "as a dwelling for themselves" was a fact question to be determined by the jury. Stolow v. Pecorelli, 63 N.Y.S. (2d) 249; Marks v. Gallagher, 53 N.Y.S. (2d) 331; Eckberg v. Belfer, 24 N.W.2d 851; Sviggum v. Phillips, 15 N.W.2d 109; Staves v. Johnson, 44 At. (2d) 870.
Melvin L. Hertzman for respondents.
(1) (a) In an Unlawful Detainer action where defendant fails to offer evidence contradictory to plaintiff's evidence, evidence in plaintiff's behalf, with all reasonable inferences therefrom, must be accepted as established fact, and peremptory instruction for plaintiff is proper. Berry v. Hoelzel (Mo. App.), 171 S.W.2d 741; Doner v. Ingram, 119 Mo.App. 156, 95 S.W. 983; Hoster v. Lange, 80 Mo.App. 234, 238. (b) Rule that defendant is entitled to have the jury determine the credibility of the testimony offered by plaintiff, though offering nothing to contradict it, is not to be applied so as to convict the trial court of error in directing a verdict for plaintiff where the evidence makes out an incontrovertible case for plaintiff, or where the statements and attitude of defendant during the trial clearly indicate that he is not seriously disputing the existence of any of the facts essential to plaintiff's recovery. St. Charles Savings Bank v. Orthwein Inv. Co., 160 Mo.App. 369, 140 S.W. 921; Crawford v. Stayton, 131 Mo.App. 263, 110 S.W. 665; May v. Crawford, 150 Mo. 504, 527, 51 S.W. 693. (2) (a) The Rent Regulation for Housing, issued under the authority of the Emergency Price Control Act, restricts the removal of a tenant by a landlord in accordance with the requirements of local law of five specified grounds unless the Administrator certifies that the landlord may pursue his remedies in accordance with the requirements of the local law. Rent Regulation for Housing, Section 6(a) and Section 6(b) (1), 7 Fed. Reg. 4193, 8. Fed. Reg. 7322, 10 Fed. Reg. 11666. (b) Such a certificate leaves the landlord free to pursue any remedies he may have in the local courts. Interpretation 6(b) (1) I (Official Rent Regulation Interpretations), C. C. H. War Law Service #49129.61. (c) No court has jurisdiction to pass upon the question of whether a certificate issued by the Office of Price Administration, permitting a landlord to pursue his remedies to evict a tenant in accordance with the requirements of local law, is valid or invalid, except the Court of Emergency Appeals and the United States Supreme Court. Horton v. Cantrell (Mo. App.), 187 S.W.2d 860; Jones v. Shields (Calif. App.), 146 P.2d 735; Parker v. Fleming (U. S. Sup.), 91 L.Ed. (Advance Opinions), p. 39, 67 S.Ct. 466; Title II, Section 204 (d), Emergency Price Control Act of 1942, 50 U.S.C. A., Appendix 901 et seq.
This is an action in unlawful detainer brought by plaintiffs to recover possession of their residence property numbered as 4158 Flad Avenue, in the City of St. Louis. The suit was commenced before a justice of the peace, whence it went on certiorari to the circuit court. The trial in the circuit court, with a jury, resulted in a directed verdict for plaintiffs. Judgment was given accordingly, and defendant appeals.
The complaint was filed in the justice court on September 13, 1946, and alleges that on September 12, 1946, plaintiffs had the legal right to possession of their residence property known and numbered as 4158 Flad Avenue, in the City of St. Louis; that Albert F. Seelig, also known as Alfred Seelig, willfully, wrongfully, and without force, holds possession of said premises after the termination of the time for which they were let to him and after demand made in writing for the delivery of the possession thereof; that the action is brought pursuant to a certificate of eviction issued on March 25, 1946, by the St. Louis Area Rent Director of the Office of Price Administration as provided by the Rent Regulation for Housing, permitting an action to remove or eject the tenant, Albert F. Seelig, also known as Alfred Seelig, at any time after three months from February 11, 1946, for occupancy of Charles Binz and family, veteran and son-in-law of plaintiffs; that all notices required by the Rent Regulation for Housing issued by the Office of Price Administration have been given.
Upon the trial in the circuit court, plaintiffs put in evidence a certificate of eviction issued to plaintiffs by the St. Louis Area Rent Director, which reads as follows:
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