Tabor v. Ford
| Decision Date | 04 June 1951 |
| Docket Number | No. 21392,21392 |
| Citation | 241 Mo.App. 254,240 S.W.2d 737 |
| Parties | TABOR v. FORD. |
| Court | Missouri Court of Appeals |
Southall & Southall, Kansas City, for appellant.
Carroll W. Berry, Chief Area Rent Atty., Kansas City Defense Rental Area Office of Housing Expediter, Kansas City, for intervenor.
Henry A. Riederer and Fred J. Freel, Kansas City, for respondent.
This is an action brought by plaintiff, Charles E. Tabor, against Julia Ford, defendant, wherein plaintiff seeks judgment for rent overcharges (three times the amount of overcharges) and attorney's fees, under the provisions of Section 205(e) of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, Sec. 925(e), amended June 30, 1944.
Under the above subsection it is provided that if a seller charges the buyer in excess of the price fixed under authority of the law, the buyer may sue the seller and recover treble the amount of the overcharge, or not less than $25 nor more than $50, which ever sum is the greater, plus reasonable attorney's fees and costs; and if the buyer fails to bring suit within 30 days of such occurrence, then the administrator may maintain such an action on behalf of the United States.
Trial to the court resulted in judgment for plaintiff for $124, the amount of actual overcharges found to have been made and paid, and for $100 for attorney's fees, a total of $224; and the court failed to allow any amount as damages in excess of the actual amount of the overcharges. Both parties appeal.
After the appeal reached us the office of Housing Expediter, an agency of the United States Government, upon motion duly filed, was permitted to intervene.
This case was originally filed in magistrate's court, where the defendant promptly filed a plea to the jurisdiction of that court. The magistrate transferred the cause to the circuit court. Defendant moved to dismiss for lack of jurisdiction. The court sustained said motion but, later, set that order aside and rendered judgment for plaintiff as aforesaid.
The evidence and agreed facts disclosed that plaintiff became a tenant, sometime in 1941, or 1942, in a house owned by six co-tenants, one of whom was defendant; that Herbert J. McCoy owned an undivided one-fourth interest in said property, occupied it, and rented rooms therein to plaintiff; that during the period involved the ceiling rent, fixed by O.P.A., was $7.50 per week; that plaintiff paid no excessive rent until January, 1946, when Mr. McCoy became incapacitated and defendant took over the management and control of the property. Plaintiff stated that, at that time, defendant increased the rent to $10 per week, then to $11, then up to $12; and reduced it to $10 toward the last period involved. Plaintiff placed his rent receipts in evidence.
On behalf of defendant it was shown that she received no benefit from the rent money, for herself, but that Herbert J. McCoy received the benefit of all money collected; that after Mr. McCoy died, she became administratrix of his estate; that from and after Mr. McCoy became incapacitated, in January, 1946, she collected the rents until his death, in December, 1946.
The Emergency Price Control Act gives concurrent jurisdiction for enforcement to the United States District Courts, and to state courts of 'competent jurisdiction.' We have recognized that the Act may be enforced in the courts of this state. Jordan v. Moore, 239 Mo.App. 593, 194 S.W.2d 948, 951. Defendant contends that magistrate courts are not courts of 'competent jurisdiction' because plaintiff seeks to recover a penalty given by Federal Statutes, whereas Section 482.090 Mo.R.S.1949, defining the jurisdiction of magistrate courts, limits jurisdiction to hear and determine suits 'for a penalty or forfeiture given by any statute of this state.'
Our decision herein, as the case is presented, depends upon the construction of Section 205(e), supra, whether it is penal or remedial in nature.
The leading and often cited case of Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 227, 36 L.Ed. 1123 states:
In Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 66, 51 L.Ed. 241, the court holds that an action for treble damages under an anti-trust act is not a suit for a penalty, that: 'The construction of the phrase 'suit for a penalty,' and the reasons for that construction have been stated so fully by this court that it is not necessary to repeat them.' Citing Huntington v. Attrill, supra.
In James-Dickinson Farm Mortgage Company v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569, the court speaking through Mr. Justice Brandeis, and relying upon the Huntington case, supra, held that a statute of the State of Texas, allowing exemplary damages to the extent of double the actual damages (for false representations) was not a penal law, and that recovery thereunder might be had in the courts of another state.
The Fair Labor Standards Act authorizes a recovery of double the amount of wrongfully withheld wages. In construing that Act in the case of Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 1223, 86 L.Ed. 1682, the court said: 'The liquidated damages for failure to pay the minimum wages * * * are compensation, not a penalty or punishment by the Government.' Citing Huntington v. Attrill, supra.
There are a number of decisions, both federal and state, under the Emergency Price Control Act here involved.
In Everly v. Zepp, D.C.Pa., 57 F.Supp. 303, 304, the court said: 'An examination of the law seems to leave no doubt that the recovery allowed by the act is in the nature of damages and is remedial as distinguished from penal.'
That holding was approved in Dorsey v. Martin, D.C.Pa., 58 F.Supp. 722 and the United States v. Canadian American Spirits, D.C.N.J., 75 F.Supp. 730.
In Heitmuller v. Berkow, 83 U.S.App.D.C. 70, 165 F.2d 961, 964, the United States Court of Appeals for the District of Columbia affirmed the holding of the lower court saying that 'the Rent Act creates a statutory obligation to pay compensatory damages and not a penalty * * *.'
In the case of Beasley v. Gottlieb, the Supreme Court of New Jersey in a well considered opinion, 131 N.J.L. 117, 35 A.2d 49 held that: 'Tenant's suit against landlord to recover under Emergency Price Control Act for violation of maximum rental provision is a suit of a 'civil' nature, remedial of a private wrong and therefore not 'penal' * * *'. That case was followed by the New Jersey court in Carmelly v. Hanson, 133 N.J.L. 180, 43 A.2d 685.
In Desper v. Warner Holding Company, 219 Minn. 607, 19 N.W.2d 62, 66, the court said: 'With respect to the argument that the cause of action is penal * * * it is sufficient to note that the section in question provides for a private remedy to the person wronged by the violation of the act.' Quoting from Huntington v. Attrill, supra, and citing other authorities. 'Nor does the fact that Sec. 205(e) authorizes the recovery of a flat sum transform the cause of action from a remedial to a penal one.' (Citing authorities.) 'Under the foregoing authorities, the conclusion cannot be escaped that Sec. 205(e) is clearly remedial.'
In Whatley v. Love, La.App., 13 So.2d 719, 722, it is held that section 205(e) is not penal, the court stating: 'Concerning the contention that the Act of Congress under consideration imposes a penalty, the argument is wholly without merit, since it has been held numerous times that this act and other similar acts such as the antimonopoly statute with its triple damage provision and the Fair Labor Standards Act, 29 U.S.C.A. Sec. 201 et seq., are not penal statutes.' The court cites Huntington v. Attrill, supra, and many other cases.
Other decisions to the same effect are: Schaffer v. Leimberg, 318 Mass. 396, 62 N.E.2d 193, 194, Vieira v. Menino, 322 Mass. 165, 76 N.E.2d 177, ...
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