Walker v. Gilman, 29387.

• Citation: 171 P.2d 797,25 Wn.2d 557
• Decision Date: 08 August 1946
• Docket Number: 29387.
• Parties: WALKER v. GILMAN.
• Court: United States State Supreme Court of Washington

171 P.2d 797

25 Wn.2d 557

WALKER v. GILMAN.

No. 29387.

Supreme Court of Washington, En Banc.

August 8, 1946

Rehearing Denied Sept. 26, 1946.

Action by M. G. Walker against Bartley B. Gilman for treble damages on account of overcharges in rent. Defendant filed a counterclaim. From the judgment rendered, the defendant appeals, and the plaintiff cross-appeals.

Judgment reversed on plaintiff's cross-appeal and cause remanded with directions

SIMPSON MILLARD, and STEINERT, JJ., dissenting.

Appeal from Superior Court, King County; Chester A. batchelor, judge.

Wright & Wright, of Seattle, for appellant.

Vanderveer Bassett & Geisness, of Seattle, for respondent.

ROBINSON Justice.

M. G Walker, the plaintiff below, rented an apartment from the defendant, Bartley B. Gilman. After surrendering it on defendant's demand, he brought this action, alleging that, during his tenancy, he had been charged more than the lawful maximum rent authorized by the provisions of the Federal Emergency Price Control Act of 1942, 56 Stat. 23, 50 U.S.C.A. Appendix, § 901 et seq., and the regulations promulgated in pursuance thereof.

Under section 205(e) of the act, one who is charged more than the applicable maximum legal price may bring an action against his vendor, or landlord, to recover $50 with respect to each separate overcharge, or for treble the total amount of the overcharges, ' whichever is the greater.' As the plaintiff in this case alleged that he had been overcharged $50 per month for seven consecutive months, treble the amount of the overcharge was obviously the greater, and was, therefore, if he proved his allegations, the legal measure of his recovery.

The defendant denied various allegations of the complaint and counterclaimed, alleging that the plaintiff and wife had seriously damaged the premises. The facts may be summarized as follows:

The defendant owned a two-story dwelling in the city of Seattle, within the Puget Sound rent control area established by Regulation No. 20, issued May 27, 1942 (7 Fed.Reg. 4104). On April 1, 1941, the date upon which rents in the area were frozen by the regulation, the upper floor, which was fitted up as a furnished, or at least partly furnished, apartment, was rented for $45 per month. Under the Federal act, this was the maximum legal rent, and would remain so unless and until altered by an order of the OPA authorities.

Prior to January, 1942, appellant installed French doors between the kitchen and dining room, a Murphy bed in the dining room, a new electric range, and some other new furniture. He also installed in the basement, but for the service of the entire house, a new automatic hot water heater and a washing machine. He had no difficulty in renting the thus greatly improved apartment for $75 per month. In July, 1942, he registered the apartment with the local OPA office, or attempted to do so, by filling out and mailing the registration form provided for that purpose. This form he filled out, in part, as follows:

'Rent on April 1, 1941: $45 per month

'Date first rented after such change: Jan. 1st, 1942

'Rent on that date: $75.00 per month

'The Maximum Legal Rent for this Dwelling Unit is: $90.00 per month.'

He did not give the date first rented after April 1, 1941, and a number of other details required by the registration blank, but did write thereon:

'This was converted from a single unit to a double unit consisting of two bedrooms, all linen, dishes, cooking utensils, bedding & telephone service. Rented at present to two families of two each.'

However, no data whatever was furnished as to the cost of these alterations and additions. This registration form is dated July 16, 1942, and is stamped on the back as having been received at the OPA office on that date. Three days thereafter, the plaintiff in this case moved into the apartment, at an agreed rental of $75 per month. In December, 1942, he complained about his rental to the OPA. One of its investigators, a man named Lindville, called and examined the premises in January, 1943. According to his evidence, he then and there told Gilman that the legal rental was $45 per month. Gilman testified that he asked Lindville what the apartment was worth, that Lindville said $65 per month, and that defendant would hear from him later, but that he never did. He, however, subsequently testified, at another point in the trial, that the investigator called him by phone in January and told him the legal rent was $45. We quote from his testimony:

'A. I received lots of telephone messages.

'Q. From the O. P. A.? A. Yes.

'Q. When did they begin? A. That began after the Walkers began to complain about their rent in January. Then this Lindville called me up and told me my rent would be $45.00. Well, that kind of rattled me. Well, I says, to him, 'In that case, then, send me some document or something so I will have it. I can't take your word over the telephone to cut my rent. Anybody could tell me that.' So I disregarded it.'

Either just Before or just after Lindville's visit to the premises, Walker tendered a check for $45 to Gilman, which defendant refused. Walker then gave him a check for $75, which paid his agreed rental until February 19. On January 23, 1943, Gilman served a notice on the plaintiff to quit and surrender the premises, in which notice it was alleged that plaintiff and wife had damaged the premises, had created nuisances by making loud noises at all times of day and night, and that Mrs. Walker had defecated on the basement floor. The Walkers moved out.

On the ensuing February 22, despite the fact that the OPA authorities had, as Gilman admitted, told him that the legal rental was $45, Gilman rented the apartment to Lieutenant Pollick at $75 per month. This action was begun by Walker on March 8. On May 15, another OPA representative examined the premises. Shortly after, the OPA notified Lieutenant Pollick that the maximum rental for the apartment was $45 per month. Pollick was pleased with the premises, liked the Gilmans, and was quite willing to pay $75 per month. He went to the OPA authorities to intercede with them on behalf of the Gilmans, but was unable to persuade them to recede from the position they had taken. On his return, he talked the matter over with Gilman.

'He told me that I would either pay the $75.00 a month or get out, and that I would get out if I did not pay it. He told me further that he was not willing to accept the O. P. A. in this decision. I pointed out to him at that time that the O. P. A. was representing the government of the United States and that as an officer in the Army of the United States I could not violate a decision following a statute of that. When I took my oath, I took my oath to the constitution and the laws of the United States, and I could not and would not violate it. I offered at that time to Mr. Gilman to pay the $75.00 and to give them $45.00, the balance to be placed in escrow pending a court decision in the case.'

On June 17, Lieutenant Pollick wrote Mr. Gilman the following letter:

'On or about February 22, 1943, you rented to me under a month to month tenancy the upper duplex in the premises commonly known as 3928 and 3930 Hudson Street, Seattle, at an agreed rental of $75.00 per month. In accordance with the terms of the oral tenancy I have paid the rent to and including July 1, 1943.

'In view of a controversy which has arisen between you and the O. P. A., I desire to move from said premises on or Before midnight July 1, 1943. I hereby expressly request you to waive the usual notice of termination of tenancy.

'Will you please acknowledge on the bottom of this letter your consent to my moving from said premises above designated.'

Mr. Gilman consented to his surrendering the premises.

The original of the registration form sent by Gilman to the OPA on July 16, 1942, was introduced in evidence. On its face, it was stamped:

'Void. Must be registered again. Return this form with your new registration.'

Defendant and wife testified that they had not seen that document after mailing it on July 16, 1942, until it was introduced at the trial, and moreover, that they had had no written or other notice from the OPA that the rental therein proposed was not approved. It was argued at the trial, and is contended here, that, under the circumstances, they had the right to assume that it was approved. However, the defendant's chief contention was, and is, that he had expended $1,585 in altering the premises and providing additional furniture and facilities after April 1, 1942, and was, therefore, clearly entitled to charge additional rent.

The cause was tried in the superior court on January 7, 1944. The trial judge was called upon to construe an extremely novel and complex Federal statute, so recently enacted that there were but few reported cases dealing with it, and practically none dealing with the intricacies of its administrative provisions. In a very real sense, he was pioneering in this field. In a long and carefully prepared memorandum decision, handed down on January 20, 1944, he discussed at length the claim of defendant, Gilman, that he was, by the very terms of the OPA regulations, entitled to an automatic increase of rent because of the improvements he had made in and on the premises after the freeze date. After carefully quoting the pertinent regulations and analyzing the evidence as to this point, the trial judge, deciding that question on the merits, held that defendant was not entitled to an increase. We do not find it necessary, or even proper, to inquire whether or not that finding is sustained by a preponderance of the evidence. There are two reasons why this is so, first, the defendant's application for a raise in...