Opinion
32509.
DECIDED JULY 13, 1949. REHEARING DENIED JULY 29, 1949.
Action for damages; from Fulton Civil Court — Judge Carpenter. March 10, 1949.
J. Connie Covington, John Yancey, for plaintiff.
Yantis Mitchell, J. E. B. Stewart, for defendant.
The trial court did not err in granting a judgment of nonsuit and in dismissing the instant case. Nor did the court err in denying the tenant's motion to set aside the judgment of nonsuit and to reinstate the case.
DECIDED JULY 13, 1949. REHEARING DENIED JULY 29, 1949.
On January 20, 1948, Harold Fuller brought in the Civil Court of Fulton County against Mrs. J. H. Still Sr., an action for treble damages for an alleged rent overcharge, under an act of Congress known as the Housing and Rent Act of 1947 (Pub.L. 129, 80th Congress). The amount prayed for was $531 as damages, $100 as attorney's fees, and court costs. The plaintiff alleged that he was a tenant and that Mrs. Still was the landlord, within the meaning of the act, of two partly furnished rooms at 519 Cherokee Avenue, S.W., Atlanta, Georgia; that the rented property was within the Atlanta Defense Rental Area; that he paid, and the landlord received, as rent therefor $50 per month from July 15, 1947, to December 31, 1947; that the maximum rent on such premises was $14 per month from July 15, 1947, to November 28, 1947, and $35 per month thereafter, whereby the landlord had received from him a total overcharge of rent of $177.
The landlord duly filed her answer denying material portions of the petition and set up the defense of non-wilfulness, and also filed a special demurrer and a plea asking suspension of the proceeding pending her application for review of, and later appeal from, the order of November 28, 1947, of the Area Rent Director. That order reads as follows: "The Rent Director has considered the evidence in the matter and finds that: (A) On June 30, 1947, the landlord was renting a three-room unfurnished apartment with hot and cold water and garage at $21.50 per month; on July 15, 1947, there was a substantial decrease in services and living space because of the withdrawal by the landlord of a garage and one room; that the landlord was at fault in failing to file a proper report or petition for the decrease in services, etc., as required by Section 5 (b) of the Controlled Housing Rent Regulation; that the difference in rental of the accommodation on the maximum rent date by reason of such decrease in services would have been $7.50 per month. Therefore, it is ordered that the maximum rent for the housing accommodation be, and it hereby is, changed from $21.50 per month, to $14 per month, effective commencing on July 15, 1947. It is further ordered that the landlord shall within 30 days from the date of this order refund to the tenant all rents collected in excess of $14 per month unless the refund is stayed in accordance with the provisions of Rent Procedural Regulation No. 1.
"(B) There has been since June 30, 1947, an increase in services which the landlord is required to supply with the above described accommodation, consisting of furniture, cooking fuel, current for lights and refrigerator, and by reason thereof the difference in rental value of the accommodation on June 30, 1947, would have been $21.50 per month. Therefore, it is ordered that beginning with the date this order is issued, the rent for the above described housing accommodations be, and hereby is, changed from $14 to $35 per month.
"This order will remain in effect until changed by the office of Housing Expediter. Issued this 28 day of November, 1947. [Signed] Area Rent Director."
At the hearing on the demurrer, the landlord made an oral motion to dismiss, which was subsequently reduced to writing and filed.
On March 23, 1948, by leave of the court, the tenant filed two amendments to the original petition, one setting out as an exhibit a copy of the order of November 28, 1947, of the Area Rent Director, and the other adding count 2 to the petition. Count 2, in addition to certain things set out in count 1, further alleged that the two-room premises involved constituted a part of an unfurnished three-room and garage apartment which the landlord had registered under the Emergency Price Control Act of 1942 as having a maximum rent of $21.50 per month, and that at all times had continued to be such amount. It was further set out that the tenant was damaged in three times the amount of rent received from him by the landlord in excess of the alleged maximum rent, plus attorney's fees and costs.
No further answer was filed; but to the amended petition the landlord duly filed her demurrer, on the ground that it failed to state a cause of action and other grounds, which after hearing on April 19, 1948, was overruled, as was likewise her previous oral motion to dismiss. The landlord duly filed exceptions pendente lite to this action of the court. The case came on for trial on February 10, 1949, and on February 11, 1949, over objection of the tenant, the court allowed the landlord to file an amendment to her plea and answer, which alleged that on January 12, 1949, the Housing Expediter had issued an order determining her appeal from the order of November 28, 1947; that all her administrative remedies were therefore exhausted; and that said order of the Area Rent Director of November 28, 1947, was void, in that "it failed to treat the matter involved as a first rent situation," and that it violated the Constitution of the United States in certain particulars. This last-mentioned amendment was verified, but was not introduced in evidence. However, Harold Fuller, the tenant, testified in part: "that subsequent to taking possession, he learned that the rented premises were subject to the rent regulations and had been a part of a three-room and garage unfurnished apartment on which the maximum rent as registered in the Area Rent Office was $21.50 per month." (Italics ours.) And the landlord testified in part: "I rented two rooms to a Mr. and Mrs. H. Fuller. This was formerly included in a three-room-space arrangement rented unfurnished." (Italics ours.)
The original registration date on the three-room space is shown as September 24, 1942, registration No. 21232. The order of the Area Rent Director of November 28, 1947, and the "Opinion and order granting appeal in part and denying appeal in all other respects," issued January 12, 1949, over the signature of Tighe E. Woods, Housing Expediter, both properly identify the three-room-space arrangement as shown in the original registration. The material portions of the order of January 12, 1949, read as follows: "The record discloses that prior to June 30, 1947, a three-room unfurnished apartment, together with garage, was rented at the registered rental of $21.50 per month. The apartment becoming vacant, the appellant rented it on or about July 15, 1947, as a two-room partly furnished apartment, again including garage. One room had been withdrawn from rental, while the appellant now supplied furniture for one and one-half rooms, and also supplied heat, hot and cold water, cooking fuel, current for lighting, and electrical appliances. The appellant failed to advise the Area Rent Office as to these changed circumstances until October 20, 1947. On that date she filed a petition reporting the decrease in space and the increase in services, and asking approval therein of the rent of $50 a month, which she had charged since the renting on July 15, 1947. On November 7, 1947, the Rent Director notified appellant of his proposal to establish a maximum rent, based on comparability, of $37.50 a month for the two-room partially furnished unit, plus garage, effective from July 15, 1947. Thereafter, and following appellant's reply, the Rent Director on November 28, 1947, issued the subject order. This order in its part `(A)' decreased the maximum (registered) rent of $21.50 to $14 a month by reason of the decrease in space, effective from July 15, 1947, the date of such decrease, and with directions to refund excess rents, by reason of the landlord's failure to file a timely report; in its part `(B)' the order increased the maximum rent to $35 a month, effective from November 28, 1947, the date of the order, by reason of the increased services.
"The appellant makes the following objections: (a) that the changed housing accommodations created a first-rent situation, and should have so been treated; (b) that, if the reduction in rent for reduction in services should be retroactive, so should the adjustment for increase in services; (c) that the order is void because issued without due process of law, in that it went beyond the terms of the notice issued November 7, 1947, to the prejudice of the appellant.
"The contention that a `first-renting' took place here, rather than a decrease-increase in services, is based upon the provisions of the Rent Regulation for Housing which, except under the circumstances enumerated in Section 1 (b) of the Emergency Price Control Act of 1942, as amended, had been withdrawn when these changes occurred. The regulation in force and applicable at the time was the Controlled Housing Rent Regulation, which became effective on July 1, 1947. (Footnote: It should be noted that the appellant did not comply even with the provisions of the Regulation which she asserts were applicable, since at no time did she file or attempt to file the registration statement that would have been required by the Regulation.)
"Under the applicable Controlled Housing Rent Regulation, the decrease in living space provided a basis, pursuant to Section 5 (c) (3), for a decrease in maximum rent, which at the time was $21.50 a month, as well as a basis for a refund order pursuant to Section 5 (b). On the other hand, the addition of an amount of furniture and other equipment, and of certain further services, provided a basis for an increase in the maximum rent, upon the filing of a petition by appellant pursuant to Section 5 (a) of the same regulation. The terms of the regulation at that time provided that such increase in rents under Section 5 (a) were to take effect on the date of the Rent Director's order. (Footnote: By amendment effective January 20, 1948, such increases are to be made effective as of a prior date. Even if this were applicable to the appellant's situation, it would not operate to grant appellant the relief sought, i. e., an adjustment retroactive to a period prior to the filing of her petition).
"The provisions of the Rent Director's order based on Sections 5 (c) (3) and 5 (b) had only the effect of requiring a refund, since simultaneously therewith the Rent Director increased the pre-existing maximum rent for the prospective periods. Consideration must therefore be given, first, to the propriety of the refund provision of the order, and second, to the propriety of the maximum rent established for the prospective periods following the Rent Director's order.
"The refund provision of the order: The amount which the regulation requires the appellant to refund is the difference between the maximum rent in effect prior to the reduction in space and the maximum rent as it may be decreased on the basis of such reduction in space. The measure of adjustment provided by Section 5 for such decrease is `the amount the Expediter finds would have been on the maximum rent date the difference in the rental value of the housing accommodation by reason of such change or on the basis of the rent which the Housing Expediter finds were generally prevailing in the Defense-Rental Area for comparable housing accommodations on the maximum rent date, whichever is higher.' In determining comparability — the second of the foregoing standards — it is the Housing Expediter's opinion that consideration should be given to the fact that, on the date the space was decreased, the unit was also and at the same time supplied with furnishings and provided with certain additional services. As will hereinafter appear, comparability for the unit as changed (with the described space, furnishings, and garage) was not below the maximum rent (i.e., $21.50) on the date these changes took place. Since the regulation does not permit a decrease below comparability, and as the rent of $21.50 is found not to be below comparability, the Housing Expediter accordingly finds that no refund should have been required. (Footnote: It should be noted that, in making this finding, the Housing Expediter makes no determination of the question as to whether the appellant was in violation of the regulation for having charged more than the registered maximum rent of $21.50 a month for the period July 15 to November 28, 1947. That question is not here in issue). The Rent Director's order should be modified accordingly.
"The present maximum rent: Although the Housing Expediter is of the opinion that no decrease in the maximum rent should have been ordered on the basis of decreased space for the purpose of requiring appellant to make refunds pursuant to Section 5 (b) of the Regulation, he is also of the opinion that in measuring the adjustment of the maximum rent upward, on the basis of the addition of furniture and services, consideration should be given to the loss in rental value of the unit resulting from the decrease in space.
"Upon consideration of the persuasive and unrebutted evidence in the record, it is the Housing Expediter's opinion that the applicable maximum rent for the subject two-room, partially furnished unit, and garage, is not more than $35 per month. The Housing Expediter accordingly finds that the prospective provisions of the Rent Director's order are proper.
"As to the issue of due process, raised by the appeal, it will be seen from the foregoing that any failure of notice or hearing which may have occurred in the proceedings before the Rent Director has been cured by the opportunity afforded appellant to be heard on the issues and evidence in the case, in the course of the Housing Expediter's de novo review thereof. The determination of the Rent Director with respect to the maximum rent established prospectively having been found to be correct, it follows that the appellant was not prejudiced thereby, and the alleged failure of due process in the initial proceedings becomes immaterial. See Helfend v. Fleming, 159 F.2d 730 (ECA 1946), cert. den. 331. U.S. 838. The appellant's request that the Rent Director's order be revoked on that account must accordingly be denied.
"Accordingly, by virtue of the authority vested in the Housing Expediter by the Housing and Rent Act of 1947, as amended, and the rent and procedural regulations issued thereunder, it is ordered: That the order of the Rent Director, entered November 28, 1947, be and hereby is vacated as of that date except to the extent that it establishes a maximum rent of $35 a month effective from the date of issuance of such order, and that the appeal of Mrs. J. H. Still, Docket No. RA-IV-22, be and it hereby is denied in all other respects."
After the evidence was introduced, the tenant rested his case, whereupon the landlord made an oral motion for nonsuit, which, after argument, was granted by the court and judgment entered dismissing the petition. A motion to reinstate the case and set aside the judgment of nonsuit was duly filed by the tenant, together with the brief of evidence, and after argument was denied. To the grant of the nonsuit and the denial of the tenant's motion to set the judgment aside and reinstate the case, the tenant duly tendered his bill of exceptions and brings the case here for review.
The points here to be decided are: (1) Did the court err in granting the nonsuit and in dismissing the case? (2) Did the court err in denying the tenant's motion to set aside the judgment of nonsuit and to reinstate the case on the calendar?
1. This action was brought under the provisions of the act of Congress known as the Housing and Rent Act of 1947 (Pub.L. 129, 80th Congress). The administrative machinery set up to handle a decrease in rent under this act must originate by the Expediter (through Area Rent Director), on his own initiative or on application of the tenant, decreasing the maximum rent as provided in Section 5 (c), of the regulation. When such decrease is ordered, the landlord may, within a given time, appeal such order of the Area Rent Director to the Housing Expediter. And thus the administrative phase of the machinery ends. Then the order and/or orders may be thrown into the courts for determination, but the judicial determination is in no way restricted by the orders of the administrative machinery as set up by the legislative act of Congress. And such order and/or orders of such administrative officers are not binding upon the courts. See Bowles v. Griffin, 151 Fed. 2d, 458. The case is properly before this court for review.
In support of the contention that the nonsuit should not have been granted, counsel for the tenant cite Kelly v. Strouse, 116 Ga. 872 ( 43 S.E. 280). In that case, as in Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17), the Supreme Court set our certain principles involved in the granting of nonsuits. The facts in those cases are in no way related to the facts in the present case, nor is there anything in either of the cases cited which would induce us to see fit to construe the principles therein enunciated so as to make it mandatory to declare a nonsuit in the instant case inappropriate. Code § 110-310 reads as follows: "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted. A judgment of nonsuit shall not bar a subsequent action for the same cause brought in due time." And this is a correct principle of law, not misapplied in the instant case, in our opinion. In Vickers v. A. W. P. R. Co., 64 Ga. 306, cited by distinguished counsel for the tenant, the Supreme Court said that the mechanical treatment of a nonsuit should be used only in a clear, gross case, that a nonsuit is a process of legal mechanics whereby a case may be chopped off, and that it should be resorted to only where there is no doubt; but in that case the Supreme Court goes on to say, "The present case is not quite a case for nonsuit, although its neighborhood to that class seems very near," thus indicating that even in the case relied upon by counsel in the present case, the Supreme Court deemed the Vickers case a nonsuit borderline case. And through this process of reasoning we here decline to base a reversal on that authority, due to the variance in facts there and here. The facts in Moore v. Central of Ga. Ry. Co., 1 Ga. App. 514 ( 58 S.E. 63), are so different from those of the instant case that we do not consider it binding, and for the further reason that the decision in that case does not set up a hard and fast rule, but rather leaves the nonsuit matter to be based on the facts of the individual cases, depending upon whether or not the plaintiff might have anything which it would be to his advantage to submit to a jury. In the instant case, we think that a nonsuit was legal justice; and, taking the view most favorable to the plaintiff ( Lamb v. Fedderwitz, 71 Ga. App. 249, 255, 30 S.E.2d 436), was effectual and just legal mechanics. There is no merit in the contention that the court erred in granting a nonsuit and in dismissing the case at bar.
2. (a) As to the power of the courts over a judgment on demurrer after the end of the term at which such judgment is rendered, we interpret the decision in East Tenn., Va. Ga. Ry. Co. v. Green, 95 Ga. 35 ( 22 S.E. 36), to mean that the case was finally adjudicated in every respect during a term of court, but that at a subsequent term a motion to reinstate was instigated. That is not our interpretation of the facts in the case at bar. In this case the final adjudication had not been made, but the case was finally brought to trial on February 10, 1949, and in the meantime the whole matter was in the breast of the trial court. And in Walker v. Central of Ga. Ry. Co., 47 Ga. App. 240 (4) ( 170 S.E. 258), cited by counsel for the tenant, the court liberalizes the point here made in the following language: "The right to amend is very broad and the practice of allowing amendments is very liberal, and an amendment germane to the original cause of action should be allowed, although made after the conclusion of the evidence and pending the consideration of a motion to nonsuit." The cases of Sewell v. Anderson, 197 Ga. 623 ( 30 S.E.2d 102), and Davis v. W. P. Brown Sons Lumber Co., 198 Ga. 486 ( 32 S.E.2d 253), show no reason for reversing the decision of the trial judge in respect to nonsuit.
(b) Opinions of this court and of the Supreme Court in regard to Emergency Price Control do not apply to cases brought under the Housing and Rent Act of 1947. However, brought over and inherited by the Housing and Rent Act of 1947, were many provisions contained in the Emergency Price Control Act of 1942 and as amended from time to time, such provisions being specially set out in the Housing and Rent Act. As to "first rent" under the Housing and Rent Act of 1947, the petition alleges that the premises were first rented to the tenant here concerned as of July 15, 1947, the apartment consisting of two partially furnished rooms. The rental was actually set, on this basis, by the Housing Expediter. Under the Housing and Rent Act of 1947, in the absence of evidence to the contrary, this was the first time the accommodations had been rented on this basis, and therefore this constituted a "first-rental" within the meaning of the Housing and Rent Act of 1947. There is nothing, in this record, to show whether or not the landlord registered these "first-rent" accommodations with the Area Rent Director, in accordance with provisions contained in the act of 1947, Section 4 (c), except in the order of the Housing Expediter. Conceding but not deciding that the landlord did fail to register the "first-rent" accommodations with the Rent Area Director, this would only subject her to a reduction in rent, retroactively, to the date of the first renting under this situation; but in no event could any order in regard to rental of any accommodations be made retroactive behind July 1, 1947, the effective date of the Housing and Rent Act of 1947.
The trial court did not err, under the record of this case, in granting the judgment of nonsuit and in dismissing the case. Nor did the court err in denying the tenant's motion to set aside the judgment of nonsuit and to reinstate the case.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.