Stewart v. Weatherford , 75 Ga. App. 108 ( 1947 )

Under the provisions of section 205 (e) of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 925 (e), and the amendments thereto, a tenant can bring a suit against her landlord to recover overpaid rent within one year of the violation, where the Price Administrator has not previously instituted an action against the landlord for the same violation.

DECIDED APRIL 7, 1947. On October 3, 1946, Mr. and Mrs. Otis W. Weatherford filed an action in the Civil Court of Fulton County against Mrs. Ella Stewart for the recovery of alleged overpaid rent and penalties. The petition alleged: that the defendant is a resident of Fulton County, Georgia, and was the landlord of the premises known as 518 St. Charles Avenue, N.E., Atlanta, Georgia; that the premises were located within the Atlanta Rent Area of the United States Office of Price Administration and were subject to the provisions of the Emergency Price Control Act of 1942 of the U.S. Congress and the amendments thereto; that at all times herein named the plaintiffs were the tenants of the defendant at said premises, renting apartment 10, consisting of a furnished living room, bedroom and kitchen; that in accordance with the said act the U.S. Office of Price Administration had fixed $7.50 per week as the maximum rent of said apartment, including the furniture and all services furnished by the defendant to plaintiffs; however, from June 2, 1945 to July 1, 1946, the defendant demanded and collected from plaintiffs the sum of $10 per week as rent for the apartment, being $2.50 per week in excess of the maximum rent and amounting to $130 in excess of the maximum rent for 52 weeks; that plaintiffs have demanded a refund of said overcharge and have given defendant a reasonable time to make it, but she refuses to make the refund or any part thereof; and, therefore, she is subject to pay damages to plaintiffs in treble the amount of said overcharge (or $390) and reasonable counsel fees of $130; and plaintiffs pray for a judgment against the defendant for such amounts, and the costs of the suit.

The defendant interposed the following general demurrer to the petition: (1) the petition fails to set out a cause of action against the defendant; (2) the petition "shows on its face that more than 30 days had elapsed from the time the plaintiff vacated the premises in question until the time of filing this action." The demurrer was overruled, and that judgment is assigned as error. The only question here presented is whether under the above-mentioned act and its amendments can a tenant bring a suit against his landlord to recover overpaid rent, within one year from the date of such overpayment, where no action to recover damages from thelandlord because of the overpayment of rent has been institutedby the Price Administrator. The defendant contends that a tenant can not maintain such an action unless it is brought within 30 days from the date of the rent overpayment, and she cites two cases to sustain that contention. Those cases are porter v. Warner Holding Co., 328 U.S. 395 (66 Sup. Ct. 1086), and Bowlesv. Glick Bros. Lumber Co., 146 Fed. 2d, 566. In the Porter case the suit was not brought by the tenant but was instituted by the Price Administrator and was an action to enjoin the landlord from violating the Emergency Act and to require it to make restitution of the rent overcharges. Furthermore, that action was brought under section 205 (a) of the Emergency Act, whereas the instant suit was instituted under section 205 (e) of the act. There is no ruling in the Porter case that a tenant can not bring an action under section 205 (e) of the act unless it is instituted within 30 days from the date of the rent overcharges. The ruling in that case, quoted in the brief of the plaintiff in error, was made in the dissenting opinion of Justice Rutledge. In the Bowles case, supra, the action was instituted by the Price Administrator under section 205 (e) of the Emergency Price Control Act to recover treble the amount of prices charged in excess of maximum prices permissible for lumber. The court there (p. 568), said: "Section 205 (e) of the 1942 Act, so far as here pertinent, reads: `If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, which ever is the greater, plus reasonable attorney's fees and costs as determined by the court. . . If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. . . One who buys for use or consumption other than in the course of trade or business — the ordinary non-commercial consumer — . . is the only member of the buying public empowered under § 205 (e) to bring suit for treble damages. In all other cases the right vests in the Administrator for the use and benefit of the Nation as a whole.' " There is no ruling in that case contrary to our ruling in this case. It is true that, after the decision in the Bowles case, subsection 205 (e) of the act was amended to provide as follows: "If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use orconsumption other than in the course of trade or business maywithin one year from the date of the occurrence of theviolation, except as herein provided, bring an action againstthe seller on account of the overcharge [italics ours]. . . For the purposes of this section the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying or selling of a commodity, as the case may be; and the word `overcharge' shall mean the amount by which the consideration exceeds the applicable maximum price. If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may [italics ours] institute such action on behalf of the United States within such one-year period. If such action is instituted by the Administrator, the buyer shall thereafter be barred from bringing an action for the same violation or violations. Any action under this subsection by either the buyer or the Administrator, as the case may be, may be brought in any court of competent jurisdiction." 50 U.S.C.A. § 925 (e).

It clearly appears from the above-quoted provisions that the Administrator may bring such an action as the one instituted in this case where the tenant fails to bring such a suit within 30 days after the date of the violation by the landlord, and that if the Administrator does bring the suit, then the tenant is thereafter barred from instituting an action for the same violation. It is also equally apparent from such provisions that a tenant can bring such an action against his landlord within one year after the date of the violation, where, as in this case,the Administrator had never instituted an action for the sameviolation.

In our opinion the petition was not subject to the general demurrer and the court properly so ruled.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.