| Wis. | May 14, 1945
Action by plaintiff-respondent against defendant-appellant commenced September 12, 1944, by service of summons, complaint, affidavit, and order to show cause. The complaint alleges violations of the Maximum Rent Regulation for housing and accommodations owned by the defendant-appellant. The order to show cause was returnable on the 22d day of September, 1944, which order directed defendant to show cause why a temporary injunction should not be granted, restraining said defendant from violating the provisions of the Emergency Price Control Act of 1942 and the Maximum Rent Regulation for housing issued pursuant to and in accordance with the provisions of said act.
Defendant answered, denying that she violated any of the provisions of law relating to rent regulations, and alleging that if any base price differs, same is due to methods of computing costs for utilities and not to an increase in rent charged; further denying that there was any attempt to file incorrect registrations of units rented by defendant, and alleging that if any were filed which differed with the base rentals as of March 1, 1942, same have been corrected. Defendant further denied that she asked for and received any rent other than that prescribed by law and the rent regulations of the Office of Price Administration, and that if such appeared to be overcharges they are due solely to the method of computing for utility services and not to increases in rentals.
The case was tried to the court. The following findings of fact were made and entered November 13, 1944:
"1. That plaintiff is the duly qualified and acting administrator of the Office of Price Administration. *141
"2. That defendant is the owner of the premises known as 1705 So. 69th street, 6911 W. Mitchell street and 6913 W. Mitchell street, all in the city of West Allis, county of Milwaukee, state of Wisconsin.
"3. That on the 1st day of August, 1942, the administrator the Office of Price Administration duly issued the rent regulation for housing, establishing maximum rents which could be charged for housing accommodations in the county Milwaukee, including those owned by the defendant.
"4. That the maximum rent for any housing accommodation is that rent for which the accommodation was rented on the 1st day of March, 1942.
"5. That the following is a list of the premises owned and rented by the defendant and the name of the tenants on March 1, 1942, the rent paid on March 1, 1942, the services furnished by the defendant, the rent which the defendant is charging at the present time, and the amount of the rent which the defendant registered with the Office of Price Administration:
1705 So. 69th St. — 2d Floor.
REGISTERED: $46.50 per month MARCH 1, 1942: Tenant — Steve Obydine — Rent — $45 per month Services: Furnished, including refrigeration. PRESENT CHARGE: $46.50 per month
1705 So. 69th St. — 3d Floor.
REGISTERED: $48.50 per month MARCH 1, 1942: Tenant — Howard Proeber — Rent — $42.50 per month. Services: Furnished, including refrigeration. Established by order, pursuant to regulation. PRESENT CHARGE: $46.50 per month.
6911 W. Mitchell St. — Upper East.
REGISTERED: $42.50 per month MARCH 1, 1942: Tenant — Steve Beres — Rent — $36 per month. Services: Furnished, including refrigeration. PRESENT CHARGE: $42.50 per month.
6911 W. Mitchell St. — Upper West.
REGISTERED: $42 per month MARCH 1, 1942: Tenant — John O'Neil — Rent — $34 per month. Services: Furnished, including refrigeration, but not including heat. Tenant paid $2.50 for heat during the winter months. PRESENT CHARGE: $36 per month winter and summer. *142
6911 W. Mitchell St. — 1st Floor — Lower East.
REGISTERED: $45 per month MARCH 1, 1942: Tenant — Curtis Borkenhagen — Rent — $44 per month. Services: Furnished, including heat, refrigeration and free gas and electricity. PRESENT CHARGE: $44 per month Tenant pays own gas and electricity, which amounts to $6 per month.
6913 W. Mitchell St.
REGISTERED: $38.50 per month MARCH 1, 1942: Tenant — Alma Nommenson — Rent — $38 per month. Services: Furnished, including refrigeration, heat and free gas and electricity. PRESENT CHARGE: $38.50 per month. Tenant pays her own gas and electricity, amounting to $5 per month. "6. That none of the tenants who occupied the premises of the defendant prior to the institution of this action, commenced a suit under section 205(e) of the Emergency Price Control Act against the defendant by reason of the defendant having charged more than the maximum rent for July and August, 1944.
"7. That the defendant has failed to prove that the violation of the rent regulation was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violations."
As conclusions of law the court found that defendant is the owner of the premises described in the findings; that same are all located in the city of West Allis, Milwaukee county, Wisconsin; that the registrations which defendant filed with the Office of Price Administration do not indicate the maximum rents charged on March 1, 1942, nor the services furnished, nor the name of the tenant occupying the premises on that date; that defendant violated the provisions of the Maximum Rent Regulation for housing by charging and receiving more than the maximum rent of March 1, 1942; and that during the months of July and August, 1944, defendant received $52 in excess of the maximum rent. The court further *143 found as a conclusion of law that plaintiff was entitled to judgment restraining defendant from violating the provisions of the Maximum Rent Regulation for housing, and requiring defendant to properly register the premises owned by her, in accordance with the provisions of sec. 7 of said regulation; and for judgment in the sum of $156, together with the costs and disbursements of this action.
From the judgment accordingly entered on the 24th day of November, 1944, defendant appeals. This action was brought and prosecuted under the Emergency Price Control Act of 1942, as amended. (50 USCA App. sec. 901 et seq.) On May 31, 1942, under sec. 2(b) of the Emergency Price Control Act, the administrator issued the rent regulation for housing, effective August 1, 1942, and fixed the maximum rent date as of March 1, 1942. The defense rental area includes all of Milwaukee county.
At all times in question defendant owned and rented eighteen apartments, exclusive of the one occupied by the family of the defendant. They all comprised one unit, having different addresses. Six of the apartments are involved in this litigation and are set out in the foregoing findings. There appears to be no dispute on the facts as to four of the six apartments involved.
It will serve no purpose to discuss the evidence. The evidence relative to the violations alleged presented issues of fact, all of which are covered by the findings and are clearly *144 sustained by the evidence. It is elementary that the court will not disturb the findings unless they be against the great weight and clear preponderance of the evidence.
The court found that during the months of July and August, 1944, defendant received $52 in excess of the maximum rent. The court found that defendant failed to prove that the violations were neither wilful nor the result of failure to take practicable precautions against the occurrence of the violations. The burden of pleading and proving that the violations were neither wilful nor the result of failure to take practicable precautions against the occurrence of the violations was on the defendant. Bowles v. Glick Bros. Lumber Co. (9th Cir. 1945)
Treble damages were properly allowed under sec. 205(e) of the act, which, so far as here material, provides:
"The seller shall be liable for reasonable attorney's fees and costs as determined by the court, plus whichever of the following sums is the greater: (1) Such amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine: Provided, however, that such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation."
Appellant's contention that the action was premature and without authority, and the further contention that the item of $40 to cover costs and disbursements should not be allowed, is without merit.
By the Court. — Judgment affirmed. *145