Bass v. Thigpen ( 1945 )

The judgment is affirmed with direction.

DECIDED DECEMBER 5, 1945. I. E. Thigpen, hereinafter called the plaintiff, instituted a dispossessory warrant proceeding against R. H. Bass, hereinafter called the defendant. It appears that about two years before the proceeding in question the plaintiff purchased a two-story dwelling house which was at that time occupied by the defendant and his family. The rental contract was between the then owner and the wife of the defendant. The Office of Price Administration had fixed the rental value of the house at $20 per month. After the purchase by the plaintiff, the wife of the defendant died. The defendant approached the plaintiff and stated that he would carry out the contract of rental between his wife and the former owner. Sometime thereafter the plaintiff made improvements on the house and informed the defendant that he would have to pay more rent, that the plaintiff would have to raise the rent from $20 to $30 per month. It seems that the defendant agreed to this, but later he took the increase in rental up with O.P.A., and O.P.A., notwithstanding the improvements on the house, retained the rental value at $20 per month. At this stage the plaintiff notified the defendant that he desired the possession of the house for the use of himself and his family; that he and his wife were both sick, and that, inasmuch as the house was near the hospital and near the defendant's place of business, he wished to move into it. Thereupon the plaintiff went to the office of the O.P.A. and informed that office of the situation. The O.P.A. authorities instructed the plaintiff that it would be necessary for the defendant to have 60-days' notice. The O.P.A. authorities prepared a notice which was signed by such authority and prepared the notice which the plaintiff was instructed to sign. These notices were duly served on the defendant. At the expiration of the 60-days' notice, the plaintiff procured a dispossessory warrant against the defendant. The defendant, being served with the dispossessory warrant proceedings, filed an affidavit of illegality to the effect that his term of rent had not expired, and that he was not holding over and beyond his term and gave a bond as required by law in such proceedings. These proceedings were instituted and tried in the city court of Dublin. At the trial, outside of the introduction of documentary evidence hereinabove mentioned, the only witness was the plaintiff. He testified substantially to the facts above related. At the conclusion of the testimony, the court stated that he would direct a verdict for the plaintiff, whereupon the attorney for the plaintiff requested the court to submit the question of rent to the jury. This the court did and charged the jury on the issues involved. The jury returned a verdict finding in favor of the plaintiff for possession of the premises and $30 per month rental. Judgment was entered accordingly. The defendant filed a motion for a new trial on the general grounds, and thereafter added four special grounds. This motion was overruled, and the defendant brings the case here for reviews. 1. The record does not reveal any error in the general grounds, except that it appears from the evidence that the rental value of the house in question was fixed by the O.P.A. at $20 per month, and a verdict in excess of that amount is not supported under the law and facts. We will deal hereinafter with this excess of $10 per month as to rental value. Other than this, under the general grounds, the evidence sustains the verdict.

2. Special ground 1 assigns error because the judge, after the evidence was closed, stated that he would direct a verdict for the plaintiff, but before doing so concluded to submit the question of rent to the jury. The judge then charged the jury concerning all the issues in the case. He certainly had the authority to submit the case to the jury, even though he had stated that he would direct a verdict for the plaintiff. There is no merit in this ground.

3. Special ground 2 assigns error because the court failed to charge that in finding the rental value that they should be guided by the regulations of the O.P.A. and not find a rental value higher than that permitted by O.P.A. We think that this ground, to which we have referred under the general grounds, is well taken.

4. Special ground 3 assigns error because the court failed to charge the jury on the question of good faith on the part of the plaintiff in demanding possession of the property involved for the purpose of using it as a residence for himself and his family. It is contended by the movant that, after the improvements were made and the plaintiff sought to raise the rent from $20 to $30, the plaintiff asked the defendant for the house; and that the court should have charged on the question of bad faith, and in failing to do so "the judge therefore induced the jury to find the value of the property involved, but did not charge them that they could not find a verdict in excess of the amount that the O.P.A. had ruled as a maximum rent on such property." It will thus be seen that he gravamen of the error assigned on this ground goes to the excess of the rental value of the premises above the $20 per month. This has been noted in both the general grounds and in special ground 2, and will be further dealt with hereinafter.

5. Special ground 4 assigns error because the court overruled a motion for a continuance based on the ground that the defendant was sick in bed and unable to attend court and assist counsel in the trial of his case. This motion for a new trial does not meet the requirements of the law. Butler v. Georgia AgricultureCredit Corp., 37 Ga. App. 390 (140 S.E. 426); Mosley v.Bridges, 65 Ga. App. 64 (15 S.E.2d 260); Code, § 81-1412. From what we have said above concerning the general grounds and the special grounds, the record shows no reason why we should reverse this case and remand it for a new trial. The record does show, however, that the rental value of the property was fixed by the O.P.A. at $20 per month, and not $30 per month. Therefore the rental value of the property, so far as these proceedings are concerned, is $20 per month, to be doubled, making the double rental value of the property $40 per month. This case is therefore affirmed with the direction that there be written off from the verdict and judgment the excess of $40 per month double rent, within ten days from the time the remittitur is received in the court below. Otherwise, the judgment is reversed.

Judgment affirmed, with direction. Broyles, C. J., andMacIntyre, J., concur.