of Appeal of Louisiana, Orleans
So. 2d 573 (La. Ct. App. 1952)
Miss Anna DuVernay, lessee, instituted this suit against defendant, Mrs. Anna
Ledbetter (wife of Hernan Pallares), lessor, under Section 205 of the Housing
and Rent Act of 1947, as amended by the Act of March 30, 1949, 50
U.S.C.A.Appendix, § 1895, endeavoring to recover as liquidated damages, three
times the overcharge of $31 for rent paid for the months of October, November
and December, 1949 and January, 1950, or a total of $372 plus reasonable
attorneys' fees. Plaintiff alleged that defendant was a nonresident of this
State and, accordingly, requested that a writ of attachment issue against
property bearing the municipal No. 816-818 Henry Clay Avenue, premises
allegedly owned by the defendant and in a part of which the rental overcharge
occurred. This request was granted and a curator ad hoc was appointed to
represent the absent defendant. A short time thereafter, the court learned that
the defendant was represented by counsel of her own choice and it then ordered
that the appointment of the Curator Ad Hoc be vacated.
filed several motions to dissolve the attachment which were dismissed.
Thereupon she pleaded the exception of no right of action based on the mental
incompetency of plaintiff, which was subsequently overruled by mutual consent
of counsel. Defendant then answered and denied that she was a nonresident of
the State of Louisiana residing permanently outside of the State and that she
never, at any time, rented any property to the plaintiff herein. Defendant
reconvened for damages in the amount of $1,000, which she alleged resulted from
the wrongful issuance of the writ of attachment and further pleaded for a trial
the course of the trial, counsel for plaintiff filed an exception of no right
or cause of action aimed at the reconventional demand, which was sustained by
the trial judge and, accordingly, the reconventional demand of defendant was
court, a qua, rendered a judgment, based on the verdict of the jury, in favor
of plaintiff in the amount of $372 plus attorneys' fees of $350 especially
predicated on a stipulation of counsel before the case was given to the jury,
and further ordered that the writ of attachment be maintained; that plaintiff's
privilege resulting therefrom be recognized; that the property be sold and
plaintiff's claim be paid out of the proceeds thereof. Hence this appeal by
defendant. Plaintiff has answered the appeal and requested that the attorneys'
fees, which were awarded by the court, a qua, be increased by $200 in view of
the additional professional work involved in the preparation and writing of the
brief and the appearance in this Court for argument.
has filed the exception of no cause or right of action in this Court. We find
no merit in this exception and, therefore, shall not discuss it.
record reveals that Mrs. Merna Neppert, sister of the defendant, on October 9,
1949, leased a rear apartment in 816 Henry Clay Avenue, located in the City of
New Orleans, to plaintiff by virtue of an oral lease, at a monthly rental of
$45. It appears that there is no dispute that the maximum rent for this
apartment, during the period in question, had been fixed by the Housing
Expediter at $14 per month. Rent for the four months of plaintiff's occupancy
was paid at the rate of $45 per month. The rent was paid to Mrs. Merna Neppert,
sister of the defendant who, on each occasion, issued a receipt to plaintiff
signed "Mrs. Anna Ledbetter, M. N." (Merna Neppert.) The record also
reflects that during the entire term of plaintiff's tenancy and for
approximately eight and one half years prior to the institution of this suit,
defendant was living outside of the State of Louisiana and did not return until
shortly before the trial in the court, a qua.
in endeavoring to reverse the judgment of the lower court based on the finding
of fact by the jury, does not contend that the rental overcharge did not occur,
but insists that:
The evidence failed to show that the defendant was a nonresident and the
attachment was wrongfully issued.
Mrs. Neppert, was not acting as the agent of the defendant during her absence
from the State.
The damages awarded, including the attorneys' fees, were excessive.
for defendant filed several motions to dissolve the attachment and in none of
these was the existence of defendant's domicile in the State of Louisiana
offered as a reason for the dismissal of the attachment. The trial judge and
the jury found, after mature deliberation, that defendant was a nonresident and
we have discovered no reason to disturb this finding of fact.
counsel insists that the institution of this suit by way of attachment was
improper because the defendant was always domiciled in the State of Louisiana.
record clearly reveals that defendant, Mrs. Anna Ledbetter, married Hernan
Pallares, Consul General of Ecuador, at least eight and one half years prior to
the institution of this suit and was residing with him, as his wife, during her
absence from Louisiana, in both Panama and Houston, Texas. Defendant owned two
pieces of property, one located in 816-818 Henry Clay Avenue, part of which was
occupied by her mother and sister, Merna Neppert, and the other in Robert Street
in the City of New Orleans. Upon being interrogated under cross-examination
"Did you maintain a residence here all of the time you were away, a house
with furniture in it?" defendant replied "I had my home on Robert
Street and I have all my furniture there, but I rented it while I was gone, all
furnished, everything I had."
the unfavorable conclusion to be drawn from this and other similar testimony
upon counsel's foregoing contention, they now maintain that under "the
laws of the United States * * * (defendant's) her marriage to a citizen of
Ecuador did not deprive her of her citizenship, and since she had a home in New
Orleans, she remained domiciled in this City although she lived with her
husband in a foreign country and in another State * * *."
it may be true, under the provisions of the applicable Federal Statute, that an
American citizen does not forfeit her citizenship by virtue of her marriage to
a foreign national — it does not follow, like the night the day, that because
she retained her American citizenship after her marriage — she also retained
her Louisiana domicile. In our opinion it matters not whether she married a
foreign national or an American citizen, if the defendant, in fact, went to
live with her husband in Panama and Houston, Texas, her domicile followed his.
The record shows that she remained in either or both of these places for a
period of at least eight and one half years. The courts of this State have been
of the opinion, on innumerable occasions, that a married woman has no other
domicile and can acquire no other than her husband's. Bruno v. Mauro, 205 La. 209, 17 So.2d 253; Stevens v.
Allen, 139 La. 658, 71 So. 936, L.R.A. 1916E, 1115; Switzer v. Elmer, 172 La. 850, 135 So. 608.
39 of the LSA-Civil Code reads:
married woman has no other domicile than that of her husband; * * *."
46 of the LSA-Civil Code provides:
once acquired shall not be forfeited by absence on business of the State or of
the United States, but a voluntary absence of two years from the State, or the
acquisition of residence in any other State of this Union, or elsewhere, shall
forfeit a domicile within this State."
are fully aware of the fact that Article 46 should not be literally construed
and that the "Legislative intent" judicially construed meant the
acquisition of such residence as is outlined in Article 41, that is, one which
combines "the act of residing" with "the intention of making
one's principal establishment there"; or more explicit, Article 46
subjects the change of domicile from this State to another, to the same test to
which Article 41 applies to change the domicile from one parish to another, however,
this analysis is mere obiter and has no bearing upon the ratio decidendi of
this case since, it is clear that under Article 39 a married woman has no other
domicile than that of her husband; it is not contended by defendant or even
remotely indicated by the record, that this case falls within the well-known
exceptions to this general rule, as where the wife is mistreated or the conduct
of the husband has afforded her the legal right to establish a separate
statutory rule that "a married woman has no other domicile than that of
her husband" is based on the social and economic doctrine of marital unity
and public policy demands that the civilized concept of the family unit be
protected and made secure by permitting one family (husband and wife) to have
only one domicile.
for defendant laboriously contends, since it is conceded that Mrs. Ledbetter
has not lost her American citizenship, because of her marriage, it likewise
follows that she must be a citizen of one of the states of the Union and,
therefore, does possess a domicile in one of these States; that no one can
continue to be a citizen of the United States without simultaneously being a
citizen of one of the forty-eight states. We are of the opinion that these
conclusions are unsound for innumerable reasons, however, two shall suffice:
First, there is a vast distinction between citizenship and domicile, and, as we
have pointed out hereinabove, "a married woman has no other domicile than
that of her husband", irrespective of whether she may be living in this
country or elsewhere; and secondly, we consider it quite possible that a person
may be a citizen of the United States and yet being homeless — a nomad — be not
identified or identifiable as a citizen of any particular state. Pannill v.
Roanoke Times Co., D.C., 252 F. 910.
arguendo, that the attachment was improvidently issued, nevertheless,
defendant, by virtue of her answer and reconventional demand, submitted herself
to the jurisdiction of the court for the purpose of deciding the only real
issue of the case — whether she had been guilty of a rent overcharge.
her principal defense, defendant insists that Mrs. Merna Neppert, her sister,
was not her agent and that defendant could not be held liable for the acts of
Mrs. Neppert. It is clear that there was no written authority conferred upon
Mrs. Neppert to act as the agent for defendant, therefore, any agency that may
have existed is one implied both in fact and in law. Defendant's counsel
contends that "written authority" was necessary in order to create
the valid existence of a mandate between defendant and Mrs. Neppert. We are of
the opinion that as leases may be made orally or in writing, the power to make
them may be given either in writing or orally. LSA-Civil Code Article 2683-
2991. Nelson v. Monroe Automobile Supply Co., 180 La.
245, 156 So.
record positively reflects that Mrs. Neppert was the agent of the defendant and
this is revealed by the testimony of defendant, her sister, Mrs. Neppert, the
plaintiff, the plaintiff's brother, Albert DuVernay, who had occupied, on a
prior occasion, the apartment in which plaintiff resided at the time the
alleged overcharge is said to have occurred, and from the testimony of Eugene
Matranga, Compliance Officer for the Housing Expediter. The registration of one
rental unit of the property with the Office of the Housing Expediter for the
purpose of establishing the rent ceiling on April 16, 1948, shows the name of
Mrs. Anna Ledbetter, as owner, and is signed "Mrs. Anna Ledbetter, M.
N." All of the rent receipts, which were issued to Miss DuVernay, were
signed "Mrs. Anna Ledbetter, M. N." (Merna Neppert).
testified that Mrs. Neppert collected the rents and attended to the repairs on
the property and made defendant's homestead payments out of the rent and that
she permitted her sister, when circumstances required it, to apply the balance
of the proceeds of the rent to the support of their mother.
Neppert testified that she collected rents from other tenants; that she issued
receipts in the name of defendant; applied some of the rents to the mortgage
indebtedness of defendant with a building and loan association; and registered
the apartment with the Office of the Housing Expediter.
Matranga testified that Mrs. Neppert, in all contacts with the Office of the
Housing Expediter, represented herself as the agent of the defendant and that
the defendant responded to a registered letter addressed to her at Houston,
Texas, through the agency of Mrs. Neppert.
although testifying that her sister collected the rents, made repairs, etc.,
vehemently insisted in pursuing the conclusion that her real agent, at all
times, was Carl Friedrichs of the Columbia Homestead Association. Mr.
Friedrichs, who could have been a very important witness, did not testify and
was not called as a witness for the defendant, thus giving rise to the
well-established presumption that if he had appeared, his testimony would have
been unfavorable to the defendant.
evidence clearly shows that defendant's sister represented herself, at all
times, to tenants, workmen and governmental bureaus as the agent for the
defendant; that she collected rent; issued rent receipts in the capacity as
agent for the defendant; both maintained and repaired the property owned by the
defendant; and used the proceeds of the rent to reduce the defendant's mortgage
and, as the exigencies of the occasion demanded, for the support of herself and
record reflects that this course of conduct extended over a period of at least
three years, during which time the defendant obviously either acquiesced or, in
fact, had initially designated her sister, Mrs. Neppert, as her agent.
the agency of Mrs. Neppert is repudiated, this conclusion cannot be supported
by the evidence in view of the defendant's and her sister's conduct and her
consent over a long period of time.
in resisting the demands of plaintiff, also insists that the damages were
excessive because bad faith was not proven. We have said heretofore that
Section 205 of the Housing and Rent Act is not penal in nature. The stipulation
contained in the statute relative to treble damages for overcharge is a
provision for liquidated damages. Under the terms of the statute the burden of
proving the violation was neither wilful nor the result of failure to exercise
practical precautions was an onus to be borne by the defendant. This was neither
pleaded nor proved by the defendant. Guidroz v. O'Neil, La. App. 1952, 57 So.2d 703.
evidence also reveals that in addition to plaintiff, two former tenants, Mrs.
Woods and Albert DuVernay, brother of plaintiff, who occupied the apartment in
question prior to plaintiff, had filed complaints with the Office of the
Housing Expediter relative to overcharges in 1948. The evidence reflects that
the defendant overcharged Albert DuVernay consistently each month from
November, 1948 through May, 1949, but it appears that no legal action was
initiated with respect to his claim because prescription had intervened. The
evidence is ambiguous as to whether or not Mrs. Woods was one of the former
tenants of the rental unit involved here. In any event, it taxes our credulity
to believe, as defendant insists, that during her absence of eight and one half
years, she was not aware of what was transpiring with respect to two valuable
pieces of real estate which she owned in New Orleans.
the long period of time during which the overcharges were collected and in view
of the fact that the overcharge amounted admittedly to the sum of $31 per
month, it was encumbent upon the defendant to show "both absence of
willfulness and the presence of care to prevent the occurrence of
violations". Sheffield v. Jefferson Parish Developers, La. App., 1948, 37
So.2d 729, 734.
objected to the introduction of a certain document by Matranga, the Compliance
Officer of the Office of the Housing Expediter pertaining to the property, and
the fact that the court permitted this witness to explain to the jury the
effect or the interpretation of this document. The document introduced was an
order issued by the Area Rent Director, dated May 11, 1950, and effective April
21, 1950, which permitted this particular rental unit to be converted from
unfurnished to furnished, thereby increasing the rent from $14 to $26 per
month. It appears that defendant's objection is based on the fact that the
overcharge occurred between October 9, 1949 and February 9, 1950, and,
therefore, this document, dated May 11, 1950, bore no relevancy to the dates
when the overcharge is alleged to have occurred. However, this document was
part of the res gestae and merely reflected the maximum ceiling rent that the
Office of the Housing Expediter permitted the landlord to charge on this
particular apartment at a subsequent time. During the course of being
interrogated in connection with this document, Matranga did state from records
and of his own knowledge and his testimony, in this respect, remains
uncontradicted in the record, that the maximum ceiling on the rental unit in
question during the period from October 9, 1949 to February 9, 1950, was $14
and it is conceded by Mrs. Neppert that she issued rental receipts in the
amount of $45 to the plaintiff signed "Anna Ledbetter, M. N."
Assuming arguendo, that it was error to admit this document in evidence, our
conclusion would be unchanged since Matranga did testify and, as we have
related hereinabove, his testimony was uncontradicted, that the maximum ceiling
rent on this particular unit was $14 per month; and it is not disputed by
defendant that the rent overcharge did in fact occur.
stipulation during the trial of this case in the court, a qua, counsel mutually
agreed that in the event the jury arrived at a verdict for plaintiff, the
attorneys' fees should be fixed by the jury in the amount of $350. This
stipulation reserved to respective counsel the right to argue for an increase
or decrease in the attorneys' fees on appeal. As revealed heretofore, plaintiff
answered this appeal and prayed for an increase of $200 in the amount of the
our opinion an attorney's fee of $350 is reasonable. The record reflects that
counsel for plaintiff handled this case in the lower court, which involved the
filing of an original petition, request for attachment, supplemental petition,
the appointment of a curator ad hoc, several appearances in the Court for the
purpose of trying motions to dissolve the attachment, appearance on a rule to
test the solvency of the surety on the bond for cost furnished on behalf of
plaintiff, the trial of the case before a jury which, incidentally, occurred at
the request of defendant, and this trial consumed an entire day, the
preparation and writing of the brief filed before this court and counsel's
appearance herein for argument.
the reasons assigned the judgment appealed from is affirmed.