#### Tag, Appellant, *v.*Linder, Appellee.

(No. 7164

Decided October 31, 1949.)

*Mr. Sol Goodman*and *Mr. Albert R. Fingerman,*for appellant.

*Mr. Paul J. Crone,*for appellee.

Ross, P. J.

This case is in this court on appeal on questions- of law from a judgment of the Court of Common Pleas, dismissing the action of plaintiff, at the close of the evidence.

The plaintiff brought an action against his landlord, alleging a rental charge in excess of a maximum permitted by and under the provisions of an act of Con*303gress, and praying for the recovery and penalties permitted thereunder.. The plaintiff was in error in.that he predicated his request for relief on an act of Congress enacted.in 1942, later repealed, when under, the Act of 1947 he was entitled to such relief if. the facts alleged in his petition were sustained by evidence. The trial court concluded and found that it was without jurisdiction to entertain the action because of the mistaken conception of the plaintiff as to the appropriate act of Congress and dismissed the petition solely upon that ground.

In taking such action the trial court was in error. ■

As far as the allegations of the petition identified a particular act of Congress as furnishing a remedy, such allegations amounted to mere conclusions of law, had no place in the petition, and should be treated as surplusage.

The issues in an action are created by the factual allegations in a petition.

In *Schaefer*v. *First Natl. Bank of Findlay,*134 Ohio St., 511, at page 520, 18 N. E. (2d), 263, it is stated.

“When the plaintiff pleads all the facts .the court should give him the relief he is entitled toy-.whétlier in equity or by declaratory judgment; even thei prayer is not controlling. *Riddle & Parker*v. *Roll,*24 Ohio St., 572; *Tiffin Glass. Co.*v. *Stoehr,*54 Ohio St., 157, 163, 43 N. E., 279; *State, ex rel. Masters,*v. *Beamer,*109 Ohio St., 133, 151, 141 N. E., 851.”

See, also, *Cook*v. *Crider,*63 Ohio App., 12, at page 16, 24 N. E. (2d), 966.

In *Allen*v. *Ry. Co.,*57 Ohio St., 79, at page 85, 47 N. E., 1037, it is stated:

l “A petition which contains all the facts necessary to bring the plaintiff within the rights granted by 'staf'il ute is good, even though it avers other, but uotocoíiítradictóry, facts, not necessary to the right of irewh-*304ery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.”

In 31 Ohio Jurisprudence, 597, “Pleading,” Section 58, it is stated:

“It is an elementary principle of code pleading that, in order to sustain a cause of action, all of the operative ultimate facts essential to the cause of action must be pleaded; that is, such facts as, under the substantive law, operate to invest one with a right, or devest another of a right, or to show a wrongful interference with an existing right. It is, however, neither necessary nor proper to state the legal obligation; it is only necessary to plead the operative facts which show that the pleader is entitled to the relief sought, even though the relief sought may be predicated upon one or more grounds; the pleader need not characterize the facts alleged, or classify them under the respective nominal grounds of such relief, although in practice the custom is, in nearly all pleadings, to characterize the-operative facts and classify them. The pleading is addressed to the court, and it becomes the duty of the court to add the law to the operative facts. Even though, as stated elsewhere, it is an elementary principle in pleading that where a statute, upon certain conditions, confers a right or-gives a remedy unknown to the common law, the party asserting the right ■or availing himself of the remedy must, in his pleadings, :bring himself or his case clearly within the statute, it is well settled that the pleader should state only th'e- operative facts which bring the case within the rule of duty created by the statute. It is unnecessary to plead a public statute of Ohio or of the United States. In other words, a petition states a good cause of action if its allegations can be fairly construed to .show any dereliction of the duty defined by the stat*305ute, proximately resulting in injury and damage to the plaintiff, without pleading the terms of the statute. A petition which contains all the facts necessary to bring the plaintiff within the rights granted by statute is good even though it avers other, but not contradictory, facts, not necessary to the right of recovery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.”

See *Warner*v. *Industrial Commission,*69 Ohio App., 378, at 384, 43 N. E. (2d), 885.

In *Gerend*v. *City of Akron,*137 Ohio St., 527, at page 532, 30 N. E. (2d), 987, Section 58 *(Id.)*is quoted with approval.

Section 203 (a) of the Housing and Rent Act of 1947, as amended and in force at the time the cause of action stated in the petition arose, provides:

“After the effective date of this title, no maximum rents shall be established or maintained under the authority of the Emergency Price Control Act of 1942, as amended, with respect to any housing accommodations.”

Section 204 of such act provides in part:

“(a) The Housing Expediter shall administer the powers, functions, and duties under this title; and for the purpose of exercising such powers, functions, and duties, and the powers, functions, and duties granted to or imposed upon the Housing Expediter by Title 1 of this act, the Office of Housing Expediter is hereby extended until the close of March 31, 1949.

“(b) (1) Subject to the provisions of paragraphs (2) and (3) of this -subsection, and subsections (h) and (i), during the period beginning on the effective date of this title and ending on the date this title ceases to be in effect, no person shall demand, accept, or receive any rent for the use or occupancy of any controlled housing accommodations greater than the *306maximum rent established under. the authority of the Emergency Price Control Act of 1942, as amended, and. in effect with respect thereto on June 30, 1947:

* * *"

Section 205 of the act provides in- part:

“Any person who demands, accepts, or receives any payment of rent in excess of the maximum rent prescribed under section 204 shall be liable to the person from whom he demands, accepts, or receives such payment (or shall be liable to the United States as hereinafter provided), for reasonable attorney’s fees and costs as determined by the court, plus liquidated damages in the amount of (1) $50, or (2) three times the amount by which the payment or payments demanded, accepted, or received exceed the; maximum rent which could lawfully be demanded, accepted, or received, whichever in either case may be the greater amount: *Provided,*That the amount of such liquidated damages shall be the amount, of; the. overcharge or overcharges if the defendant proves that the violation was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation. Suit to recover such amount, may be brought in, .any federal, state, or territorial court of competent jurisdiction within one year after the date of such violation: * * *”

It-would appear, therefore,'that the • plaintiff stated a. pause of action, of which the court' had jurisdiction of the subject matter, and that the petition of plaintiff was- erroneously dismissed. :•

¡ The, judgment is reversed and .the cause remanded fo,r.;fnrther proceedings accprding to 'law.

*Judgment reversed.*

■mRoss, P. J., HiLDEBRANT.and-Matthews,' JJ., concur in the syllabus, opinion and judgment.