City Of Montpelier v. Town Of Calais.

• Decision Date: 03 October 1944
• Docket Number: No. 1731.,1731.
• Citation: 39 A.2d 350
• Parties: CITY OF MONTPELIER v. TOWN OF CALAIS.
• Court: Vermont Supreme Court

39 A.2d 350

CITY OF MONTPELIER

v.TOWN OF CALAIS.

No. 1731.

Supreme Court of Vermont.

Oct. 3, 1944.

COPYRIGHT MATERIAL OMITTED.

Exceptions from Washington County Court; Cushing, Presiding Judge.

Action by the City of Montpelier against the Town of Calais to recover the amount expended for the relief and burial of a pauper. Judgment for plaintiff, and defendant brings exceptions.

Reversed and remanded with directions.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Fred E. Gleason, of Montpelier, for plaintiff.

Theriault & Hunt, of Montpelier, for defendant.

SHERBURNE, Justice.

This action is brought under the provisions of P.L. 3923 to recover the amount expended in the relief and burial of Herbert Stevens, a pauper. Trial was by court, and upon facts found judgment was rendered for the plaintiff, and the cause is here upon defendant's exceptions. The only questions briefed are those of residence and the amount of recovery under the notice to the defendant town.

The findings show that Stevens was arrested by the sheriff of Washington County on July 12, 1939, at the residence of Jerry Slayton, in the defendant town, and was taken to the county jail in the City of Montpelier. Stevens was then suffering from a cancer which required immediate medical attention, and the sheriff notified defendant's overseer of the poor of his condition and that he required immediate medical attention and took him to Heaton Hospital in the City of Montpelier. After being there a few days he was removed to the Mary Fletcher Hospital in Burlington, where he remained until October 3, 1939. Defendant's overseer of the poor paid Heaton Hospital on July 19, 1939, and the Mary Fletcher Hospital on October 30, 1939. On October 7, 1939, Stevens had returned to Montpelier and was still suffering from the cancer, and his condition being called to the attention of plaintiff's overseer of the poor he was thereafter cared for by him until his death. On July 17, 1939, plaintiff's overseer by letter notified defendant's overseer of the poor that Stevens was a poor person in the City of Montpelier without property or means, in need of assistance, and had applied to the City of Montpelier for aid. On July 17, 1940, a second notice of the same tenor was sent by plaintiff's overseer of the poor to defendant's overseer of the poor.

Stevens was residing at the residence of Jerry Slayton in Calais on July 12, 1939. He was living there in the spring of 1936, and was residing there when the listers came there that spring. He was there when the listers called there in the spring of 1937. During that year and 1938 he was a frequent customer at the Co-operative Store in Calais. From July 3 to August 5, 1937, Stevens worked for one Parker in East Montpelier. He took his meals there but slept at night at a neighbors. In the fall of 1938, he was employed for about one month by Earl St. John, a farmer in East Montpelier, where he assisted in shingling a barn. We quote findings 11, 12 and 13 as follows:

“11. Stevens had a room at the Slayton place in which he kept his belongings, clothing and personal effects.”

“12. On July 25, 1940, the overseer of the poor of the City of Montpelier went to the Slayton home and there obtained the articles left by Stevens when he was arrested on July 12, 1939. This comprised a suit case and duffle bag in which were clothing, pants, personal belongings, also a rifle and shotgun belonging to said Stevens. This personal property was in a sleeping room on the second floor of the house, in which was a sleeping bed and some furniture, comprising chairs; that this room was occupied by said Stevens whenever he was at the Slayton residence.”

“13. That said Stevens supported himself by his own labors during the period from the spring of 1936 until July 12, 1939, while residing in said Town of Calais, and that he was not assisted by said Town until he went to the Heaton Hospital on the day of his arrest.”

To constitute a residence under the pauper law, the fact that the pauper actually lived in the town in question and his intent to make that town his home must concur. Town of Georgia v. Waterville, 107 Vt. 347, 350, 178 A. 893, 99 A.L.R. 453; Town of Barton v. Albany, 108 Vt. 531, 535, 189 A. 853. To be enabled to count intervening time he must, when absent, by contract or understanding, have had a place there to which he had the right to return, and must have had the present and continuing intention to return there whenever he left, and was away from, that town. Town of Berlin v. Worcester, 50 Vt. 23, 26; Londonderry v. Landgrove, 66 Vt. 264, 267, 29 A. 256; Jericho v. Burlington, 66 Vt. 529, 533, 29 A. 801; St. Johnsbury v. Concord, 68 Vt. 481, 35 A. 429; Town of Georgia v. Waterville, supra, 107 Vt. 347, 353, 178 A. 893, 99 A.L.R. 453; Town of Barton v. Albany, supra.

Every reasonable intendment is to be made in support of the judgment. Therefore doubtful findings are to be so read as to support the judgment, if they reasonably may be. Campbell v. Ryan, 112 Vt. 238, 240, 22 A.2d 502; Town of Manchester v. Townshend, 110 Vt. 136, 144, 2 A.2d 207; Reed v. Hendee, 100 Vt. 351, 354, 137 A. 329. If the words “while residing” in finding 13 are fairly and reasonably susceptible of a construction that Stevens resided in the town of Calais from the spring of 1936 until July 12, 1939, a period of more than three years, as we think they are, it is the duty of this Court to give them that construction in support of the judgment. In re Peck's Estate, 87 Vt. 194, 210, 88 A. 568. So construed this finding is determinative of Stevens' residence, if supported by the evidence. Town of Mount Holly v. Cavendish, 92 Vt. 38, 102 A. 60; Town of Mount Holly v. Plymouth, 89 Vt. 301, 95 A. 572. This finding of residence is an ultimate finding and is a conclusion resulting from mixed questions of law and fact. While the prior findings do not contradict the conclusion arrived at, they can hardly be said to support it to the extent that it can be reasonably inferred therefrom that Stevens had a place in Calais to which, when absent in East Montpelier, by contract or understanding, he had the right to return, and to which he had the present and continuing intention to return whenever he left and was away. While it is the better practice to report all the facts upon which an ultimate finding is based, it is not legal error to omit to do so. Allen's Adm'r v. Allen's Adm'rs, 79 Vt. 173, 186, 64 A. 1110; Partridge v. Cole, 98 Vt. 373, 375, 127 A. 653; Trask v. Walker's Estate, 100 Vt. 51, 65, 134 A. 853; Patch v. Squires, 105 Vt. 405, 411, 165 A. 919; Taylor v. Henderson, 112 Vt. 107, 116, 22 A.2d 318.

The exceptions question the sufficiency of the evidence to support the finding of residence in finding 13, and in particular attack finding 11 on the ground that the finding that Stevens “had a room” and that he “kept” his property described in such a room, with its implication of permanency, is unwarranted by the evidence. Other than that Stevens had his property with him when actually staying at Slayton's and that when there he occupied a part of the Slayton boy's room, the only evidence that can possibly be claimed to support the finding is some statements claimed to have been made by Slayton on July 25, 1940, when Mr. Grady, plaintiff's overseer of the poor, went to get Stevens' things. One Fernandez, at that time an alderman of Montpelier, was asked if on that occasion he heard Slayton make any statement with respect to the length of time that Stevens' things had been there, and over defendant's objection as to materiality answered that Slayton said: “They had been there several years.” This witness also testified that Slayton admitted that Stevens had lived there, but he didn't hear him say how long. Slayton was called as a witness by the plaintiff and asked if he didn't say to Mr. Grady and Mr. Fernandez on that occasion that those things had been there for a good many years, and he answered “No.” He was then asked if he didn't tell them that Stevens had had that room for a good many years, and he again answered “No.” He was then asked if it was the fact that these things had been there a good many years, and he answered “No.” He was then asked how long they had been there, and he answered since Stevens had come there the fall before his arrest in July, 1939. He was then asked how many years Stevens was in and around his place, and he answered 3 or 4 years, maybe, off and on. He further testified that Stevens did not leave his things when he went away. After this Mr. Grady testified without objection that on that occasion Slayton said “These things have been here for years” and that the room was Stevens' room and that “he had occupied that room for years.”

The question presented is, can a finding be based upon uncorroborated hearsay evidence admitted without objection? This is discussed somewhat in Taplin & Rowell v. Harris, 88 Vt. 15, 20, 21, 90 A. 956, and it is there said that, although the law does not recognize hearsay as legitimate evidence, it may nevertheless have a probative effect. In Pocket v. Almon, 90 Vt. 10, 14, 96 A. 421, it is said that hearsay evidence admitted without objection is for consideration by the jury, and Taplin & Rowell v. Harris, supra, is cited as authority. But the defendant stresses Streeter's Dependents v. Hunter, 93 Vt. 483, 108 A. 393, in support of its contention that a finding cannot be based upon uncorroborated hearsay. That case cites Pocket v. Almon, supra, to the proposition that hearsay evidence received without objection is for consideration, and then goes on to state that the defendants there argued that when all the evidence to a point is hearsay an award cannot stand, and then, without so deciding, shows that the finding in question did not depend upon hearsay alone. In addition to what is said in Taplin & Rowell v. Harris, supra, we approve as correct reasoning what...