Davis v. Streeter

• Decision Date: 25 February 1903
• Citation: 54 A. 185,75 Vt. 214
• Parties: DAVIS v. STREETER.
• Court: Vermont Supreme Court

54 A. 185

75 Vt. 214

DAVIS

v. STREETER.

Supreme Court of Vermont. Chittenden.

Feb. 25, 1903.

Exceptions from Chittenden county court; Start, Judge.

Assumpsit by Louise Davis against Albert Streeter. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, STAFFORD, and HASELTON, JJ.

M. G. Leary and V. A. Bullard, for plaintiff.

L. F. Wilbur and Cushman & Sherman, for defendant.

HASELTON, J. This was an action of general assumpsit. The plaintiff was a widow with two children, and the defendant was a single man, and owned a farm in Bolton, upon which he lived. A transcript of the entire case was made a part of the exceptions for the purpose of showing the claims of the parties and the tendency of the evidence. The plaintiff claimed, and there was evidence tending to show, that at some time in the fall of 1891 she went to work for the defendant at his house under an agreement with the defendant to the effect that, if she would do so, and live and work at his house, and help about paying for the farm, he would will or deed her a part of the farm, and board her children and give them a home, and would marry her; that from a time in the fall of 1891 until May, 1901, she was at the defendant's house, working faithfully for him, except during several short intervals, when she was away from his house on account of his ill treatment of herself and her children; that after each of these intervals she returned to the defendant's service upon his persuasion; that her services to the defendant were performed in reliance upon the agreement referred to above; but that about May 22, 1901, by reason of the defendant's ill treatment of her and his refusal to support or have in his house one of said minor children, and his refusal to permit her to carry out the contract on her part or to remain upon his premises, she abandoned the defendant's house and employment, and never returned. In short, the plaintiff claimed, and there was evidence tending to show, that the defendant compelled the plaintiff to abandon such contract. The defendant's testimony tended to show that the plaintiff did not work for him under any such agreement as the plaintiff claimed to have existed; but his claim was, and the testimony on his part tended to show, that the plaintiff worked for him during the time to which her claim for recovery related, or during the same time substantially, under an agreement by which he was to pay her $1 a week, and board her children and give them a home; that he had fulfilled the contract on his part, settling with her from time to time, and making a final settlement; that he did not in any way abuse her or her children, and that she left his service because she chose to leave it.

The plaintiff called as a witness one May Gokey, who stated, on cross-examination by the defendant, that the defendant on one occasion kicked the plaintiff, and dragged her out of his house. The record then proceeds: "Q. What Streeter told you this? A. Archie Streeter. A cousin to Albert, as far as I know. By the Court: This testimony is not admissible." To this testimony the defendant excepted. The exception, however, cannot be sustained, the defendant himself having brought out this hearsay evidence, and its inadmissibility having been promptly declared by the court. In the course of the cross-examination of the defendant by the plaintiff's counsel the cross-examining counsel said to the witness, "You are pretty willing to swear to anything." The defendant objected to what was so said, and asked to have it spread upon the record, and to be allowed an exception. The request was granted, and the exception allowed. The plaintiff's counsel then said, "Spread it upon the record." To this remark the defendant asked for an exception, which was allowed. A review of the case shows clearly that the remark, "You are pretty willing to swear to anything," was a comment upon the testimony which the defendant had given, and could not have been understood as a statement or suggestion of matter foreign to the evidence. Yet the remark, not being made in argument, but during the introduction of evidence, was irregular and improper. The irregularity and impropriety were, however, particularly for the trial court to judge of and deal with, in view not only of what was said, but also of the whole previous course of the trial, and of the manner of both...