Fancher v. Benson, 89-020

Decision Date13 July 1990
Docket NumberNo. 89-020,89-020
Citation580 A.2d 51,154 Vt. 583
PartiesChristene L. FANCHER v. Alta BENSON and Jane Savoie.
CourtVermont Supreme Court

Peardon Donaghy, Montpelier, for plaintiff-appellee.

Peter S. Cullen of Theriault & Joslin, P.C., Montpelier, for defendants-appellants.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

MORSE, Justice.

Defendants appeal from a $25,500 jury verdict against them for violating Vermont's Consumer Fraud Act, 9 V.S.A. § 2461(b), by selling plaintiff a horse which had a weak heart. We affirm and hold that a horse is covered under the Act's definition of "goods," that the instructions on agency were proper, that the evidence supports the verdict, and that the trial court properly permitted the issue of punitive damages to go to the jury.

In October 1985, Promises to Keep ("Promise"), an eight-year-old Oldenburg mare trained for dressage, 1 underwent a twenty-two day hospitalization at the University of Georgia College of Veterinary Medicine (UGA) for a heart problem described in a UGA report of November 27, 1986, as cardiopulmonary disease due to the presence of ventricular tachycardia. The report further stated that "[n]o structural abnormalities were identified, so it was determined the mare was not yet in congestive heart failure." It indicated that the horse was successfully treated but that a follow-up examination and "three months of pasture rest" would need to take place. It concluded:

A few cases of ventricular tachycardia have been identified and successfully treated.... The animals who had no underlying structural heart defects or evidence of congestive heart failure responded well to therapy, and returned to their normal performance levels.... Promise has responded well to therapy to date, so we feel her prognosis for return to performance is good.

In January 1986, defendant Alta Benson of Georgia employed defendant Jane Savoie of Richmond, Vermont, as her agent to sell Promise, and arranged for the mare to be transported from Georgia to Vermont. Both defendants signed a letter of agreement stating,

You will ... show Promise with the aim of selling her at a time when the most profit can be realized.... In what I hope is the unlikely event that Promise has a recurrence of her ventricular tachycardia, we are agreed that she is to be sent to the nearest state veterinary school to be put down ... and expenses will be shared by us....

I am enclosing herewith copies of Promise's medical reports from the University of Georgia....

Later in January, Barbara Hill contacted defendant Savoie looking for a horse suitable for plaintiff. Savoie told Hill that she had a horse that was not yet really "fit" due to a viral infection but that it would be ready in about a month.

On March 10, 1986, plaintiff, Hill and Hill's partner, Alix Nelson, visited the horse and were told by Savoie that Promise had been ill with the flu. She did not say that the horse had suffered from any episode of heart failure, but did say that the UGA had prepared a report. It was disputed whether the report was available for inspection then. When Nelson inquired about a shaved patch of skin on the horse that she recognized as the result of an EKG, Savoie explained that the EKG was given as a matter of course during the treatment of the respiratory problem and that there was nothing wrong with the horse's heart.

Plaintiff thereafter arranged for a prepurchase physical examination by a veterinarian, Dr. Barbara LeClair. Because there was some concern about swelling on the horse's legs, LeClair was asked to pay specific attention to that potential problem. On March 12, 1986, when LeClair arrived at the stable to perform the examination, Savoie gave her the UGA report. Savoie testified that, "[a]s [Dr. LeClair] was reading through the symptoms that Promise had shown, her response was, 'Wow'." LeClair testified that Savoie assured her that she had "talked to [plaintiff] about this report," and when asked, "did Jane [Savoie] say to you anything to the effect that the purchasers were not concerned about the [UGA] report?" she replied, "I can't remember specifically but I do believe--I think that was part of the conversation." LeClair conveyed her exam results to Hill by telephone, stating that "the horse appeared to be in good health and did not show any signs of the virus." Thereafter, on or about March 20, 1986, plaintiff purchased Promise. Although LeClair said she mentioned the UGA report to Hill over the telephone prior to the sale of the horse, Hill denied that Dr. LeClair disclosed any information about the condition of the horse's heart. LeClair explained that the exam "could not disclose every underlying heart defect." On June 3, 1986, the UGA report was made available to plaintiff.

Three months after the purchase of Promise, on June 22, 1986, the mare had a recurrence of heart distress during her first competition and was put to pasture thereafter. Plaintiff brought this suit after unsuccessfully trying to return Promise to defendants for a refund of her money.

On appeal, defendants challenge the applicability of Vermont's Consumer Fraud Act to a transaction involving an animate object, and the court's failure to properly instruct the jury on the agency relationship between plaintiff and Dr. LeClair.

I.

Defendants initially contend that the sale of a horse does not come within the covered transactions of Vermont's Consumer Fraud Act because it is not a good or service as defined by the statute. 9 V.S.A. § 2451a(b) defines goods and services as follows: "any objects, wares, goods, commodities, work, labor, intangibles, courses of instruction or training, securities, bonds, debentures, stocks, real estate, or other property or services of any kind."

The purpose of the Vermont Consumer Fraud Act is to protect the public and is remedial in nature. 9 V.S.A. § 2451; State v. Custom Pools, 150 Vt. 533, 536, 556 A.2d 72, 74 (1988). We will not give the definition of "goods"--i.e., "property ... of any kind"--such a narrow construction as to exclude living property, which, just as inanimate objects, is bought and sold. See, e.g., Scholtz v. Sigel, 601 S.W.2d 516, 519 (Tex.Civ.App.1980) (animals are "goods" and, just as inanimate objects, may be the subject of a deceptive trade practice); see generally Travis v. Washington Horse Breeders Ass'n, 111 Wash.2d 396, 759 P.2d 418 (1988) (en banc) (sale of horse with a defective heart violated consumer protection laws).

II.

The principal issue raised by defendants is that the court failed to instruct the jury that Dr....

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5 cases
  • Repucci v. Lake Champagne Campground, Inc.
    • United States
    • U.S. District Court — District of Vermont
    • 25 Abril 2002
    ...598, 547 A.2d 1333 (real estate broker engaged in residential real estate sales was a "seller" under the VCFA); Fancher v. Benson, 154 Vt. 583, 585-586, 580 A.2d 51, 52-53 (1990) (agent who made misrepresentations about health on behalf of the owner of a horse liable under Even construing t......
  • Carter v. Gugliuzzi
    • United States
    • Vermont Supreme Court
    • 22 Mayo 1998
    ...the Act liberally to accomplish its purposes. See State v. Therrien, 161 Vt. 26, 31, 633 A.2d 272, 275 (1993); Fancher v. Benson, 154 Vt. 583, 586, 580 A.2d 51, 53 (1990). In construing the Act, we look to the interpretations accorded similar terms and provisions of the Federal Trade Commis......
  • State v. Morse
    • United States
    • Vermont Supreme Court
    • 30 Agosto 2019
    ...having conceded at trial that court would be on "strong ground" to use this standard (quotation omitted)); Fancher v. Benson, 154 Vt. 583, 587-88, 580 A.2d 51, 53-54 (1990) (holding that defendants waived their claim that trial court erred in failing to instruct jury that plaintiff's agent ......
  • State v. Morse
    • United States
    • Vermont Supreme Court
    • 30 Agosto 2019
    ...having conceded at trial that court would be on "strong ground" to use this standard (quotation omitted)); Fancher v. Benson, 154 Vt. 583, 587-88, 580 A.2d 51, 53-54 (1990) (holding that defendants waived their claim that trial court erred in failing to instruct jury that plaintiff's agent ......
  • Request a trial to view additional results

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