Florence M. Dailey v. Town of Ludlow

• Decision Date: 20 November 1929
• Citation: 147 A. 771,102 Vt. 312
• Parties: FLORENCE M. DAILEY v. TOWN OF LUDLOW
• Court: Vermont Supreme Court

147 A. 771

102 Vt. 312

FLORENCE M. DAILEY v. TOWN OF LUDLOW

Supreme Court of Vermont

November 20, 1929

October Term, 1929.

Harmless Error---Necessity of Calling Claimed Error to Attention of Trial Court---Exclusion of Evidence on Cross-examination Having No Tendency To Meet or Rebut Testimony Already Given---Inadequate Briefing---General Exception---Domicile---Requisites To Acquiring Domicile.

1. In action against town to recover taxes paid under protest error, if any, in admitting certain evidence to show invalidity of assessment upon which taxes were based, held cured by action of court, at close of evidence, in withdrawing issue from consideration of jury.

2. In such action, claimed shortage of trial court in failing to instruct jury that evidence bearing upon issue of invalidity of assessment was stricken from record, not called to trial court's attention, cannot be taken advantage of in Supreme Court.

3. In such action, admission in evidence of receipt book of defendant town, containing record of receipt by it of money paid by plaintiff under protest, subject to exception that receipt delivered to plaintiff was best evidence, and that book did not show various items included in payment, which would appear in receipt, if error, held harmless, where later on defendant introduced original tax receipt in evidence.

4. In such action, where issue in case was whether plaintiff resided in defendant town on April 1, 1927, admission of parol testimony as to how plaintiff had registered at hotels prior to October, 1926, which was entirely immaterial to any issue on trial, over objection that it was not best evidence if error, held not shown to be prejudicial.

5. In such action, where plaintiff had testified on direct examination without objection that since October, 1926, and prior to September 16, 1927, she had always registered her address as "Rochester, N. Y., The Sagamore," exclusion of sheets of hotel register in defendant town upon which plaintiff's name ap- peared, but no address or residence, held proper, where date in each instance was subsequent to September 16, 1927, since they had no tendency to meet or rebut testimony already given.

6. Where excepting party, briefing error claimed in bill of exceptions, cited no authorities, stated no grounds, and did not support claim by any argument, briefing is inadequate and question will not be considered by Supreme Court.

7. In action against town to recover taxes paid under protest where it appeared from transcript that trial court instructed jury that verdict, if for plaintiff, should be for certain sum, and defendant's counsel excepted "to the computation of the tax wherein the Court says that if the plaintiff is entitled to recover, she is entitled to recover the sum of $2,104.63," and, upon court then asking whether he questioned computation for reason that village tax and district tax were not excluded therefrom, answered, "I don't claim your Honor's figures are wrong," held that exception did not reasonably indicate to court fault found with its ruling, and was not appropriate to raise question in Supreme Court that instruction was erroneous because sum specified by trial court included both school district and village corporation tax, whereas plaintiff at most would only be entitled to recover town tax.

8. Exceptions "to the failure of the court to charge as requested," are too general to require attention in Supreme Court.

9. In action against town to recover taxes paid under protest, where question was whether plaintiff was domiciled in defendant town on date of tax assessment, if she had on that date become domiciled in city of another state, her domicile in defendant town was thereby terminated, and even if she later abandoned her domicile in such city by moving to another place in that state, her domicile in defendant town would not be thereby revived, nothing more appearing.

10. Acquirement of a new domicile involves a change of residence with an intention to make new location a permanent home.

11. In absence of statutory requirement, no certain or definite duration of residence is requisite to accomplish acquisition of a new domicile, and change of residence even for a short time with intention in good faith to change domicile has that effect.

12. Court having instructed jury in elements necessary to constitute change of domicile, it was unnecessary to charge what might be requisite to retain new domicile when acquired.

ACTION OF CONTRACT against town to recover taxes paid under protest. Plea, general issue. Trial by jury at the December Term, 1928, Windsor County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Ernest E. Moore and Herbert G. Tupper for the defendant.

Raymond Trainor and Paul R. Dailey for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

MOULTON

The plaintiff was assessed for taxes upon personal property by the defendant town for the year 1927. She paid the amount assessed, under protest, and brought suit to recover the sum so paid, claiming that the assessment was invalid and that she was not domiciled in the defendant town on April 1, 1927. She had a verdict and judgment in the court below, and the case is here upon the defendant's exceptions.

The first six exceptions are to the admission of certain evidence offered by the plaintiff for the purpose of showing the invalidity of the assessment upon which the taxes were based. But the error, if any, was cured because, at the close of the evidence, the trial court withdrew this issue from consideration by the jury. Armstrong v. Noble, 55 Vt. 428, 432; Green v. LaClair, 89 Vt. 346, 349, 95 A. 499; De Nottbeck v. Chapman, 93 Vt. 378, 379, 108 A. 338; Berkley v. Burlington Cadillac Co., Inc., 97 Vt. 260, 269, 122 A. 665. It is urged that the court did not instruct the jury that the evidence bearing upon the issue of the invalidity of the assessment was stricken from the record. However this may be, the claimed shortage was not called to the attention of the trial court, and so no advantage is to be taken of it here. Dailey v. Bond, 94 Vt. 303, 304, 305, 111 A. 394.

The plaintiff offered in evidence the receipt book of the defendant town, containing the record of the receipt by it of the money in question. It was received, subject to defendant's exception, upon the grounds that the best evidence of the payment would be the tax receipt delivered to the plaintiff; and that the book did not show the various items included in the payment, which would all appear in the receipt. Here again, if there was error, it was harmless, because, later on, the defendant introduced the original tax receipt in evidence. Residents of Royalton v. C. V. Ry. Co., 100 Vt. 443, 450, 138 A. 782; Mears v. Daniels, 84 Vt. 91, 96, 97, 78 A. 737; People's Nat. Bank v. Brunelle, 101 Vt. 42, 47, 140 A. 160; State v. Tubbs, 101 Vt. 5, 18, 139 A. 769.

The issue upon which the case went to the jury was whether the plaintiff was domiciled in the defendant town on April 1, 1927. She claimed, and her evidence tended to show, that she ceased to reside there in October, 1926. She was asked in direct examination: "At times before October, 1926, when you have registered your name at hotels, how have you registered?"

Subject to exception, that this was not the best evidence, she answered: "I have registered Ludlow, Vermont,' or Rochester, New York."'

It is argued that no foundation was laid for the receipt of secondary evidence and that parol evidence of the contents of the hotel registers was therefore inadmissible under the rule stated in In re Chisholm's Will, 93 Vt. 453, 455, 108 A. 393. But the question related to the period before October, 1926, when the plaintiff's residence was not in question. Her method of registration in hotels during that time was entirely immaterial to the issue on trial. If the ruling was error, it is impossible to see how the rights of the defendant could, under the circumstances, have been injuriously affected by it. Parker v. Roberts, 99 Vt. 219, 225, 131 A. 21, 49 A.L.R. 1382; Berkley v. Burlington Cadillac Co., Inc., supra, and cases cited.

Later on in her direct examination the plaintiff testified without objection that since October, 1926, and prior to September 16, 1927, she always registered her address as "Rochester, New York, the Sagamore." To meet this testimony, the defendant offered three sheets from the register of the Okemo Tavern, in Ludlow, upon each of which the name of the plaintiff appeared, but no address or residence. Subject to defendant's exception they were excluded, and rightly so, because the date in each instance was subsequent to September 16, 1927, and they had no tendency to meet or rebut the testimony already given.

The plaintiff was permitted to show, subject to exception by defendant, that in 1928 she paid an income tax to the State of New York for the year 1927. All that the defendant says in its brief concerning...