H. F. Flint v. A. E. Holman
| Citation | 74 A. 232,82 Vt. 513 |
| Parties | H. F. FLINT v. A. E. HOLMAN |
| Decision Date | 30 October 1909 |
| Court | Vermont Supreme Court |
October Term, 1909.
PETITION for a new trial, brought to the Supreme Court for Orange County at its October Term, 1909, and then heard on the affidavits in support thereof.
Petition dismissed with costs.
N L. Boyden, Senter & Senter and David S. Conant for the petitioner.
March M. Wilson and R. M. Harvey for the petitionee.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
This is a petition for a new trial. The defendant, as the case is entitled, being the petitioner. The plaintiff brought his action of case for slander against the defendant and on trial prevailed. The defendant brought the case to this Court on exceptions. On consideration of the exceptions no error was found, and the plaintiff's judgment was affirmed. The case is Flint v. Holman, 82 Vt. 297, 73 A 585. The plaintiff and the defendant were both residents of the Town of Braintree in the County of Orange, and the slander alleged in the declaration and found by the jury, was the statement by the defendant, of and concerning the plaintiff, that "he had stolen from the town." One of the witnesses who testified to the utterance of the slander was Joseph Tilson, who gave evidence that on the occasion in question, which was a meeting concerning the matter of license commissioners for the Town of Braintree held in the parlor of the Braintree Inn, Holman said of Flint that "he was not an honest man," that "he would steal anything that he could get his hands on," and that "he had stolen from the town." The witness Tilson testified further with particularity.
In support of the petition for a new trial the defendant presents the affidavit of Vilas Flint who says that he was at the meeting in question, saw all the people in the room and knew them all by name, and that he did not see Joseph Tilson in the room during the meeting. This affiant testifies further that he heard what Holman said at the meeting with regard to Flint, and that Holman did not say that Flint had ever stolen from the town or from any person or corporation.
The defendant also presents the affidavit of Frank H. Thresher. This affiant testifies that he was present at the meeting, that he did not see Tilson there, and that he was not there unless he was in a part of the room indicated. This affiant testifies that Holman there said of the plaintiff "give him a chance and he would steal the whole town," but that Holman did not say that Flint had ever stolen anything from any one.
Henry E. Farr in behalf of the petitioner makes affidavit that he was present at the meeting in question, that he knew every man there and that Tilson was not there. Farr's testimony is that Holman did not say that Flint had stolen from the town but that he said of Flint "give him a chance and he would steal the whole town."
The plaintiff presents certain depositions. Herbert Snow testifies that he was present at the meeting in question and that he saw Joseph Tilson there and about the hotel.
Asa Snow deposes that he was at the meeting in question, and that Tilson was there.
George I. Ford deposes that he was at the Inn on the occasion of the meeting, that when the discussion in question was proceeding he stood near the door leading into the room where the meeting was, and that he had seen Tilson go into that room.
Guy Clough deposes that he was at the meeting, that he was there while Flint was under discussion, and that Tilson was there all that time.
Frank H. Thresher, whose affidavit for the petitioner has been referred to, while repeating that he did not see Tilson in the room on the occasion referred to, says that Tilson was about the hotel that day and might have been at the meeting without being seen by the deponent from the latter's position.
Henry C. Phillips deposes that he was at the meeting, and that when he left the room in the afternoon he saw Tilson in the hall just outside the door.
E. I. Clafflin deposes that he was at the meeting and that Tilson was there, and that Tilson was there during the discussion of Flint by Holman.
Dwight L. Fisher deposes that he was at the meeting and that Tilson was there sitting next to him.
At a somewhat later time than the taking of the affidavits and depositions already referred to the petitioner, Holman, took the deposition of S. H. Thayer, and of the landlord of the Braintree Inn, Jerome E. French, and inquired of them as to searches made of the hotel register for Tilson's name searches made with a view, apparently, of showing that Tilson did not, as he claimed, register at the time of the meeting there which has been referred to. The register was not produced, and whether or not the testimony elicited is admissible it is of such a character that it is of no value to the petitioner. French further testifies that he does not recall seeing Tilson at the hearing in question but cannot say whether he was there or not. The effort to show that on a new trial the testimony of Tilson would be eliminated or its weight seriously impaired must be considered to have failed. Besides, Tilson was not the only witness who testified to the slander. Herbert Snow testified on the trial that, on the occasion in question, in speaking of Flint,...
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