Heaton Hospital, Inc. v. Emrick

• Decision Date: 07 April 1970
• Docket Number: No. 138-69,138-69
• Citation: 128 Vt. 405,264 A.2d 806
• Court: Vermont Supreme Court
• Parties: HEATON HOSPITAL, INC. v. Laura P. EMRICK and State of Vermont, Trustee.

Page 806

264 A.2d 806

128 Vt. 405

HEATON HOSPITAL, INC. v. Laura P. EMRICK and State of Vermont, Trustee.

No. 138-69.

Supreme Court of Vermont.

April 7, 1970.

Martin, Free & Bernasconi, Barre, for plaintiff.

Laura P. Emrick, pro se.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

The defendant's son, Steven Emrick, a minor, was admitted to plaintiff, Heaton Hospital, Inc., on June 5, 1968 and discharged from the hospital on June 14, 1968. The total amount due for its services was $330.80. Of this amount $260.20 was paid by an insurance company. Plaintiff seeks to recover the balance of $70.60 together with interest and costs.

The case was heard by the District Court of Vermont, Unit No. 5, Washington Circuit, and findings of fact were filed. The court determined that the foregoing balance was owning by the defendant and entered judgment in favor of the plaintiff in the amount of $70.60, together with interest of $4.99, plus taxable costs of $14.80, a total of $90.39. The defendant has appealed. The State of Vermont was summoned as trustee in said cause and disclosed that it owed the defendant for wages $130.52 subject to the statutory exemption. In the light of the Wisconsin case, Sniadach v. Family Finance Corporation of Bay View et al., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, which ruled that prejudgment garnishment of wages, without notice and an opportunity to be heard, is unconstitutional as a violation of procedural due process, the State of Vermont moved that the cause of action as to the trustee be dismissed. This motion was granted prior to trial.

For the purpose of making out its case, the plaintiff called the defendant as a witness and was permitted to examine her under the rules applicable to the cross-examination of a witness. Prior to her examination she stated 'I object to taking the stand but I will if the Court wants me to.' The Court then stated 'You are in Court and can be called as a witness.' The defendant did not indicate to the court the reason underlying her objection to testify. At no time did she decline to answer any question upon the ground that her testimony, or any of the answers, would tend to criminate her.

The defendant first claims in her brief that she was denied due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States because she was directed by the trial court to take the witness stand and testify when she had objected to doing so.

The privilege not to give self-incriminating evidence does not exist for practical purposes unless claimed by the person entitled to it. 58 Am.Jur. Witnesses, section 79.

The privilege against self-incrimination extends to the right to refuse to testify as to a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the witness or would be the source from which evidence of his commission of a crime might be obtained. 98 C.J.S. Witnesses, § 436. See cases cited under Note 40.

A witness is not privileged to refuse to answer on the ground that his answer might expose him to a civil action or pecuniary loss, as by tending to establish a debt. 98 C.J.S. Witnesses, § 446.

Whatever may have been the motive for defendant's objection to testify it was not made known to the court below. There is nothing in the record, or in defendant's brief, from which it may be even remotely inferred that the testimony in question produced any link in a chain of evidence which would tend to incriminate the defendant of any criminal offense.

This point was not made or urged in the trial court. Having been made in this Court for the first time, it is not appropriate to raise the question here. Verchereau v. Jameson, 122 Vt. 189, 193, 167 A.2d 521. A question cannot be brought to this Court upon which it is made to appear that the trial court had no fair opportunity to pass judgment. Kinney v. Cloutier, 125 Vt. 109, 112, 211 A.2d 246. Defendant's claim of self-incrimination is without substance or merit.

In addition, the defendant claims that 12 V.S.A. section 1641 entitled 'Adverse party as witness' is contrary to the Fourteenth Amendment to the Constitution of the United States, and that it is invalid as applied to the instant case. This question was not raised below and therefor is not for consideration here. Verchereau v. Jameson, supra, 122 Vt. 193, 167 A.2d 521.

Plaintiff, as well as the defendant, each refer to section 1641, supra, in their briefs as being in effect at the time of trial. We call attention to the fact that section 1641 (formerly V.S. section 1742) was replaced and its scope enlarged by No. 261, section 68, of the Public Acts of 1959. Section 1641, supra, was superseded by section 43 of Act No. 261, and with certain changes is now covered and contained in 12 V.S.A. section 1641a.

In our interpretation of 12 V.S.A. section 1641, and before its repeal, this Court has repeatedly held that where the witness is a party, there is a right to cross-examine on any material matter whether covered by direct examination or not. Sawyer v. Ewen, 125 Vt. 196, 198, 212 A.2d 628; Knight v. Willey, 120 Vt. 256, 261, 138 A.2d 596. This right was preserved in 12 V.S.A. section 1641a, which replaced section 1641.

The established rule is that every presumption is to be made in favor of the constitutionality of an act of the legislature and it will not be declared...