In re Peters Estate

• Decision Date: 04 October 1949
• Citation: 69 A.2d 281,116 Vt. 32
• Parties: IN RE PETERS ESTATE
• Court: Vermont Supreme Court

69 A.2d 281

116 Vt. 32

IN RE PETERS ESTATE

Supreme Court of Vermont

October 4, 1949

May Term, 1949.

Opinion on motion for reargument filed November 10, 1949.

Trial.

1. Authority to take testimony by way of deposition is in derogation of the common law and has always been strictly construed.

2. After issue joined by answer or default every witness must testify in open court or under commission.

3. In jury trial cases, it is the province of the jury to determine questions of fact arising in the case on trial and their presence at every stage of the trial at which such issues are presented is essential.

4. In the absence of statute prohibiting it, court may be held at a place other than the court house.

5. In cases tried by jury, unless otherwise agreed upon or properly taken by desposition, testimony must be given in the presence of the jury.

6. In an action to recover for services rendered a person since deceased it is not necessary for the claimant to show an express agreement to pay. It is sufficient to show that the deceased expected to pay for the services and that the claimant expected payment. Such expectation may be shown by the circumstances under which the services were performed the situation and surroundings of the parties, their pecuniary circumstances and the declarations of the deceased.

7. No definite rule can be laid down as to what the circumstances must be to show mutual expectation to pay for the services. Each case, in this respect, is made to turn largely upon its own peculiar circumstances.

8. Even though evidence is undisputed, it may be of such a character as to afford grounds for opposing inferences of fact and, if so, there is a jury question.

9. Inadmissible testimony received under objection is not for consideration in passing upon a motion for a directed verdict.

10. The Supreme Court has the discretionary power to remand a case that no injustice may be done.

APPEAL FROM PROBATE COURT. Trial by jury, Franklin County Court March Term, 1948. Cushing, J. presiding. Verdict and judgment for the claimant. Reversed and remanded.

Judgment reversed and cause remanded.

P C. Warner for the appellant.

Austin & Edmunds and Wayne C. Bosworth for the appellee.

Present: SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

OPINION

ADAMS

This is an appeal to the County Court from the Probate Court for the District of Franklin from the allowance of the report of the Commissioners in the estate of Nellie M. Peters, which allowed a claim against the estate in favor of one Leah Lawrence. The appeal was taken by the Executor at the request of the Guardian of the residuary legatee under the will of the testatrix. In this opinion the parties will be referred to as the claimant and the estate. Trial was by jury with verdict and judgment in favor of the claimant.

The case is here on exceptions of the estate to the denial of its motions for a directed verdict, to set aside the verdict and to the taking and admission of the testimony of Dr. Berkley, a witness for the claimant.

It appears that, when the case was called for trial in the forenoon and before the jury was impaneled, the attorney for the claimant stated to the Court that he had a very important witness, Dr. Berkley, who was physically unable to be present in court and testify; that he had received that information late the previous afternoon and under the provisions of County Court rule 26 he would like to take the deposition of Dr. Berkley immediately before or after the jury was impaneled and that the deposition be read at the proper time. He then stated "I move for the right to take that deposition".

The attorney for the estate objected because the shortness of time did not give him adequate notice; that he was entitled to formal written notice of the taking; that he gathered from the remarks of the attorney for the estate he was asking the Court to go to the doctor's home and listen to the testimony rather than taking a deposition before a magistrate authorized by law to take such a deposition; that it was irregular and improper and the statute must be followed in taking the deposition or it would not be admissible.

The Court then granted the request of the attorney for the claimant to take the testimony of Dr. Berkley at his residence and ruled that it would impanel the jury and then the Presiding Judge and Assistant Judges would go to the doctor's home and in the absence of the jury take his testimony. Exceptions were allowed the estate on the grounds first stated in the objections of the attorney for the estate and upon the further ground that the testimony was going to be taken before the Presiding Judge and Assistant Judges in the absence of the jury and the statute made no provision for the taking of testimony in such manner and no physician's affidavit had been filed as required by the rule.

The jury was then impaneled and the claimant called as a witness and testified part of the forenoon. The court then said "We will suspend and the jury is excused until two o'clock". The Presiding Judge, the Assistant Judges, the Court Reporter and the attorneys then went to Dr. Berkley's house. He was sworn as a witness and asked his name by the attorney for the claimant. After he had replied the attorney for the estate then said "May the record show

that this hearing (is) at Dr. Berkley's house in the presence of the presiding Judge and the two Assistant Judges without the presence of the jury, and may the record further show that we object to the proceeding, first, because of that, and, second because this deposition, if that is what it purports to be, is not being taken in accordance with the statute and it is a matter of testimony being taken out of court for use in court and that it is wholly improper and illegal." The court replied; "The record may show that and show the objection. Go ahead." The doctor was then examined and cross examined.

In the afternoon, the claimant and other witnesses for her testified before the jury. The testimony of Dr. Berkley was then read to the jury by the Court Reporter from her stenographic notes. Before this was done the attorney for the estate objected on all the grounds previously stated and upon the further ground that if it was to be admitted on the theory that it was a deposition it should have been reduced to writing and signed and sworn to by the witness and if not treated as a deposition but as evidence being given in the case it was taken out of the hearing of the jury, they had no opportunity to evaluate the testimony from observation of the witness and there was no provision of the statute or otherwise for taking testimony in this manner. An exception was allowed on all grounds stated. It does not appear upon what theory the court admitted the testimony.

The provisions of the statute in regard to taking and using depositions are to be found in V. S. 1766-1783, Rev. 1947, inclusive. There are seven reasons enumerated for the taking. The one here in question is the third, namely: "When by reason of age, sickness or other bodily infirmity he (the witness) is rendered incapable of traveling and appearing in court. " The statute in regard to taking and using depositions has been in force for more than one hundred years. It is not necessary to fully trace its history. We find it in R. S. Chap. 31 in 1839. It contained ground three in the indentical language as now.

This court said in the case of Pratt v. Battles, 34 Vt. 391, 399.

"At common law it is regarded as important that testimony shall be given by witnesses in open court, in the presence of the court and jury and of the adverse party or his counsel."

It is a well established doctrine that authority to take testimony by way of deposition is in derogation of the common law and has always been strictly construed. Clark's Admr. v. Wilmington Savings Bank, 89 Vt. 6, 8, 93 A. 265.

It needs no citation of authorities or enumeration of all the provisions of the statute to show that the testimony of Dr. Berkley could not properly have been admitted as a deposition. It is sufficient to say; it was not taken upon proper notice and citation; it was taken before the full court and not before a magistrate as provided in the statute; it was not written out and then subscribed and sworn to by the witness and it was not subscribed and sealed up by any magistrate before whom it was taken. The formalities in connection with its taking might have been waived by agreement but they were not in this case. Farmers & Mechanics' Bank v. Hathaway, 36 Vt. 539.

It remains to consider whether the testimony could have been legally taken and used upon any other theory than by deposition. We have seen that it was taken because a physical condition rendered the witness incapable of traveling and appearing in court. We are aware that in this state testimony in situations comparable to this has been taken before the full court or the Presiding Judge and read to the jury by agreement of counsel. We have never known of its being done over the objection of counsel.

In the case of Farmers & Mechanics Bank v. Hathaway supra, the court had before it the admissibility of a deposition that was not taken in accordance with the statute and in discussing the matter this court said at page 546 "As to the deposition of Hodgkinson. It was not taken in the mode prescribed by statute. Evidence of witnesses may be given in two ways, by producing the witness upon the stand and in the cases provided by statute, by deposition taken in the manner prescribed by the statute. We know of no other modes in cases falling within the provisions of the statute, by virtue of any law in force in this state. If the parties agree to testimony being given in...