Jaqueth v. Town of Guilford School Dist.

• Decision Date: 06 March 1963
• Docket Number: No. 1160,1160
• Citation: 189 A.2d 558,123 Vt. 382
• Parties: Harold JAQUETH v. TOWN OF GUILFORD SCHOOL DISTRICT et al.
• Court: Vermont Supreme Court

Page 558

189 A.2d 558

123 Vt. 382

Harold JAQUETH v. TOWN OF GUILFORD SCHOOL DISTRICT et al.

No. 1160.

Supreme Court of Vermont.

March 6, 1963.

Edward A. John, Brattleboro, for plaintiff.

Gannett, Oakes & Weber, Brattleboro, for defendants.

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

BARNEY, Justice.

The defendant school district terminated at the end of the second year a three-year contract with the plaintiff to transport school pupils. The plaintiff brought suit for the loss of his expected return on the remaining year's life of the contract. His claim was that the defendant had no right or cause to put an end to the contract ahead of its term. The jury returned a verdict for the defendant and the plaintiff appealed.

The errors he complains of all relate to evidence that the plaintiff says was improperly admitted. To avoid putting a premium on trivial error and to limit retrials, as far as possible, to situations marked by a failure of justice, this Court requires an appellant to do more than establish error. As complaining party, this plaintiff must demonstrate that the error was prejudicial and injuriously affected his rights. Towle v. St. Albans Publishing Co., 122 Vt. 134, 139, 165 A.2d 363.

The fact that the parties had entered a contract was recognized in writing only in the form of the following notation in the minutes of the district school board:

'Motion made by H. Cutting and supported by R. Gaines to give Harold Jaqueth a contract for three (3) years at a price of $34.50 a day; and by so doing broke his present contract. So voted.'

To supplement this, the defendant put in evidence, over plaintiff's objection, two manuals relating to school bus driving promulgated by the Department of Education. These were received as part of the parties' understanding as to the terms of the contract. The plaintiff's position is that, since the manuals were not incorporated into the school board memorandum of the contract, they cannot either expressly or impliedly be considered as conditions of the contract by which plaintiff was bound.

However, the plaintiff himself testified that he understood that these manuals formed part of the rules and regulations he was supposed to follow as a school bus operator. His testimony also developed that he attended yearly training sessions, prior to and during the life of this contract, held by the State for school bus drivers. The manuals in evidence were used in connection with these training sessions.

Although a memorandum was made in writing evidencing the agreement, the contract was in essence an oral one. There was no joint writing spelling out terms and conditions. Many of the terms were left to implication. For example, the State requires certain safety equipment to be carried on school busses, and requires that the vehicle conform to certain mechanical minimums. It is implicit in the agreement between the plaintiff and the defendant that the plaintiff's vehicles must meet State standards. That is to say, the State's regulations in this respect were enforceable not only directly by the State, but by the defendant on its own behalf as a part of the contract. This is likewise true of the State's regulations concerning the duties of school bus operators. The plaintiff recognizes this when, on direct examination as part of his own case, he introduced the subject of his own familiarity with these regulations. If there was any uncertainty about the relevance and materiality of these manuals standing alone, which we doubt, certainly plaintiff's testimony obviated it.

The next matter briefed deals with what the plaintiff characterizes as instances of witnesses improperly testifying as to their opinions, inferences and conclusions.

The first of these deals with a comment by a witness that he thought maybe the plaintiff was 'a little emotional anyway.' This response came to a question inquiring what the witness meant when he described the plaintiff as upset about news of his discharge. The plaintiff asked that the response be stricken, which was denied.

He urges in this Court that evidence as to another's mental state cannot be received except by administrative necessity, which does not appear here. Laying aside the question of prejudice to the plaintiff's case, this evidence partook more of the nature of a shorthand description of the appearance or impression conveyed to the witness by the plaintiff's actions and physical demeanor. Where the impact of the physical facts cannot convey with fidelity the impression they created at the time in the observer, he may be allowed to add his own conclusion, judgment or opinion. This is the rule in State v. Persons, 114 Vt. 435, 438, 46 A.2d 854, and it leaves a large discretion in the trial court with respect to the striking of such testimony. We are not disposed to tamper with the judgment of the trier of fact here.

Something very like the same situation occurred when another witness, in her testimony, replied to a question which, in effect, asked if the return of the school bus sooner than the customary time on the occasions she had mentioned gave her concern.

Her answer was unresponsive, since the question called merely for an affirmative or negative expression. She said, 'I felt probably he was driving faster than common.' The plaintiff then objected to the question, to which the court replied, 'We will take the answer. You may have an exception.' The objection following the answer was not accompanied by a motion to strike out the answer, so called for no ruling as to the question. Fadden v. McKinney, 87 Vt. 316, 325, 89 A. 351. The answer remains in the record unchallenged. Lucas v. Kelley, 102 Vt. 173, 176, 147 A. 281.

But, taking into account the possibility that the trial court's expressed intention to let the answer stand may have led the plaintiff to fail to make the required motion to strike, we will reach the point the plaintiff has briefed.

The evidence reveals that the witness was a teacher who, in rotation with other teachers, had the duty to supervise the release of the children from school for the purpose of boarding the busses. These busses made two trips, and, by understanding with the plaintiff, were free to leave six minutes after loading time started. The busses had the same routes each day. The duty teachers were therefore conscious of the time interval between the first departure and the return for the second trip. It was to the return of the bus in this context that the witness's testimony related.

The plaintiff's claim of prejudice in the admission of this testimony is compromised by the fact that another witness, also a duty teacher, had already testified to the same effect without opposition. The testimony that came in without objection was that the bus ordinarily returned in thirty-five minutes, but if the plaintiff was upset, the interval decreased to twenty minutes. This teacher testified that she observed that when he made these quick trips, the plaintiff's manner of driving when he left the school grounds and returned was rather fast, faster than his normal driving. She said she felt the children were not safe.

Going back to the witness whose testimony is the subject of the objection argued here, we find her evidence to be of the same tendency. She had already testified that she had noticed, on more than one occasion, that the plaintiff returned for the second load of children in a much shorter time on days he was observed to be irritable, than on normal days. In view of the evidence already in the case, and taking into account the fact that the basis for the witness's conclusion had been testified to, no error can be predicated on her stating that conclusion in this case. State v. Persons, supra, 114 Vt. 435, 438, 46 A.2d 854.

Near the end of the case John Kristensen, a member of the school board concerned, was on the stand. He was asked by the defendant his reasons for moving to terminate the services of the plaintiff. At that point there was an objection on behalf of the plaintiff: 'I don't think reasons are...