John F. Smith v. City of Rutland

• Decision Date: 07 October 1925
• Parties: JOHN F. SMITH v. CITY OF RUTLAND
• Court: Vermont Supreme Court

130 A. 714

99 Vt. 183

JOHN F. SMITH v. CITY OF RUTLAND

Supreme Court of Vermont

October 7, 1925

February Term, 1925.

ACTION OF CONTRACT under G. L. 4222. Trial by Rutland city court Leonard F. Wing, City Judge. Defendant's demurrer to complaint overruled. Judgment for plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed and cause remanded.

Clayton H. Kinney, city attorney, for the defendant.

James P. Leamy for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

TAYLOR

The plaintiff is the keeper of the Rutland county jail. The action is contract based on G. L. 4222 to recover for the board and lodging of two prisoners while confined in such jail. The trial was by court with judgment for the plaintiff. The defendant argues exceptions (1) to the overruling of its demurrer to the complaint; (2) to the overruling of its motion for judgment at the close of the evidence; (3) to the exclusion of certain evidence; and (4) to the judgment rendered. The questions raised by these exceptions involve the construction to be given the statute and its application to the facts of this case. The exception to the overruling of defendant's demurrer is not available, for the demurrer was waived when the defendant elected to go to trial on the merits. White's Admx. v. Central Vermont Ry. Co., 87 Vt. 330 337, 89 A. 618; Niles v. Central Vermont Ry Co., 87 Vt. 356, 360, 89 A. 629; Citizens Savings Bank & Trust Co. v. Northfield Trust Co., 89 Vt. 65, 94 A. 302, Ann. Cas. 1918A, 891. However, the controlling question was saved by the other exceptions.

So far as material here G. L. 4222 provides: "If a transient person * * * is committed to jail, and is in need of relief, or has been committed to jail for any offense and at the time of his discharge therefrom is in need of relief, the jailer * * * shall be at the expense of relieving and supporting such person until he represents his situation * * * to the overseer of the poor of the town in which the offense was committed, after which the overseer of the town so notified shall provide for his support; and, if the overseer neglects to provide for such support, the person so supporting him may recover therefor in an action of contract, on this statute, against the town so notified; and if such transient person is not of sufficient ability to defray the expense of his support, with the other contingent charges, the town defraying such expense may recover the same in an action of contract, on this statute, from the town in which such person last resided three years supporting himself and family."

The following facts appeared by the uncontradicted evidence: One Julius L. Grover was committed to the Rutland county jail by Sheriff Adams on a certified execution in favor of G. Frank Hendee of Pittsford, wherein Grover is described as of Hubbardton in Rutland county. The action on which the execution was based involved the cutting of timber belonging to Hendee. It appears by the officer's return on the execution that Grover's place of abode at the time of the arrest was in the city of Rutland, at which place the arrest was made. Benjamin Trudo was committed to the Rutland county jail by Sheriff Adams on a warrant issued by the clerk of Rutland county court pursuant to G. L. 3618, in a bastardy proceeding pending in said court. The warrant recites the prosecution of Trudo, described therein as of Brandon in Rutland county, by one Cecille M. Herriman of said Brandon on a complaint of bastardy; the determination by said court that Trudo was the father of the child described in the complaint; the orders made by the court for the support of the child and the assistance of the complainant; and the failure of Trudo to comply with such orders during the term of court at which they were made. In both cases the plaintiff represented the situation of the prisoners to the overseer of the poor of the city of Rutland, who, it appears, took no action in the premises.

No other facts appeared in evidence respecting the nature of the actions in which these commitments were made or the places where the acts were committed which constituted the causes of action. The defendant claimed that the act out of which the several actions grew was the "offense" contemplated by the statute and offered to show by the files and records of court and the testimony of witnesses that the cause of action in the Trudo case accrued in the town of Bridport, Vermont, and that the cutting of timber in the Grover case was on the land of Hendee in the towns of Pittsford and Hubbardton, Vermont, as showing that the "offenses" for which the paupers were confined in jail were committed outside the city of Rutland. The evidence was excluded, to which the defendant seasonably excepted. No question is made but that these prisoners were transient persons within the meaning of the statute and that they were in need of relief. The issue is whether in the circumstances the statute makes the city of Rutland liable in this action. This presents the question (a) as to what is an offense within the meaning of the section; (b) what town is liable thereunder for the board and lodging of transient persons confined in jail on civil process. A study of the statute and the history of its development will dispel much of the doubt and difficulty suggested in argument.

G. L. 4222 is contained in the chapter of the statutes relating to the support of paupers. Its primary purpose is to provide for the relief and support of transient persons who are in need of relief. There are two classes of such persons within the purview of the section. The first, and the one contemplated from the beginning of the pauper law, includes transient persons in need of relief who are suddenly taken sick or lame, or are otherwise disabled and confined to any house in a town. In such case the person at whose house the transient is, is made chargeable with the expense of relieving and supporting him, until he represents his situation to the overseer of the town. In such case the notice is given to the overseer of the town where the transient person is confined. The other class includes transient persons who are committed to jail and are in need of relief. The provisions relating to such persons first appear in the revision of 1839 as an amendment of the earlier statute relating to the relief of transient persons generally. This amendment left the jailer to sustain the expense of relieving and supporting such a prisoner until he should represent his situation to the overseer of the poor of the town. As the law then stood, the notice was to be given to the overseer of the poor of the town where the jail was located, after which such overseer was required to provide for the prisoner's support at the expense of the town. The town furnishing the support was given an action to recover the money so expended from the town in which the transient person was legally settled, if he was not of sufficient ability to defray the expense of his support. R. S. Ch. 16, § 12. The section remained substantially the same until the change in the pauper law in 1886, when it was amended to conform to the new plan which substituted residence in a town in place of legal settlement as a basis of ultimate liability for a pauper's support. The provision for obtaining the relief in the first instance remained as before, and the town where the jail was located was given an action to reimburse itself against the town of the prisoner's residence.

In this connection we should notice other provisions of the statutes which relate to compensation for the board and care of prisoners confined in jail, and which shed light on the proper construction of the provision in question. At an early date every person committed to jail for an offense or misdemeanor was required to pay for his support while in jail, if he had the ability to do so. Acts of February Session, 1797, p. 19, § 6. This provision disappeared in the revision of 1839. In 1821 an act was passed providing for the relief and support of poor persons confined in jail who had no legal settlement in the State. It required that overseers of the poor should relieve and support all poor persons confined in jail in their towns, having no legal settlement within the State, and that the expense thereof should be paid out of the State treasury. No. 16, Acts of 1821. At the same session it was enacted that the...