L'Ecuyer v. State Highway Bd.
Decision Date | 02 February 1965 |
Docket Number | No. 305,305 |
Citation | 207 A.2d 260,124 Vt. 462 |
Court | Vermont Supreme Court |
Parties | Robert W. L'ECUYER and Theresa M. L'Ecuyer v. STATE HIGHWAY BOARD. |
Lisman & Lisman, Burlington, for plaintiff.
Joseph E. Frank, Burlington, for the State.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
The plaintiff appealed to county court from the award of defendant, State Highway Board, for certain land and slope rights taken for highway purposes from their residential property located on College Parkway and fronting on Route 15 in the Town of Colchester. On trial, the defendant claims the court erroneously admitted evidence by its expert in cross-examination of prices paid by the defendant for other takings and failed to instruct the jury concerning such evidence.
The defendant improved its appraiser, James G. Thetford, as an expert. In direct examination he testified, among other things, respecting his appraisal of plaintiffs' property and other properties in the vicinity. He testified the elements of damage to plaintiffs' property were the taking of land, taking of slope rights and two trees, and the change in the grade of the slope on the front lawn and gave the values he had placed on each.
The testimony which the defendant claims was erroneously admitted to its prejudice came in during cross-examination of this witness. The witness upon being cross-examined about the change in slope and his allowance for it, gave testimony which lead up to an objection by defendant's counsel as follows:
'Mr. Frank: Object.
'The Court: We will take the answer.'
As shown, the basis of defendant's objection was not made known to the court. The transcript shows this question was not answered although the objection was overruled and no answer was insisted upon by plaintiffs' counsel. The examination then continued as follows:
No objection was made to any of this testimony, the only objection being during the first quoted testimony. Defendant contends it then took a timely objection and claims this objection extended to the entire line of the testimony just quoted as provided by 12 V.S.A. § 2381. This statute provides that formal exceptions are no longer required under present court procedure to preserve a question for review. The final sentence of the statute reads: 'Subsequent objection to the same legal point shall be unnecessary and the admission or exclusion of evidence of like nature thereafter shall be deemed to be subject to the same objection as originally stated.'
The land taken by the defendant contained 240 square feet. The slope rights area was 600 square feet. After interrogating the witness concerning the detail of his appraisal of plaintiffs' land and the allowances he made for the various items of damage involved in the taking, the examiner then asked the witness the questions first quoted above. This testimony as it clearly indicates dealt with appraisals made by the witness of small areas on other properties located on LaPointe Street in Winooski. The question objected to asked only if the witness could remember what kind of allowances he made on those small back yard areas. The question was dropped without answer after the objection. The testimony which followed the objection related to what the highway department paid for those small areas. Such payments were handled by the department prior to the review of the appraisals made by the witness. This line of evidence was different in nature than the question objected to. The first evidence was confined to the allowances the witness had made in his appraisals and the second evidence only concerned what action had been taken by the highway department. Nothing being shown to the contrary by the record, we must assume that the court below understood the objection went to the question objected to and not to evidence different in nature elicited thereafter.
The dissimilarity in the nature of the evidence made an objection and ruling of the trial court mandatory to preserve the question of its admissibility in this court. An objection to evidence must be made when the evidence is offered, Dunnett & Slack v. Gibson, 78 Vt. 439, 63 A. 141, or when the question is asked, Delaney v. Erie R. Co., 97 N.J.Law 434, 117 A. 395, 396. Where evidence comes in without objection, all right of objection is waived. Towle v. St. Albans Pub. Co., 122 Vt. 134, 140, 165 A.2d 363; Edmunds Bros. v. Smith, 95 Vt. 396, 401, 115 A. 187.
The record discloses defendant had in no manner made its position known to the court below nor was the claimed fault called to its attention either by adequate objection or motion to strike. No question may be brought to this court except that upon which it is made to appear that the trial court has had fair opportunity to pass judgment. Merrill v. Reed, 123 Vt. 248, 254, 185 A.2d 737, and cases there cited.
We held in City of Barre v. Brown, 121 Vt. 469, 471, 160 A.2d 885, 887--'Although exceptions are unnecessary under our new procedure Act (12 V.S.A. § 2381) a party must either object at the time a ruling on a question of law is made below or make known the action which he desires the court to take, otherwise there is nothing for this Court to consider or review.' See, also, Edmunds Bros. v. Smith, supra.
For lack of proper and adequate objection, the question defendant attempts to raise is not for consideration.
At the conclusion of the court's charge to the jury, the defendant made this objection: The transcript does not show any comment, or a ruling, by ...
To continue reading
Request your trial-
Turgeon v. Schneider
...9A V.S.A. §§ 2-313 and 2-314(1), the court was not required to elaborate any further in its charge. See L'Ecuyer v. State Highway Board, 124 Vt. 462, 466-67, 207 A.2d 260, 263-64 (1965). With regard to the claim that the jury was required to find that a warranty was made on the silo, twice ......
-
Currier v. Letourneau
...to which the court is to elaborate on the points charged lies within the sound exercise of its discretion. L'Ecuyer v. State Highway Board, 124 Vt. 462, 466-67, 207 A.2d 260 (1965). We have reviewed the entire text of the court's instruction on the question of the conspiracy, and, as a resu......
-
Hoague v. Cota
...to the sound discretion of the court. Currier v. Letourneau, 135 Vt. 196, 204, 373 A.2d 521, 527 (1977); L'Ecuyer v. State Highway Board, 124 Vt. 462, 467, 207 A.2d 260, 263-64 (1965). We see no reason for a different rule where the jury's request for a re-reading of a portion of the instru......
-
Brown v. Pilini
...Court except that upon which it is made to appear that the trial court had a fair opportunity to pass judgment. L'Ecuyer v. State Highway Board, 124 Vt. 462, 465, 207 A.2d 260. It was also the evidence of the plaintiff that under the terms of the agreement he had made with the defendant tha......