Mary Fletcher Hospital v. City of Barre

• Decision Date: 06 January 1953
• Docket Number: No. 383,383
• Citation: 117 Vt. 430,94 A.2d 226
• Parties: MARY FLETCHER HOSPITAL v. CITY OF BARRE.
• Court: Vermont Supreme Court

Page 226

94 A.2d 226

117 Vt. 430

MARY FLETCHER HOSPITAL v. CITY OF BARRE.

No. 383.

Supreme Court of Vermont.

Jan. 6, 1953.

Myron Samuelson, A. Pearley Feen and Paul D. Sheehey, Burlington, for plaintiff.

John Molla, Barre, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

JEFFORDS, Justice.

This is an action of contract to recover for expenses incurred in the care and treatment of one Micheli. It was brought under P.L. § 3926, as amended by No. 52, § 1 of the Acts of 1945. The trial was by the court with a resulting judgment for the plaintiff. The case is here on various exceptions of the defendant.

The material portion of No. 52 is as follows:

'If a transient person suddenly taken sick or lame, or otherwise disabled, while in such condition, is sent or taken from the town where such transient person is so sick, lame or otherwise disabled, to another town for the purpose of entering a hospital therein for care and treatment for such condition, the town from which such transient person was sent or taken to such hospital, shall be at the expense of providing for his necessary care and treatment therein, upon notice by such hospital to the overseer of the poor of such town.'

The first of the exceptions relates to the admission of a copy of the claimed notice from the plaintiff to the defendant. The ground of the exception was that no proper foundation was laid for the introduction of secondary evidence. The reasons advanced in its brief by the defendant in support of this claim of error may be classed as follows: (1) that the envelope containing the notice was not properly addressed and (2) that no demand was made on the defendant to produce the original.

The defendant says that there was no evidence that the envelope was addressed to the 'Overseer of the Poor, City of Barre.' This is not so as a witness testified that the original was mailed to such an address. This evidence was received subject to the exception of the defendant. As this exception is not briefed it is waived and the evidence stands as though not objected to. We could overrule this ground of the exception for this reason but inasmuch as the court found that the original notice was mailed to the 'Overseer of the Poor, Barre, Vermont,' we pass to the question of whether this address was sufficient to raise the presumption of receipt by the overseer of the city of Barre, this question being raised several times by other exceptions of the defendant.

The defendant recognizes the rule laid down in, Town of Barnet v. Town of Norton, 90 Vt. 544, 550, 99 A. 238, to the effect that when a letter, properly addressed, is mailed there is a presumption of its receipt in due course. It seeks to avoid the application of this rule because of its claim of a faulty address in that the letter was addressed merely to the Overseer of the Poor of Barre. It says that as there is in this state a town of Barre as well as a city of that name it is possible that the overseer of that town may have received the notice.

The facts here are similar to those in the Barnet case. In that case a question was raised as to the sufficiency of the address on the envelope in which the notice was sent because it was directed to the 'Overseer of the Poor of the Town of Norton' without giving the name of that official. It was stated, in effect, that the presumption of receipt might be weakened by such an address, but it is raised. In the present case the envelope was addressed merely to the Overseer of the Poor so in that respect the facts in the two cases are the same. The question is, then, whether the fact that there is a town named Barre in this state as well as a city of that name destroys any presumption that the notice was received by the overseer of the poor of the city. In our opinion the question must be answered in the negative. There are several towns in Vermont which have the same names as do certain cities. It is common knowledge that it is the usual, and almost without exception the uniform practice, to address a letter to, for instance, John Smith, a resident of the city of Rutland, merely to John Smith, Rutland, Vermont, although there is a town of Rutland. There can be no real doubt that the letter would be delivered to and received by John Smith of that city although there was a John Smith at that time residing in the town of Rutland. As applied to the present case, although it is possible, as claimed by the defendant, that the notice in question was received by the overseer of poor of the town of Barre, the probabilities are that it was received by the overseer of the defendant city since the Barre post office is in the city of Barre. Here the presumption of receipt may be weakened by such an address but in our opinion it is raised. As in the Barnet case, the presumption is strengthened by the fact that the envelope bore the sender's return card and never came back. There was evidence that the notice was mailed and this implies that the envelope bore the required postage and that it was deposited in the post office. Barnet case.

The claim that demand for the production of the original notice was necessary before the copy could be introduced in evidence is also without merit here. At the time the copy was offered the court asked the attorney for the defendant, 'Do you have the original?' The answer was 'We don't have the original.' In view of this statement by counsel for the defendant a demand for the production of the original would have been a useless act which the law does not require. Kohl v. Bradley, 130 Wis. 301, 110 N.W. 265; Dold v. Munsor, 107 Neb. 501, 186 N.W. 353; Nichols & Shepard Co. v. Marshall, 28 S.D. 182, 132 N.W. 791; Werre v. Northwest Thresher Co., 27 S.D. 486, 131 N.E. 721; General Motors Acceptance Corp. v. American Ins. Co., 5 Cir., 50 F.2d 803; Briggs v. Hervey, 130 Mass. 186; Roberts v. Spencer, 123 Mass. 397; National Live Stock Ins. Co. v. Wolfe, 59 Ind.App. 418, 106 N.E. 390; 32 C.J.S., Evidence, § 844, p. 779.

The cases relied upon by the defendant in support of its claim of the necessity of a demand are not in point. They have to do with situations where the documents in question were in possession of, or available to, the party seeking to use them. In such cases before secondary evidence can be introduced of their contents it must be shown that they have been lost or are otherwise unavailable and that a diligent search has been made for them.

There was no error in the admission of the copy of the notice.

The defendant has briefed several exceptions relating to the court's failure to find as requested. The first two have to do with requests to find that there was no evidence that Micheli was sent or brought from the city of Barre to Burlington for the purpose of entering the plaintiff hospital. There was evidence to warrant the denial of these requests from the witness Clement and the admission sheet of the hospital, plaintiff's exhibit 1.

Several requests were made and denied pointing out claimed defects in the notice. The defect here relied upon is the lack of any statement in the notice...