Town of Barnet v. Town of Norton

• Decision Date: 16 November 1916
• Citation: 99 A. 238,90 Vt. 544
• Court: Vermont Supreme Court
• Parties: TOWN OF BARNET v. TOWN OF NORTON.

99 A. 238

90 Vt. 544

TOWN OF BARNET

v. TOWN OF NORTON.

Supreme Court of Vermont. Caledonia.

Nov. 16, 1916.

Exceptions from Caledonia County Court; Zed S. Stanton, Judge.

General assumpsit by the Town of Barnet against the Town of Norton, to recover for the support of a pauper. Judgment was rendered on a verdict ordered for plaintiff, and defendant excepted. Affirmed.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Dunnett & Shields, of St. Johnsbury, for plaintiff. C. R. Powell, of Island Pond, and Simonds, Searles & Graves, of St. Johnsbury, for defendant.

POWERS, J. This action is brought to recover expenses incurred in the relief of Mrs. Morency Lavely, a pauper. At the close of the plaintiff's evidence, the defendant rested and moved for a directed verdict. This motion was overruled, and the defendant excepted. Thereupon, the defendant not having asked leave to withdraw its rest or to be allowed to introduce evidence, the court directed a verdict for the plaintiff, to which the defendant excepted. Judgment was rendered on this verdict, and to this the defendant excepted. There was evidence below, admitted without objection, showing that Mrs. Lavely acquired a residence under P. S. 3664, while living in Norton with her husband, who died in 1908. The defendant has not, either there or here, asserted the contrary. The record shows that she has not acquired a new residence since her husband's death. She has lived in Lyndon and in Burke during this time, but she was not in either town long enough to gain a residence; and, though she lived in Barnet more than three years, she was not self-supporting during this time, for the overseer of Barnet began to aid in her support soon after she moved there, and continued to assist her from time to time until her death. So if she became a pauper in Barnet, so that this assistance was rendered under the law, she gained no residence there.

While Mrs. Lavely lived in Barnet, she made her home with one or the other of her married daughters, Mrs. Blais and Mrs. Hilliard. She spent most of her time at Hilliard's and was there when assisted by the town. Both Blais and Hilliard were laboring men, and, so far as their immediate families were concerned, were self-supporting. Neither Mrs. Blais nor Mrs. Hilliard had any property or income. The time came when Hilliard decided that he could not support Mrs. Lavely any longer, and he and his wife so notified the overseer, and asked for relief, which was furnished, as hereinbefore stated. The defendant argues that Mrs. Lavely was a member of Hilliard's family, and that the assistance was in contemplation of law furnished him, and so, it says, the case turns upon his financial circumstances, and not upon Mrs. Lavely's. In support of this claim the defendant presents various and comprehensive definitions of the word "family," taken from the dictionaries and decided cases. But so far as here involved the term presents a statutory, and not a dictionary, question. Mrs. Lavely was the pauper aided, and was not in the sense of the pauper law, a member of Hilliard's family. She was, of course, a member of his household, and in a certain and proper sense a member of his family. But he was under no legal obligation to support her, and could, at any moment, lawfully sever relations with her. This is just what he did do, in effect, when (to use a common expression) he "threw her onto the town." This is sufficiently shown by Brookfield v. Warren, 128 Mass. 287, wherein it is held that a man is under no legal obligation to support his stepchild, and the fact that such child receives aid from a town as a pauper, upon the stepfather's application, does not make the latter a pauper. Nor does the fact that Hilliard or his wife made the application change the situation. Assuming that an "application" is required in such cases, it is wholly unimportant who actually makes it. See Waitsfield v. Craftsbury, 87 Vt. 406, 89 Atl. 466, Ann. Cas. 1916C, 387.

So far, then, as the questions of residence and financial conditions are concerned, the plaintiff made out a case below, and upon unobjectionable evidence. And in the circumstances all exceptions based upon the alleged immateriality of evidence admitted on these questions, together with the alleged disregard of the best evidence rule, are of no consequence whatever. The essential facts were established by legitimate evidence. If these or other unnecessary facts were supported by immaterial evidence, the error was obviously harmless, for without it, it would have been the duty of the court to direct a verdict for the plaintiff, assuming, of course, that the expenditures and notice were proved. The rule we are applying is thus stated: When a trial court directs a verdict without submitting any issue to the jury, a court of review will not consider the rulings admitting evidence, provided there is competent evidence sufficient to warrant such direction. Simons v. Fagan, 62 Neb. 287, 87 N. W. 21; Johnston v. Branch Banking Co. (Tex. Civ. App.) 143 S. W. 193. See, also, Danforth v Evans, 16 Vt. 538; Castleton v. Langdon, 19 Vt. 210.

The defendant excepted to the action of the court in restricting the cross-examination of Mrs. Blais; but no error was committed, for the witness had twice answered the cross-examiner's question, and, besides, it related to Mr. Blais' financial condition, which was not in the remotest way involved in the case.

Martin Turner testified that he was overseer of the poor of the town of Barnet from 1909 to 1913; that he was called upon for assistance by Mrs. Lavely in the fall of 1912; that he investigated the matter, and within five days of the call he mailed a notice to the overseer of the defendant town; that he had previously obtained from another overseer a form to be used in such cases, and that a typewritten form of notice, marked as an exhibit, had been filled in by him so as to be just like the one sent to the defendant's overseer; that he did this three or four days before he testified, and did it from memory. The exhibit was then admitted, and the defendant excepted.

It was not objected below that no foundation had been laid for the admission of secondary evidence of the contents of the notice, and it is here admitted that the witness could have testified from recollection as to what it contained. But it is insisted that the witness could not be allowed to reproduce the notice so long after it was made. It is apparent that this writing was in no sense a "memorandum," as that term is used in the law of evidence. It was not a copy in the usual sense of that term, which ordinarily involves transcribing an original. But in another sense it was a copy, for...