Town of Georgia v. Town of Waterville

• Decision Date: 09 May 1935
• Parties: TOWN OF GEORGIA v. TOWN OF WATERVILLE
• Court: Vermont Supreme Court

178 A. 893

107 Vt. 347

TOWN OF GEORGIA v. TOWN OF WATERVILLE

Supreme Court of Vermont

May 9, 1935

February Term, 1935.

Paupers---Residence---Burden of Proof as to Residence in Action by One Town against Another Town for Support of Pauper---Burden as to Evidence When Plaintiff Has Made Prima Facie Case---Presumption as to Continuance of Residence Once Established---Effect of Such Presumption---Essentials to Change of Domicile---Insufficiency of Facts To Justify Necessary Inferences as to Residence To Support Judgment for Plaintiff Town---Claim Not Made Below as Not Available in Supreme Court on Review.

1. To constitute residence under pauper law, fact that pauper actually lived in town in question and his intent to make such town his home must concur.

2. In action of one town against another for support of pauper residence is question of fact, but of such complex character that it frequently depends upon an application of certain rules of law to variety of circumstances, conditions, and intentions, necessarily obscure and difficult to interpret.

3. In such action, burden of proof as to residence in defendant town is on plaintiff, but when plaintiff has shown that pauper once resided in defendant town, intending to make his home there, plaintiff has made out prima facie case, and is entitled to recover, unless evidence for defendant prevents.

4. Residence being continuous fact, having once been shown, is presumed to continue.

5. In action of one town against another for support of pauper presumption that pauper's residence once shown to have been in defendant's town continues until contrary is shown casts burden upon latter of going forward with evidence to meet prima facie case created by presumption, but does not change burden of proof resting upon plaintiff to establish all essential facts, which include three years self-supporting residence in defendant town.

6. Change of domicile is effected only by concurrence of an act and an intention, act being actual transfer of bodily presence from town of residence, and intention being fixed and definite determination to remain in new town, or at least not to return to old town.

7. In action of one town against another for support of pauper, if pauper actually went from defendant town to another town with fixed and definite intention of remaining there for an indefinite time as a fixed place of abode, change of residence to new town was effected, though pauper entertained nebulous or floating intention of returning to old town at some future time.

8. In such action, evidence as to pauper's residence held insufficient to warrant inferences necessary to support judgment against defendant town.

9. In such action, claim that pauper was minor when he went to defendant town, and for that reason could not chose or gain residence therein, held not for consideration in Supreme Court because not raised below.

ACTION OF CONTRACT brought by one town against another under P. L 3923 to recover for support of a pauper. Plea, general issue. Trial by Franklin municipal court, A. W. Butler, Municipal Judge. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Reversed, and remanded.

Judgment reversed, and cause remanded.

Guy M. Page and Hollis C. Potter for the defendant.

Present: POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Supr. J.

OPINION

POWERS

The action is brought under P. L. 3923 to recover an amount expended in the relief of Albert Russell, a pauper whose residence, it is claimed, is in the defendant town. The case was tried in the Franklin municipal court without a jury, and upon facts found and filed, judgment was rendered for the plaintiff. The defendant excepted. The only question before us is that of residence.

The findings show that the pauper, then a single man, went to Waterville in July, 1915, and lived with and worked for his brother on the so-called Bragg farm in that town. From that time on, for a period of several years, he frequently left Waterville and lived and worked elsewhere, but returned to his brother's several times a year until he set up his own establishment as hereinafter stated. He was married on April 27, 1918, and with his wife went on a trip to Berlin, N.H., where he worked for about a month. He then returned to Vermont, stopping for a time with a relative of his wife in Johnson, and then went to Waterville, where he set up housekeeping in February, 1919. He moved to Huntington in 1920, but gained no residence there or elsewhere outside of Waterville. On or about January 1, 1917, he went to Johnson to work for another brother, and while there broke his arm. He remained there until sugaring, when he returned to Waterville to work for his brother. He moved to Georgia about the first of December, 1931, where he came to want and was relieved by that town to the amount herein sued for. During the time from 1915 to 1920, the pauper left a little clothing and a few chairs at his brother's, but whether or not he intended to return there to live is a fact not covered by the findings. It is expressly found that there was no specific agreement between the pauper and his brother about the former's returning to the Bragg farm, as he did from time to time. But it seems that from the facts found, the court below inferred that there was an implied agreement to that effect.

There is no express finding that the pauper gained a residence in Waterville, nor are sufficient facts found to compel the inference that he did. To constitute a residence under the pauper law, the fact that the pauper actually lived in the town in question and his intent to make that town his home must concur. Fulham v. Howe, 62 Vt. 386, 394, 20 A. 101; Town of Glover v. Town of Greensboro, 92 Vt. 34, 37, 101 A. 1016. All that is found here is that "the pauper, Albert Russell came to Waterville in July of 1915, and worked for his brother Arthur on the "Bragg farm."' Nothing is said in the findings as to his intent then or afterwards. But the defendant does not deny that he went to Waterville with the intent to make his home there--except on a ground not available here, as we shall see--and presents its case in a way implying that a residence was established.

Residence is a fact. Town of Jamaica v. Town of Townshend, 19 Vt. 267, 269, 270; Town of Glover v. Town of Greensboro, 92 Vt. 34, 37, 101 A. 1016. But it is a fact of such a complex character that it frequently depends upon an application of certain rules of law to a variety of circumstances, conditions, and intentions, necessarily obscure and difficult to interpret. So it often happens that liability in actions between towns depends, largely, upon where the burden of proof lies. It is so here. The question of the burden of proof is of vital importance. At the start, as is plain enough, this burden is on the plaintiff. But when it has shown that the pauper once resided in the defendant town, intending to make his home there, it has made out a prima facie case, and is entitled to recover, unless the evidence for the defendant prevents. Residence being a continuous fact, it is presumed to continue.

The plaintiff argues that this presumption continues until it is overcome by the defendant's evidence, and that the burden of proof is on the defendant to show that the Waterville residence was changed. It was said in Town of Newfane v Town of Dummerston, 34 Vt. 184, 186, a pauper case, that, "a settlement in Dummerston being established, the legal presumption is, till the contrary is shown, that it...