Town of Peacham v. Town of Kirby, 271a.

• Decision Date: 04 January 1938
• Docket Number: No. 271a.,271a.
• Citation: 196 A. 243
• Parties: TOWN OF PEACHAM v. TOWN OF KIRBY.
• Court: Vermont Supreme Court

196 A. 243

TOWN OF PEACHAM

v. TOWN OF KIRBY.

No. 271a.

Supreme Court of Vermont. Caledonia.

Jan. 4, 1938.

Exceptions from Caledonia County Court; Alfred L. Sherman, Judge.

Action by the Town of Peacham against the Town of Kirby to recover expenses incurred in caring for a pauper. Judgment for plaintiff, and defendant brings exceptions.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Sterry R. Waterman, of St. Johnsbury, for plaintiff, Town of Peacham. Porter, Witters & Longmoore, of St. Johnsbury, for defendant, Town of Kirby.

SLACK, Justice.

The plaintiff seeks to recover under P. L. 3923 what it expended in caring for one John Kendall, a pauper, whose residence it claims was in the defendant town. Trial was by court. Judgment for plaintiff. Exceptions by defendant.

The material facts are these: Early in November, 1928, Kendall went to the home of Mansel Jewell, in Kirby, with the intention of staying there. He took with him his clothing, a trunk, bed, springs, mattress, and bed clothes. The Jewells did not know that he was coming, but they had known him for a long time and were on the "best of terms" with him, and he thought he would be welcome, and he was. They provided him a room in their home, thereafter known as "gramp's room," in which he kept and used the things he took there with him, until he moved to Peacham with the Jewells in May, 1933. During that time this room was not used by any one but him, except a few times when he was away temporarily and the Jewells had company. He called the Jewell place "home," and frequently spoke of it as such, and whenever he went away to work or visit, as he sometimes did, he always intended to return there. In the summer of 1929 he had the rest of his furniture shipped from South Strafford, where it was stored, to Jewells.

He remained at the Jewells continuously during the winter of 1928-29 and the four following winters, and much of the time summers except in 1930, when he was away for some time but returned every week of so for varying periods. From the time he went to Jewells' until May, 1933, including the summer of 1930 and when he was temporarily absent, all of his laundry was done by them. He seldom took a change of clothing or a suit case when he went away for any purpose, and never took his trunk or furniture from the Jewells. At Jewells he did chores, worked about the farm, made and took care of the garden, even in the summer of 1930, and helped them in various ways, and gave them money occasionally. No account was kept by any one of what he did for or let the Jewells have, or of the expense they were to by reason of his being with them. He lived with them as a father might, or, as Mr. Jewell expressed it, "as a grandfather." It is further found that when away from Jewells he had the right to return there, although they could terminate such right at any time; that he supported himself without aid from any municipality from November, 1928, until March, 1935 and that he last resided in Kirby for the space of three years supporting himself before application was made for the assistance furnished him by Peacham.

The defendant requested the court to find that the Jewells had no knowledge that Kendall "was intending to come until he telephoned them from Concord (Vermont) asking them to come and get him. That there is nothing in the case to establish a right on the part of Kendall to enter the home of the Jewells as distinguished from a sufferance of that kind," and excepted to its failure to do so. The first part of the request is, in effect, covered by the findings. If the latter part means that Kendall had no right to enter the Jewell home as distinguished from a sufferance to do so when he first went there, it was immaterial, in our view of the case; if it means that he did not thereafter acquire such a right, the court properly omitted to so find.

The defendant requested the court to find "that there was no evidence of any agreement between Kendall and the Jewells respecting his payment for the privilege of living with them and that any small payments which he made to them during his entire living with them were really a matter of gift," and excepted to its failure to...