Town of Randolph v. City of Barre, 821

• Decision Date: 01 May 1951
• Docket Number: No. 821,821
• Citation: 116 Vt. 557,80 A.2d 537
• Parties: TOWN OF RANDOLPH v. CITY OF BARRE.
• Court: Vermont Supreme Court

Page 537

80 A.2d 537

116 Vt. 557

TOWN OF RANDOLPH v. CITY OF BARRE.

No. 821.

Supreme Court of Vermont.

May 1, 1951.

Stanley L. Chamberlin, Randolph, Wilson & Keyser, Chelsea, for plaintiff.

John Molla, Barre, for defendant.

Before SHERSURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

BLACKMER, Justice.

In this action of contract the plaintiff town seeks to recover from the defendant city for the support of a pauper residing in the plaintiff town but whose settlement is alleged to be in the defendant city. Specifications were filed which included items of expense paid for the pauper and also payments made by the plaintiff town to the State of Vermont under V.S. 47, § 9865 as assistance for the pauper's children as needy children. The case was heard by the county court sitting without a jury; findings of fact were filed; judgment for the plaintiff was entered thereon; and the defendant brings its bill of exceptions to this Court. The necessary facts will be stated as required in the course of this opinion.

During the trial the plaintiff offered its exhibit No. 6 as the notice to the defendant required by V.S. 47, § 7109. It was received over defendant's objection and exception. In its findings the court found this exhibit No. 6 as a fact, verbatim. To this finding the defendant did not except. On the briefs filed, the question presented is: Is it necessary to except to a finding of fact made by the county court sitting without a jury in order to preserve an exception to the admission of evidence on which the finding is based?

County Court Rule 31(6) provides that exceptions to the findings of the county court shall be filed within fifteen days, or exceptions shall be treated as waived. An appellant is bound by a finding of fact by the trial court to which no exception is taken. Oregon Iron & Steel Co. v. Kelso State Bank, 129 Wash. 109, 224 P. 569, 38 A.L.R. 178.

The rule in chancery is that when a party excepts to rulings on the admission of evidence, but no exceptions are taken to the findings of fact because of such rulings, the evidentiary questions are not before this Court. And this is so whether the cause is heard by the chancellor or by a special master. Holton v. Ellis, 114 Vt. 471, 490, 49 A.2d 210; Cutler Co. v. Barber, 93 Vt. 468, 471, 108 A. 400; Raithel v. Hall, 99 Vt. 65, 70, 130 A. 749; V.S. 47, § 1312. In the law courts, if a litigant wishes to avail himself of an error of a referee, commissioner, or auditor in admitting evidence he must file exceptions to the report based on the error, unless such officer submits the question in his report. McKane v. Gordon & Hoar, 85 Vt. 253, 256, 81 A. 637, and cases cited; V.S. 47, § 1937.

There is merit in uniformity of practice. The process of submitting and ruling on the admissibility of evidence is the same before masters, chancellors, referees, auditors, commissioners and law courts sitting without a jury. The method of raising such evidentiary questions here should be the same. It is therefore held, by virtue of the analogies above and the authorities cited below, that all evidence admitted in a trial by the county court sitting without a jury, whether properly or improperly, is merged in the court's findings; that the failure to except to the findings waives the exception to the admission of evidence; and that exceptions to the admission of evidence cannot cure the failure to except to the findings based thereon. Bethel Mills v. Whitcomb, Vt., 76 A.2d 548, 552; County Court Rule 31(6); Kitsap County Bank v. United States Fidelity & Guaranty Co., 90 Wash. 12, 18, 155 P. 411, 413; Washington Brick, Lime & Mfg. Co. v. Adler, 12 Wash. 24, 27, 40 P. 383; Ironton Cross Tie Co. v. Evans, 146 Mich. 197, 109 N.W. 254; Stafford v. Crawford, 118 Mich. 285, 76 N.W. 496; 4 C.J.S., Appeal and Error, § 336, page 730. The defendant's exception to the admission of the notice, plaintiff's No. 6, is not for consideration.

Second for consideration are the defendant's exceptions to the trial court's failure to find as requested. It is noted, to begin with, that unless matters concerning a hospitalization of the now pauper's wife, which will be the subject of discussion in this connection, interrupted the acquisition of a settlement, the court's findings justify its conclusion that the pauper lived in the defendant city supporting himself and family for the three year period required by P.L. 3923, then in force. In fact the defendant does not seriously question that the now pauper has a settlement there, except for the incident of his wife's hospitalization and its correlatives.

The defendant filed requests for findings of fact, and excepted to the court's refusal to find as requested by its requests Numbers 13, 19, 28, 15, 20, 25 and 27. The requests were calculated to establish these facts: The Barre City Hospital (a private corporation) notified the defendant during the three year period of residence that it would look to the defendant city for payment of the expense incurred by the hospital in the care and treatment of the now pauper's wife; this notice made the defendant city legally liable for such care; such liability could not be avoided by a subsequent illegal payment of the bill by the plaintiff town; the hospital care was necessary. In this regard the court found that the defendant city never did pay the hospital bill and that it was paid by the plaintiff town two years three and one-half months after it was incurred. Although not expressly found, it is fairly inferable from the findings in support of the judgment that the hospitalization was not furnished upon the authorized credit of the defendant city.

The defendant's theory in support of its requested findings is that the incurring of legal liability under P.L. 3918-3957 dealing with the support of paupers interrupts the acquisition of a pauper settlement, even though the liability is never discharged. The Public Laws of 1933 were in force at the appropriate time; the sections just cited now appear, in altered form, as V.S. 47, §§ 7097-7140. An examination of the soundness of the defendant's theory is in order.

The answer depends upon an interpretation of the words 'supporting himself and family' as they appear in P.L. 3923 and 3926. In Town of Manchester v. Town of Townshend, 110 Vt. 136, 143, 2 A.2d 207, 209, we held that the phrase is equivalent to 'a self-supporting residence, i. e. no pauper aid' from the town or city of residence. The general rule is that the actual receipt of pauper supplies is necessary to prevent the acquisition of a settlement. 70 C.J.S., Paupers, § 34a(3) Inhabitants of Corinna v. Inhabitants of Hartland, 70 Me. 355, is a pauper case involving this same point. It was contended that the settlement was interrupted because pauper supplies were furnished. No supplies were in fact furnished. The record showed a promise to pay only, but the overseers paid nothing. The Court said that liability is not sufficient to break the continuity of residence; that supplies must be actually furnished, either paid for by the town or furnished upon the town's authorized credit. The holding was that notice is not sufficient to interrupt acquisition of a settlement unless the town actually furnished pauper supplies by payment or upon the town's credit. In Inhabitants of...