Town of Randolph v. Lyon

• Decision Date: 02 October 1934
• Citation: 175 A. 1
• Court: Vermont Supreme Court
• Parties: TOWN OF RANDOLPH v. LYON.

175 A. 1

TOWN OF RANDOLPH

v. LYON.

Supreme Court of Vermont. Orange.

Oct. 2, 1934.

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

Action by the Town of Randolph against Harold J. Lyon. Judgment for plaintiff, and defendant brings exceptions.

Affirmed and remanded.

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

Stanley L. Chamberlin, of Randolph, for plaintiff.

Finn & Monti, of Barre, for defendant.

SHERBURNE, Justice.

This is an action of contract to recover the amount paid for defendant's board while in jail. The case comes here upon exceptions to the overruling of defendant's demurrer to the declaration and to the judgment in favor of the plaintiff. The material parts of the declaration are as follows: "That on the 31st day of December, 1931, the said defendant was committed to the jail in Chelsea * * * on a certain certified execution issued by the Court of Chancery * * * in favor of one C. B. Prescott against said defendant; that the offense for which said execution was issued was committed in the Town of Randolph, * * * that on the day aforesaid the keeper of said jail notified the overseer of the poor of the plaintiff town in writing, pursuant to statute after said defendant had been committed to said jail, that he was in need of relief and that said jailer looked to said overseer for payment of the board furnished to said Lyon while he remained in charge of said jail." And the declaration further alleges a payment to said jailer pursuant to the notice, a demand upon the defendant, and his refusal and neglect to pay.

G. L. 4222, now P. L. 3926, so far as material, is as follows: "If a transient person * * * is committed to jail, and is in need of relief, * * * the jailer * * * shall be at the expense of relieving and supporting such person, until he represents his situation * * * to the overseer of the poor of the town in which the offense was committed, after which the overseer of the town so notified shall provide for his support; * * * and if such transient person is not of sufficient ability to defray the expense of his support, with the other contingent charges, the town defraying such expense may recover the same in an action of contract, on this statute, from the town in which such person last resided three years, supporting himself and family."

The defendant in his brief says that there is no right of action given under the statute or at common law against the defendant to repay the plaintiff town and cites authorities tending to show that no recovery can be had from paupers for assistance rendered to them. The trouble with this contention is that aid was not rendered to the defendant as a pauper. A person brought from one town and confined to jail in another is a "transient person" within the meaning of the statute. Town of Pawlet v. Town of Rutland, Brayton, 175; Town of Manchester v. Town of Rupert, 6 Vt. 291, 294; Danville v. Putney, 6 Vt. 512, 518. The declaration does not show where the defendant resided when committed to jail. Although the demurrer specially set up that the defendant "was at all times for three years previous to said confinement a resident of" plaintiff town, and although it was conceded at the hearing upon the demurrer that the defendant had been a resident of the plaintiff town for three years preceding his confinement in jail, supporting himself and family, this fact is not before us. The purpose of a demurrer being to test the sufficiency of the declaration, it must be based exclusively on matter apparent on the face thereof. If the matter is not apparent it must be shown by plea or answer. This special ground of demurrer was properly overruled because it is what is sometimes called a "speaking" demurrer. State v. Caplan, 100 Vt. 140, 156, 135 A. 705; Vermont Hydro-Electric Corp. v. Dunn et al., 95 Vt. 144, 152, 112 A. 223, 12 A. L. R. 1495; 21 R. C. L. 505, 506; 49 C. J. 423. Nor is the demurrer aided by facts not appearing in the declaration, even though, as here, conceded at the hearing. Powell & Powell v. Greenleaf & Currier, 103 Vt. 46, 48,151 A. 508; State v. Caplan, supra, at page 155 of 100 Vt., 135 A. 705; Howard National Bank v. Fidelity & Casualty Co., 96 Vt. 462, 468, 121 A. 24; Vermont Hydro-Electric Corp. v. Dunn et al., supra; Douglass & Varnum v. Village of Morrisville, 84 Vt. 302, 314, 79 A. 391; Columbian Granite Co. v. Townsend, 74 Vt. 183, 186, 52 A. 432. But assuming that the defendant had such a residence in the plaintiff town at that time or even in Chelsea where the jail was located he would have become a "transient person" when committed to jail, as he would have been confined at a place which was not his home. "Transient * * * is used in the sense of being away from home, and disabled, and thereby confined at the house of some one whose house is not such person's home." Goodell v. Town of Mount Holly, 51 Vt. 423, 426.

The statute does not! imply that the "transient person" is a pauper. As said in Town of Danville v. Town of Sheffield, 50 Vt. 243, 248: "Persons of sufficient ability to pay for the relief and support contemplated by the statute, may be in need of that relief and support. This is implied by the very terms and provisions of the statute. Persons of ample ability to pay may fall suddenly sick, or be injured and become helpless, and unable to command their resources, or procure for themselves what may be needed by way of relief and support. The statute designs to have such relief and support furnished in such ...