Town of Randolph v. Ketchum

• Decision Date: 06 January 1953
• Docket Number: No. 828,828
• Citation: 117 Vt. 468,94 A.2d 410
• Court: Vermont Supreme Court
• Parties: TOWN OF RANDOLPH v. KETCHUM et al.

Page 410

94 A.2d 410

117 Vt. 468

TOWN OF RANDOLPH v. KETCHUM et al.

No. 828.

Supreme Court of Vermont.

Jan. 6, 1953.

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

Bloomer & Bloomer, Rutland, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

ADAMS, Justice.

This is an action to recover the penalty and damages specified in V.S.1947, § 7137 for the removal of Mark Lawrence from Stockbridge to Randolph. The declaration is in two counts, one for the penalty and the other for the damages. Trial was by court. Findings of fact were made and judgment entered thereon for the plaintiff. The case is here on exceptions of both defendants.

V.S.1947, § 7137, so far as material here, provides:

'A person who brings a poor person from any town in the state to another town in the state, or aids therein, with intent to charge such town with his support, shall forfeit to such town a sum not exceeding $500.00. If such town is not liable for the support of such poor person, the person making such removal, or aiding therein, shall also be liable, from time to time, to pay such town such damages as accrue for the support of such poor person, which, as well as the penalty, may be recovered in an action of tort on this statute, in the name of the town.'

The count in the declaration for damages claims the amount of $461.62 expended by the town for necessary care and support of Lawrence.

The defendants filed ten requests to find. Their exceptions to the court's failure to so find are as follows: 'The defendants severally except to the court's failure to find each and every one of the defendants' ten requests to find, except No. 6, and in each instance on the ground that each request was established by the evidence in the case and there was no evidence to the contrary'. Such an exception is inadequate, inappropriate and too general to require attention. Little v. Loud, 112 Vt. 299, 302, 23 A.2d 628; Holton v. Ellis, 114 Vt. 471, 484, 49 A.2d 210; Hackel v. Burroughs, 117 Vt. 328, 91 A.2d 703, 704.

Exceptions to findings Nos. 17, 18, 24, 29, 35 and exceptions No. 11 and 12 to finding No. 36 are not briefed so they are waived. Hackel v. Burroughs, supra, and cases cited.

The defendants, in their brief, mention their exception No. 3 to finding No. 21. The record does not show any exception to this finding; therefore, there is nothing for this court to review and the question is not before us. Hackel v. Burroughs, supra, and cases cited. The record shows that their exception No. 3 was to finding No. 24. If we assume that is the one that they intended to mention in their brief, they are no better off. All they say about it, after mentioning two other findings, neither of which seem to support their position, is that finding No. 24 was erroneous and prejudicial. This is inadequate briefing and merits no consideration. Dwinell v. Alberghini, 115 Vt. 394, 400, 62 A.2d 124.

The defendants excepted to finding No. 30 which is as follows: 'Undoubtedly Francis Ketchum would not have become involved concerning Mark Lawrence had he not been Overseer, but what he did on August 6, 1949, was not done in his proper capacity as such.' The exception is that the finding 'is against the evidence and is not substantiated by the evidence, especially on the finding that what he did on August 6th was not done in his proper capacity as Overseer of the Poor.'

When a finding is challenged in this manner it must stand if it can be supported on any rational view of the evidence. The credibility of the witnesses and the weight to be given their testimony is not for us, but for the trial court. Hayden v. Lavallee, 116 Vt. 340, 341, 75 A.2d 690.

The material findings, unexcepted to or to which, as we have seen, exceptions are not now available which show the facts leading up to the events of August 6, are in substance,--That Lawrence came to Randolph to live in March 1945 and in November 1945 was committed from that town to the Vermont State Hospital. In April 1948 one Layton became Town Manager of Randolph. Shortly thereafter he received notice from the hospital that Lawrence was to be discharged. Layton was appointed by the Probate Court for the District of Randolph guardian of Lawrence and there came into his hands as such guardian $915.71 which he reported in his inventory to to the Probate Court. He brought Lawrence from the hospital and provided room and board for him. Lawrence had formerly lived in Stockbridge and had owned a place there where he had lived for four years or more. He knew a Mr. and Mrs. Butterfield who lived there. He had worked for them earlier in his life and before that they had been neighbors and Mrs. Butterfield had known him for 30 years. He wanted to go back and be with his friends in Stockbridge. It was his old home and he expressed his desire to his guardian to live there. Layton accordingly made arrangements with Mrs. Butterfield to take Lawrence and keep him and agreed to pay her a stipulated sum for so doing. This placement was made on the understandable request of Lawrence and was not made for the purpose nor with the intent of imposing eventual liability for support on the town of Stockbridge. By February 1st, 1949, the funds in the guardian's hands were exhausted and Layton filed his final account with the Probate Court on April 15, 1949, showing that fact, but he was not discharged until April 25, 1950. Mrs. Butterfield, shortly after February 1, 1949, learned from Layton that the funds in his hands were exhausted. Lawrence while at Butterfield's was unable to work and didn't work and was in need of care and Mrs. Butterfield did not wish to keep him without compensation. Previus to February 16, 1949, Mrs. Butterfield had, accordingly, given notice to one Whitcomb, the then overseer of the poor of Stockbridge, who came and saw her. On February 16 she saw Whitcomb again. Lawrence was then sick and Whitcomb directed Mrs. Butterfield to get a doctor for him and assurances were given her that the town would pay the doctor's bill and her for Lawrence's staying with her.

On March 1st, 1949, Ketchum was elected overseer of the poor of Stockbridge and on March 6, Mrs. Butterfield wrote him and sent a bill for Lawrence's care. There was further talk and letters between them about Lawrence. Ketchum investigated the situation and learned that Lawrence was a poor person, had no property and was in need of assistance. He learned that he had a guardian and who he was. On August 4, Lawrence went to see Ketchum and told him he would need some clothes. Ketchum saw that he was in rags and in need of assistance, but gave him none and 'recommended him to see his guardian.' Ketchum did not pay Mrs. Butterfield for Lawrence's keep nor render any assistance and she declined to have him longer without pay and became insistent in her position.

In the forenoon of August 6, 1949, Lawrence went to the defendant, Dodson, who lived near by, seeking assistance and claiming need for a doctor. Dodson took him to one Perkins, a selectman. Dodson was town constable. After a consultation among these officials, Lawrence was taken to Ketchum. Lawrence returned to Butterfield's, picked up his personal effects, a suitcase and a box or two and Dodson came in his jeep and took him away. Dodson with Ketchum, riding in Dodson's jeep, then transported Lawrence to Randolph and to the house where Layton was then living. On August 6, Lawrence was not found 'going at large' but was found where his guardian had in good faith placed him. Layton called an attorney on the telephone who came. He, Layton, Ketchum and Dodson discussed the 'Pauper Laws.' In this discussion it was stated and understood by all present that Lawrencee was a poor person, had no property, that the funds held by Layton as guardian were exhausted and that he might become a town charge on Randolph. Ketchum, as overseer, had made no investigation as to the residence and settlement of Lawrence, had no knowedge as to where it was, but he and Dodson did not claim it was in Randolph. Dodson was assisting Ketchum and was under his direction. Ketchum and Dodson stated in substance that they were returning Lawrence to his guardian and were doing so under instructions of their attorney. Following this discussion and with knowledge of the foregoing facts, Ketchum and Dodson left Lawrence standing on the sidewalk in front of Layton's house and went back to Stockbridge. Lawrence had no pauper settlement in Randolph and that town was not liable for his support when the defendants brought him there on August 6th.

The defendants in their brief seem to challenge as a matter of law, that part of finding No. 30 that we are now considering, 'that what he (Ketchum) did on August 6th was not done in his proper capacity as Overseer of the Poor.' We will therefore, assume it to be such, so if sustained by the facts previously found, no error can be predicated upon it. Schwarz v. Avery, 113 Vt. 175, 180, 31 A.2d 916. They say that Ketchum, as overseer of Stockbridge had the duty of removing Lawrence to the town chargeable with his support and refer us to V.S.1947, § 7106. In the first place, the unchallenged findings show that Randolph was not liable for Lawrence's support when the defendants brought him there on August 6th.

Furthermore, the foregoing section of the statutes does not help Ketchum as overseer in doing what he did. It is the duty of an overseer of the poor to provide for immediate relief of all persons residing or found in a town when they fall into distress and stand in need of relief, whenever he receives information, however conveyed, that relief is sought. V.S.1947, §§ 7106, 7108. Nadeau v. Marchessault, Sr., 112 Vt. 309, 311, 24 A.2d 352 and cases cited. Lawrence was a poor person, he was in Stockbridge of which town Ketchum was overseer and he had received notice that Lawrence was in need of relief. He had invetigated and...