Viens v. Lanctot, 963

• Decision Date: 02 September 1958
• Docket Number: No. 963,963
• Citation: 144 A.2d 711,120 Vt. 443
• Parties: Emile and Florence VIENS v. Adrien LANCTOT.
• Court: Vermont Supreme Court

Page 711

144 A.2d 711

120 Vt. 443

Emile and Florence VIENS v. Adrien LANCTOT.

No. 963.

Supreme Court of Vermont.

Sept. 2, 1958.

Raymond L. Miles, Newport, for plaintiffs.

Rudolph J. Daley, Maxwell L. Baton, Newport, for defendant.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.

CLEARY, Chief Justice.

This is an action of tort for fraud and deceit in the sale of a farm, stock and tools in April 1954. Trial was by jury and resulted in a verdict and judgment for the plaintiff. The case is here on the defendant's exceptions to the reception and exclusion of testimony, to allowing the jury to take a view of the premises, to denial of the motion for a directed verdict, for the failure to withdraw certain issues from the jury, to the charge and the refusal of requests to charge, and to the denial of a motion to set aside the verdict.

Several exceptions are briefed relating to the reception and exclusion of testimony. That concerning the amount of milk produced on the farm at the time of the sale and immediately thereafter needs no consideration because the court below later charged the jury they would award no damages for that claim. Supreme Court Rule 9; Long v. Leonard, 113 Vt. 258, 262, 32 A.2d 679, and cases there cited; Macauley v. Hyde, 114 Vt. 198, 203, 42 A.2d 482.

Germain Lalime and Romeo Rodriguez were allowed to testify subject to the defendant's exception regarding their competency. These were preliminary questions for the trial court, and its decisions are conclusive unless it appears from the evidence to have been erroneous, or that they were founded on errors of law. No such errors have been made to appear so the exceptions are unavailing. Purington v. Newton, 114 Vt. 490, 493, 49 A.2d 98; Teitle v. London & Lancashire Insurance Co., 116 Vt. 228, 230, 73 A.2d 300; Leblanc v. Deslandes, 117 Vt. 248, 253, 254, 90 A.2d 802.

The defendant claims it was error to allow the assistant town clerk of the Town of Coventry, where the property in question was located, to testify to the appraised value shown by the grand list of 1954. This list is a public document; the value of the property was a material issue and the grand list was pertinent to this issue. Therefore this testimony was properly received. Town of Ripton v. Town of Brandon, 80 Vt. 234, 237, 238, 67 A. 541; Ripley v. Spaulding, 116 Vt. 531, 532, 80 A.2d 375.

Subject to the defendant's objection and exception, the superintendent of Canadian Custom Excise at Rock Island, Quebec, who had been stationed there since 1930, was allowed to testify that he was 'familiar with the legal requirements with regard to the issuance of permits to Vermont cars going through the Canadian Customs in April 1954, entering Canada.' The objection was: 'He hasn't shown any qualifications yet about knowing the Law of Canada'. Subject to the same objection and exception he was then to testify that any American seeking entry into Canada is required to report at the nearest Customs and 'if they have a vehicle, we have written forms that have to be filled out and have to be surrendered when they leave Canada.' Whether the witness had shown any qualifications about knowing the Law of Canada was a preliminary question for the trial court and its decision is conclusive unless it appears from the evidence to have been erroneous, or was founded on an error of law. Purington v. Newton, 114 Vt. 490, 493, 49 A.2d 98; Leblanc v. Deslandes, 117 Vt. 248, 254, 90 A.2d 802. No error or prejudice has been made to appear, so the exception is of no avail.

One Rivard, a contractor and builder of ten years experience, called by the plaintiff, testified it would cost $8,390 to build the barn on the premises in 1949. His estimate was based on the barn with a galvanized iron roof. The defendant testified he built the barn in 1949, that it cost between $9,000 and $10,000 and that the barn roof was aluminum. His counsel then attempted to show and, when his question was excluded, offered to show that the cost of aluminum roofing was higher than galvanized roofing, to meet the testimony of Mr. Rivard. The court stated 'Haven't you already covered that? You have your witnesses' testimony as to the value of the barn. This is just immaterial. You have covered all that. We are going to exclude it.' The defendant was allowed an exception. The defendant claims the court's ruling was error and that the cost of building the barn quoted by Mr. Rivard would have been substantially higher had he taken into account the different roofing. Defendant's counsel made no reply to the court's question. If he had not already covered the matter it was his duty to so inform the court. He makes no claim now that he had not already covered it. His claim that Rivard's quoted cost would have been substantially higher is only his assumption and he has not claimed or shown that the ruling was prejudicial. State v. Tatko, 119 Vt. 459, 464, 128 A.2d 663.

While cross-examination the plaintiff husband, defendant's counsel asked 'Did you ever find any fault with Mr. Lanctot about this trade?' It was objected to as immaterial and, when asked by the court what he would say to that objection defendant's counsel replied, 'It is certainly material to show whether he found any fault with this trade during this period of time when he was living on the property and saw the man.' The question was excluded and the defendant allowed an exception. The scope of cross examination is generally within the discretionary control of the trial court. But where the witness is a party, there is a right to cross examination on any material matter whether covered by direct examination or not. Knight v. Willey, 120 Vt. 256, 261-262, 138 A.2d 596 and cases there cited. Omissions to speak or to act when it would have been natural to do so may be shown by way of contradiction or impeachment of the claim of a witness or a party at the trial. Cady v. Owen, 34 Vt. 598, 601-602; Coolidge v. Ayers, 77 Vt. 448, 453, 61 A. 40; In re Estate of Clogston, 93 Vt. 46, 50, 106 A. 594; State v. Tinker, 108 Vt. 213, 217, 184 A. 698. The excluded question was material. It tended to affect the credibility of the plaintiffs' claim of fraud and its exclusion was error.

The plaintiffs introduced evidence in support of their allegation that the defendant falsely represented the farm had an ample supply of water at all times for domestic and animal use and that there was never any trouble about water. Later the defendant excepted to the exclusion of his offer to show that the rainfall was way below normal in 1955. He claims the offered evidence would have a bearing on his intent and knowledge. The claimed misrepresentation was made in April 1954 and the plaintiffs' evidence regarding the lack of a water supply covered the period both before and after that date. The defendant's offer did not meet the issue so no error is shown. Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 21, 192 A. 184, 115 A.L.R. 392 and cases there cited.

During the trial and subject to the exception of the defendant, the court, on the plaintiffs' motion, allowed the jury to take a view of part of the premises. The defendant says this action without any claim as to how this partial view might help the jury decide any matters occurring 2 1/2 years before, was error. The court stated it was allowing the view as a matter of discretion. The question for our determination is whether the trial court abused its discretion. In considering it we are bound to indulge every reasonable presumption in favor of the ruling below, bearing in mind that the trial court was in a better position to determine the question. So considered it cannot be said, on the record before us, that the trial court exercised its discretion on grounds or for reasons clearly untenable, or to an extent clearly unreasonable, which, in this State, is the recognized test of abuse of discretion. Lancour v. Herald and Globe Ass'n, 112 Vt. 471, 483, 28 A.2d 396, and cases there cited. The defendant has the burden of showing abuse of discretion, clearly and affirmatively. Bigelow v. Denis, 119 Vt. 21, 25, 117 A.2d 261; Gray v. Janicki, 118 Vt. 49, 50-51, 99 A.2d 707; Ricci v. Bove's Executor, 116 Vt. 335, 339, 75 A.2d 682. Regardless of what this Court might have done under similar circumstances, we are unable to say that the trial court abused its discretion. Farr v. Fisher, 107 Vt. 331, 337, 178 A. 883, 98 A.L.R. 926; Houran v. Preferred Accident Ins. Co., 109 Vt. 258, 269, 195 A. 253.

The defendant briefs as one general topic his exceptions to the overruling of his motion for a directed verdict, to the failure of the court to withdraw consideration of certain of the plaintiffs' allegations from the jury, to the court's charge, to the refusal of the court to comply with a request to charge and to the denial of his motion to set aside the verdict.

The defendant excepted to the failure of the court to comply with his request to...