Wilbur v. Town of Calais

• Decision Date: 10 October 1916
• Citation: 98 A. 913
• Parties: WILBUR v. TOWN OF CALAIS.
• Court: Vermont Supreme Court

98 A. 913

WILBUR

v. TOWN OF CALAIS.

Supreme Court of Vermont. Washington.

Oct. 10, 1916.

Exceptions from Barre Municipal Court; H. William Scott, Judge. Action by Byron Wilbur against the Town of Calais. On defendant's exceptions to judgment for plaintiff. Judgment affirmed.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Theriault & Hunt, of Montpelier, for plaintiff. H. C. Shurtleff, of Montpelier, for defendant.

MUNSON, C. J. The plaintiff seeks to recover for expenses incurred in the support of one Webster, an uncle of his wife, under circumstances detailed in findings of fact made by the trial court.

From about the middle of August, 1914, until the 1st day of March, 1915, Webster lived at the plaintiff's home in Calais, except as he visited at other places in the vicinity for short periods. In the fall of 1914, while at the plaintiff's home, he became seriously ill with a hemorrhage, and remained ill for some weeks. When recovering from this illness he showed symptoms of insanity, and in February, while still at the plaintiff's house, he became unmanageable and dangerous. Plaintiff thereupon procured his commitment to the state hospital under an obligation to pay for his board and care, and notified defendant's overseer of the commitment, and that he should look to the defendant for Webster's future support. The claim is for the amount paid by the plaintiff from the date of this notice until Webster's subsequent commitment as a state charge.

The court states in different parts of its report, and in the following order, that Webster was at the plaintiff's for the purpose of making a visit; that he was a poor person in need of assistance, and a transient person in defendant town; that there was evidence, independent of his declarations received under exception, that his presence in Calais during all of this time was that of a visitor; that it could not have found that he was a transient person without considering the declarations. If the finding first above stated could be construed as characterizing Webster's entire stay in Calais, and be considered without reference to the further statements, it might be taken as a disposition of the determinative question, not dependent upon the admissibility of the evidence objected to; for one who is a visitor in the usual sense is a transient person, and not a person who has come to reside. But the statement that there was independent evidence of his continuance as a visitor without a distinct finding of the fact and the further statement that the court could not find that he was a transient person without using the declarations show that the court did not treat the two words as having the same or equivalent meanings. So it will be necessary to inquire as to the admissibility of the evidence received under exception.

The evidence which the court states to have been largely the basis of its finding that Webster was a transient person consists of a post card mailed at Los Angeles, Cal., on which Webster informed the plaintiff's wife that he would leave for Vermont the following day, and Webster's statements, testified to by the plaintiff as having been made in certain conversations, that it was his intention to go back to California; that he would not stay here for the whole state; that he would like to have the plaintiff sell out and go back to California with him; that he was corresponding with his niece in Philadelphia; and that as soon as he heard from her he should take steps to leave. Independent of Webster's declarations, there was evidence that he made preparations to leave; that he got extra clothes and had those he had worn cleaned, and had his suit case partially packed when he was taken sick. There was also evidence that the plaintiff had personal knowledge of Webster's correspondence with his niece, and of her sending him a check for $25.

The acquirement of a new domicile involves a change of residence, with an intention to make the new location a permanent home; and this intention is often the controlling fact in determining an inquiry as to domicile. The doer of an act equivocal in its nature is ordinarily permitted to testify as to his intention in doing it; and in many cases declarations of intention made by the person doing the act may be shown in evidence. The declarations of one making a change of abode, if they meet certain requirements, are received as evidence of his intention in doing so; for the change may be a temporary arrangement having no legal effect, or may be the acquirement of a new domicile. The admissibility of Webster's declarations depends upon their relation to his acts or conduct in coming to Calais and remaining there.

The post card was evidence tending to show what Webster's intention as to leaving for Calais was at the time it was written, and this rendered it more probable that he went there as intended. Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 90.9, 36 L. Ed. 706. But there was no question as to his being in Calais, nor as to the time when he came. As to his purpose in coming, which was the important question, the card is entirely colorless. The only additional fact derivable from it was that he came from Los Angeles, Cal. The case finds that Webster was a poor person in need of assistance, and it was of no consequence to the inquiry regarding his status in Calais as affecting the town's primary liability, whether he came from California, or from some town in this state. So the card, if not admissible, was harmless.

There is nothing in the case that connects any oral declaration of Webster with a particular thing being done at the time. The declarations are to be considered as bearing upon the character of Webster's stay in the defendant town during an indefinite number of weeks, disconnected from any incident occurring during that period. The declarations cannot be held admissible under the doctrine of res gestae without treating Webster's stay during that period as one continuous act. There has been no general recognition of this ground as a basis for the admission of declarations of intention as the res gestae of an existing status, unless in cases of adverse possession. But declarations not...