Wilfred Gentes v. Clarence St. Peter

• Decision Date: 04 January 1933
• Parties: WILFRED GENTES, b/n/f v. CLARENCE ST. PETER
• Court: Vermont Supreme Court

163 A. 569

105 Vt. 103

WILFRED GENTES, b/n/f v. CLARENCE ST. PETER

Supreme Court of Vermont

January 4, 1933

October Term, 1932.

Law of The Case---Burden of Proof in Tort Action---Instructions to Jury---Jury Question.

1. Where record showed that trial proceeded upon certain theory of law, and case was so submitted to jury without exception rule thus adopted, whether right or wrong, became law of case.

2. In

ACTION OF TORT where case stood on general issue, burden was on plaintiff to prove truth of his claim by preponderance of evidence, and this burden remained on him throughout trial although when he had closed his case, burden of proof, in sense of duty of going forward with evidence, passed to defendant.

3. In action of tort where case stood upon general issue, defendant was obliged to do no more than meet plaintiff's case with evidence of equal weight.

4. In action of tort for personal injuries alleged to have been caused by accidental discharge of defendant's gun, while he was illegally engaged in hunting on Sunday, where case stood on general issue, but defendant claimed, and his evidence tended to show, that they had ceased hunting before accident and at time were merely strolling through woods instruction that defendant had burden of proving by preponderance of evidence that he had stopped hunting, held erroneous, defendant's attempt to show that illegal act was not in progress having simply been in rebuttal of plaintiff's evidence.

5. Where testimony was conflicting, its weight was for jury.

ACTION OF TORT for personal injuries alleged to have been caused by accidental discharge of defendant's gun while illegally hunting on Sunday. Plea, general issue. Trial by jury at the March Term, 1931, Chittenden County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Reversed, and cause remanded.

M. G. Leary and K. Paul Fennell for the defendant.

Martin S. Vilas, Guy M. Page, and Mary C. Alafat for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

The plaintiff and the defendant, both of whom were minors, went hunting together on Sunday, in the woods bordering on Lake Champlain. While proceeding down a declivity in single file, the plaintiff ahead of the defendant, the latter's gun was accidentally discharged and the plaintiff was shot in the leg. This action is in tort for the recovery of damages for the injuries thus sustained. The plea is the general issue. The verdict was for the plaintiff, and the defendant has excepted.

The case was tried upon the theory, acquiesced in by both parties and by the court, that since the act of hunting on Sunday was unlawful under G. L. 7099, the defendant would be liable if the injuries were sustained during the continuance of his illegal act, and if no other intervening independent cause were found to exist. The presiding judge instructed the jury without exception, as follows: "Now, if you find that the defendant was hunting at the time of the accident, and that there was no other intervening, independent cause of the accident, then, as we construe the law, you must also find that the injury was caused by this hunting by the defendant on Sunday which was a violation of the law, and to be determined by you in the manner which I will indicate presently. Your first inquiry will be whether at the time the accident actually happened the defendant was engaged in illegal hunting. If he was, and you find no intervening, independent cause for the injury, except that illegal hunting, your verdict will be for the plaintiff." Since the record shows that the trial proceeded upon this theory of the law and was so submitted to the jury without exception being taken, the rule thus adopted, whether right or wrong, became the law of the case. Sharby v. Town of Fletcher, 98 Vt. 273, 278, 127 A. 300; Saliba v. N.Y. C. R. R. Co., 101 Vt. 427, 440, 144 A. 194; Shields v. Vermont Mutual Fire Insurance Co.,...