Town of Westmore v. Town of Sheffield , 56 Vt. 239 ( 1883 )

The opinion of the court was delivered by

Yeazby, J. I.

The action is assumpsit brought by the town of Westmore against the town of Sheffield to recover for certain expenditures made by the plaintiff in the needful support of Daniel Leland, an alleged transient poor person in the plaintiff town. Darnel had lived with his father until the decease of the latter in 1867, and was then over twenty-one years old. Early in 1868, pursuant to an arrangement between Daniel’s mother ''.¿ind brother Joseph, the latter took Daniel from Sheffield, where hé'had lived with his parents, to Joseph’s home in Westmore, and Daniel from that time lived in Westmore, first with his brother Joseph and afterwards with his sister, Mrs. Bobinson, until her decease, and until March, 1878, when his sister’s husband called upon Westmore to support Daniel, which it did, and thereupon the overseer called upon Sheffield to assume his support, which it neglected to do; and it was for this support furnished by Westmore that this suit was brought. The plaintiff’s evidence tended to show that Joseph received consideration for thus undertaking Daniel’s support, and transferred the same to the Robinsons when they took Daniel. The latter having lived in Westmore long enough to gain a settlement in his own right, more than seven years, one of the material questions on the trial was whether he had sufficient mental capacity to gain a legal settlement. The evidence was conflicting on this point.

The County Court correctly instructed the jury in substance that emancipation of a minor is not. to be presumed but must be proved; but upon attaining majority the presumption is reversed. Hardwick v. Pawlet, 36 Vt. 320. Applying this rule the court properly told the jury that Daniel is presumed to have been emancipated when he reached the age of twenty-one, and that the burden Avas'on the plaintiff to overcome this presumption by proof. The court then said: “ And if you are satisfied by the proof that Daniel had a mental infirmity, not that he was an idiot, but that from mental infirmity his mind was so far weakened that he was in a state of helplessness and dependence upon the care of his parents, that it was rendered proper and necessary that he should live with his parents and have their supervision, oversight, direction and care, upon humane principles then he was not emancipated.” This proposition was elaborated and illustrated. The court then correctly explained to the jury that if the proof showed such a lack of mental capacity as to prevent emancipation on attaining majority, the same defect would prevent Daniel’s acquiring a legal settlement in Westmore, unless he made a gain in capacity while living there. As the case stood upon the evidence, was the above proposition the true and cqiv rect test or rule to guide the jury in deciding wliethev Daniel acquired a settlement in Westmore ? If Daniel was .m idiot lie could acquire no settlement by resident, because he was incapable of forming an intent to live anywhere. But the defendant’s evidence tended to show he was above* an idiot, and had sufficient mental capacity or power to form an intention and to have a choice and desire as to his place of abode. We think if he had that degree of mind and went to Westmore to live voluntarily, as a matter of choice, and without compulsion, and so resided there for the required period without assistance from any town, he thereby acquired a settlement in Westmore. If he fell short of this degree of mental capacity, his residence there availed nothing towards a settlement. Being a person of weak intellect he would naturally rely upon and be influenced and controlled in making a choice of residence by his friends, but this fact, as stated by Pierpoint, Ch. J., in Ludlow v. Landgrove, 42 Vt. 137, would constitute, of itself, no sufficient reason why his residence for the required time should not give him a legal settlement. If he was there under compulsion or restraint and against his wishes, then the essential quality of intent to live there was' wanting. He was not there animo manendi. His being there was only the stay of a transient person analogous to an imprisonment without choice or purpose, as in the case of Brownington v. Charleston, 32 Vt. 411. The plaintiff’s evidence tends to show that Daniel was taken by his brother to the latter’s home in Westmore, and there .supported until 'his sister and her husband took and supported him in the same way; but this does not necessarily impart the idea of compulsion or exclude the idea of choice on Daniel’s part. The case as presented does not show conclusively that while he resided in Westmore he did not do so freely, and of his own choice. This was an open question. As the ease stood upon the defendant’s evidence, we think the charge did not give the defendant the full benefit of the rule as above indicated, which was made prominent in Ludlow v. Landgrove, supra.

The learned judge, in charging the jury, put this branch of the case upon the ground of helplessness and dependence, mental and physical, such as would render it one of the demands of humanity that the child should remain with his parents after majority just tbe same as before, and omitted to submit the question whether Daniel had sufficient mental capacity to form and have an intention and choice as to his place of abode when he went to Westmore and while he lived there, and whether he went and remained there pursuant to such intention and choice. In this we think there was substantial error. The proposition of the County Court seems to have been derived from cases where the pauper was infirm in body and mind, and had continued to live at home after becoming of age; and not where the father had died, and the home was broken up and the pauper had lived elsewhere the required period to gain a settlement in his own right. Illustrative cases of the first class are Hardwick v. Pawlet, supra; Orford v. Rumney, 3 N. H. 331; Croyden v. Sullivan, 47 N. H. 284; Upton v. Northbridge, 15 Mass. 237.

The case at bar is like Ludlow v. Landgrove, supra, which is one of the latest decisions of this court on this question, and outlines, as we think, a simple and sound rule, by which to determine the question of settlement in this and like cases.

II. A material issue on the trial was the time of the ■removal of Jesse Leland, the father of Daniel, from Boston to Sheffield. Bearing directly upon this issue was the question as to the date of the purchase of a farm in Calais by William G. Lilley, of one Willard. William O. afterwards deeded this farm to his son Harvey, who was a witness for the plaintiff, and had testified to the purchase of said farm by his father, since deceased, and his removal on to it in November, 1860, soon after the purchase, and that the witness had found among his father’s papers after his death, and three years before this trial, a deed from said Willard to his father which described the same farm, which deed the witness produced and testified that it was the deed of this Calais farm. Whereupon the plaintiff offered said deed to show' the date of said purchase, to the admission of which the defendant objected and excepted, for the reason that the deed was not sufficiently identified.

We think the deed was properly admitted for the purpose offered. The instrument was not directly in issue. There was no question, but that just such a paper was executed. It wras admissible not on the ground of being an ancient deed, but because it was identified as being what it purported to be. On the collateral issue it was the province of the court to determine when the deed was sufficiently identified.

III. The question, asked George M. Robinson whether he considered Daniel what they called a no7i compos person, was proper. It was asked on cross examination by the plaintiff, after the witness had been examined by the defendant as to Daniel’s mental capacity, Daniel having long lived in the witness’ family.

IV. The only remaining points of exception important either in their general aspect or in reference to another trial, are those in reference to the requests to charge submitted by the defendant.

• The ' controverted question was whether Daniel Leland had a legal settlement in the town of Sheffield. Bearing upon this were some collateral issues of ordinary character.

After the evidence was closed and before the arguments, the defendant’s counsel presented to the' court nineteen written requests for instructions to the jury, many of them very long and very much involved in statement of law and fact. The court remarked to the counsel that the requests were unnecessarily voluminous; some of them inapplicable to any claims made dining the trial; some were hypothetical, and the whole might profitably be condensed \ and returned the requests to the counsel, requesting them to condense them as far as practicable, saying the court would charge upon them when.so simplified. The court saw no more of them until the bill of exceptions was presented after the trial. At- the close of the charge the defendant excepted to the failure to charge as requested and to the charge upon the subject matter of the requests. These exceptions were allowed conditionally upon the determination by the Supreme Court of the right of the defendant to have them certified.

We are agreed, that the court treated the requests properly when, presented, and according to its right and duty ; and that defendant is entitled to have no exception considered which depends on the requests. • The questions of fact were simple, and the propositions of law, applicable to the case, were capable of presentation, briefly and plainly. No requests are needed in any case for the purpose of protecting any rights. In this State the court is bound to charge upon every point material to the decision of the case, upon which there is evidence, and to charge correctly and fully, whether requested or not. Vaughn v. Potter, 16 Vt. 266.

But requests serve a very helpful purpose when they contain brief and plain statements of the law which-apply to the case in the honest belief of counsel. They then present to the court the respective theories of the law on which the parties rely. In view of the short time that the presiding judge usually has to prepare a charge, the requests will be but a hindrance rather than a help, if they are not concisely and comprehensively presented. If counsel do not perform their duty in this respect in the first instance it would be the right and duty of the judge to return the requests for amendment. Until again presented in proper shape, they cannot be considered as before the court for consideration. ¥e think these requests fall far short of being brief, plain, concise or helpful to the court. As a chart and giiide for the charge, if it had been possible to go through with them in all their aspects, we think they must have led to such confusion that the main issues would have been lost sight of. Judgment reversed and cause remanded.

Y. The defendant filed a petition for a, new trial on two grounds : first, that the verdict was contrary to the weight of the evidence; and second, newly discovered evidence. The petition and exceptions were heard together. We think the verdict is not so clearly and plainly against the weight of evidence as to warrant a new trial on that ground. Hill v. New Haven, 37 Vt. 512. As to the second ground, which is mainly relied on, we have given all the evidence, both old and new, such careful study and analysis as its great volume and the peculiar attitude of the case necessitated. The case had been tried twice before, once by jury and once on a former petition for a new trial. One of the principal, if not the leading issue, at the first trial was the same as at the last trial, viz.: whether the father of the pauper had lived in Sheffield seven years before his decease, which occurred December 4th, 1867. It was conceded that he moved to that town about the 4th of December, 1860; the plaintiff claiming it a few days before, and the defendant a few days after. Therefore both parties understood the issue clearly. ' Bearing’ on it was the question when William Lilley moved to Calais from the farm in Sheffield which he had sold to Robinson, and upon which Jesse Leland, the father, moved when he went to Sheffield. This took place twenty years before this' controversy arose. The date of these removals presented an issue about which evidence would naturally continue to develope. After each trial new witnesses would be likely to appear who would at least think they remembered some circumstance bearing on the controverted date. Counsel and town agents could always truthfully say they did not know of the evidence at the trial and had no reason to know of it. It is a case where the rules as to laches in discovering the evidence, and as to the admission of cumulative evidence, should be adhered to with strictness. We should hesitate to hold that those rules do not ordinarily apply as against this petitioner. But perhaps a more satisfactory ground for denial of the petition, is, that we are not satisfied with that degree - of certainty which the law requires, that the new evidence would change the verdict. Certain events were established by the new witnesses quite satisfactorily; but whether Mr. Lilley moved from Sheffield to Calais before or after those events depended upon memory. Some witnesses were positive and supported their testimony by circumstances; but against this there were other witnesses and other circumstances. In the evidence 'of some of the new witnesses there was more or less of inconsistency and uncertainty.

The exact date, and indeed the matter of the removal, was of no such consequence to any of the witnesses as to be fixed in their memory witli certainty. They only undertake to say, as a matter of memory, after the long lapse of time intervening, that the removal was before or after certain other events not related to tbe removal. Such evidence necessarily leaves tire question in doubt, where tbe fact was of itself, as to exactness of time,, so unimportant.

In view of those obvious considerations which would not fail to be urged in derogation of its credit and value, we cannot properly say that the evidence newly discovered would, in all probability, lead to a verdict and judgment the other way, which is the requirement in granting a new trial on the ground urged. Middletown v. Adams, 13 Vt. 285; Beckwith v. Middlesex, 20 Vt. 593.

Petition dismissed with costs.