Otis v. Town of Bridport , 81 Vt. 493 ( 1908 )

Rowell, G. J.

This is debt founded on P. S. 5644 to recover for sheep killed by dogs in the defendant town. Sec. 5639 provides that whoever suffers loss by the killing of his sheep by dogs, may inform one of the selectmen of the town in which the damage was done, who shall proceed to the premises where it was done, and determine whether it was done by dogs, and if so, that he shall appraise the amount thereof, and return a certificate of the amount to the selectmen of the town. Sec. 5644 provides that upon failure of the selectman to perform his duty in this respect, the party suffering the loss may recover it of the town in an action of debt founded thereon.

The defendant pleaded nil debit, and gave notice thereunder that it would prove and rely upon in defence the performance of his duty by 'the sélectman. Under the notice the defendant offered in evidence a certificate that the selectman returned to the board of selectmen, wherein he stated that after looking the premises over, and carefully considering the evidence presented to him by the plaintiff, etc., he was utterly unable to determine whether any sheep had been killed or not; and if any had been killed, whether they had been killed in Bridport or not; and if any had been killed in Bridport, whether they were killed by dogs or not; and that therefore he was unable to say that any damage had been done to plaintiff’s sheep by dogs in said town; and that he was unable to appraise any damage resulting from said alleged killing of sheep; and that there was no evidence presented from which he -could have appraised the damage had any been shown.

The court excluded the certificate, to which the defendant excepted. The exclusion was right, for the certificate showed the determination of nothing except the selectman’s inability to determine whether any of the things before him for decision were true or not, thereby leaving them as much open and at large as they were before, whereas it was his duty to decide them one way or the other, failing which, he failed to perform his duty, whereupon an action of debt accrued to the plaintiff by the very terms of the statute.

But notwithstanding the exclusion of the certificate, the defendant introduced oral testimony tending to show substantially the same as the certificate showed.

The court charged the jury that if the selectman who was notified and went to the premises, made a full, fair, and an honest investigation, he performed his duty, and the plaintiff could not recover. But if he did not make such investigation, he did not perform his duty, and the plaintiff could recover, if his case was made out in other respects. The defendant claims that this was error. But if it was, it favored the defendant, for its testimony did not tend to show that the selectman performed his duty, but only that he did not perform it, and therefore showed no defence to the action on the ground of performance, and the court should have so ruled, „and put the case to the jury on the general issue only.

It is unnecessary to say anything about what the court charged as to the duty of the board of selectmen in December, for there were no facts before the board that imposed any duty apon it in respect of the matter.

The court charged as requested that the burden was on the plaintiff to make out his case before the jury, but it did not charge as requested that the burden was on him to make out his case before the selectman who went to the premises. But if the burden was on him and he did not discharge it, he was not thereby defeated, for in that case it was the duty of the selectman to decide against him, which he did not do, but omitted to decide at all, and thereby failed to perform his duty. So the defendant was not harmed by the omission of the court to charge as requested in this respect.

The defendant made several other requests to charge, all of which were refused, and rightly, for none of them were sound in view of the evidence.

Judgment affirmed.