67 Vt. 411 | Vt. | 1895
This is an action to recover for the support of Daniel Durfee, a pauper, from December 23, 1890, to January 18, 1893. The plaintiff’s evidence tended to show
When Daniel was a little past twenty-four years old he was so hurt that it made him a helpless cripple for life. When he was thus hurt his father was living in Worcester, and had then lived there about six years, ijaniel had always made his home at his father’s, although he had worked out more or less, and had his wages after he became of age. He had a little property at the time he was hurt, and for the first year thereafter his father took care of him without aid from the town, but was paid therefor by Daniel; but at the expiration of that year, Daniel’s property having been exhausted, East Montpelier was applied to for his support and assumed it, and continued to support him until the passage of St. 1886, No. 42, when it withdrew its support and refused further aid. Thereupon, Daniel still residing in Worcester with his father, where they had both continued to live, Worcester was applied to for Daniel’s support and assumed it for the time being, at the same time claiming that East Montpelier was still liable for his support notwithstanding that law, and brought suit against it to test the question, and such proceedings were had therein that it was finally decided that' East Montpelier was not thus liable, but that the burden of such support was cast by that law upon Worcester. While that suit was pending and before December, 1888, Worcester, by its overseer of the poor, agreed with the pauper’s father to pay him five dollars a week to take care of him until that suit terminated, and the father took care of him under such contract, for which Worcester paid him quarterly before the December last named the sum called for by the contract. About December 1, 1888, Milo Durfee prepared to move his family and Daniel to South Burlington ; and the overseer of the poor of Worcester hearing of it objected to Daniel’s being removed from the town, and told Milo Durfee that he must not take him out of town, and that if he did the town would not thereafter pay anything for his
The defendant controverted the contract between Worcester and Milo Durfee in respect to the time which the plaintiff claimed it was to continue, and introduced evidence tending to prove that it was for no specified time.
At the close of the evidence the defendant waived going to the jury on any questions except two, viz. : (1) Whether the town of Worcester made such a contract with Milo Durfee as the plaintiff claimed and its evidence tended to show, and (2) what the character of Daniel’s removal to South Bur
No general verdict was returned, and three questions only were submitted to the jury, which, with the answers thereto, are as follows:
1. “Did the town of Worcester contract with Milo Durfee to pay him five dollars per week for supporting Daniel until the suit then pending between Worcester and East Montpelier was terminated, as the plaintiff’s evidence tends to show ? Answer. Yes.”
2. “Did Daniel Durfee move from the town of Worcester to South Burlington in December, 1888, with the intent of residing at South Burlington as his home ? Answer. No.”
3. “Did Daniel Durfee at any time subsequent to June, 1889, and before December, 1890, intend to make South Burlington his home ? Answer. No.”
The court found all the things to be true that the plaintiff’s evidence tended to prove concerning matters on which the defendant did not desire to go to the jury, and on such findings of the court and the special verdicts rendered judgment for the plaintiff for the amount claimed, to which the defendant excepted, and insisted, that the judgment ought to be in its favor.
I. The plaintiff contends that the judgment of the county court in its favor can be sustained under the holding of this court in Leicester v. Brandon, 65 Vt. 544. Whatever may be said of the soundness of that decision, which was rendered by a divided court, it is clear that the case at bar does not come within the reasoning adopted by the court in that case. There, as reported, Brandon while supporting the pauper in Brandon, made arrangements with a person then residing in Leicester, by which the pauper was to be kept by him in the latter town, both parties reserving the right to have her re
II. Daniel Durfee’s home was always with his father. The father’s home, wherever it was, was his home. He never had any other place he could call his home. When he moved from Worcester to South Burlington he left there no place nor home to which he had a right to return, nor did he leave any personal effects in Worcester. From June, 1889, to November, 1890, he resided with his father at that father’s home in South Burlington, supporting himself within the meaning of the law. He was unmarried, and had no family of his own. It is true that usually intention is an important
The plaintiff does not contend that any part of its claim is covered by St. 1892, No. 55, but puts its right of recovery upon the ground that the pauper was transient under St. 1886, No. 42.
III. Against the exception of the defendant the plaintiff was permitted to show that Milo Durfee learned that the suit between Worcester and East Montpelier was terminated in favor of East Montpelier. This evidence was admitted as tending to prove that Milo Durfee thereafter kept the pauper under such circumstances as to constitute an implied contract on the part of Worcester to pay for such support.
Against the defendant’s exception, and as tending to prove such an implied contract on the part of Worcester, the plaintiff was also permitted to show that Milo Durfee commenced suit against it, returnable to the September term, 1890, of Chittenden county court, to recover for the support of Daniel from the time of the termination of the suit between it and East Montpelier; that the death of Milo Durfee was suggested in the case at the April term, 1891, and his administrator entered to prosecute the suit, and that it was then pending.
The evidence had no tendency to prove an implied contract
Judgment reversed and cause remanded.