Volume 128 — Vermont Reports

<bold>1. Corporations — Liability to Third Parties</bold> A legal corporation will be denied the right to avoid obligations to third parties by neglecting some formality in its own organizing procedure. <bold>2. Appeal and Error — Review of Verdict</bold> Upon challenge to finding by jury, supreme court must look to the favoring evidence to determine whether or not the challenged result has adequate factual support.<page_number>Page 12</page_number> <bold>3. Contracts — Value of Services</bold> Under contract in question the phrase "reasonable indemnification" meant "reasonable value of services". <bold>4. Witnesses — Expert Evidence</bold> Witnesses may give their opinion as to the value of services rendered by members of their own profession. <bold>5. Appeal and Error — Findings — Evidence</bold> Where there is evidence to support jury's finding on a question of fact, supreme court cannot overturn it.

<bold>1. Negligence — Standards of Care — Due Care</bold> On the question of negligence, it is material to consider the consequences that a prudent man might have anticipated and the circumstances and dangers are always to be taken into account in determining what is due care or evidence of it.<page_number>Page 390</page_number> <bold>2. Pleading — Motion for Directed Verdict</bold> By denying defendant's motion for a directed verdict, the court ruled as a matter of law that the evidence, viewed in the light most favorable to the plaintiff and excluding modifying evidence, tended to support a plaintiff's verdict, and if there is evidence which fairly and reasonably tends to justify the verdict, the motion cannot be granted. <bold>3. Negligence — Standards of Care — Due Care</bold> The invitation to shop in store carries with it some measure of assurance of safety, which the owner must make good, by the exercise of active care if necessary, thus it is the storeowner's duty to keep the premises in a safe and suitable condition so that an invitee will not be unnecessarily or unreasonably exposed to danger. <bold>4. Negligence — Standards of Care — Due Care</bold> The duty of care increases proportionately with the foreseeable risks of the operations involved. <bold>5. Negligence — Condition and Use of Premises</bold> While the use of self-service fruit and vegetable displays is not negligence as a matter of law, such use does create marketing problems of safety and place upon the store operator the need for greater vigilance if he is to meet the standard of care required under the circumstances, that is, there is a duty of care to use reasonable measures to discover and remove from the floor debris which may have been dropped or knocked to the floor by persons at the counter. <bold>6. Negligence — Acts or Omissions Constituting Negligence</bold> Voluntary ignorance may constitute negligence if the detection of danger can be accomplished by reasonable vigilance. <bold>7. Negligence — Questions for Jury</bold> Where there was evidence which fairly tended to support plaintiff's claim it was for the jury to determine the issues of constructive notice and defendant's negligence, and not a matter of law for the court. <bold>8. Negligence — Questions for Jury</bold> It is properly within the province of the jury to determine what precautions are commensurate with the defendant's duty of care under the circumstances. <bold>9. Trial — Charge to Jury</bold> Error is not to be read into the charge of a trial judge by isolating small segments of it, that is, it is not to be considered piecemeal, but rather with an eye on its general content. <bold>10. Appeal and Error — Charge — Waiver of Defects</bold> Alleged error in charge, claimed on appeal by defendant, would not be considered by reviewing court since the record disclosed<page_number>Page 391</page_number> that the part objected to on appeal stood without challenge unexcepted to by the defendant, that is, the charge became the law of the case and could not later be challenged. <bold>11. Damages — Evidence of Expenses</bold> Where doctor testified that his medical bills were incurred as a result of accident in issue, the bills were properly admitted and it was incumbent upon the defendant to produce rebutting evidence if it wished to show the facts were otherwise.

<bold>1. Pleading — Motion to Dismiss</bold> A motion to dismiss made before findings by the court is premature. <bold>2. Infants — Neglected Children</bold> An exception to a finding that the child in question was a neglected child was valid to preserve the question regarding the sufficiency of the evidence on that point. 33 V.S.A. § 632(12). <bold>3. Infants — Neglected Children — Burden of Proof</bold> Under the statutes relating to removal of neglected child from his parent the burden is on the state to establish that the child is without proper parental care or control, or subsistence, education, medical or other care or control necessary for his well-being. 33 V.S.A. § 632(12). <bold>4. Infants — Neglected Children — Evidence</bold> Whether a child is without proper parental care or control necessary for his well-being within the meaning of the provisions relating to removal of neglected child from his parent is a question of fact and each case must be determined on its own facts. 33 V.S.A. § 632(12).<page_number>Page 430</page_number> <bold>5. Infants — Neglected Children</bold> The statute providing who are neglected children should be liberally construed to aid the purpose of its enactment. 33 V.S.A. § 632(12). <bold>6. Infants — Neglected Children</bold> The proceedings relative to dependent and neglected children are protective and not penal, with no legislative purpose to condemn the child or its parents for the difficulties of the situation which confronts the court. 33 V.S.A. § 631 <italic>et seq.</italic> <bold>7. Infants — Neglected Children — Parental Care</bold> The phrase "without proper parental care" is construed in a less restricted sense than the word "neglect" which, in a legal sense, means not doing what is required by law to be done. 33 V.S.A. § 632(12). <bold>8. Infants — Neglected Children — Parental Care</bold> Where evidence established that mental illness of child's mother was of a lasting persistent type with the probability that she would not recover and there was no paternal parent to assume the care and control of the child, child in question was a neglected child. 33 V.S.A. § 632(12). <bold>9. Witnesses — Competency — Expert Witnesses</bold> The question of the competency of an expert witness is a preliminary matter for the court to decide and the ruling of the trial judge is conclusive unless it is made to appear from the evidence that his decision was clearly erroneous. <bold>10. Appeal and Error — Scope of Review — Questions of Fact</bold> The weight of the evidence, credibility of witnesses and the persuasive effect of their testimony is for the trier of fact. <bold>11. Evidence — Expert Testimony</bold> Expert testimony is to be treated in the same manner as any other testimony by triers of fact and is subject to the same tests as to weight and probative value as non-expert testimony. <bold>12. Evidence — Insanity — Burden of Proof</bold> Having been properly committed to the state hospital, person's mental illness is presumed to continue until overcome by evidence to the contrary.

<bold>1. Indictment and Information — Supporting Affidavit</bold> There is no constitutional requirement that a prosecution by information presented by state's attorney on his oath of office does require supporting affidavit to confirm the truth of facts alleged in the complaint. <cross_reference>13 V.S.A. § 5652</cross_reference>; U.S. Const. Amends. 4, 5, 14; Vt. Const., Ch. I, Art. XI. <bold>2. Criminal Law — Plea of Guilty</bold> Where the plea of guilty was voluntarily made in full understanding of its consequence, with no suggestion the concession of guilt was overborne which was entered upon advice of competent and experienced counsel, the accused was bound by his plea. <bold>3. Criminal Law — Plea of Guilty</bold> A plea of guilty is an admission of guilt according to the law at the time it was accepted by the court and, except in rare circumstances, the validity of the conviction on such a plea is to be judged by the constitutional standards applicable at that time.

<bold>1. Taxation — Appeals — Questions to be Considered</bold> Since the county board of appraisers exercises a judicial function the correctness of their actions will be inquired into where substantial questions of law affecting the merits of a case are in issue. <bold>2. Appeal and Error — Power of Reviewing Court</bold> The correctional power of the supreme court extends no further than to keep inferior jurisdictions within the limits of their jurisdiction and see that they exercise it with regularity. <bold>3. "Certiorari" — Issuance of Writ</bold> The petition for a writ of <italic>certiorari</italic> on its face, must present a meritorious case and state facts sufficient to authorize the issuance of the writ and this is largely a matter of discretion. <bold>4. Taxation — Appeals — Duty of County Board</bold> The county board is a quasi-judicial agency acting as triers of fact touching the questions to be by them determined as referred to them by the tax commissioner, and their findings on the questions so submitted are reported to the commissioner in writing in such form as he requests. 32 V.S.A. §§ 4446, 4450. <bold>5. Taxation — Appeals — Questions to be Considered</bold> The supreme court will not disturb the determinations of fair market value of real and personal property by the listers or county board unless errors of law appear which affect the merits of the case or occur in the course of the proceedings. <bold>6. "Certiorari" — Issuance of Writ — Record</bold> While it is the supreme court's practice to hear the merits of the case upon the petition for a writ of <italic>certiorari</italic> and subsequent pleadings<page_number>Page 520</page_number> and decide whether the writ shall be granted or refused, it is necessary that an adequate record be furnished to the supreme court. <bold>7. Taxation — Appeals — Questions to be Considered</bold> On petition for writ of <italic>certiorari</italic> to review action of county board it is the duty of the supreme court to examine the evidence and determine whether there was competent proof of facts necessary to authorize the adjudication made, and whether in making it any rule of law affecting the rights of the parties has been violated. <bold>8. Trial — Findings — General Findings</bold> A general finding in favor of one party or another is a finding of every special fact necessary to sustain it and is conclusive as to such facts, if there is evidence to support a finding of their existence. <bold>9. Appeal and Error — Questions Considered on Appeal</bold> Omissions in the record are out of the reach of appellate review. <bold>10. Taxation — Appraisal — Value</bold> The fair market value of property is the price which the property will bring in the market when offered for sale and purchased by another, taking into consideration all the elements of the availability of the property, its use, potential or prospective, and all other elements, such as age and condition, which combine to give property a market value. <bold>11. Taxation — Appeals</bold> Where the record certified was inadequate as a matter of law to determine the regularity of the exercise of jurisdiction by the county board, the matter certified will be remanded for further proceedings.

<bold>1. Social Security — Unemployment Compensation</bold> The laws relating to unemployment compensation are essentially administrative in character and are administered by administrative agencies. <bold>2. Social Security — Unemployment Compensation — Appeals</bold> Repeal of special appellate procedure in unemployment cases consigned review in such cases to statutes governing appellate procedure in general. 12 V.S.A. Ch. 102. <bold>3. Social Security — Unemployment Compensation — Determination of</bold> <bold>Qualification for Benefits</bold> It is for the employment security board to determine whether a claimant was disqualified for benefits when, without good cause, he is not available for work. <cross_reference>21 V.S.A. § 1344</cross_reference>(3). <bold>4. Courts — County Court — Appellate Jurisdiction</bold> While the county court is a court of general jurisdiction in the first instance, its appellate jurisdiction is limited to only those cases where the statute specifically so prescribes. <bold>5. Social Security — Unemployment Compensation — Appeals</bold> An appeal from the decision of the employment security board is limited to testing the correctness of the findings of the board and its application of the law to the facts found as well as any errors arising during trial. <bold>6. Social Security — Unemployment Compensation — Appeals</bold> Review of the action of employment security board in denying claims for unemployment compensation is not a cause appealable to the county court either for a trial <italic>de novo</italic> or for an appellate review of the case. <bold>7. Social Security — Unemployment Compensation</bold> While the Unemployment Compensation Act must be given liberal construction to subserve its beneficial social policy, it is equally important that it not be administered or construed in a manner<page_number>Page 582</page_number> dissipative of moneys not intended by the legislature to be disbursed without satisfaction of specified prerequisites.