Volume 137 — Vermont Reports

<bold>1. Judgments — Summary Judgment — Grounds</bold> Practicality, in and of itself, did not justify summary judgment.<page_number>Page 465</page_number> <bold>2. Executors and Administrators — Survival of Actions — Damages</bold> The damages necessary to sustain a negligence claim under statute authorizing executor or administrator to prosecute a cause of action for bodily injury where decedent had the cause of action before death are the damages suffered by the decedent at and after the injury and prior to death. <cross_reference>14 V.S.A. § 1453</cross_reference>. <bold>3. Executors and Administrators — Survival of Actions — Cause of</bold> <bold>Action</bold> Cause of action, under statute providing that a cause of action for bodily injury survives the victim's death and may be sued upon by the executor or administrator, rests upon tortious injuries received prior to death, not the existence of beneficiaries of the estate, and it was error to grant summary judgment in such an action on the ground that it was pointless to allow maintenance of the action because there were no beneficiaries to recover and thus any proceeds of the suit would escheat to the town of decedent's inhabitance. <cross_reference>14 V.S.A. § 1453</cross_reference>. <bold>4. Death — Wrongful Death — Nature of Action</bold> Vermont wrongful death act does not create a new cause of action, it merely creates a new right of recovery which attaches to the right of action arising from the original wrong, engrafting a new element of damages upon the right of action surviving by virtue of statute providing that a cause of action for bodily injury survives the death of the victim. 14 V.S.A. §§ 1453, 1491, 1492. <bold>5. Death — Wrongful Death — Damages</bold> If damages are to be recovered in a wrongful death action, next of kin must exist within meaning of statute providing that amount recovered shall be for the benefit of the spouse and next of kin, and if next of kin cannot be ascertained, computation of damages is impossible. <cross_reference>14 V.S.A. § 1492</cross_reference>. <bold>6. Death — Wrongful Death — Statutes</bold> The term "next of kin," in Vermont's wrongful death act, properly denotes those persons most nearly related to the decedent by blood. <cross_reference>14 V.S.A. § 1492</cross_reference>. <bold>7. Death — Wrongful Death — Persons Entitled To Recover</bold> Where plaintiff and his wife agreed to adopt child and, while undergoing a six month waiting period before decree of final adoption could issue, they had custody of the child, and the child died while being treated in a hospital for a burn, and plaintiff, as administrator of child's estate, brought a wrongful death action against doctor and hospital, and wrongful death statute provided that amounts recovered were for benefit of the "next of kin," an equitable adoption, even were it decreed, would not confer next of kin status on the plaintiff and his wife so as to entitle them to maintain a wrongful death claim despite fact final<page_number>Page 466</page_number> adoption had not been decreed, and lower court properly granted defendants summary judgment. <cross_reference>14 V.S.A. § 1492</cross_reference>.

<bold>1. Jury — Prejudice — Particular Cases</bold> Where jury was impaneled 16 days before trial for driving under the influence, during that time several jurors sat in trial of two felony charges and an editorial in a local paper noted high incidence of liquor-related highway deaths, trial court conducted a second voir dire prior to reception of evidence in order to ascertain any prejudice, and court offered to treat defendant's motion to dismiss as a motion for a mistrial if any matter which could possibly affect jury's deliberations were discovered, and none appeared, denial of motion to dismiss was not an abuse of discretion. <cross_reference>23 V.S.A. § 1201</cross_reference>. <bold>2. Witnesses — Expert Evidence — Competency</bold> Competency of a witness offered as an expert is a preliminary question for the trial court, to be decided before the testimony is received, and in permitting chemist to testify regarding chemical analysis of breath of defendant tried for driving under the influence the court implicitly found competency and its ruling was not reversible on appeal unless it appeared from the evidence to be erroneous or founded upon an error of law. <cross_reference>23 V.S.A. § 1201</cross_reference>. <bold>3. Evidence — Chemical Tests — Admissibility</bold> Chemist with Ph.D. in organic chemistry, training in gas chromatography, and seven years of service in department of health as a toxicologist, who had analyzed over three thousand breath samples taken from drivers suspected of being under the influence, and who testified he was well-acquainted with the ratio between alcohol in the blood and alcohol in the breath, was competent to testify as to breath test results and admission of his testimony was not error. <cross_reference>23 V.S.A. § 1201</cross_reference>. <bold>4. Motor Vehicles — Alcohol Tests — Chain of Evidence</bold> Where tube used for breath test of driver suspected of being under the influence was crimped and placed in a sealed box, officer wrote his and defendant's names and the date and time on the box, the box was placed in a refrigerator in the police station,<page_number>Page 474</page_number> three days later the state laboratory received the box in the same condition, and there was no evidence of tampering, the test results were properly admitted at trial over objection of impermissible gap in chain of custody. <cross_reference>23 V.S.A. § 1201</cross_reference>. <bold>5. Motor Vehicles — Alcohol Tests — Chain of Evidence</bold> For results of breath test of driver suspected of being under the influence to be admissible, the chain of custody need not be perfectly established; the circumstances need only establish reasonable assurance of the identity of the sample. <cross_reference>23 V.S.A. § 1201</cross_reference>. <bold>6. Constitutional Law — Operation of Vehicle Under the Influence</bold> <bold>— Particular Laws</bold> Statute providing that "a person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway while under the influence of intoxicating liquor" is not unclear and meets the constitutional standard of a criminal statute, namely, that it must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. <cross_reference>23 V.S.A. § 1201</cross_reference>. <bold>7. Constitutional Law — Operation of Vehicle Under the Influence</bold> <bold>— Particular Laws</bold> Where various sections of driving while under the influence statute showed that legislature had decreed that chemical tests, including breath tests, be taken to determine presence of alcohol in the driver's blood, and various sections referred to weight of alcohol in the blood, expressed as a percentage, as the determining factor, provision that "weight of alcohol in the person's blood or breath" could create presumption of influence was not unconstitutionally vague due to the reference to weight of alcohol in the breath, but the words "or breath" in the statutory provision were unnecessary and would be held severed from the statute, for the statute did not create a presumption based on weight of alcohol in the breath. <cross_reference>23 V.S.A. § 1204</cross_reference>. <bold>8. Motor Vehicles — Operation Under the Influence — Instructions</bold> Where statute improperly allowed presumptions based on weight of alcohol in the breath as well as presumptions based on weight of alcohol in the blood, the rest of the statute making it clear that weight of alcohol in the blood was the determining factor, court hearing case of driver prosecuted for driving under the influence did not err in giving instruction which referred only to weight of alcohol in defendant's blood. <cross_reference>23 V.S.A. § 1204</cross_reference>. <bold>9. Statutes — Construction and Application — Surplusage</bold> In construing a statute every part of it must be considered and every word, clause and sentence given effect if possible, but if words seem unnecessary or have no meaning within the scheme of the statute, or seem to have been inadvertently used, they<page_number>Page 475</page_number> will be treated as surplusage and disregarded, in order to effectuate the legislative intent. <cross_reference>23 V.S.A. § 1204</cross_reference>.

<bold>1. Appeal and Error — Evidence — Weight</bold> The weight and sufficiency of the evidence and credibility of witnesses and persuasive effect of their testimony is for the trial court, and its determination must stand if supported by credible evidence, although there may be inconsistencies or substantial evidence to the contrary; unless it can be said as a matter of law that the court's determination was wrong, it must stand. <bold>2. Motor Vehicles — Alcohol Tests — Consent</bold> Where driver suspected of being intoxicated crashed into guard rails, he and doctor who examined him two days later stated he was stunned and dizzy, doctor stating he probably had a concussion, driver had stumbled as he got out of his car, talked with slurred voice, and stepped out of police cruiser and staggered<page_number>Page 483</page_number> onto the road, and court found that he had denied injury at time of the accident and had refused medical assistance and officer had found no injury, and at police station he at first exercised the rights he later waived and claimed at trial he had lacked the capacity to waive because he had a concussion, court's conclusion he knowingly and intelligently waived right to remain silent and consented to take breath test was not error. <bold>3. Appeal and Error — Preservation of Questions — Questions Not</bold> <bold>Preserved, but Considered</bold> Issue not raised below would not be considered on appeal in absence of glaring error, error so grave and serious that it strikes at the very heart of a defendant's constitutional rights. <bold>4. Trial — Sua Sponte Actions by Judge — Glaring Error</bold> Glaring error not raised below should be noticed by the trial judge sua sponte. <bold>5. Trial — Sua Sponte Actions by Judge — Glaring Error</bold> Glaring error allowing consideration on appeal of error not raised below would not be found where driver suspected of being intoxicated at first refused to sign Miranda rights waiver and was later questioned with his oral consent and there was no evidence of coercion or undue influence. <bold>6. Motor Vehicles — Operation Under the Influence — Elements</bold> Instruction that if jury trying defendant charged with driving under the influence found him to have been in the slightest degree under the influence it would be enough to sustain a conviction was not error. <cross_reference>23 V.S.A. § 1201</cross_reference>.

<bold>1. Municipal Corporations — Sovereign Immunity — Insurance</bold> Insofar as the doctrine of sovereign immunity as applied to municipal corporations originated in court opinion, its justification in terms of current circumstances would be properly reviewable by the judiciary, though in view of statute providing that<page_number>Page 518</page_number> municipal purchase of liability insurance waives its sovereign immunity to the extent of the coverage, the supreme court is bound to acknowledge the doctrine's continuance. <cross_reference>24 V.S.A. § 1092</cross_reference>; <cross_reference>29 V.S.A. § 1403</cross_reference>. <bold>2. Municipal Corporations — Sovereign Immunity — Torts</bold> Municipal housing authority's construction of housing for the elderly, with the assistance of federal funds, financed by bonds designed to be self-liquidating from income derived from rents and other appropriate sources, was proprietary activity and did not so partake of the critical essence of the basic concerns of government as to require that municipality was immune, under sovereign immunity, from suit of adjoining landowner claiming construction operations damaged its building through vibrations from pile driving and interference with the lateral support for the foundation and walls of adjoining landowner's building.

<bold>1. Sexual Assault — Evidence — Hearsay</bold> State trooper's testimony in sexual assault prosecution, reciting story victim had told him, was classic hearsay, that is, testimony by one witness as to what some other person told him, offered to evidence the fact asserted, and was prejudicial, and in presence of over eight hours deliberation by the jury and the extensive recitation of the trooper's testimony establishing the crime in hearsay form, the later cross-examination of the actual witness could not retrieve the error and reversal was required. <bold>2. Sexual Assault — Exception for Spouses</bold> Element of sexual assault, that victim not be spouse of defendant, could be established by victim's testimony that assailant was a stranger to her, and by examination and cross-examination tending to establish lack of a marital relationship. <cross_reference>13 V.S.A. § 3252</cross_reference>.

<bold>1. Statutes — Construction and Application — Conflicting</bold> <bold>Provisions</bold> Although a specific statute predating a general statute on the same subject matter will prevail, where there are two statutes upon the same subject matter and they are in irreconcilable conflict, the statute which is the most recent legislative enactment controls, since it is the latest expression of the legislative will. <bold>2. Public Employees — Suspension and Dismissal — Statutes</bold> Statute providing that notwithstanding any other provision of law commissioners of state departments appointed by the governor shall serve at his pleasure, being later in time of enactment than statute providing a governor may remove a Commissioner of Public Safety upon charges preferred in writing and after hearing, for certain specific grounds stated in the statute, governed, as the statutes were in irreconcilable conflict and the more recent one was the latest expression of the legislative will. <cross_reference>3 V.S.A. § 2004</cross_reference>; <cross_reference>20 V.S.A. § 1873</cross_reference>.<page_number>Page 608</page_number> <bold>3. Statutes — Construction and Application — Conflicting</bold> <bold>Provisions</bold> The phrase "notwithstanding any other provision of law," at beginning of statute, clearly indicated legislative intent that the statute take precedence over any other enactment dealing with the same subject matter, and it was difficult to perceive how the legislature could have more clearly expressed its intention to supersede prior enactments except by the use of express words of repeal. <bold>4. Public Employees — Commissioner of Public Safety — Suspension</bold> <bold>and Dismissal</bold> Statute providing that "all commissioners of state departments . . . appointed by the governor shall serve at the pleasure of the governor" unmistakably indicates legislative intent that it apply to the Commissioner of Public Safety. <cross_reference>3 V.S.A. § 2004</cross_reference>. <bold>5. Statutes — Construction and Application — Plain Meaning</bold> Where the meaning of a statute is plain there is no necessity for construction, and a trial court is required to follow it according to its terms. <bold>6. Statutes — Construction and Application — Legislative Intent</bold> In determining meaning of clause of statute referring to the advice and consent of the senate, the court must look to the intent of the legislature where the intent could be ascertained, which required the court to consider not only the letter of the statute, but more importantly, its reason and spirit. <cross_reference>3 V.S.A. § 2004</cross_reference>. <bold>7. Statutes — Construction and Application — Generally</bold> Legislatures are not grammar schools, and in this country, at least, it is hardly reasonable to expect legislative acts to be drawn with strict grammatical or logical accuracy, and thus construction of a statute should be based on the whole statute. <bold>8. Statutes — Construction and Application — Section Heading</bold> Caption of section of Vermont Statutes Annotated was relevant in determining the legislative intent, and it was essential that the construction of the section in light of the intention indicated by the caption not render the act ineffective or lead to irrational consequences. <cross_reference>3 V.S.A. § 2004</cross_reference>. <bold>9. Public Employees — Suspension and Dismissal — Statutes</bold> In statute providing that "all commissioners of state departments . . . appointed by the governor shall serve at the pleasure of the governor with the advice and consent of the senate," although the advice and consent clause was inartfully located, and though it could be construed such that "advice and consent" modified the word "serve" rather than the word "appointed," it would be held that the advice and consent clause did not limit the governor's removal powers and applied to appointments, not to removals. <cross_reference>3 V.S.A. § 2004</cross_reference>.<page_number>Page 609</page_number>