Volume 145 — Vermont Reports

<bold>1. Verdict — Directed Verdict — Review</bold> A directed verdict will be viewed in the light most favorable to the nonmoving party excluding all modifying evidence. <bold>2. Negligence — Duty — Absence of</bold> Where a bank contracts with a company to prepare an appraisal report on a piece of property, the appraiser owes no legal duty to the property owner if there is no evidence that the appraiser intended to supply the report to the property owner or knew the prospective purchaser would supply the report to the property owner, and knew the property owner would reasonably rely on the appraisal report. <bold>3. Appeal and Error — Evidence — Exclusion of Testimony</bold> There is no error when a trial court excludes questions which, even if allowed, would make no difference to the outcome of a case. V.R.E. 401, 402. <bold>4. Negligence — Liability — Generally</bold> Absent a duty of care, an action for negligence must fail. <bold>5. Verdict — Directed Verdict — Particular Cases</bold> In action by prospective seller of home against appraiser for negligence based upon performance of real estate appraisal in which plaintiff advanced no valid theory of duty owed to the property owner by the appraiser, the trial court correctly directed a verdict for the defendant. <bold>6. Courts — Superior Court — Composition</bold> Where a presiding judge heard a case without assistant judges because the two assistant judges of the court were sitting with another presiding judge in another matter and thus were unavailable, the trial court was not improperly constituted. <cross_reference>4 V.S.A. § 111</cross_reference>(a).

<bold>1. Infants — Change of Name — Statutes</bold> When application is made to a probate court to change the name of a minor child, notice of the application to, or consent of, a noncustodial parent is not required. 15 V.S.A. §§ 811-816. <bold>2. Infants — Change of Name — Statutes</bold> The name change statutes impose no duty on a person who applies to a probate court to change the name of a minor child to prove abandonment of the child by a noncustodial parent in order to prevail. 15 V.S.A. §§ 811-816. <bold>3. Infants — Change of Name — Particular Cases</bold> Where the probate court found that it would be in the best interests of a minor child to grant an application to change his surname but denied the application because it was unable to find, as a matter of law, that the natural father had abandoned the child, the court's order would be vacated. 15 V.S.A. §§ 811-816. <bold>4. Infants — Change of Name — Statutes</bold> Where a minor child desires a name change, statute governing change of a minor's name mandates that the application on behalf of the minor be brought by a legal guardian appointed by the probate court. <cross_reference>15 V.S.A. § 812</cross_reference>. <bold>5. Infants — Change of Name — Particular Cases</bold> Where a petition to change the surname of a minor child was filed by the child's mother, who was not a court-appointed guardian authorized to file the application for the name change, the petition<page_number>Page 210</page_number> was invalid on its face, and the probate court erred in considering the merits of the petition. <cross_reference>15 V.S.A. § 812</cross_reference>. <bold>6. Infants — Change of Name — Generally</bold> Before granting or denying a minor's change of name application, the probate court should first determine what is in the best interests of the child, and then decide, on the basis of sound judicial discretion, whether the requested name change is warranted. <cross_reference>15 V.S.A. § 812</cross_reference>.

<bold>1. Negligence — Res Ipsa Loquitur — Elements</bold> Circumstantial proof of negligence under res ipsa loquitur requires<page_number>Page 397</page_number> proof of four elements: (1) a legal duty owing from the defendant to exercise a certain degree of care in connection with a particular instrumentality to prevent the very occurrence that has happened; (2) the subject instrumentality at the time of the occurrence must have been under the defendant's control and management in such a way that there can be no serious question concerning the defendant's responsibility for the misadventure of the instrument; (3) the instrument for which the defendant was responsible must be the producing cause of the plaintiff's injury; (4) the event which brought on the plaintiff's harm is such that would not ordinarily occur except for the want of requisite care on the part of the defendant as the person responsible for the injuring agency. <bold>2. Negligence — Res Ipsa Loquitur — Evidence</bold> To infer negligence on the basis of res ipsa loquitur, the possibility that the injury was caused by something other than defendant's negligence need not be completely eliminated; the evidence need only permit a reasonable factfinder to conclude that the event probably would not have occurred if defendant had used requisite care. <bold>3. Negligence — Res Ipsa Loquitur — Evidence</bold> Prima facie satisfaction of an element of res ipsa loquitur requires only reasonably supportive evidence. <bold>4. Negligence — Res Ipsa Loquitur — Evidence</bold> Where defendant conceded his duty to exercise reasonable care in welding a trailer hitch to the rear of plaintiffs' car, uncontroverted evidence disclosed that defendant was exercising exclusive control over the welding equipment, which was in operation at the time and place of origin of the fire that destroyed plaintiffs' car, and defendant acknowledged that his actions had caused the fire, it was within the province of the trial court to find that the fire probably would not have occurred if defendant had used requisite care and infer negligence on the basis of res ipsa loquitur.

<bold>1. Judgments — Judgment Notwithstanding the Verdict — Tests</bold> A motion for judgment notwithstanding the verdict raises the same legal questions raised by a motion for directed verdict, and therefore the two motions are treated alike. V.R.C.P. 50(b). <bold>2. Judgments — Judgment Notwithstanding the Verdict — Tests</bold> In passing upon the propriety of the granting of a motion for judgment notwithstanding the verdict, the supreme court must view the evidence in the light most favorable to the nonmoving party, excluding the effect of any modifying evidence. V.R.C.P. 50(b). <bold>3. Judgments — Judgment Notwithstanding the Verdict — Tests</bold> In passing upon the propriety of the granting of a motion for judgment notwithstanding the verdict, the question is whether the result reached by the jury is sound in law on the evidence produced; if there was any evidence fairly and reasonably supporting the nonmoving party's claim, the judgment notwithstanding the verdict was improper. V.R.C.P. 50(b). <bold>4. Verdict — Directed Verdict — Particular Cases</bold> Directed verdict against plaintiffs on their original claim for breach of contract precluded plaintiffs from offsetting defendant's<page_number>Page 411</page_number> counterclaim for breach of contract with damages alleged to have resulted from a breach of the parties' contract by defendant. <bold>5. Judgments — Judgment Notwithstanding the Verdict — Improper</bold> <bold>Grants</bold> Where trial court granted a directed verdict for defendant on plaintiffs' claim for breach of contract and jury rendered a general verdict in favor of plaintiffs on defendant's counterclaim for breach of contract, judgment notwithstanding the verdict on the counterclaim would be reversed, since there was evidence fairly and reasonably supporting offsets alleged as a defense to the counterclaim and those offsets were not elements of plaintiffs' original claim. V.R.C.P. 50(b).

<bold>1. Appeal and Error — Findings — Tests for Overturning</bold> Findings of fact will be set aside only when, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, the findings are clearly erroneous. V.R.C.P. 52. <bold>2. Appeal and Error — Findings — Tests for Overturning</bold> Where the evidence is conflicting, findings of fact will stand even if the evidence predominates against them; only where the contrary proof is so overwhelming that there is no reasonable basis upon which findings can stand will they be set aside. V.R.C.P. 52. <bold>3. Appeal and Error — Evidence — Tests and Standards</bold> When the evidence is conflicting, the credibility of the witnesses, the weight of the evidence, and its persuasive effect are questions for the trier of fact, and its determination must stand if supported by credible evidence even though there may be inconsistencies or substantial evidence to the contrary. <bold>4. Contracts — Value of Services</bold> An architect may recover for his services when the costs of renovations are reasonably near the amount estimated; however, the question whether the costs are reasonably near the estimate is for the trier of fact to resolve. <bold>5. Contracts — Breach — Evidence</bold> Where trial court's finding that the cost of renovations designed by defendant for plaintiff's residence unreasonably exceeded defendant's estimate was supported by the evidence, the court did not err in holding that defendant breached the parties' contract by charging plaintiff excessive fees. <bold>6. Pleading — Affirmative Defenses — Burden To Plead and Prove</bold> Waiver is an affirmative defense and must be pleaded as such. V.R.C.P. 8(c).<page_number>Page 450</page_number> <bold>7. Pleading — Affirmative Defenses — Failure To Plead</bold> Unless an affirmative defense is specifically raised in the pleadings, it is not generally available at trial or on appeal. V.R.C.P. 8(c). <bold>8. Contracts — Breach — Waiver</bold> Where defendant claimed that, because plaintiff made no objection to the introduction of evidence that she paid most of defendant's bills as they were submitted, the issue of plaintiff's waiver of her right to recover on her claim that defendant charged excessive fees became a part of the case even though it had not been properly pleaded as an affirmative defense, since the evidence upon which defendant relied did not compel a conclusion of waiver, acquiescence or ratification as a matter of law, trial court did not err in holding that defendant breached the parties' contract by charging excessive fees.

<bold>1. Sales — Acceptance — Seller's Rights</bold> Where trial court found that after delivery and inspection of allegedly deficient automobile engine buyer accepted the engine by refusing to return it and by placing it in an automobile, regardless of whether the engine was complete, it was accepted and seller was entitled to recover the agreed-upon purchase price. 9A V.S.A. § 2 — 607(1). <bold>2. Sales — Non-Conforming Goods — Buyer's Remedies</bold> In an action to recover the purchase price of an automobile engine, allegation by buyer that the engine as sold was incomplete and not as represented was sufficient to raise a claim alleging a breach of contract by seller which, if proven, would entitle buyer to recover damages for her losses, and since evidence was presented below by both parties on the issue of the engine's completeness, but the trial court failed to make a finding on the issue, a remand would be ordered. 9A V.S.A. §§ 2 — 714, 2 — 715.<page_number>Page 486</page_number>