Fancher v. Benson

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-020


Christene L. Fancher                         Supreme Court

     v.                                      On Appeal from
                                             Orange Superior Court
Alta Benson and Jane Savoie
                                             May Term, 1990



Linda Levitt, J.

Peardon Donaghy, Montpelier, for plaintiff-appellee

Peter S. Cullen of Theriault & Joslin, P.C., Montpelier, for defendants-
  appellants


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     MORSE, J.   Defendants appeal from a $25,500 jury verdict against them
for violating Vermont's Consumer Fraud Act, 9 V.S.A. { 2461(b), by selling
plaintiff a horse which had a weak heart.  We affirm and hold that a horse
is covered under the Act's definition of "goods," that the instructions on
agency were proper, that the evidence supports the verdict, and that the
trial court properly permitted the issue of punitive damages to go to the
jury.
     In October 1985, Promises to Keep ("Promise"), an eight-year-old
Oldenburg mare trained for dressage, (FN1) underwent a twenty-two day hospita-
lization at the University of Georgia College of Veterinary Medicine (UGA)
for a heart problem described in a UGA report of November 27, 1986, as
cardiopulmonary disease due to the presence of ventricular tachycardia.  The
report further stated that "[n]o structural abnormalities were identified,
so it was determined the mare was not yet in congestive heart failure."  It
indicated that the horse was successfully treated but that a follow-up
examination and "three months of pasture rest" would need to take place.  It
concluded:

            A few cases of ventricular tachycardia have been
          identified and successfully treated. . . .  The animals
          who had no underlying structural heart defects or
          evidence of congestive heart failure responded well to
          therapy, and returned to their normal performance
          levels. . . .  Promise has responded well to therapy to
          date, so we feel her prognosis for return to performance
          is good.

     In January 1986, defendant Alta Benson of Georgia employed defendant
Jane Savoie of Richmond, Vermont, as her agent to sell Promise, and arranged
for the mare to be transported from Georgia to Vermont.  Both defendants
signed a letter of agreement stating,

            You will . . . show Promise with the aim of selling
          her at a time when the most profit can be realized.
          . . .  In what I hope is the unlikely event that Promise
          has a recurrence of her ventricular tachycardia, we are
          agreed that she is to be sent to the nearest state
          veterinary school to be put down . . . and expenses will
          be shared by us. . . .
            I am enclosing herewith copies of Promise's medical
          reports from the University of Georgia . . . .
Later in January, Barbara Hill contacted defendant Savoie looking for a
horse suitable for plaintiff.  Savoie told Hill that she had a horse that
was not yet really "fit" due to a viral infection but that it would be
ready in about a month.
     On March 10, 1986, plaintiff, Hill and Hill's partner, Alix Nelson,
visited the horse and were told by Savoie that Promise had been ill with the
flu.  She did not say that the horse had suffered from any episode of heart
failure, but did say that the UGA had prepared a report.  It was disputed
whether the report was available for inspection then.  When Nelson inquired
about a shaved patch of skin on the horse that she recognized as the result
of an EKG, Savoie explained that the EKG was given as a matter of course
during the treatment of the respiratory problem and that there was nothing
wrong with the horse's heart.
     Plaintiff thereafter arranged for a prepurchase physical examination by
a veterinarian, Dr. Barbara LeClair.   Because there was some concern about
swelling on the horse's legs, LeClair was asked to pay specific attention to
that potential problem.  On March 12, 1986, when LeClair arrived at the
stable to perform the examination, Savoie gave her the UGA report.  Savoie
testified that, "[a]s [Dr. LeClair] was reading through the symptoms that
Promise had shown, her response was, 'Wow'."  LeClair testified that Savoie
assured her that she had "talked to [plaintiff] about this report," and when
asked, "did Jane [Savoie] say to you anything to the effect that the
purchasers were not concerned about the [UGA] report?"  She replied, "I
can't remember specifically but I do believe - I think that was part of the
conversation."  LeClair conveyed her exam results to Hill by telephone
stating that, "the horse appeared to be in good health and did not show any
signs of the virus."  Thereafter, on or about March 20, 1986, plaintiff
purchased Promise.  Although LeClair said she mentioned the UGA report to
Hill over the telephone prior to the sale of the horse, Hill denied that Dr.
LeClair disclosed any information about the condition of the horse's heart.
LeCLair explained that the exam "could not disclose every underlying heart
defect."  On June 3, 1986, the UGA report was made available to plaintiff.
     Three months after the purchase of Promise, on June 22, 1986, the mare
had a recurrence of heart distress during her first competition and was put
to pasture thereafter.  Plaintiff brought this suit after unsuccessfully
trying to return Promise to defendants for a refund of her money.
     On appeal, defendants challenge the applicability of Vermont's Consumer
Fraud Act to a transaction involving an animate object, and the court's
failure to properly instruct the jury on the agency relationship between
plaintiff and Dr. LeClair.
                                    I.
     Defendants initially contend that the sale of a horse does not come
within the covered transactions of Vermont's Consumer Fraud Act because it
is not a good or service as defined by the statute.  9 V.S.A. { 2451a(b)
defines goods and services as follows:  "any objects, wares, goods,
commodities, work, labor, intangibles, courses of instruction or training,
securities, bonds, debentures, stocks, real estate, or other property or
services of any kind."   
     The purpose of the Vermont's Consumer Fraud Act is to protect the
public and is remedial in nature.  9 V.S.A. { 2451; State v. Custom Pools,
150 Vt. 533, 536, 556 A.2d 72, 74 (1988).  We will not give the definition
of "goods" -- i.e., "property . . . of any kind" -- such a narrow
construction as to exclude living property, which, just as inanimate
objects, is bought and sold.  See, e.g., Scholtz v. Sigel, 601 S.W.2d 516,
519 (Tex. Civ. App. 1980) (animals are "goods" and, just as inanimate
objects, may be the subject of a deceptive trade practice); see generally
Travis v. Washington Horse Breeders Ass'n, 111 Wash. 2d 396, 759 P.2d 418
(1988) (en banc) (sale of horse with a defective heart violated consumer
protection laws).
                                    II.
     The principal issue raised by defendants is that the court failed to
instruct the jury that Dr. LeClair was plaintiff's agent for purposes of
determining the state of Promise's health, and further, that anything
disclosed to LeClair on that subject was functionally the same as disclosure
to plaintiff herself.  Plaintiff contended at trial that she had been
deceived by Savoie into believing that Promise had suffered only the flu.
There was no dispute, however, that LeClair had read the UGA report about
one week prior to the purchase of Promise by plaintiff.
     We agree that such an instruction was proper under the undisputed facts
presented at trial.  No other conclusion but that Dr. LeClair served as
plaintiff's agent in determining Promise's health condition can be reached.
Estate of Sawyer v. Crowell, 151 Vt. 287, 291, 559 A.2d 687, 690 (1989);
Solomon v. Design Development, Inc., 143 Vt. 128, 131, 465 A.2d 234, 236
(1983).
     The trial court instructed the jury as follows:

          Just as the seller is responsible for what the seller's
          agent said or did, the buyer is deemed to have the same
          knowledge which the seller or her agent passed on to the
          buyer's agent.  Also the buyer cannot claim she did not
          have notice of a particular fact if her agent did have
          notice of the fact.  For you to find that any witness
          was acting as agent for either seller or the buyer, you
          must find that the seller or the buyer gave the witness
          authority to do an act on behalf of the seller or buyer.

Defendants did not object to this instruction.  Although defendants
submitted a written request to charge, including a request for an
instruction directing the jury to find that LeClair was plaintiff's agent,
defense counsel waived that request when he stated at a charge conference,
"I think it's up to the jury to decide whether Dr. LeClair is an agent or
not."  In effect, the court gave the jury an instruction as requested by
defendants and committed no error.
                                   III.
     Defendants further contend that a directed verdict should have been
granted in their favor because LeClair, as plaintiff's agent, received the
UGA report prior to the sale of Promise and plaintiff was bound by that
disclosure.  We disagree.
     The jury could have found that Savoie deceived LeClair by telling her
in effect that plaintiff knew about the contents of the UGA report and was
not concerned about it, thereby prompting LeClair to keep silent about the
report unless asked by plaintiff or someone else on plaintiff's behalf.
This was a jury question and not proper for resolution as a matter of law by
the court.
     Defendants also argue that they were entitled to a directed verdict
because plaintiff did not try to return the horse once she learned of the
contents of the UGA report on June 3, some three weeks before the second
heart distress episode.  This ground for a directed verdict was waived
because it was not raised at trial.  Even if it were, this evidence would
reflect on the reasonableness of plaintiff's reliance in purchasing Promise
based on the lack of information about the horse's heart, which again would
be a jury question. (FN2)
                                    IV.
     Finally, defendants claim that the court erred when it submitted the
issue of punitive damages to the jury.  "The statute requires an award of
exemplary damages only where malice, ill will, or wanton conduct is
demonstrated."  Bruntaeger v. Zeller, 147 Vt. 247, 252, 515 A.2d 123, 127
(1986).  The jury could have reasonably inferred that defendant Savoie
intentionally delayed disclosure of the UGA report to plaintiff, lied about
what the report contained, and deceived LeClair into not promptly informing
plaintiff of the contents of the report.  There was sufficient evidence of
malice -- e.g. the use of "sharp" selling tactics -- to instruct the jury on
punitive damages.
     Affirmed.
                                             FOR THE COURT:


                                             _____________________________
                                             Associate Justice




FN1.      "Dressage" is "exhibition riding . . . in which the horse is
controlled in certain difficult steps and gaits by very slight movements of
the rider."  Webster's New World Dictionary at 426 (2d ed. 1976).


FN2.      Because not raised before the trial court, we decline to reach
defendants' claim that a judgment notwithstanding the verdict (jnov) or a
new trial should have been granted because of inconsistent verdicts.
Although instructed on the law of breach of express warranty and the implied
warranties of merchantability and fitness for a particular purpose, the jury
returned verdicts in defendants' favor on these theories of liability.