Osterlind v. Hill

• Decision Date: 03 March 1928
• Citation: 263 Mass. 73,160 N.E. 301
• Parties: OSTERLIND v. HILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 73

160 N.E. 301

OSTERLIND

v.HILL.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1928.

Report from Superior Court, Middlesex County; Alonzo R. Weed, Judge.

Action by Albert Osterlind, as administrator of the estate of Albert T. Osterlind, against Harold J. Hill, in which the trial court sustained demurrers to the original and amended declarations. On report. Orders affirmed.

F. W. Campbell, of Boston, for plaintiff.

C. L. Allen, of Boston, for defendant.

BRALEY, J.

This is an action of tort, brought by the plaintiff as administrator of the estate of Albert T. Osterlind to recover damages for the conscious suffering and death of his intestate. There are four counts in the original declaration and five counts in the amended declaration, to each of which the defendant demurred. The first count of the original declaration alleges that, on or about July 4, 1925, the defendant was engaged in the business of letting for hire pleasure boats and canoes to be used on Lake Quannapowitt in the town of Wakefield; that it was the duty of the defendant to have a reasonable regard for the safety of the persons to whom he let boats and canoes; that the defendant, in the early morning of July 4, 1925, in willful, wanton, or reckless disregard of the natural and probable consequences, let for hire, to the intestate and one Ryan, a frail and dangerous canoe, well knowing that the intestate and Ryan were then intoxicated, and were then manifestly unfit to go upon the like in the canoe; that, in consequence of the defendant's willful, wanton, or reckless disregard of his duties, the intestate and Ryan went out in the canoe, which shortly afterwards was overturned and the intestate, after hanging to it for approximately one-half hour, and making loud calls for assistance, which calls the defendant heard and utterly ignored, was obliged to release his hold, and was drowned; that in consequence of the defendant's willful, wanton, or reckless conduct the intestate endured great conscious mental anguish and great conscious physical suffering from suffocation and drowning. Count 2 differs materially from count 1 only in so far as negligent conduct is alleged as distinguished from willful, wanton, or reckless conduct. In count 3 the acts of the defendant set forth in the previous counts are relied upon as stating a cause of action for death as a result of the defendant's willful, wanton, or reckless conduct. The amended declaration adds allegations to the effect that the plaintiff's intestate and Ryan were intoxicated and incapacitated to enter into any valid contract or to exercise any care for their own safety and that the condition of the intestate was involuntary and induced through no fault of his own.

The trial court sustained demurrers to both the original and amended declarations and reported the case for the determination of this court.

‘At common law a right of action for tort does not survive the death either of the person injured or the wrongdoer. Wilbur v. Gilmore, 21 Pick. 250;Putnam v. Savage, 244 Mass. 83, 85, 138 N. E. 808;Michigan Central Railroad v. Vreeland, 227 U. S. 59, 67, 33 S. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176.’ The basis of any recovery, therefore, must be the statutory provisions providing for the survival of certain actions. See G. L. c. 229, § 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, § 9. The declaration must set forth facts which, if proved, establish the...