Sargent v. Massachusetts Accident Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: 307 Mass. 246,29 N.E.2d 825
• Parties: SARGENT v. MASSACHUSETTS ACCIDENT CO.
• Decision Date: 06 November 1940

307 Mass. 246
29 N.E.2d 825

SARGENT
v.
MASSACHUSETTS ACCIDENT CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 6, 1940.

Report from Superior Court, Suffolk County; Joseph Walsh, Judge.

Action by Porter E. Sargent against the Massachusetts Accident Company on an accident insurance policy. On report from the Superior Court after the trial judge directed a verdict for defendant and reported the case with stipulation that if there was error in direction of verdict judgment was to be entered for plaintiff.

Directed verdict for defendant set aside, and judgment entered for plaintiff.

[29 N.E.2d 826]

Argued before FIELD, C, J., and LUMMUS, DOLAN, COX, and RONAN, JJ.

M. E. Gallagher, Jr., and W. P. Everts, both of Boston, for plaintiff.

C. G. Keene and F. X. Hurley, both of Boston, for defendant.

LUMMUS, Justice.

This is an action by the beneficiary of an accident insurance policy to recover the amount of $5,000, which was to be paid if the insured should suffer an accidental injury ‘that is the sole cause of death’ resulting within ninety days after the accidental injury, disease not being a contributory cause of the accidental injury or death. The insured was the plaintiff's son, Upham Sargent, a young man of twenty-one, financially comfortable, mentally well-balanced, vigorous, athletic, resourceful, courageous, a good swimmer, and of some experience in living in wild country without provisions. For some years he had taken hazardous and adventurous journeys alone, in this country and in Europe.

Apart from one question of evidence, and another of formal proof of loss, the only question in this case is whether the circumstantial evidence warranted a finding that Upham Sargent met his death by accidental injury within the terms of the policy. The judge directed a verdict for the defendant, and reported the case with the stipulation that if there was error in the direction of the verdict, judgment is to be entered for the plaintiff for $5,000 with interest from February 24, 1936, the date of the writ.

The evidence warranted a finding of the following facts. The insured travelled with a kayak, not as deep as a canoe, eighteen feet long. He took a train from La Tuque to Senneterre on August 23, 1934, stayed at Senneterre until August 28, and later reached Mattagami Lake at the head of the Nottaway River. His intention was to run down that river in his kayak, in a northwesterly direction, into James Bay, and to go to a trading post of the Hudson's Bay Company on James Bay, called Rupert's House. He had with him a small repeating rifle with ammunition, a sleeping robe, matches, $80 in money, snares and fishing tackle, and a good supply of food. He was not clothed for winter weather.

The northern reaches of the river, near its mouth, lie in a reservation for friendly and hospitable Indians, who live by trapping, and sell the skins at Rupert's House. The Indians, equally friendly and hospitable, who live near Mattagami Lake, apparently trade at Senneterre, to the south. The river varies from a fifth to a half mile in width, and consists of a series of dangerous rapids among large boulders. The river falls about seven hundred feet in its course. The only possible channel through rapids is usually near one bank or the other, and in that river if one should not find the channel he could not cross to the other side. An upset in that river would probably mean death. Even the best canoemen would find that river very hazardous. Only three parties are known to have descended it safely. The customary route from Mattagami Lake to Rupert's House is much longer and avoids the Nottaway River.

There are no portages, roads, trails or paths in the country drained by the river. That country is flat, desolate and unforested, with many swamps, and with no elevations of consequence. Fish and blueberries are plentiful, and there are some ducks and rabbits.

The insured was last seen by Indians on September 8, 1934, as he was leaving Lake Mattagami with the intention of going down the Nottaway River. In October, 1934, an Indian found his paddle on the bank of the Nottaway River, on the frings of a whirlpool, fifty or sixty miles from the mouth. In May, 1935, another Indian found a part of his kayak under some rocks in the river, forty miles from its mouth. A senior geologist in the service of the Canadian government, who had prepared many topographical surveys, including the ‘Nottaway Sheet’ of the geological survey of Canada, testified. He had never travelled through the rapids of the Nottaway River, but from his studies and work he had acquired a general knowledge of the character of the river and the region through which it flowed. He himself had descended in a canoe the rapids of another river a little north of the Nottaway River. Subject to the exception of the defendant, he was allowed to give his opinion that an individual in a kayak loaded with supplies could not descend the Nottaway River without being drowned. The defendant argues that the subject is one within common knowledge, on which opinion is inadmissible because the jury need no help. But whether a certain kind of boat managed by one man and carrying a load can live in quick...