Somers v. Osterheld

Decision Date21 November 1956
Citation138 N.E.2d 370,335 Mass. 24
PartiesEleanor E. SOMERS, Administratrix, v. Roger G. OSTERHELD et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Richard S. Milstein, Westfield, for plaintiff.

Samuel W. Gaffer, Asst. Atty. Gen., for defendants.


WILKINS, Chief Justice.

The plaintiff, the administratrix of the estate of her minor son, Roger, appeals from orders sustaining the demurrers of each defendant to the two counts of the declaration respectively pertaining to each of them. G.L.(Ter.Ed.) c. 231, § 96. Each count alleges that Roger, eight years of age, had been a patient in Monson State Hospital since 1950. On March 24, 1955, he was placed out of doors, and disappeared. Weeks later he was found dead.

Counts 1 and 2 are brought against the defendant Osterheld, who is alleged to be the superintendent of Monson State Hospital. Counts 3 and 4 are brought against the defendant Bernice Vennert, whose precise position is not clear, but who is alleged to have been in charge of Roger 'under the direction of' the defendant Osterheld. Counts 1 and 3 are for death. G.L.(Ter.Ed.) c. 229, § 2C, inserted by St.1949, c. 427, § 3, as amended by St.1951, c. 250. Counts 2 and 4 are for conscious suffering.

The defendant Osterheld, as superintendent of Monson State Hospital, G.L. (Ter.Ed.) c. 123, § 25, as amended; section 28, as appearing in St.1954, c. 598, § 3, is a public officer. Attorney General v. Tillinghast, 203 Mass. 539, 543-545, 89 N.E. 1058. A public officer is not liable for any omission to perform his statutory duties or for the misfeasance of his servants or agents under the doctrine of respondeat superior; but he may be subject to liability for a tort of active misfeasance committed in the discharge of his ministerial duties as such officer. Trum v. Paxton, 329 Mass. 434, 438-439, 109 N.E.2d 116, and cases cited.

In considering count 1 this anomalous doctrine is unimportant. In actions under the death statute the measure of liability is ordinary negligence irrespective of the test of common law liability. Bergeron v. Forest, 233 Mass. 392, 398-399, 124 N.E. 74 (liability of landlord to tenant for gratuitous repairs); Shapiro v. Lyon, 254 Mass. 110, 115, 149 N.E. 543, and Gallup v. Lazott, 271 Mass. 406, 408, 171 N.E. 658 (liability of host to guest); Oliveria v. Oliveria, 305 Mass. 297, 300-301, 25 N.E.2d 766 (liability of monor child to parent).

The question, therefore, is whether count 1 sufficiently states a cause of action based upon negligence. We summarize allegations of this count which are not hereinbefore enumerated. The defendant Osterheld, as superintendent in charge of the hospital and the patients, 'was responsible for the care, training and safety of the plaintiff's intestate,' and 'had instituted various methods of caring for the plaintiff's intestate and others there located.' Following admission as a patient, Roger was treated by this defendant in the Hodskins Building in which he was kept under observation in an area surrounded by a fence and where his ingress and egress were controlled. Thereafter by direction of this defendant 'the plaintiff's intestate was treated in a building without restraint and was allowed access to a recreation area which was unenclosed' known as the children's colony. While in the children's colony Roger showed a tendency to climb fire escapes and structures and to separate himself from his fellow patients, a tendency which was made known to this defendant. At the plaintiff's request Roger was 'returned' to the Hodskins Building for a time, but later 'as a means allegedly designed to make the plaintiff's intestate more independent and self reliant' he was 'returned' by this defendant to 'the children's colony where no restraint was placed upon him or upon others, and he was permitted to come and go and run about without surveillance and without the presence of attendents known or unknown, nor was any provision made therefor by the defendant Osterheld although the plaintiff's intestate's condition, both physical and mental, was such that he was unable to care for himself. * * * [T]he method of training and handling of the plaintiff's intestate as devised and put into operation by the defendant Osterheld was poorly conceived, inadequately implemented and executed without proper provisions being made for the safety of the plaintiff's intestate and other patients being treated with him, and with no precautions in effect to ascertain the plaintiff's intestate's whereabouts or activities, and because of the inadequacy of these training techniques conceived and made operative by the defendant Osterheld the plaintiff's intestate was placed out of doors on a cold rainy March...

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6 cases
  • O'Neill v. Mencher
    • United States
    • Appeals Court of Massachusetts
    • April 2, 1986
    ...death of a person...." G.L. c. 229, § 2, as appearing in St.1973, c. 699, § 1. Moreover, he urges, the court in Somers v. Osterheld, 335 Mass. 24, 26, 138 N.E.2d 370 (1956), specifically rejected application of the misfeasance/nonfeasance distinction for ministerial actions under the wrongf......
  • Harper v. Cserr
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 19, 1976
    ...misfeasance, it is clear that twenty years ago the state courts did not take kindly to claims of this sort. Somers v. Osterheld, 335 Mass. 24, 25-26, 138 N.E.2d 370, 372 (1956). Indeed, our initial reading of Somers was that it foreclosed recovery here; however, upon considering recent deve......
  • Boynton v. Buchanan
    • United States
    • Appeals Court of Massachusetts
    • March 3, 1982
    ..."in accordance with the instructions of his principal, the Trust." Restatement, Agency §§ 343 and 348A (1958). See Somers v. Osterheld, 335 Mass. 24, 28, 138 N.E.2d 370 (1956). Cf. Coe v. Ware, 271 Mass. 570, 573, 171 N.E. 732 (1930); Maxwell v. Ratcliffe, 356 Mass. 560, 562-563, 254 N.E.2d......
  • Jarrett v. Wills
    • United States
    • Oregon Supreme Court
    • July 15, 1963
    ...deny immunity to an official having the responsibility existing in this case. A recent case most nearly in point is Somers v. Osterheld, 1956, 335 Mass. 24, 138 N.E.2d 370. In Somers the superintendent of an institution similar to Fairview was charged with negligently removing a small boy p......
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