Osterlind v. Hill

263 Mass. 73, 160 N.E. 301 (1928)



At common law a right of action for tort does not survive the death either of the person injured or of the wrongdoer. The basis of any recovery, therefore, must be the statutory provisions providing for the survival of certain actions. Mass. Gen. Laws ch.. 229, § 5. The declaration must set forth facts which, if proved, establish the breach of a legal duty owed by the defendant to the intestate.


Plaintiff estate administrator sought to recover damages from defendant boat renter for the conscious suffering and death of his intestate. Plaintiff estate administrator alleged that after the canoe overturned, the intestate hung to the canoe for about a half-hour and made loud calls for assistance. Thus, the intestate was not in a helpless condition. Defendant demurred. The trial court sustained defendant's demurrers to both the original and amended declarations of plaintiff estate administrator and reported the action for determination by the court. The court affirmed the judgment of the trial court. 


Did the trial court err in sustaining defendant's demurrers?




Defendant boat renter violated no legal duty in renting a canoe to a man in the intestate's condition. The allegation that the intestate was incapacitated to enter into any valid contract merely stated a legal conclusion. The allegations that the intestate was incapable of exercising any care for his own safety was controlled by the allegations that he hung to the side of the canoe for about a half-hour, calling for assistance. Due to the absence of any duty to refrain from renting a canoe to a person in the condition of the intestate, the allegations of involuntary intoxication relating to the issues of contributory negligence were immaterial. The failure of the boat renter to respond to the intestate's outcries was immaterial. The allegation that the canoe was "frail and dangerous" appeared to be a general characterization of canoes. It was not alleged that the canoe was out of repair and unsafe.

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