293 Mass. 419 | Mass. | 1936
These are actions of tort arising out of the accidental shooting of the minor plaintiff, who will hereafter be called the plaintiff. The action in his name is for personal injuries. The plaintiff in the other action is his father, who sues for consequential damages caused by the injury to the plaintiff. There are two counts in each declaration, one based on common law negligence and the other on the violation of G. L. (Ter. Ed.) c. 140, § 130. The cases were referred to an auditor, whose findings of fact were to be final. The finding of the auditor in each
The defendant filed objections to the report of the auditor. See Rules 89 and 90 of the Superior Court (1932). These were based upon several inferences drawn by the auditor from ultimate and subsidiary facts found' by him. These inferences were to the effect (1) that the defendant on the day in question made some explanation of the use of the rifle to some or all of his boys, (2) that the defendant knew that his boys would have the latter part of the afternoon free and gave no instructions to his wife to prevent their use of the rifle, (3) that the defendant had no intention to restrict the use of the rifle to his own personal use, (4) that the use of the rifle and cartridges by the boys was known to the wife of the defendant, these inferences being drawn not with reference to her own care or lack of care but as bearing upon the care or lack of care of the defendant as to the rifle.
The form of the order appointing the auditor in the cases at bar was after appropriate hearing to "find the facts and report his findings .... The findings of fact . . . are to be final.” This made the auditor the fact finding tribunal in the cases. It was his duty to find and report all material ultimate and subsidiary facts and to draw the" appropriate inferences in order to enable the rights of the parties to be adjudicated finally according to law. The "findings of fact are final and conclusive unless tainted in some material particular by error of law. They stand upon the same footing as the verdict of a jury.” Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 349. Marden v. Howard, 242 Mass. 350, 353. Standard Oil Co. of New York v. Malaguti, 269 Mass. 126, 129. Ballou v. Fitzpatrick, 283 Mass. 336, 339. Whether the defendant was negligent was a question to be
The procedure in the cases at bar conformed to the principles stated in Merrimac Chemical Co. v. Moore, 279 Mass. 147, 151, 152, 153. Heaphy v. Kimball, ante, 414.
There was no error of procedure on the part of the auditor in drawing inferences to which the defendant objected. An auditor is not limited to a naked summary of the facts but may state the reasons for his conclusions. Fair v. Manhattan Ins. Co. 112 Mass. 320, 329.
In our opinion the facts set forth in the report support •the conclusion that the defendant was negligent with respect to his rifle, from which negligence, as the proximate cause, the injury to the plaintiff resulted. The circumstances that the defendant showed the rifle to his children including the son Stanley, then thirteen years old, that he gave no warning as to the dangers of its use in a village, that he delivered no instructions to them not to use it without at least some supervision, that he did not ask his wife to be watchful in its care, but left it easily accessible to those too young and inexperienced to be entrusted with it, show a culpable disregard of the safety of others touching a highly dangerous instrumentality. Sousa v. Irome, 219 Mass. 273. Gudziewski v. Stemplesky, 263 Mass. 103. Pudlo v. Dubiel, 273 Mass. 172, 175. Gordon v. Bedard, 265 Mass. 408, 411-412. Morrison v. Medaglia, 287 Mass. 46, 50. See also Woodman v. Haynes, 289 Mass. 114.
In each case the entry may be Orders and “finding” affirmed.