O'Brien v. Cunard S.S. Co.

154 Mass. 272, 28 N.E. 266 (1891)



If the surgeon of a foreign steamship bringing immigrants to this country where the quarantine regulations require vaccination, vaccinates one of them whose behavior indicates consent, whatever her unexpressed feelings may be, he is justified in his act, and the ship-owner is not liable for an assault.


Plaintiff brought an action in tort for assault and for her negligent vaccination, while she was a passenger on defendant's steamship, against a surgeon. The trial court ordered a verdict for defendant, and plaintiff appealed.




Was there was any evidence to warrant the jury finding that the defendant, by any of its servants or agents, committed an assault, and was guilty of negligence, towards the plaintiff?    




The Court affirmed, holding that the evidence showed that plaintiff did not object to the vaccination whatsoever. There was also no showing to the surgeon that the plaintiff did not want the vaccination card that saved her from detention at quarantine. Thus, the court viewed surgeon's conduct as lawful.


With regard to negligence, there was no evidence that surgeon was negligent his performance. However, even if he were, the court ruled that it would be unreasonable to hold the defendant responsible for everything concerning the surgeon's treatment, when he was engaged in the business of other persons in regard to which defendant was powerless to interfere. 

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