O'Brien v. Cunard S.S. Co.
28 N.E. 266 (1891)
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Rule of Law:
A person's overt actions and outward manifestations, rather than their unexpressed feelings, determine whether they have consented to a physical touching. Additionally, a common carrier that is statutorily required to provide a competent medical professional for passengers is not vicariously liable for that professional's negligence in treatment, as its duty is limited to using due care in the surgeon's selection.
Facts:
- Mary O'Brien was a steerage passenger on a steamship operated by Cunard S.S. Co., traveling from Queenstown to Boston.
- Boston had strict quarantine regulations requiring immigrants to be vaccinated against smallpox or face detention.
- Cunard posted notices in various languages informing passengers of the quarantine rules and the availability of the ship's surgeon for vaccination to avoid detention.
- O'Brien joined a line of approximately 200 other women passengers who were assembled to be vaccinated by the ship's surgeon.
- She observed the surgeon examining the arms of the women ahead of her, vaccinating some and passing others by.
- When her turn came, O'Brien presented her arm to the surgeon, who stated there was no vaccination mark and that she should be vaccinated.
- O'Brien told the surgeon she had been vaccinated before but that it left no mark; the surgeon said nothing in reply other than that he would vaccinate her again.
- O'Brien then held up her arm to be vaccinated, the surgeon performed the vaccination, and she accepted a certificate from him which she later used to pass through quarantine without detention.
Procedural Posture:
- Mary O'Brien sued Cunard S.S. Co. in a trial court on two counts: assault and negligence.
- The trial court directed a verdict for the defendant, Cunard.
- O'Brien, the plaintiff, appealed the trial court's rulings to the Supreme Judicial Court of Massachusetts.
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Issue:
Does a ship's surgeon commit assault by vaccinating a passenger who overtly cooperates in the procedure, and is the steamship company liable for the surgeon's alleged negligence in performing that vaccination?
Opinions:
Majority - Knowlton, J.
No. The surgeon did not commit an assault because the passenger's behavior indicated consent, and the steamship company is not liable for the surgeon's alleged negligence. For the assault claim, consent is determined by a person's overt acts and the manifestations of their feelings, not their unexpressed thoughts. O'Brien's conduct—standing in line, presenting her arm, and holding it up for the injection after a brief exchange—constituted a manifestation of consent, justifying the surgeon's actions. For the negligence claim, the federal statute requiring a surgeon on board does not make the surgeon a servant of the shipowner for purposes of medical treatment. The company's duty is fulfilled by selecting a qualified and competent surgeon and providing proper medical supplies; the actual treatment is a matter between the passenger and the surgeon, over which the company has no control. Therefore, the company cannot be held vicariously liable for the surgeon's professional negligence.
Analysis:
This case is a foundational authority in tort law for the principle of apparent or implied consent, establishing an objective standard based on outward conduct rather than subjective intent. It clarifies that in the context of battery, a defendant can rely on a plaintiff's actions that would lead a reasonable person to believe consent was given. Furthermore, the decision limits the scope of vicarious liability for common carriers, distinguishing medical professionals from other employees like pilots. It establishes the rule that a carrier's duty regarding on-board medical care is to select a competent professional, not to guarantee the quality of their independent medical judgment.
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