Summary of O’Brien v. Cunard S.S. Co.,  28 N.E. 266 (1891)

Facts: While on a ship from Queenstown to Boston, O’Brien was inoculated for small-pox. At Boston, there were strict quarantine regulations to ensure that immigrants were protected from small-pox by vaccination, and only those persons who held a certificate from the medical officer of the steam-ship stating that they were protected were permitted to land without detention in quarantine, or vaccination by the port physician. The ship’s surgeon vaccinated all immigrants who desired it and gave them a certificate. On the day of vaccination, O’Brien lined up with other about 200 other women for vaccinations. She told the surgeon that she had been vaccinated, but she had no mark and she did not tell him that she did not want to be vaccinated. After he vaccinated her, she took the certification he gave her.

Procedural Posture: O’Brien sued Cunard for battery and negligence for injuries arising out of a vaccination she received on one of Cunard’s ships. The trial court directed a verdict for Cunard.

Issue: Was there any evidence that the surgeon used force upon the plaintiff against her will?

Holding: No

Reasoning: If the plaintiff’s behavior indicated consent, the surgeon was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestation of her feelings. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a certificate which would save her from detention at quarantine, and to be vaccinated for that purpose. The surgeon’s conduct was lawful, and there was no evidence tending to show that it was not.