O'Brien v. Cunard Steamship Co.

Facts

O'Brien was a passenger on a Cunard steamship traveling from Queenstown to Boston. Boston had strict quarantine rules for immigrants. Only those holding a certificate from the ship's medical officer, saying they were protected from small-pox by vaccination, could land without detention in quarantine or vaccination by the port physician. Cunard's surgeons were accustomed to vaccinate immigrants who wanted it and were not already protected, and to give them a certificate that quarantine accepted. Notices about the regulations and the surgeon's willingness to vaccinate were posted about the ship in various languages. By O'Brien's own testimony, undisputed on this point, about two hundred women passengers assembled below on the day in question. O'Brien understood from talking with them that they were to be vaccinated. She watched them form a line and pass in turn before the surgeon, who vaccinated those with no mark. When her turn came, she showed him her arm. He said there was no mark and that she should be vaccinated. She said she had been vaccinated before and it left no mark. She testified that he then said nothing, that he should vaccinate her again. She held up her arm. No one touched her. She did not tell him she did not want it. She took the ticket certifying the vaccination and used it at quarantine.

Issues

1. Was there any evidence from which a jury could find that the ship's surgeon used force on O'Brien against her will, committing an assault when he vaccinated her?
2. Is a steamship company that must carry a qualified surgeon liable for the surgeon's negligence in performing a vaccination on a passenger?

Holding

The surgeon was justified in vaccinating O'Brien because her conduct indicated consent, so there was no evidence of an assault. Cunard also was not liable for any negligence in how the surgeon performed the operation, because he was not its servant under its control in treating passengers.