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O’Brien v. Cunard Steamship Co.

Citation. 154 Mass. 272, 28 N.E. 266 (1891)
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Brief Fact Summary.

Plaintiff was on her passage to Boston. Pursuant to Boston quarantine regulations, all travelers needed to be vaccinated before arrival, so the surgeon vaccinated Plaintiff on her shipboard. Plaintiff did not want to receive the vaccination and sued Cunard Steamship Company for assault.

Synopsis of Rule of Law.

In determining whether there is consent, the Court should look at plaintiff’s overt acts and the manifestations of her feelings. Plaintiff’s subjective state of mind does not matter.


O’Brien, was a young immigrant passenger on a ship owned by the Cunard Steamship Company while she traveled from Queenstown, Ireland to Boston. Boston regulations required immigrants to have smallpox vaccines prior to entry to the city. Any unvaccinated immigrants were subject to quarantine. Cunard vaccines to any immigrants who weren’t previously vaccinated, and provided the immigrants with certificates as evidence of their vaccinations. O’Brien joined 200 other female passengers in line to receive vaccination checks. The surgeon and employee of Cunard viewed each of the women’s arms for marks to determine whether they had previously been vaccinated. When it was her turn, O’Brien showed the surgeon her arms and told the surgeon that she received vaccinations before. But there was no mark on her arm. The surgeon said that she needed to be vaccinated again. O’Brien did not tell the surgeon that she did not want to be vaccinated nor displayed any conduct to indicate that she did not wish to obtain the vaccination. She held up her arm and received the vaccine and her certificate. O’Brien later used the certificate as evidence of her vaccination. Subsequently, she developed. blisters across her body as a side effect of the vaccine.

O’Brien sued Cunard for the surgeon’s assault, and negligence.


Whether the surgeon committed an assault on plaintiff?


No. Trial court judgment was affirmed. Defendant did not commit assault (modern day battery) since plaintiff failed to object to being vaccinated. She overt actions instead manifested consent.


This Court stated that in determining whether the surgeon’s act was lawful or unlawful, we need to consider his act in connection with the circumstances. Here, the Court introduced the defense of consent—if the plaintiff’s behavior was such as to indicate consent on her part, then the surgeon’s contact was justified, regardless of her unexpressed feelings.

Next, the Court explained that in determining whether Plaintiff consented, the Court examined her overt acts and the manifestations of her feelings. In this case, Plaintiff was with a large number of women who were vaccinated on that occasion, without a word of objection from any of them. They all indicated by their conduct that they wanted to fulfill the Boston vaccination requirements. There was also nothing in Plaintiff’s conduct indicating that she did not desire to be vaccinated. Under such a circumstance, the surgeon’s act was lawful.

This Court did not reach the substance of plaintiff’s alternative allegation—the surgeon was negligent in performing the vaccination. The Court explained that such negligence, if truly occurred, could not be attributed to the defendant (the surgeon’s employer).

Having concluded that no reasonable person could find otherwise than that plaintiff had manifested consent to the vaccination, this Court affirmed trial court judgment.

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