Torts I, Pages 97–98

O'Brien v. Cunnard S.S. Co.

Supreme Judicial Court of Massachusetts, 1891


Plaintiff was arriving in America on defendant's steamship. Boston had strict regulations requiring everyone who did not have a certificate that they had received the smallpox vaccination to be quarantined. Defendant had his surgeons give all passengers the vaccine if they so wished, along with an accepted certificate.

Plaintiff was below-deck and saw about 200 women assembled to get vaccinated, which she understood. They then formed a line and saw them walk by the surgeon, who would look at their arms and vaccinate those without a mark, although she did not hear him say anything. Plaintiff then got in line, went in front of him, and showed him her arm. He said there was no mark, to which she said that she had been vaccinated before, but it did not leave a mark. He said that he should vaccinate her again, she gave him her arm, he vaccinated her and gave her a card, and she went on her way, using the card at the quarantine and not saying anything about the vaccination.

Plaintiff then suffered ulceration at the injection site and blistering all over her body, allegedly due to improper sterilization with the vaccine. Plaintiff then sued for assault.

Procedural History:

Trial court directed a verdict for the defendant. Plaintiff brings exceptions.


Did plaintiff's actions imply consent.


Consent is viewed in the light of the surrounding circumstances.


There was nothing in plaintiff's conduct to indicate to the surgeon that she did not wish to be vaccinated and thereby obtain a card to save her from detention at quarantine.


Yes, plaintiff's conduct implied consent. Exceptions overruled.