O’Brien v. Cunard S.S. Co.

Supreme Judicial Court of Massachusetts, 1891.

154 Mass. 272, 28 N.E. 266.


Steerage passenger, Plaintiff, gets smallpox vaccine in a vaccination assembly line with a bunch of other female passengers. She tells the surgeon that she has already had a smallpox vaccination but still keeps her arm out. Immigrants coming to the United States are quarantined if they do not have their papers that demonstrate they have been given vaccines. She subsequently suffers ulcerations and blistering. She brings a cause of action of battery against cruise line.


Is there any evidence that the surgeon used force in administering the vaccine? Did the Plaintiff give consent for the vaccine?

Arguments for Both Parties

Plaintiff states that she did not hear the doctor say anything about what was going on. She said that she had already been vaccinated, but the doctor said that she should be vaccinated again.

Defendant states that she did not resist the shot, that she put her arm up to be vaccinated. That the defendant, as well as the other women who were there (200 of them) had numerous reasons that they knew what was going on based upon notices of what the ship could provide, as well as the detention in quarantine, should they not receive the vaccination. She used the certificate of vaccination from this surgeon to avoid being detained.


The court holds that the Defendant acted in the manner he did, based upon the consent, implied consent in this case, of the Plaintiff. Plaintiff gave consent for vaccination.

Reasoning behind Holding

If the plaintiff implied consent outwardly, whatever her unexpressed desires were, then the doctor did not act unlawfully. He could only be guided by her outward manifestations. This is coupled with the fact that if she did not do the vaccine, she would have had to have been sent to quarantine which was implied by the opinion to be an unwanted experience.


Consent is indicated by outward manifestations of feelings, wants, boundaries, and wishes. There can be no trespass of battery if consent is given for the said exact trespass.


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