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Latent Sensitivities and Reservations
  • 1 Wishnatsky v. Huey--"The Overly-Sensitive Intruder"

    • 1.1 Wishnatsky v. Huey-- “The Overly-Sensitive Intruder”

      Should findings of offensive-contact-battery be based on a plaintiff’s level of sensitivity, or a more general standard?

      1
      584 N.W.2d 859 (1998)
      2
      1998 ND App 8
      3
      Martin WISHNATSKY, Plaintiff and Appellant,
      v.
      David W. HUEY, Defendant and Appellee.
      4
      Civil No. 980067CA.
      5

      Court of Appeals of North Dakota.

      6
      September 15, 1998. 
      7

      Martin Wishnatsky, Fargo, pro se.

      8

      Andrew Moraghan, Assistant Attorney General, Attorney General's Office, Bismarck, for defendant and appellee.

      9
      [860] PER CURIAM.
      10

      Martin Wishnatsky appealed a summary judgment dismissing his battery action against David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a matter of law, that no battery occurred, and we affirm the judgment and the order.

      11

      On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation with attorney Peter B. Crary in Crary's office. Without knocking or announcing his entry, Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office and Huey left.

      12

      Wishnatsky brought an action against Huey, seeking damages for battery.[1] Huey moved for summary judgment of dismissal. The trial court granted Huey's motion and a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied Wishnatsky's motion.

      13

      Wishnatsky appealed, contending the evidence he submitted in response to Huey's motion for summary judgment satisfies the elements of a battery claim and the trial court erred in granting Huey's motion. Wishnatsky also contends Huey is not entitled to prosecutorial or statutory immunity.

      14

      Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 12, 576 N.W.2d 505. "In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence." Mougey Farms v. Kaspari, 1998 ND 118, ¶ 12, 579 N.W.2d 583. "Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence." Id. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the non-moving party to determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, ¶ 5, 574 N.W.2d 823. On a defendant's motion for summary judgment, the question for the court is "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

      15

      "In its original conception [battery] meant the infliction of physical injury." VIII Sir William Holdsworth, A History of English Law 422 (2d Impression 1973). By the Eighteenth Century, the requirement of an actual physical injury had been eliminated:

      16

      At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C.J. declared,

      17

      1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. Vid.Bro.Tresp. 236. 7 E. 4, 26. 22 Ass. 60. 3 H. 4, 9.

      18

      Cole v. Turner, Pasch. 3 Ann., 6 Mod. 149, 90 Eng.Rep. 958 (1704). Blackstone explained:

      19

      The least touching of another's person willfully, or in anger, is a battery; for the law cannot draw the line between different degrees [861] of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.

      20

      3 William Blackstone, Commentaries *120. On the other hand, "in a crowded world, a certain amount of personal contact is inevitable, and must be accepted." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 42 (5th ed.1984).

      21

      The American Law Institute has balanced the interest in unwanted contacts and the inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19 (1965):

      22

      18. Battery: Offensive Contact

      23

      (1) An actor is subject to liability to another for battery if

      24

      (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

      25

      (b) an offensive contact with the person of the other directly or indirectly results.

      26

      (2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

      27

      ....

      28

      19. What Constitutes Offensive Contact

      29

      A bodily contact is offensive if it offends a reasonable sense of personal dignity.

      30

      Comment c to § 18 notes that the contact need not be "directly caused by some act of the actor" and also notes that "the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body." Comment a to § 19 explains what kind of conduct offends a reasonable sense of personal dignity:

      31

      In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

      32

      Huey moved for summary judgment of dismissal, because, among other things, "as a matter of law, a battery did not occur on January 10, 1996." Huey supported the motion with his affidavit stating in part:

      33

      8. That Attorney Crary and I had settled into a serious discussion about the case and had established a good rapport when the door to his office suddenly swung open without a knock. An unidentified individual carrying some papers then strode in unannounced. I had not been told that anyone would be entering Attorney Crary's office during the private meeting.... I subsequently learned that the individual's name is Martin Wishnatsky.

      34

      Wishnatsky responded to Huey's motion for summary judgment with an affidavit of Crary and with his own affidavit stating in part:

      35

      1. I am a born-again Christian and cultivate holiness in my life. [A]s a result I am very sensitive to evil spirits and am greatly disturbed by the demonic. However, in Christ there is victory.

      36

      2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General's office, visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with an ex parte court order.

      37

      3. The following morning I entered the office of Peter Crary, an attorney for whom I do paralegal work, to give him certain papers that had been requested. Mr. Crary was speaking with Mr. David Huey at the time. As I began to enter the office Mr Huey threw his body weight against the door and forced me out into the hall. I had not said a word to him. At the same time, he snarled: "You get out of here." This was very shocking and frightening to me. In all the time I have been working as an aide to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and brutal manner. My blood pressure began to rise, my heart beat accelerated and I felt waves of fear in the pit of my stomach. My hands began to shake and my body to tremble. Composing myself, I reentered the office, whereupon [862] Mr. Huey began a half-demented tirade against me and stormed out into the hall. I looked at Mr. Crary in wonder.

      38

      We certainly agree with the Supreme Court's determination that when Wishnatsky attempted to enter the room in which Huey was conversing with Crary, "Huey apparently reacted in a rude and abrupt manner in attempting to exclude Wishnatsky from that conversation." Wishnatsky v. Huey, 1997 ND 35, ¶ 15, 560 N.W.2d 878. As a matter of law, however, Huey's "rude and abrupt" conduct did not rise to the level of battery.

      39

      The evidence presented to the trial court demonstrates Wishnatsky is "unduly sensitive as to his personal dignity." Restatement (Second) of Torts § 19 cmt. a (1965). Without knocking or otherwise announcing his intentions, Wishnatsky opened the door to the office in which Huey and Crary were having a private conversation and attempted to enter. Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky's forward progress and pushing him back into the hall. The bodily contact was momentary, indirect, and incidental. Viewing the evidence in the light most favorable to Wishnatsky, and giving him the benefit of all favorable inferences which can reasonably be drawn from the evidence, we conclude Huey's conduct in response to Wishnatsky's intrusion into his private conversation with Crary, while "rude and abrupt," would not "be offensive to a reasonable sense of personal dignity." In short, an "ordinary person ... not unduly sensitive as to his personal dignity" intruding upon a private conversation in Wishnatsky's manner would not have been offended by Huey's response to the intrusion. We conclude that Huey's conduct did not constitute an offensive-contact-battery, as a matter of law, and the trial court did not err in granting Huey's motion for summary judgment dismissing Wishnatsky's action.

      40

      Because we have concluded there was no battery as a matter of law, we need not address the immunity issues Wishnatsky has raised. We need not consider questions, the answers to which are unnecessary to the determination of the case. See, e.g., Kaler v. Kraemer, 1998 ND 56, ¶ 10, 574 N.W.2d 588; Hospital Servs., Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D.1975).

      41

      Affirmed.

      42

      HOBERG, C.J., WILLIAM F. HODNY, Surrogate Judge, and DEBBIE G. KLEVEN, District Judge, concur.

      43

      [1] Wishnatsky also sought a disorderly conduct restraining order under N.D.C.C. Ch. 12.1-31.2 against Huey, based on the January 10, 1996, incident, and another on January 25, 1996. In affirming a judgment dismissing Wishnatsky's petition, our Supreme Court concluded "Huey's conduct did not rise to the level of intrusive behavior which would warrant a reasonable person to conclude Huey committed the offense of disorderly conduct." Wishnatsky v. Huey, 1997 ND 35, ¶ 15, 560 N.W.2d 878.

    • 1.2 Wishnatsky's (Plaintiff's) Amended Complaint

      1
      STATE OF NORTH DAKOTA COUNTY OF CASS


      Martin Wishnatsky,
      Plaintiff,
      vs.
      David W. Huey,
      Defendant.


      IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT


      Civil No.

      2
      AMENDED COMPLAINT

      5

      Plaintiff for his complaint, states and alleges as follows:

      6
      Parties

      8

      1. He is a resident of Cass County, North Dakota.
      2. Defendant David W. Huey is an assistant attorney general for the state of North Dakota and a resident of Bismarck. Defendant is being sued in both his individual and official capacities.Jurisdiction
      3. This action arises under the common law of torts.



      11
      Events

      13

      4. Plaintiff has his office on the third floor of 16 Broadway in Fargo and provides paralegal services to attorney Peter Crary whose office is on the same floor. It is very common and a matter of routine for the plaintiff to be in and out of Mr. Crary's office during the day.
      5. On Wednesday morning, January 10th, 1996, at approximately 10:00 a.m. during normal business hours the plaintiff entered Mr. Crary's office to give him certain papers that had been requested. Mr. Crary was speaking with defendant David Huey at the time. As the plaintiff began to enter the office, Mr. Huey snarled: "You get out of here." Simultaneously the defendant threw his body weight against the door to prevent the plaintiff from entering Mr. Crary's office. The pressure of the door being forced against his body by Mr. Huey overcame plaintiff’s forward movement and he was physically forced backwards and out into the hall.
      6. The plaintiff had not said a word to Mr. Huey to provoke this attack. He had done nothing more than to open the door and to begin to walk into Mr. Crary's office, something he routinely did many times every work day.
      7. The plaintiff was shocked and frightened by Mr. Huey's physical attack upon him. In all the time he had been providing paralegal services to Mr. Crary, he had never been physically assaulted or spoken to in a harsh and brutal manner. Plaintiff’s blood pressure began to rise. His heartbeat accelerated and he experienced waves of fear in the pit of his stomach. Plaintiff’s hands also began to shake and his body trembled.
      8. Composing himself, the plaintiff reentered Mr. Crary's office to deliver the papers to him and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into a tirade, stating that he would no longer discuss anything with Mr. Crary, that his time was too valuable, etc. He then stormed out into the hall. The plaintiff then gave Mr. Crary the papers he had originally entered his office to provide and left.
      9. After this experience it took the plaintiff a considerable amount of time to settle down and get into his work routine. He was emotionally upset and frightened by the abusive behavior of the state's representative.



      16
      Cause of Action for Battery

      18

      10. By the actions described in paragraphs 5-8, the defendant intentionally and in anger engaged in violent, offensive, insulting, uninvited and unwanted physical contact with the plaintiff.
      11. This unpermitted contact, as described above, was reasonably offensive to the plaintiffs sense of personal dignity, was unwarranted by the social usages prevalent in an office environment and in the legal community, and was contrary to all good manners.
      12. This offensive contact constituted a battery upon the person of the plaintiff.
      13. Defendant's actions constitute malfeasance in that the battery was a wholly wrongful and unlawful act.



      21
      Damages

      23

      14. Plaintiff is entitled to nominal damages for the battery itself and compensatory damages for the emotional upset, fear and distress caused by the defendants' actions.
      15. Plaintiff requests a trial by jury and such other and further relief as the court may deem suitable.



      27
      Dated this 2nd day of August, 1996.

      Martin Wishnatsky
    • 1.3 II. Wishnatsky's (Plaintiff's) Affidavits

      COUNTY OF CASS

      EAST CENTRAL JUDICIAL DISTRICT



      AFFIDAVIT OF MARTIN WISHNATSKY



      Civil No. 96-2297

      Martin Wishnatsky,
      Plaintiff,

      vs.

      David W. Huey,
      Defendant.

      Martin Wishnatsky, being duly sworn, deposes and says:

      1. I am a born-again Christian and cultivate holiness in my life, as a result I am very sensitive to evil spirits and am greatly disturbed by the demonic. However, in Christ there is victory.

      2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General's office, visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with an ex parte court order.

      3. The following morning I entered the office of Peter Crary, an attorney for whom I do paralegal work, to give him certain papers that had been requested. Mr. Crary was speaking with Mr. David Huey at the time. As I began to enter the office Mr. Huey threw his body weight against the door and forced me out into the hall. I had not said a word to him. At the same time, he snarled: "You get out of here." This was very shocking and frightening to me. In all the time I have been working as an aide to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and brutal manner. My blood pressure began to rise, my heartbeat accelerated and I felt waves of fear in the pit of my stomach. My hands began to shake and my body to tremble. Composing myself, I reentered the office, whereupon Mr. Huey began a half-demented tirade against me and stormed out into the hall. I looked at Mr. Crary in wonder.

      4. After this experience it took me a considerable amount of time to settle down and get into my work routine. I was emotionally upset and frightened by the abusive and assaultive behavior of the state's representative. I considered calling the police and filing for assault but let the matter pass. I have been fearful of Mr. Huey ever since.

      5. On the afternoon of January 25, 1995 at approximately 4:15 p.m., I was standing with Darold Larson in the vestibule of the Perry Center, a Christian maternity home in Fargo, when Mr. Huey entered and began to upbraid Mr. Larson in a very threatening and terrorizing manner. He snarled at Mr. Larson as he had acted with me in Mr. Crary's office. Shaking his finger and lunging at Mr. Larson, he scolded him: "I will not be trifled with." He glared at Mr. Larson and adopted a menacing tone and body posture as he delivered message.

      6. After being present at Mr. Huey's dressing down of Mr. Larson, I began to shake and felt the same waves of fear go through me as before when he had assaulted me. It took me fully four hours until I could calm down to normal after being in the presence of this wild aggressive man. I found myself unable to resume my normal composure because my heart was racing and I could not shake my fear, nervousness and anxiety from this attack that I had witnessed with immediacy. I was like the onlooker at a personal tragedy who is traumatized by witnessing it. I was shaking and fearful and unable to calm down—much worse than when I experienced his attack in Mr. Crary's office.

      7. At this point I realized I had a serious problem with an emotionally disturbed person who could fly off the handle into a tirade at any moment including menacing gestures and words and actual physical assault.

      8. My symptoms after his attack on Mr. Larson were so severe that I called an anxiety counselor and made an appointment for treatment.


      ******************************************************

      COUNTY OF CASS

      EAST CENTRAL JUDICIAL DISTRICT

      AFFIDAVIT OF MARTIN WISHNATSKY



      Civil No. 96-2297

      Martin Wishnatsky,
      Plaintiff,

      vs.

      David W. Huey,
      Defendant.



      Martin Wishnatsky, being duly sworn, deposes and says:

      1. I am the plaintiff in this matter.

      2. Attached to this affidavit are true and correct copies of a letter from Martin Wishnatsky to Andrew Moraghan dated May 13, 1997 and a letter from Andrew Moraghan to Martin Wishnatsky dated May 23, 1997.

      3. My purpose in writing to Mr. Moraghan, who is counsel for the defendant, was to resolve a discovery dispute without imposing upon the time of the court.
    • 1.4 Letters Between Litigants

      1

      Mr. Andrew Moraghan
      Assistant Attorney General
      900 East Boulevard
      Bismarck ND 58505



      4

      RE: Wishnatsky v. Huey
      Civil No. 96-2297



      7

      Dear Mr. Moraghan:

      Enclosed is a draft motion to compel in the above matter. In the interest of allowing the defendant to reconsider his discovery responses, the motion is being sent to you for consideration.

      I will allow you a week or two to consider the motion before filing it. If you need more time or decide voluntarily to supplement the responses served on January 29, 1997, please let me know.

      Sincerely,
      Martin Wishnatsky





      13

      OFFICE OF ATTORNEY GENERAL

      STATE OF NORTH DAKOTA
      May 23, 1997
      15

      Mr. Martin Wishnatsky
      P.O. Box 413 Fargo, ND 58107

      16

      RE: Wishnatsky v. Huey Civil
      No. 96-2297

      17

      Dear Mr. Wishnatsky:

      Thank you for your letter dated May 13, 1997.

      We believe that there were valid grounds for the objections that we interposed to your interrogatories. Therefore, we will not be amending our answers.

      We do not believe that your proposed motion to compel discovery would be substantially justified. Furthermore, we believe that the interrogatories to which we objected were designed to harass the defendant. Therefore, if you elect to file your motion, it is likely that we will seek reasonable expenses, including attorney's fees, incurred in opposing the motion.

      Please feel free to contact me if you have any questions. Thank you.

      Sincerely,

      Andrew Moraghan

      18

      Assistant Attorney
      General Office of Attorney General
      900 East Boulevard Avenue
      Bismarck, ND 58505-0041
      Telephone (701) 328-3640
      Facsimile (701) 328-4300

      19

      jjt
      cc: Dave Huey

    • 1.5 Crary's Affidavit

      1
      STATE OF NORTH DAKOTA COUNTY OF CASS IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT
      Martin Wishnatsky, Civil No. 96-2297 Plaintiff, vs. AFFIDAVIT OF PETER B. CRARY David W. Huey, Defendant.
      3

      Peter B. Crary, being duly sworn, deposes and says:

      4

      1. I am a member of the North Dakota Bar Association. My law office is at 1201 12th Avenue North in Fargo. My legal assistant is Martin Wishnatsky.

      5

      2. In January of 1996, my offices were on the third floor of the old Herbst Building at 16 Broadway in downtown Fargo. Mr. Wishnatsky occupied an office across the hall from me. The offices had full-length glass-paneled windows and doors.

      6

      3. On the morning of Wednesday, January 10, 1996 I was having a conversation in my office with North Dakota Assistant Attorney General David Huey, when Mr. Wishnatsky opened the door and walked in. Martin was carrying certain papers which were pertinent to my discussion with Mr. Huey and was entering the room to deliver them to me as part of his duties as my legal assistant. It is quite common for Martin to be in and out of my office during the day. There was nothing unusual in his entering my office at this time.

      7

      4. Mr. Huey had been conducting himself in an orderly manner during our conversation. However, when Mr. Wishnatsky began to enter my office, he seemed to undergo a personality change and went into an emotional "spike." He snarled at Mr. Wishnatsky to get out of the room and then, as it appeared to me, physically forced Martin out into the hall by thrusting his body weight against the door. I believe he also made physical contact with Martin's body as well as the door. I was quite startled at this behavior because (1) it seemed to be a sudden personality change on Mr. Huey's part and (2) it seemed as if, prior to this change in behavior, we were having what I would characterize as an amicable exchange in my office.

      8

      Frankly, I simply had no prior experience of a visitor to my office at 16 Broadway or in any other location becoming physically aggressive and hostile until I witnessed this behavior by Mr. Huey. Mr. Huey's actions were completely unprovoked by Mr. Wishnatsky who had not previously said a word to him.

      9

      5. Mr. Wishnatsky reentered my office to deliver the papers to me and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into an irrational tirade, stating that he would no longer discuss anything with me, that his time was too valuable, etc., and stormed out into the hall. Mr. Wishnatsky called after him, "David," attempting, it seemed to me, to calm him down. Mr. Wishnatsky gave me the papers he had originally entered my office to provide. He then left. Mr. Huey re-entered the office and we resumed our conversation.

      10

      6. Certainly Mr. Huey's "spike" was unusual and not in keeping with the geniality that is becoming a businessman/lawyer/public servant. Furthermore, over my years of serving the public, I have never witnessed such an abrupt ("spike") change of personality!

      11

      7. Obviously I regard this as a very serious matter and certainly remain available should I be called upon further to elaborate on this event.

      12

      8. Attached to this affidavit as Exhibit A are enlargements of photos taken subsequent to the events described above which depict a re-enactment of Mr. Wishnatsky entering my office at 16 Broadway. The photos show the glass paneled-door and windows. The chair Mr. Huey was sitting in is depicted in the location it occupied at the time of the incident.

      13

      9. Any visitor to my office was visible through the glass in the door before entering. My desk was positioned facing the door.

      15

      Peter B. Crary:

  • 2 O'Brien v. Cunard--"The Silent Vaccine Objector"

    Should we expect actors to respect the inner wishes of others, even when those desires contradict—or at least fail to be reflected in—external behavior?

    Notes: Plaintiff stood in a vaccination line on a ship. When plaintiff reached the ship’s surgeon, she claimed to have been vaccinated before. However, because no vaccination mark was visible, the surgeon insisted that she be vaccinated again. Plaintiff voluntarily raised her arm to be vaccinated and took a ticket which certified her vaccination and avoid quarantine upon leaving the ship. Nevertheless, the plaintiff’s suit alleged that she did not consent to the vaccination.
    1
    MARY E. O'BRIEN
    2
    vs.
    3
    CUNARD STEAMSHIP COMPANY. 
    4

    Suffolk. January 19, 1891. — September 1, 1891.

    5

    Present: FIELD, C. J., ALLEN, HOLMES, KNOWLTON, & MORTON, JJ.

    6

    Carrier by Sea Surgeon Assault Negligent Vaccination.

    7

    If the surgeon of a foreign steamship, bringing immigrants to a port of this country where the quarantine regulations require vaccination as a prerequisite to landing, vaccinates one of them whose behavior indicates consent on her part, whatever her unexpressed feelings may be, he is justified in his act, and the ship-owner is not liable therefor as for an assault.

    8

    A ship-owner who provides a competent surgeon, whom the passengers may employ if they choose, is not liable for his negligence in the medical treatment of a passenger, either at common law or by the TJ. S. St. of August 2, 1882, § 5, which requires every vessel transporting immigrant passengers to carry a surgeon or [273] medical practitioner, "who shall be rated as such in the ship's articles, and who shall be provided with surgical instruments, medical comforts, and medicines," and makes the master of the vessel liable to a penalty for its violation. In an action against a steamship company for assault by a ship's surgeon in vaccinating a steerage passenger brought toa port in this State, evidence consisting of the printed quarantine regulations of the port, to the effect that only such steerage passengers as held certificates from such surgeon that they had been vaccinated would be allowed to land without detention or vaccination, and of testimony that such regulations were carried out, was heldto be properly admitted.

    9

    TORT, for an assault, and for negligently vaccinating the plaintiff, a steerage passenger on the steamship Catalonia. Trial in the Superior Court, before Staples, J., who ruled that, upon the evidence, the plaintiff could not maintain the action, and ordered a verdict for the defendant; and the plaintiff alleged exceptions. The nature of the evidence appears in the opinion.

    10

    E. N. Hill & F. Cunningham, for the plaintiff.

    11

    G. Putnam, (T. Russell with him,) for the defendant.

    12
    KNOWLTON, J.
    13

    This case presents two questions: first, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on shipboard, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon's conduct must be considered in connection with the circumstances. If the plaintiff's behavior was such as to indicate consent on her part, he 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 manifestations of her feelings. Ford v. Ford, 143 Mass. 577, 578. McCarthy v. Boston & Lowell Railroad, 148 Mass. 550, 552. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of immigrants, to see that they are protected from small-pox by vaccination, and that only those [274] persons who hold a certificate from the medical officer of the steamship, stating that they are so protected, are permitted to land without detention in quarantine or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all immigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship's medical officer to vaccinate such as needed vaccination, were posted about the ship, in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected. By the plaintiff's testimony, which in this particular is undisputed, it appears that about two hundred women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about fifteen feet from the surgeon, and saw them form in a line and pass in turn before him; that he "examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark"; that she did not hear him say anything to any of them; that upon being passed by they each received a card and went on deck; that when her turn came she showed him her arm, and he looked at it and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before and it left no mark; "that he then said nothing, that he should vaccinate her again"; that she held up her arm to be vaccinated; that no one touched her; that she did not tell him that she did not want to be vaccinated; and that she took the ticket which he gave her certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that [275] purpose. Viewing his conduct in the light of the circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct.

    14

    The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination, as alleged in the second count, was negligently performed. "There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter." Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count. Whether there was any evidence of negligence of the surgeon, we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is, that he is a servant engaged in the defendant's business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the act of Congress of August 2, 1882, § 5, it is provided that "every steamship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly qualified and competent surgeon or medical practitioner, who shall be rated as such in the ship's articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given, in any case of sickness or disease, to any of the passengers, or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars."

    15

    Under this statute it is the duty of ship-owners to provide a competent surgeon, whom the passengers may employ if they [276] choose, in the business of healing their wounds and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship's surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves, if they are sick, or may go without treatment if they prefer; and if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him. This is the whole requirement of the statute of the United States applicable to such cases, and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steamship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person, it would be unreasonable to hold them responsible for all the particulars of his treatment, when he is engaged in the business of other persons in regard to which they are powerless to interfere.

    16

    The reasons on which it is held, in the courts of the United States and of Massachusetts, that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53, 67. Yates v. Brown, 8 Pick. 23. The pilot is en [277] gaged in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such cases the owners are not liable. Carruthers v. Sydebotham, 4 M. & S. 98. The Protector, 1 W. Robinson, 45. The Maria, 1 W. Robinson, 95.

    17

    The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the Court of Appeals of New York, in Laubheim v. De Koninglyke Stoomboot Co. 107 N.Y. 228. See also Secord v. St. Paul, Minneapolis, & Manitoba Railway, 18 Fed. Rep. 221; McDonald v. Massachusetts General Hospital, 120 Mass. 432. We are of opinion that on both parts of the case the rulings at the trial were correct.

    18

    The evidence which was excepted to, consisting of the printed quarantine regulations above referred to, and of testimony that only the steerage passengers holding a surgeon's certificate were allowed to land, all others being vaccinated by the port physician or detained at quarantine, was rightly admitted.

    19

    Exceptions overruled.

    20

    VOL. 154. 18

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