Connors v. Cunard S.S. Co.

• Citation: 90 N.E. 601,204 Mass. 310
• Parties: CONNORS v. CUNARD S. S. CO. (two cases).
• Decision Date: 07 January 1910
• Court: United States State Supreme Judicial Court of Massachusetts

204 Mass. 310

90 N.E. 601

CONNORS v. CUNARD S. S. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1910

COUNSEL

Gaston, Snow & Saltonstall, for plaintiff.

Jas L. Putnam, for defendant.

The principal question presented by the defendant's exceptions in the second action is an important one, not directly decided in any case which has come to our attention.

On February 24, 1905, the defendant corporation sold a ticket entitling the plaintiff and the intestate to a second cabin passage from Boston to Queenstown (or Liverpool) on the Ivernia sailing from Boston on the 28th of the same month. The ticket was sold to Mrs. Freeman (by whom the plaintiff and her sister had been employed for some two years), and not to the plaintiff nor to the intestate. But no question on that point was raised at the trial.

The intestate came to this country in 1893 and had been employed as a servant in several families during the intervening 12 years. On February 13 or 14, 1905, upon the advice of her physician, she submitted to an exploratory operation at a hospital. This operation disclosed the fact that the intestate was suffering from a cancer of the uterus and that on account of the peculiar position of the growth and its advanced stage an operation would not be of benefit to her. The plaintiff's evidence also showed that her death was expected in five or six months. These facts and the result of the operation were known to the plaintiff but not to the intestate.

On the morning of February 28th the two sisters, with some friends drove to the defendant's wharf in East Boston. The Ivernia was not ready to receive second-class passengers when they arrived, and they waited in a room for some 15 minutes.

The evidence was somewhat conflicting as to the movements of the intestate between the time when she left the waiting room and undressed and went to bed in her room on the Ivernia. The plaintiff's evidence tended to show that she walked about and talked with her friends, while the defendant's evidence tended to show that she was supported and almost carried to her room, and that she looked very ill at the time. The evidence of both parties showed that she undressed and went to bed before the Ivernia cast off from the wharf.

The fact that the intestate had undressed and gone to bed was reported to the ship's surgeon, who was on duty at the third-class gangway. He immediately stopped embarkation at that gangway and went to her room. On arriving there he felt her pulse, looked at her tongue and asked the intestate and the plaintiff what the matter was. Whereupon the plaintiff handed to the surgeon the following letter from Dr. Hare:

'27th Feb.

'Ship Surgeon S. S. Ivernia--My Dear Doctor: May I explain to you a most sad case which will be under your care during this crossing.

'The patient herself has no idea of the nature of her trouble, so will you kindly make light of anything occurring and give us your aid in concealing facts.

'This note will be handed to you by her sister who knows all.

'She has endothelioma of uterus too advanced for more than curetting and cautery, which I did Feb. 13. Unfortunately this is her week to expect menstruation but I trust it will give you no special trouble. She will be supplied with creolin for douches and codeia suppos. (ov grs iss) for pain if needed.

'May I suggest and early vaginal pack should the loss of blood pass the normal that strength may be saved until she reaches home.

'Any kindness shown her if in need will be greatly appreciated by myself and others.

'Thanking you in advance I am

'Very sincerely,

C. H. Hare.'

The surgeon read this letter, left the room, and gave directions that the intestate should not be allowed to proceed on the voyage.

The plaintiff testified 'that thereupon the intestate dressed and walked to the stairs, where some stewards made a chair of their hands and carried her up and placed her on a settee in the second-cabin waiting room on the wharf,' where she had to wait for an hour or more while a carriage was procured. Finally the carriage arrived, their baggage was found and they drove to the house of a friend in Chelsea, arriving there between 4 and 5 o'clock in the afternoon. The plaintiff and her intestate stayed at the friend's home in Chelsea for five weeks, when they sailed on the White Star ship Cymric as first-cabin passengers, arriving at Queenstown on April 13th. The intestate died at her home in Ireland on July 29th of the same year.

The ship's surgeon testified that after reading the letter he said 'that under the circumstances Margaret Connors was not in condition to travel without serious risk to her life. The sister told me that Dr. Hare said she was fit to travel, and denied the statement made in Dr. Hare's letter as to the menstrual period.' He further testified: 'I told Margaret Connors and her sister I considered her in an unfit condition to travel just then, and that they should postpone the voyage. I also told Mr. Edwards, of the Cunard Boston office, that 'I refused to take charge of the case.'

On the part of the plaintiff testimony was given by a Boston physician and by the specialist who performed the exploratory operation on the intestate, and also by a surgeon who examined her just after February 28th, 'that in their opinion there was nothing about the physicial condition of the plaintiff's intestate on or about February 28, 1905, that would make a voyage across the ocean dangerous to her; that she was not too weak to travel; that she was not in any danger of immediate death from the disease or from its rapid progress; that its progress would be slow; that there was no reason to expect any fatal hemorrhage or any sudden termination of the disease; that she was just as safe on the sea as on the land; that any packing rendered necessary or advisable during the voyage on account of any possible hemorrhage would require no surgical instruments, and could be accomplished by the hands; that if one desired to use instruments, an ordinary spoon was as useful as anything else; that any such packing did not require the skill of a physician, but could be performed by a nurse, the intestate's sister, or any ordinary person fairly conversant with such matters.'

Nothing was said to the defendant corporation when the ticket for the intestate and the plaintiff was bought of it, as to the intestate's condition.

The defendant asked for 30 rulings on liability and 6 on the demages recoverable. Among other rulings asked for by it was a ruling directing the jury as matter of law to find a verdict in its favor.

The plaintiff was required to elect between her action in tort and her action in contract and she elected to go to the jury on her action in tort. The action in tort is the second of the two actions now before us.

The presiding judge instructed the jury that on the liability of the defendant there was only one question for them to decide, to wit: Did the intestate leave the Ivernia voluntarily?

The plaintiff had a verdict and the case is here on exceptions.

OPINION

LORING, J. (after stating the facts as above).

The general rule that a common carrier is bound to accept anybody and everybody who presents himself for transportation and pays the regular fare, has its limitations. A common carrier is bound to care for all who have become its passengers. For that reason not only is it not bound to accept, but it is under obligation to refuse to accept as a passenger an insane person without a proper attendant or attendants (Owens v. Macon & Birmingham Ry., 119 Ga. 230, 46 S.E. 87, 63 L. R. A. 946; Meyer v. St. Louis, Iron Mountain & Southern Ry., 54 F. 116, 4 C. C. A. 221); or one who has smallpox (Paddock v. Atchison, Topeka & Santa Fé Railroad, 37 F. 841, 4 L. R. A. 231); and the same is true of one who because of intoxication or for any other reason would be offensive to other passengers (Vinton v. Middlesex R. R., 11 Allen, 304, 87 Am. Dec. 714; Murphy v. Union Ry., 118 Mass. 228; Hudson v. Lynn & Boston R. R., 178 Mass. 64, 59 N.E. 647; Lemont v. Railroad Co., 1 Mackey, 180, 47 Am. Rep. 238).

The jury was instructed in Thurston v. Union Pacific R. R., 4 Dill. 321, Fed. Cas. No. 14,019 that a common carrier was not bound to accept as a passenger one who sought transportation for a criminal purpose and on that ground that the defendant was justified in refusing to sell a ticket to a three card monte man.

It was held in all these cases that the justification was made out if the carrier had reasonable cause to suppose and did suppose that the safety or convenience of other passengers would be endangered by the person in question and that it was not necessary to wait to see if the person believed and with reason to be afficted with an infectious disease or so insane, drunk, or sick as to be likely to interfere with the safety or convenience of other passengers, was or was not in fact in the condition he appeared to be in.

The doctrine established by these cases is admitted by the learned counsel for the plaintiff. His contention is that the right of the carrier to exclude a person who wishes to become a passenger is confined to those cases where the safety or convenience of other passengers is endangered or thought to be endangered and that 'the mere fact that a person is afficted with an internal disease will not justify' a carrier in refusing to accept him as a passenger if he offers to pay the regular fare. He relies on statements in Sheridan v. Brooklyn & Newton Railroad, 36 N.Y. 39 93 Am. Dec. 490, Pullman Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89, and New Orleans, Jackson & Great Northern R. R. v. Statham, 42 Miss. 607, 97 Am. Dec. 478, and the decision in Zachery v. Mobile...