I therefore grant an injunction to restrain the defendants, their servants, or agents, from carrying on the asylum so as to be a nuisance to all or any of the plaintiffs, and I suspend the issue of it for three months with liberty to either side to apply. Judgment for the plaintiffs. LORD BLACKBURN [on appeal, in the House of Lords]. My Lords, in this case the respondents, who were the plaintiffs below, claimed in their writ damages for a nuisance arising from the use, by the defendants, of their hospital at Hampstead for smallpox and other infectious and contagious diseases, and for causing the assemblage, in the neighbourhood of the plaintiffs' property, of large numbers of persons suffering from smallpox or other infectious and contagious diseases, or having been recently in contact with persons so suffering, and from offensive smells and noises arising from the said hospital; and they asked for an injunction to restrain the defendants from using the said hospital as a hospital for patients suffering from smallpox or other infectious and contagious diseases. . . . When the disease is infectious, there is a legal obligation on the sick person, and on those who have the custody of him, not to do anything that can be avoided which shall tend to spread the infection; and if either do so, as by bringing the infected person into a public thoroughfare, it is an indictable offence; though it will be a defence to an indictment if it can be shewn that there was a sufficient cause to excuse what is prima facie wrong. Rex v. Burnett, 4 Mau. & S. 272.... Where those who have the custody of the person sick of an infectious disorder have not the means of isolating him from the other inmates (which is very commonly the case with the poor), and consequently those other inmates and the neighbours are exposed to the risk of infection, I think that the inability to isolate him would form a sufficient excuse to be a defence to any indictment; and I think also, though I am not aware of any authority on the subject, that the neighbours could not maintain any action for damage which they would in such a case sustain from the proximity of the infected person, it being a necessary incident to the use of property for habitations in town, that contagious sickness may befall their neighbours. If those who have the charge of the infected person have the means of isolating him on the spot, they certainly do well to use them, and if it cannot be done on the spot, and they can, either by their own means, or by the aid of charitable persons who have erected an hospital, find a place where he can be isolated so as to avoid the risk of infection, they will do well to use these means. I do not mean to express any opinion as to whether, at Common Law, they would or would not be responsible for not doing so. But there is no authority, and I think no principle, for saying that they are justified in removing him to a place where the neighbours would be exposed to contagion, though it may be fewer in number than the neighbours of the spot where the infection broke out; nor saying that if that was done, and the contagion was such as to amount to a real nuisance, those neighbours might not maintain an action, and obtain an injunction to protect themselves against the importation of foreign infection. For though, as I have already said, I think it an incident to the use of a habitation in a town that the occupier must bear the necessary risks of the inmates of a neighbouring habitation falling ill of a contagious disease, I do not think it an incident that he is to submit to his neighbours wilfully, though for very laudable motives, and not maliciously, bringing in contagion where it did not previously exist, if the effect is not merely to alarm him, but to injure him. This, I think, is borne out by the decisions on the subject of inoculation. . . . In Rex v. Burnett [supra], in 1815, it was decided that, though inoculation for the smallpox may be practised lawfully and innocently, yet it must be under such guards as not to endanger the public health by communicating this infectious disease. And I also think that, by necessary inference, it follows that to gather together in one spot patients suffering from infectious disease is lawful, but it must be under such guards as not to endanger the public health by communicating this infectious disease; and, as it seems to me, so as not to produce injury to the rights of the owners of adjoining property by producing a nuisance to it. If this be a correct view of the law, it is obvious that, however desirable it might be to erect and maintain asylums for the reception of the sick poor, sick of infectious disorders, it could not be done by any parochial authorities unless the authority of Parliament was obtained for raising funds for the purpose, and authorizing a public body to obtain a site for the asylum. . . There are no express words in this Act, and I think the weight of argument is rather against than in favour of such an implication. . . . It will follow that the Appeal No. 2 should be dismissed with costs.1 1 [PROBLEMS: The defendant gave to a woman some figs containing cantharides, a powerful drug, which the defendant thought would operate as a love-powder. The woman became ill. Was it a battery? (1873, Com. v. Stratton, 114 Mass. 303; compare similar facts in R. v. Button, 1838, 8 C. & P. 660; R. v. Dilworth, 1843, 2 Moo. & R. 534 ; R. v. Walkden, 1845, 1 Cox Cr. 282; R. v. Hanson, 1850, 2 C. & K.912.) The plaintiff was in the defendant's retail store. The defendant's clerk touched her on the shoulder, and asked her to go into another room, which she did; he there accused her of having stolen a pepper-caster from the counter. Was this a battery? (1897, McDonald v. Franchere, 102 Ia. 496, 71 N. W. 427.) The defendant's granary was set on fire and his property stolen; he suspected the plaintiff, a boy thirteen years old, and found him present at a second fire which broke out; the defendant "placed his hand on the plaintiff's shoulder and asked him if he felt better after he had set the fire"; the plaintiff testified that the defendant kicked and choked him. Assuming the truth of the defendant's story, was a battery committed? (1894, Crawford v. Bergen, 91 Ia. 675, 60 N. W. 205.) Is any legal damage shown in a proceeding by neighbors to enjoin the extension of a cemetery by the defendant town; the facts being that the germs of contagious diseases flourish in the liquid of decomposing bodies; that if moisture seeps into the enclosing earth it will carry the germs for considerable dis Topic 2. Physical Pain and Suffering. Physical Incapacity 29. PENNSYLVANIA RAILROAD v. ALLEN SUPREME COURT OF PENNSYLVANIA. 53 Pa. 276 1866 ERROR to the Court of Common Pleas of Erie County. This was an action on the case for personal injuries, by William N. Allen against the Pennsylvania Railroad Company, commenced May 30, 1865. The plaintiff, whilst a passenger in the defendants' car, was injured by a collision on the railroad, and disabled from attending to business. The only question was as to the charge of the Court on the subject of damages, in which JOHNSON, P. J., said: "The pain and personal affliction incident to the injury are also to be compensated in damages. "While the cases maintain the right of the plaintiff to damages for the pain and bodily suffering endured, they insist on the enforcement of the rule that nothing but their pecuniary value shall be allowed, and require the court to lay down the standard by which they are to be estimated. Yet the books have furnished us no gauge or mathematical process to aid us in the performance of this duty. But the law is that the plaintiff is only entitled to recover the pecuniary value of the injuries sustained, and so we lay it down to you. In its application to the question of damages for the physical pain suffered by the plain tances; that, if it seeps as far as a well, it may communicate the disease to persons using the well-water; and that there are wells in the premises adjoining the proposed extension of the cemetery? (1899, Lowe v. Prospect Hill Cemetery Ass'n, 58 Nebr. 94, 78 N. W. 488.) The plaintiff lived in a house five hundred feet from a building owned by the defendant city and located in a small public park. An epidemic of smallpox broke out in the State College in the city. The defendant isolated twelve smallpox patients in this building, acting under general statutory authority to isolate cases of contagious disease. May the plaintiff restrain the defendant from so doing? (1909, Manhattan v. Hessin, Kan., 105 Pac. 44.) CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: A. J. Willard, "Principles of the Law: Personal Rights," c. XXIV, Assault, pp. 199-203. Herbert Spencer, "Justice," c. IX, The Right to Physical Integrity. John Austin, "Jurisprudence, or the Philosophy of Positive Law," 4th ed., vol. II, p. 815 (Lecture XLVII). Henry T. Terry, "Some Leading Principles of Anglo-American Law, c. XI, § 339, p. 335. Thomas E. Holland, "Elements of Jurisprudence," 9th ed., c. XI, par. I, p. 160. Theodore D. Woolsey, "Political Science," § 21. Charles S. M. Phillipps, "Jurisprudence," b. I, c. I, § 1, p. 80, c. II, § 57, p. 113. John W. Salmond, "Jurisprudence," § 73.] tiff, you must exercise your own discretion, governed by your own sense of justice and right, taking care not to indulge in your imagination or sympathies, so as to be led into an assessment of damages that would be unjust or oppressive to the defendant." The jury rendered a verdict of $10,000, for which, after the overruling of a motion for a new trial, judgment was entered June 19, 1866. The errors assigned were: 1. The Court erred in instructing the jury that the pain and personal affliction incident to the injury were to be compensated in damages. 2. The Court erred in instructing the jury as follows: "But the law is that the plaintiff is only entitled to recover the pecuniary value of the injuries sustained, and so we lay it down to you. In its application," etc. 3. The Court submitted no rule to the jury by which damages were to be estimated for pain and mental suffering, but left the question of damages for pain and suffering to the unlimited discretion of the jury. J. R. Thompson and J. C. & F. F. Marshall, for plaintiffs. J. Sill, Spencer & Marvin and J. H. Walker, for defendant. The opinion of the Court was delivered, January 7, 1867, by STRONG, J. The argument addressed to us on behalf of the plaintiffs in error is one which has often been urged, but always unsuccessfully. It is said the plaintiff below is entitled to no more than compensation measured by the pecuniary value of the injury he had sustained; that pain and personal suffering have no pecuniary value; that there is no standard by which they can be estimated; and that if a jury are allowed to take them into consideration in assessing damages, they must guess both at the intensity of the pain and at the sum which would be a compensation for it. Hence, it is urged that inquiries into these subjects are too refined for a jury, or for any human tribunal, and that compensation ought to be allowed for nothing that cannot be measured by some defined rule. It must be admitted, that it is easier to answer this by authorities than it is by reasoning. The theory of a jury trial undoubtedly is, that it accomplishes certain results by certain rules. Ordinarily, it measures damages according to some known and recognised standard. That standard is, in most cases, a common and acknowledged measure adopted as a lesson of human experience. But where there is, and can be, no such experience, or none that can be known, damages might as well be determined by the casting of dice as by the verdict of a jury. It is con ceded, they must be estimated in money. But what is the pecuniary worth of a pain? If it must be determined, it is either nothing, or it is variable according to the conjecture of those who are required to estimate it; and they must guess not only its intensity, but its value in dollars and cents. It would seem that judicial tribunals ought not to be under the necessity of deciding anything so indeterminable. Damages, if recoverable at all, ought to be such as can be measured by some comprehensible rule some rule that can be applied to human affairs. Notwithstanding all this, however, it is undoubtedly true, that in some actions for personal injuries, juries in estimating the damages are to take into consideration the personal suffering caused by the wrong. So are the decisions. In cases of libel or slander, of wilful torts to the person, and in cases of negligence other than those that are breaches of contract, in cases of negligence which causes a personal injury, it has often been held that a jury may take into consideration the bodily and mental pain attendant on the injury. It must be admitted that it is no more possible to determine the pecuniary value of pain, in this class of cases, than in such a one as we now have before us. But such actions are not remedies sought for broken contracts. The wrongs complained of bear a nearer resemblance to a public offence. In assessing damages in such actions, juries are always allowed a larger license than in actions on contracts, and with some reason. In this State, at least, it seems to be the doctrine, that the circumstances attending such injuries may warrant an assessment of damages beyond those that are merely compensatory. It might well be, therefore, that a different rule should be applied to them from that which should be applied in suits on broken contracts. Yet it is not to be denied that the authorities recognize no such difference. In this State the question has never directly arisen; but I know of no decision anywhere, that a passenger personally injured by the neglect of a carrier to transport him safely, has been denied compensation for the pain caused by the injury. Such compensation is denied to one who sues for an injury to his relative rights; but the immediate sufferer has been held entitled to it whenever the question has been raised. And that such is the law is shown by the precedents. Chitty, in vol. 2d of his work on Pleading, page 647, gives the form of a declaration by a passenger against the owners of a stage-coach for overloading and improperly driving it, whereby the coach was overturned and the plaintiff's leg was broken. In each of the counts, the great pain of the plaintiff is laid as a substantial injury. And so far as any decisions of the English Courts are to be found upon this subject, they recognize the right of a plaintiff to damages for such a cause. . . . I do not find that it has been even doubted in any court. Juries are required to estimate in the best way they can, what is a just recompense for pain suffered. . . . It follows, that the first assignment of error in this record cannot be sustained. The second relates to the instruction given respecting the mode of assessment. Was that erroneous? The jury were told that the plaintiff was only entitled to recover the pecuniary value of the injuries sustained, and that in the application of this rule to the question, what damages should be given for physical pain suffered, they must exercise their own discretion, governed by their sense of justice and right, taking care not to indulge in their imagination or sympathies, so as to be led |