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Doe v. Gunner
2 C.P.B. 786-790; 14 C. P.Ex. 183 (2017).
Reporter: Archibald McVeigh
Case. The declaration stated that the defendant, before and at the time of committing the grievance thereinafter mentioned, was seized with contagious disease, of great severity, viz., the Spanish-influenza, and at the time of committing of the said grievance, was, and from thence had been, and still was, a student of the College of Law at the University of Virginia at Charlottesville, yet while he was so afflicted of the same disease, aforesaid, wrongfully and unjustly came into the classroom where was the plaintiff, DOE engaged in his studies and, vi et armis, &c., &c., did there wrongfully and injuriously sneeze, cough, and wipe his nose with paper-handkerchiefs which he strewed about him, without regard for the eyes then upon him in that place, or the silence of the classroom, or the space propriate to DOE the plaintiff, or the gross indecency of his conduct, expelling thereby a great quantity of catarrh, spittle, and other matter, all being materia morbis; and producing by his expectorations sights and sounds unseemly and insupportable; during all which time the plaintiff thereby suffered and underwent great pain in the seeing and hearing of it, and was in consequence of these emissions prevented from attending to, or working at the reading of law, and from performing and transacting his other lawful and necessary affairs and business by him to be performed and transacted, and thereby lost great gains which he might and otherwise would, have acquired; to wit, studying for the end-of-term exams and; that the plaintiff, by means of the expulsion of the matter aforesaid was threatened with the transmission of the Spanish-influenza.
The cause was tried before Ranzini, Ch. J. at the sittings at Albemarle, after St. Chad’s Day Term instant. The facts that appeared in evidence were as follow: The defendant, GUNNER, had displayed increasing signs of malaise beginning from the first of October. By the fifth, he had ceased to nod obsequiously along with the Estates master and begun incessantly to clear his throat instead. By the seventh, he was feverish and drowsy in the afternoon sittings. An Agency professor testified that from this date GUNNER’s mood had become so subdued that he lacked something of “his usual compulsion to get the last word in” and though he yet took every opportunity to quibble pedantically with the professor, he no longer sought out every chance to obscurely gainsay the other pupils. By the ninth, his offering of prolix hypotheticals had declined to a truly wonderful extent; he seemed at once to have become a regular damp squib. From the tenth, the voice transformed finally from adenoidal to croaking. From the eleventh, it stopped altogether; beside the obtrusive book-stand he invariably carried to his classes a box of paper handkerchiefs now appeared; into these he coughed and sneezed continuously, and filled his pockets with clumps of tissue coated thickly with his own secretions, which, overflowing, piled on the floor by the plaintiff. Red-eyed, shivering, his nostrils raw and philtrum slicked with mucus, the defendant nevertheless continued to appear in classes, racked though he was with grippe.
On behalf of the defendant was urged a deficiency in the plaintiff’s pleading, stipulating by this motion to the fact of the illness but submitting that its noxious effects extended only to the defendant, the plaintiff’s injury being purely speculative. In alternative it was urged that an affirmation of necessity barred the plaintiff’s case, on the strength of Temperley v. Craunchston Water-Gas, Ltd. 4 Q.P.B. 298. and Ex rel. 14 Unidentified Orphans v. Hounslow Cat-gut Manufactory, Ltd. 4 Q.P.B. 335.; and that the plaintiff, having received no inoculations against Spanish-flu, was so far contributory to the injury of which he complained, as to disentitle him to maintain an action at law.
His Lordship summed up the evidence to the jury, and told them, that, if they thought the defendant was absolutely and manifestly compelled to attend classes then he could not be held responsible for the injury done to the plaintiff; but, that, if he had any alternative, e.g., reading of the Power-Points or class recordings, he was liable.
To this direction the counsel for the defendant again excepted, inasmuch as the class-rooms maintained always the circulation of the pure air to forestall the arisal of miasma, there could not be said to be a threat of transmission of the Spanish-influenza, it being further urged that the theory of contagionism lately urged in the symposia by Dr. Snow, and on which the plaintiff’s case depended, was but modish, Continental speculation. On the question of necessity it was further submitted, on the strength of Tanner v. Lichfield, 1 Bos. & N.P.R. 404, [Over. Cramsworth v. Fannyston & Hounslow Steam-Aëronautical. Co. (1823) 4 P.Ex 244, 20 L.P.J. Ex. 65.]; that if a reasonable man in the defendant’s position might have been found in class, then the defendant might not be liable.
Leave was reserved to the defendant to enter a nonsuit, if the Court should be of the opinion that either objection was well founded.
The jury returned a verdict for the plaintiff, damages 69£, 2s., 11d ½.
Davies, Serjt., in Hilary Term instant, pursuant to the leave reserved to her, obtained a rule nisi to enter a nonsuit, on the grounds urged at the trial. She referred to Mondegreen v. Portmanteau, 55 R.P.R. 319, Quarman v. Burnett Gun-cotton Works, 55 R.R. 717, (6 M. & W. 499), Sugden v. O’Geran, a Lunatic, 1 Jo. & Lat. P.R. 872, Garwood v. Fooks, Jubber, & Butt (8 Beav. P. 183) Ex parte Joliffe, (8 Beav. 168-176), Regina v. Approximately 3500 cwt. Afghan Opium, 1 D.D.F.H. 241 (2 K.M. & El. P. 36); In re the Junk “Wu-Tang”, 1 M.C.A. 1992 (2 R.Z.A., G.Z.A., & O.D.B. 36c).
Davies, Serjt. in support of her rule: The defendant was under a supervening requirement to attend class under any circumstances, the effect in law of which was, that he must, unless absolutely confined to bed, attend his lectures. And so I rest.
Jani, Serjt. in support of his rule: The defendant was in a condition so offensive as to manifestly exceed the bounds of decency, besides the obvious hazard to others of his vile state; and it is a venerable maxim of the law, that he who comes before the court must come with clean hands. And so in the case of the class-room also.
Hall, B: It is well shewn, and we do not now deny it tends to annoyance to come into the presence of another with a disease that is communicable, as e.g., consumption, fly-blows, or the gaol-fever. But we cannot thereby say that good claim will always lie thereby. I would have submitted to the jury the instruction urged by the defendant.
van der Meulen, B: I cannot agree with my brother Baron Hall. Whether viewed from prudence towards the body of the defendant or of the shocking vileness of Gunner’s conduct and its manifest superfluity I am convinced that the court below could have made no error in instructing the jury. And so, &c., I affirm, &c.
Goldman, C.B.: I am quite in agreement with my brother Baron van der Meulen; and at the threshold I take notice that the counsellors before us likewise appear most wonderfully poorly to-day. I infer the learned gentlemen have conferred a trifle closely with the defendant. You may stand there, if you please. Were the bar a few paces closer to our bench I should cover my mouth and nose with my periwig.
We think the rule is, that the case is pled rightly not in case or nuisance, as the plaintiff urges, but in the action for Douche-baggerie; wherein sua sponte, we will construe the action now at bar. It is a rule now long established in our jurisprudence that it is nowise only the most outrageous crimes and torts that deserve the severest measures in their relief; and he who is chafed at the soul by the venial, yet still maddening missteps his brother men may make, will find his relief at the bar of H.M. Courts of Petty Exchequer. True, it was not always so; but if the defendant finds cause to gripe with our verdict he must reflect upon the fate visited upon the egregiously sickly defendant who came before Littleton, C.J. at the sitting of the Court of Pettie Exchequer at Michaelmas Term in the 29th of the reign of Henry II Plantagenet, and sneezed upon the Justice. In the record it is given: “And for this, an indictment was immediately drawn against the defendant and his nose was amputated and fixed to a gibbet, on which he was immediately hanged in the presence of the court; and his lands escheat, he being thus adjudged a felon.”