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damages, but no punitive damages. The de- , Janney v. Housekeeper, 70 Md. 162, 2 fendants moved to set aside the verdict upon L.R.A. 587, 14 Am. St. Rep. 340, 16 Atl. the ground of misconduct by a juror, but 382. the court found upon the evidence that there In case of a voluntary entry to an asylum was no misconduct as alleged, and denied on a written agreement to remain for a the motion and entered judgment for plain- year, no man could, by agreement, lose his tiff upon the verdict. Appeal by defendants. liberty, and the managers of an asylum

could not compel compliance with the agreeMessrs. Martin, Rollins, & Wright, for ment. appellants:

4 Cyc. 365; Re Baker, 29 How. Pr. 485; If the defendants acted in good faith in Re Lambert, 134 Cal. 626, 55 L.R.A. 856, the treatment of the plaintiff, and used that 86 Am. St. Rep. 296, 66 Pac. 851. degree of care and skill which was ordi- Defendants were liable for the false imnarily practised and possessed by average prisonment and assault. physicians engaged in like practice, plain- Fawcett v. Ryder, 23 N. D. 20, 135 N. W. tiff would not be entitled to recover any- | 800, 2 N. C. C. A. 153. thing more than nominal damages, at least, The amount of damages was a matter of because of the professional and medical fact, of which the jury were the judges. treatment given her.

If their finding was excessive, the trial Long v. Austin, 153 N. C. 508, 69 S. E. judge who heard the evidence had the cor500; McCracken v. Smathers, 122 N. C. 799, rective power to set it aside. His refusal 29 S. E. 354.

to do so is not reviewable by this court. There was no evidence of a fraud having Boney V. Atlantic & N. C. R. Co. 145 been practised upon plaintiff.

N. C. 250, 58 S. E. 1082. Williamson v. Holt, 147 N. C. 520, 17 L.R.A. (N.S.) 240; National Cash Register Clark, Ch. J., delivered the opinion of Co. v. Townsend, 137 N. C. 652, 70 L.R.A. the court: 349, 50 S. E. 306.

The plaintiff was a young woman about Messrs. Oliver & Oliver and Jones & to be married, who came to Asheville, North Williams, for appellee:

Carolina, from Savannah, Georgia, to rid Where a person actually sane is confined her system of malaria, and for recreation as an insane person, the general rule is that and rest. She was somewhat delicate and the person imposing the restraint is liable nervous, but the evidence is that her mind for false imprisonment.

was perfectly clear. Having heard of the 12 Am. & Eng. Enc. Law, 750; Colby v. Highland Hospital, operated by Dr. CarJackson, 12 N. H. 526; Look v. Dean, 108 roll, as a sanatorium, she entered that insti. Mass. 116, 11 Am. Rep. 323; State use of tution after visiting it, but it was concealed man, the contention that he was an alien , which justifies the arrest and detention of not admitted into the United States, and persons who are lost to self-control.” that to set him at liberty would be a viola- But a railroad company was held not liation of the immigration laws requiring the ble in Ollet v. Pittsburg, C. C. & St. L. R. detention and return of aliens, could not Co. 201 Pa. 361, 50 Atl. 1011, for false imbe set up in justification of his detention prisonment, where the crew of a freight at the hospital.

train, acting without the scope of their emIt is held in Re Baker, 29 How. Pr. 485, ployment, took a boy whose foot had been that the superintendent of the New York crushed by the cars, from a private house State Inebriate Asylum, having by statute where first aid was given, to a hospital, "power to receive and retain all inebriates against his will. The court observed that who enter the asylum either voluntarily or the crew of the train, in doing what they by the order of the committee of any habit. did, were endeavoring to act the part of the ual drunkard,” cannot, under such act, good Samaritan; that the circumstances forcibly detain a voluntary patient, although seemed to call for great haste, and one who the patient upon entering had signed the endeavors to assist his neighbor who is in requisite contract to remain in the asylum great danger and distress is certainly not a year and the time had not expired. The liable for a mistake in judgment, nor does court said: "He was a voluntary patient in there appear to have been any such mistake the institution, and all the power the super- made in this case. intent had under the laws for the govern- The liability for detaining one as an inment of the institution was to 'receive and sane person presents a different question. retain' him so long as he was willing to re- The right of one restrained as insane person, main. No provision has been made for the to discharge upon ground of irregularity or arrest of any voluntary patient who leaves invalidity of commitment, is discussed in the institution, who is capable of taking note to Pierce v. Cobb, 44 L.R.A. (N.S.) care of himself and of managing his own | 389, where notes analogous to that quesbusiness affairs, and no principle of the tion are referred to.

J. D. C. common law is applicable to such a person

from her that it was in effect a private, was taken to the barred and locked cell, asylum. The defendant Carroll gave her the plaintiff's married sister paid visits to two pamphlets, one entitled “Diets,” de- the hospital, but was kept in ignorance of scribing most delicious and appetizing the treatment given to the plaintiff, and foods. The other contained a description was not permitted to see her. The plaintiff of sixty different "baths,” most elegant and was kept immured in the cell, above deluxurious, and offering most enticing induce. scribed, adjoining raving insane people, ments to patients. These pamphlets filed while her married sister returned to Savanin the record are the ne plus ultra of all nah carrying assurance from the defendant that is elegant and luxurious in bathing and Carroll to the family that the plaintiff was diets.

progressing nicely. According to the evidence of the plaintiff After five days the plaintiff was removed and her sister, she entered the institution from the locked and barred cell to another upon these representations and with no back room, where she was restrained of her other thought than that she would be free liberty against her will and prevented from to leave at will, could communicate freely communicating with any member of her with her family, and would receive the family for more than three weeks, making baths and diet mentioned in the pamphlets. thirty-two days in all, until her mother, She contracted for and received a front cor- after receiving a pathetic letter written by ner room, and her married sister returned the plaintiff, who had bribed a colored to the hotel. This was on Sunday, August maid to secure a pencil and mail a letter, 4, 1912. On the next day she was informed came to the sanatorium and demanded her that she would not be permitted to see her daughter. married sister nor communicate with her, The “Highland Hospital” was incorporand was told that she must have her hair ated, but the defendant Robert S. Carroll shampooed. She testified that her hair had was in sole and exclusive charge and, tobeen shampooed just before leaving home, gether with his wife, owned 99 shares out and she was suffering from cold, sore throat, of the 100 shares of the capital stock. Durand earache, and that her physical condi- ing the entire time the plaintiff was in the tion just at that time forbade her being hospital, the defendant Carroll visited her subjected to this treatment, and she pro- only three times, according to the plaintiff's tested against her hair being shampooed. testimony, or five times, according to the The nurses gave this information to the defendant's testimony. The plaintiff was defendant Carroll, but he gave imperative paying $35 per week for board, and was orders that the plaintiff's hair "must be charged $15 per week extra for half the shampooed.” Her evidence is that, in obedi- time of a trained nurse, who was only a ence to this order, two or three nurses took student, and who was being paid only $8 the plaintiff forcibly from her bed, while per month by the defendants. The plaintiff lightly clad, raised her forcibly from the was subjected to compulsory hypodermic floor, when she fell upon it, carried her to injections twice every day during her stay, the bathroom, and shampooed her hair against her protest. Her breasts against her will. The plaintiff then de forcibly massaged each day in such a manded to leave the hospital, and to see forcible manner that she groaned under the her sister, and announced that she would treatment. not remain. The defendant Carroll was Instead of the luxurious diet described in informed of this. He thereupon gave orders the pamphlet, the food given the plaintiff that the plaintiff was not to see her sister was 3 ounces of milk and 1 ounce of lithia or leave the hospital. According to the water eight times a day at the beginning, defendant's testimony, the plaintiff stated which was increased to 6 ounces of milk, that she would jump out of the window 1972 ounces of cream, and two raw crated before she would stay there without seeing eggs. She was read “Why Worry" and her sister. The defendant Carroll thereupon "Those Nerves” constantly during her stay. directed that she should be moved into a The defendant Carroll wrote only one letter protected room or padded cell located in to her family during the thirty-two days she the rear, with diamond-shaped wire meshing was immured under his control. The plainon the inside and iron bars on the outside, tiff's arm was injured by the force used in a locked door, and an electric light at the dragging her to the bathroom to such an exceiling inclosed with wire and operated tent that she complained of it constantly durfrom the outside. This room had scant fur. ing her stay in the hospital. She testifies that niture and, according to the report of the she was such a physical wreck by reason nurses, was infected with roaches. Adjoin- of her treatment that she could not make ing this locked cell were raving lunatics her wedding clothes after her return home, shrieking to be let out. On each of the days and that she could not hold her baby after prior to this time, and after the plaintiff it was born. She graphically describes her agony of mind during her illegal restraint bodily harm, under such circumstances the among lunatics, in a private asylum, in a hospital would have the right to detain her distant state, far from home and friends, and restrain her, under the law of necessity without means of communication with her and humanity, until that condition as to family, without money and clothes with her reasonable apprehension of doing her. which to escape, being forcibly detained self bodily harm had passed. And within against her will, and having entered the in- that rule or limitation it would not be a stitution, according to her testimony, with wrongful and unlawful imprisonment.” out knowledge of its nature, and being "Now it is for you, gentlemen, to say, duped into supposing that it was a rest from the testimony, the facts you find, and cure, with luxurious diet and baths. She how this matter is. Even though she went testifies that she returned home a nervous in under this paper, and if you find, as she wreck, requiring careful treatment for many contends, that she was perfectly rational, months, and indelibly stamped with her ex- and knew what she was doing-what she perience as a prisoner in a madhouse. wanted and didn't want-and she wanted

were

The defendants in their evidence deny the to leave the institution, and expressed it mistreatment, allege that the plaintiff was to the hospital authorities, and the hospital nervous and hysterical, but admit that she authorities knew of that fact, and then after was restrained of her liberty; that she was that restrained her of her liberty, then it placed in the "protected” room and after- would be in law, as I am holding, wrongful wards removed to another "protected” detention, unless they were justified in reroom; that her hair was shampooed though | straining her under those rules of humanity she earnestly resisted; and that she was and regard for her welfare, as I have just restrained of her liberty and kept in the given you." institution against her will, and that the There was a conflict of evidence as to the family were not informed of that fact. The treatment that the plaintiff received, but defendant Carroll testified that he restrained there is no controversy that the plaintiff her and kept her in the institution against was detained in the defendant's hospital her will; that her lack of self-control had against her will, confined for thirty-two reached hysteria, which was that she was days; that she was confined a considerable "impulsive and would do unreasonable part of the time in a locked and barred things." He did not testify that she was cell; that she was denied all communication insane, but said that hysteria is "the bor- i with her friends, and subjected to having derland between sanity and insanity.” her hair shampooed and to massage of deli.

The judge properly told the jury: "If cate portions of her body and to hypodermic the plaintiff was twenty-four years of age, injections daily against her will. unmarried, and was there in the hospital, The defendants contend that they had a and she subsequently applied to the authori- right to do these things because the plaintiff ties of the hospital for, and demanded, her signed an agreement upon her entrance that release,-demanded that she be allowed to she would be subject to the rules and regugo from the institution and be allowed and lations of the institution, and that she could suffered to leave there, -and after such de- not be set at liberty without danger to hermand made, if you find it, and that it was self. The judge submitted this latter phase communicated by the nurses, or through the to the jury, who found against it. Besides, proper channels, to Dr. Carroll, and after the defendants did not account for the fact that, that she, either by words, or by lock-that, though the plaintiff's sister visited the ing doors, or by anything that comes up to institution, they gave her no information as the definition of imprisonment that I have to plaintiff's condition and treatment, and given you, she was imprisoned, so that she that, during the whole thirty-two days that was unable to carry out her desires and the plaintiff was restrained by them of her wishes in that regard, then if you find liberty and subjected to physical treatment these facts,-after that, the court charges against her protest, no information was you, as a matter of law, that she would be given by the institution to her relatives, wrongfully imprisoned and restrained of her though this was practical, during the entire liberty."

time, by wire or long distance phone. "If you were to find that she was in the The judge properly told the jury that institution, and that she was demanding to the plaintiff could not thus surrender conbe released, which was properly communi-, trol of herself to another by signing a cated to the hospital authorities, but if you paper at her entrance into the institution. were to further find to your satisfaction 4 Cyc. 365; Re Lambert, 134 Cal. 626, 55 that she was so nervous from any ailment L.R.A. 856, 86 Am. St. Rep. 296, 66 Pac. or disease and so irrational that there was 851; Re Baker, 29 How. Pr. 488. reasonable probability that, if so released The main defense relied upon by the deat the time, she would do herself some fendants is that, if they acted in good faith,

v.

there would be no liability upon their part. As to the amount of compensatory dam

1 Whether or not this would be a defense to ages due the plaintiff by reason of her illegal a recovery of punitive damages we need not detention, and the physical ill treatment discuss, for the jury in their verdict denied that she received, the jury have assessed the plaintiff, on the issue submitted for that the amount, and it has been approved by purpose, any recovery of punitive damages. the trial judge, and is not reviewable by us. “Good faith" is not a defense to the recov- The horrors of the imprisonment of a sane ery of compensatory damages when the jury person in a private madhouse (and one is find that there was illegal restraint of lib- not the less such because it may be advererty and compulsory massage and hypo- tised as a "sanatorium”) have never been dermic injections and other physical more graphically related or probably more treatment upon a defenseless woman, who truthfully than by Charles Reade in “Hard was in the absolute power of the defendants Cash.” Like the novels of Charles Dickens, and kept immured under lock and key and it has aided to correct evils which till then with barred windows, without information oppressed and afflicted society without hingiven by them to her family of her condi- drance from those who administered the law. tion, and she denied all communication with The finding by the judge of the facts upon them.

the motion for misconduct of the jury was It is unnecessary to discuss in detail the based upon the evidence, and is not reviewexceptions taken, for they are all covered able by us, and his conclusion of law thereby what we have said.

upon to refuse the motion was correct. The plaintiff was not committed as in- Lewis v. Fountain, - N. C.

84 S. E. sane, and, if she had been, the defendants 278, at this term, and cases there cited. do not account for the fact that they ac- No error. cepted her as sane by signing the agreement with her upon her entrance into the institution. If she subsequently became insane, it was the duty of the institution to have PENNSYLVANIA SUPREME COURT. at once notified her mother and sister. The

MORTIMER C. MILLER testimony of the defendants, however, is that she was not insane. Evidently the defendant Carroll believed that he had abso

MASSACHUSETTS BONDING & INSUR

ANCE COMPANY, Appt. lute control of the plaintiff and the right to imprison her if she opposed his orders

(247 Pa. 182, 93 Atl. 320.) or will, and the right to impose on her whatever treatment he thought best, and

Insurance

circumagainst theft

stantial evidence. that the family need not be consulted any

That the evidence of theft is wholly cirmore than the plaintiff herself. The effect cumstantial does not defeat recovery on a of being at the head of such institution is policy of insurance against loss by theft, very often—too often-to render the per- although it provides that assured shall proson in charge callous and autocratic, and' duce direct and affirmative evidence that the in his own opinion irresponsible to anyone. | loss was due to theft; disappearance of the

In this land, the law guarantees liberty articles not to be deemed such evidence. to everyone, subject to restraint only in the

(January 2, 1915.) modes provided by the law, and even then there is the right to review the conduct of

A

PPEAL by defendant from a judgment those in charge of those deprived of their

of the Court of Common Pleas for Al. liberty. The plaintiff was not committed legheny County in plaintiff's favor in an to the care of the defendants by any legal action brought to recover the amount alproceedings adjudging her insane, and her leged to be due on a policy of insurance signing the paper agreeing to be subject to against loss by theft. Affirmed. the rules and regulations of the institution The facts are stated in the opinion. was not irrevocable. It did not subject her to the irresponsible power and control of the and theft insurance is covered in the note to

Note. – The general subject of burglary defendant. This is the whole controversy, Rosenthal v. American Bonding. Co. 46 and requires no further discussion.

L.R.A. (N.S.) 561, and see especially pages If the plaintiff did not abide by her agree. 567 et seq., as to manner of loss and proof ment to obey the rules and regulations of thereof. the institution, the remedy of the defend- For insurance against theft of automoants was to discharge her, or, if her con- bile, see notes to Harris v. American Casualdition forbade this, to notify her relatives ty Co. 44 L.R.A. (N.S.) 70, 75; Patterson v.

Standard Acci. Ins. Co L.R.A.(N.S) 583, (neither of which they did), and not to 584; and see later case Valley Mercantile imprison her and to force her to do their Co. v. St. Paul F. & M. Ins. Co. L.R.A. will.

1915B, 327.

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Mr. Stephen Stone for appellant. pendent evidence direct and affirmative, of Mr. William M. Hall, for appellee: the former of which there was none, bind. Contracts of insurance will not be sub-ing instructions should have been given. jected to any critical or technical interpre- i This contention gives to the words, "direct tation, but will be liberally construed in and affirmative evidence," a meaning so se

1 favor of the insured whenever there is an verely technical that, if this meaning alone ambiguity in the language used.

can be given them, a policy containing the Western Ins. Co. v. Cropper, 32 Pa. 354, provision we have here would avail the as75 Am. Dec. 561; Merrick v. Germania F. sured only in the rarest and most excepIns. Co. 54 Pa. 277; Bole v. New Hampshire tional cases, so exceptional that the average F. Ins. Co. 159 Pa. 53, 28 Atl. 205; Smith person would hardly think the contingency v. National L. Ins. Co. 103 Pa. 177, 49 Am. in which the policy could operate worth Rep. 121.

guarding against. Theft may not be de. Where there is evidence its sufficiency is scribed as a deed of darkness; yet it is for the jury.

notoriously one which is rarely, if ever, Aitkin v. Young, 12 Pa. 15; Dinan v. Su- tempted, except as the thief has reason to preme Council, C. M. B. A. 210 Pa. 456, believe that he will be undiscovered in the 60 Atl. 10.

act. He never invites anyone, unless it be

a confederate, to witness the operation. To Stewart, J., delivered the opinion of the limit the assured's right to recovery to court:

cases where the corpus delicti can be proved The action was on a policy of insurance by direct testimony—that is, by the testi against direct loss of the property described mony of witnesses who saw the actual in the schedule attached, occurring by its taking-would make the policy next to valuefelonious abstraction from the interior of less. We will not impute to the defendthe building, apartments, or rooms wholly ant company any such purpose in the use occupied by the assured. The property for of these words; nor can we assume that the loss of which the action was brought the assured understood them in this narrow consisted of various articles of personal and restricted sense, in view of the marked jewelry. Evidence was introduced by plain-subtraction such construction would necestiff to show the circumstances connected sarily make from his security. Stated plainwith their disappearance, which it is ly, what is contended for is that, the factum claimed excluded other theory than that the probandum being the felonious taking of the property had been lost by theft. The par- property, this could only be established by ticulars of the evidence need not here be the testimony of one or more witnesses who recited. At the close of plaintiff's case de- were present and saw the theft or larceny fendant moved for binding instructions. The actually committed; or it may be stated motion was overruled, and the case was sub- thus, that the parties intended by the mitted to the jury, with the result that a words to exact a higher degree of proof verdict was rendered for the plaintiff for to charge the company with liability for the full amount of the claim. A motion for the loss than the law requires to convict judgment non obstante followed, which in the burglar or thief of the crime itself. Adturn was also denied. The ground on which mitting that the evidence here was circumbinding instructions were asked, and on stantial, if adduced on the trial of one which the motion for judgment rested, was charged with the theft and found sufficient the insufficiency of the evidence submitted to exclude all reasonable doubt with reto meet the requirements of a clause in spect to the guilt of the party charged, conthe policy which reads as follows:

viction would follow, and imprisonment, "The assured shall also produce direct and yet, with the guilty one in jail, the and affirmative evidence that the loss of evidence would be insufficient for a recovery article or articles for which claim is made on the policy, because the thief convicted was due to the commission of a burglary, and in jail had not been seen when perpetheft, or larceny; the disappearance of such trating the crime. We are unwilling to bearticle or articles not to be deemed such evi- lieve that the parties intended by the dence."

language used to accomplish such absurd reAppellant's contention is that the evi. sults as those pointed out, and which would dence adduced by plaintiff to show the felon- necessarily follow were the strict technical ious taking of the property was wholly construction contended for allowed. Techcircumstantial, and that, conceding the suflinical terms are ordinarily, but not always, ciency of the evidence in ordinary case to to be given their technical meaning. Where warrant an inference of theft, yet, because they are obviously used in a different sense, here the agreement of the parties required it is the intention that governs. Just what for the establishment of this material fact the parties understood by direct and afon which defendant's liability was made de-'firmative evidence may not be clear;

but

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