Messrs. Martin, Rollins, & Wright, for ment. appellants:

If the defendants acted in good faith in the treatment of the plaintiff, and used that degree of care and skill which was ordinarily practised and possessed by average physicians engaged in like practice, plaintiff would not be entitled to recover anything more than nominal damages, at least, because of the professional and medical treatment given her.

Long v. Austin, 153 N. C. 508, 69 S. E. 500; McCracken v. Smathers, 122 N. C. 799, 29 S. E. 354.

There was no evidence of a fraud having been practised upon plaintiff.

Williamson v. Holt, 147 N. C. 520, 17 L.R.A. (N.S.) 240; National Cash Register Co. v. Townsend, 137 N. C. 652, 70 L.R.A. 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:

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.

After five days the plaintiff was removed from the locked and barred cell to another back room, where she was restrained of her liberty against her will and prevented from communicating with any member of her family for more than three weeks, making thirty-two days in all, until her mother, after receiving a pathetic letter written by the plaintiff, who had bribed a colored maid to secure a pencil and mail a letter, came to the sanatorium and demanded her daughter.

The "Highland Hospital" was incorporated, but the defendant Robert S. Carroll was in sole and exclusive charge and, together with his wife, owned 99 shares out of the 100 shares of the capital stock. During the entire time the plaintiff was in the hospital, the defendant Carroll visited her only three times, according to the plaintiff's testimony, or five times, according to the defendant's testimony. The plaintiff was paying $35 per week for board, and was charged $15 per week extra for half the time of a trained nurse, who was only a student, and who was being paid only $8 per month by the defendants. The plaintiff was subjected to compulsory hypodermic injections twice every day during her stay, against her protest. Her breasts were forcibly massaged each day in such a forcible manner that she groaned under the treatment.

According to the evidence of the plaintiff and her sister, she entered the institution upon these representations and with no other thought than that she would be free to leave at will, could communicate freely with her family, and would receive the baths and diet mentioned in the pamphlets. She contracted for and received a front corner room, and her married sister returned to the hotel. This was on Sunday, August 4, 1912. On the next day she was informed that she would not be permitted to see her married sister nor communicate with her, and was told that she must have her hair shampooed. She testified that her hair had been shampooed just before leaving home, and she was suffering from cold, sore throat, and earache, and that her physical condition just at that time forbade her being subjected to this treatment, and she protested against her hair being shampooed. The nurses gave this information to the defendant Carroll, but he gave imperative orders that the plaintiff's hair "must be shampooed." Her evidence is that, in obedience to this order, two or three nurses took the plaintiff forcibly from her bed, while lightly clad, raised her forcibly from the floor, when she fell upon it, carried her to the bathroom, and shampooed her hair against her will. The plaintiff then demanded to leave the hospital, and to see her sister, and announced that she would 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 11⁄2 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

and humanity, until that condition as to her reasonable apprehension of doing herself bodily harm had passed. And within that rule or limitation it would not be a wrongful and unlawful imprisonment."

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 family, without money and clothes with which to escape, being forcibly detained against her will, and having entered the institution, according to her testimony, without 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 to leave the institution, and expressed it to the hospital authorities, and the hospital authorities knew of that fact, and then after that restrained her of her liberty, then it would be in law, as I am holding, wrongful detention, unless they were justified in restraining her under those rules of humanity and regard for her welfare, as I have just given you."

The defendants in their evidence deny the mistreatment, allege that the plaintiff was nervous and hysterical, but admit that she was restrained of her liberty; that she was placed in the "protected" room and afterwards removed to another "protected" room; that her hair was shampooed though she earnestly resisted; and that she was restrained of her liberty and kept in the institution against her will, and that the family were not informed of that fact. The defendant Carroll testified that he restrained her and kept her in the institution against her will; that her lack of self-control had reached hysteria, which was that she was "impulsive and would do unreasonable things." He did not testify that she was insane, but said that hysteria is "the borderland between sanity and insanity."

"If

The judge properly told the jury: the plaintiff was twenty-four years of age, unmarried, and was there in the hospital, and she subsequently applied to the authorities of the hospital for, and demanded, her release, demanded that she be allowed to go from the institution and be allowed and suffered to leave there, and after such demand made, if you find it, and that it was communicated by the nurses, or through the proper channels, to Dr. Carroll, and after that, that she, either by words, or by locking doors, or by anything that comes up to the definition of imprisonment that I have given you, she was imprisoned, so that she was unable to carry out her desires and wishes in that regard, then if you find these facts, after that, the court charges you, as a matter of law, that she would be wrongfully imprisoned and restrained of her liberty."

"If you were to find that she was in the institution, and that she was demanding to be released, which was properly communicated to the hospital authorities, but if you were to further find to your satisfaction that she was so nervous from any ailment or disease and so irrational that there was reasonable probability that, if so released at the time, she would do herself some

There was a conflict of evidence as to the treatment that the plaintiff received, but there is no controversy that the plaintiff was detained in the defendant's hospital against her will, confined for thirty-two days; that she was confined a considerable part of the time in a locked and barred cell; that she was denied all communication with her friends, and subjected to having her hair shampooed and to massage of delicate portions of her body and to hypodermic injections daily against her will.

The defendants contend that they had a right to do these things because the plaintiff signed an agreement upon her entrance that she would be subject to the rules and regulations of the institution, and that she could not be set at liberty without danger to herself. The judge submitted this latter phase to the jury, who found against it. Besides, the defendants did not account for the fact that, though the plaintiff's sister visited the institution, they gave her no information as to plaintiff's condition and treatment, and that, during the whole thirty-two days that the plaintiff was restrained by them of her liberty and subjected to physical treatment against her protest, no information was given by the institution to her relatives, though this was practical, during the entire time, by wire or long distance phone.

The judge properly told the jury that the plaintiff could not thus surrender control of herself to another by signing a paper at her entrance into the institution. 4 Cyc. 365; Re Lambert, 134 Cal. 626, 55 L.R.A. 856, 86 Am. St. Rep. 296, 66 Pac. 851; Re Baker, 29 How. Pr. 488.

The main defense relied upon by the defendants is that, if they acted in good faith,

there would be no liability upon their part. Whether or not this would be a defense to a recovery of punitive damages we need not discuss, for the jury in their verdict denied the plaintiff, on the issue submitted for that purpose, any recovery of punitive damages. "Good faith" is not a defense to the recovery of compensatory damages when the jury find that there was illegal restraint of liberty and compulsory massage and hypodermic injections and other physical treatment upon a defenseless woman, who was in the absolute power of the defendants and kept immured under lock and key and with barred windows, without information given by them to her family of her condition, and she denied all communication with them.

It is unnecessary to discuss in detail the exceptions taken, for they are all covered by what we have said.

As to the amount of compensatory damages due the plaintiff by reason of her illegal detention, and the physical ill treatment that she received, the jury have assessed the amount, and it has been approved by the trial judge, and is not reviewable by us.

The horrors of the imprisonment of a sane person in a private madhouse (and one is not the less such because it may be advertised as a "sanatorium") have never been more graphically related or probably more truthfully than by Charles Reade in "Hard Cash." Like the novels of Charles Dickens, it has aided to correct evils which till then oppressed and afflicted society without hindrance from those who administered the law.

The finding by the judge of the facts upon the motion for misconduct of the jury was based upon the evidence, and is not reviewable by us, and his conclusion of law thereupon to refuse the motion was correct. Lewis v. Fountain, N. C. 84 S. E. 278, at this term, and cases there cited. No error.

MORTIMER C. MILLER

V.

MASSACHUSETTS BONDING & INSUR-
ANCE COMPANY, Appt.

(247 Pa. 182, 93 Atl. 320.)

circum

The plaintiff was not committed as insane, and, if she had been, the defendants do not account for the fact that they accepted 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 testimony of the defendants, however, is that she was not insane. Evidently the defendant Carroll believed that he had absolute control of the plaintiff and the right to imprison her if she opposed his orders or will, and the right to impose on her whatever treatment he thought best, and that the family need not be consulted any more than the plaintiff herself. The effect of being at the head of such institution is very often too often-to render the person in charge callous and autocratic, and in his own opinion irresponsible to anyone. In this land, the law guarantees liberty to everyone, subject to restraint only in the modes provided by the law, and even then there is the right to review the conduct of those in charge of those deprived of their liberty. The plaintiff was not committed to the care of the defendants by any legal proceedings adjudging her insane, and her signing the paper agreeing to be subject to the rules and regulations of the institution was not irrevocable. It did not subject her to the irresponsible power and control of the defendant. This is the whole controversy, and requires no further discussion.

If the plaintiff did not abide by her agreement to obey the rules and regulations of the institution, the remedy of the defendants was to discharge her, or, if her condition forbade this, to notify her relatives (neither of which they did), and not to imprison her and to force her to do their

will.

Insurance against theft
stantial evidence.
That the evidence of theft is wholly cir-
cumstantial does not defeat recovery on a
policy of insurance against loss by theft,
although it provides that assured shall pro-
duce direct and affirmative evidence that the
loss was due to theft; disappearance of the
articles not to be deemed such evidence.

(January 2, 1915.)

PPEAL by defendant from a judgment
of the Court of Common Pleas for Al-

A
legheny County in plaintiff's favor in an
action brought to recover the amount al-
leged to be due on a policy of insurance
against loss by theft. Affirmed.

The facts are stated in the opinion.

Note.

and theft insurance is covered in the note to The general subject of burglary Rosenthal v. American Bonding Co. 46 L.R.A. (N.S.) 561, and see especially pages 567 et seq., as to manner of loss and proof thereof.

For insurance against theft of automobile, see notes to Harris v. American Casualty Co. 44 L.R.A. (N.S.) 70, 75; Patterson v. Standard Acci. Ins. Co. 51 L.R.A. (N.S) 583, 584; and see later case Valley Mercantile Co. v. St. Paul F. & M. Ins. Co. L.R.A. 1915B, 327.

Mr. Stephen Stone for appellant. Mr. William M. Hall, for appellee: Contracts of insurance will not be subjected to any critical or technical interpretation, but will be liberally construed in favor of the insured whenever there is an ambiguity in the language used."

Western Ins. Co. v. Cropper, 32 Pa. 354, 75 Am. Dec. 561; Merrick v. Germania F. Ins. Co. 54 Pa. 277; Bole v. New Hampshire F. Ins. Co. 159 Pa. 53, 28 Atl. 205; Smith v. National L. Ins. Co. 103 Pa. 177, 49 Am. Rep. 121.

pendent evidence direct and affirmative, of the former of which there was none, binding instructions should have been given. This contention gives to the words, "direct and affirmative evidence,” a meaning so severely technical that, if this meaning alone can be given them, a policy containing the provision we have here would avail the assured only in the rarest and most exceptional cases, so exceptional that the average person would hardly think the contingency in which the policy could operate worth 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.

Aitkin v. Young, 12 Pa. 15; Dinan v. Supreme Council, C. M. B. A. 210 Pa. 456, 60 Atl. 10.

notoriously one which is rarely, if ever, attempted, except as the thief has reason to believe that he will be undiscovered in the 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:

The action was on a policy of insurance against direct loss of the property described in the schedule attached, occurring by its felonious abstraction from the interior of the building, apartments, or rooms wholly occupied by the assured. The property for the loss of which the action was brought consisted of various articles of personal jewelry. Evidence was introduced by plaintiff to show the circumstances connected with their disappearance, which it is claimed excluded other theory than that the property had been lost by theft. The particulars of the evidence need not here be recited. At the close of plaintiff's case defendant moved for binding instructions. The motion was overruled, and the case was submitted to the jury, with the result that a verdict was rendered for the plaintiff for the full amount of the claim. A motion for judgment non obstante followed, which in turn was also denied. The ground on which binding instructions were asked, and on which the motion for judgment rested, was the insufficiency of the evidence submitted to meet the requirements of a clause in the policy which reads as follows:

cases where the corpus delicti can be proved by direct testimony-that is, by the testi mony of witnesses who saw the actual taking-would make the policy next to valueless. We will not impute to the defendant company any such purpose in the use of these words; nor can we assume that the assured understood them in this narrow and restricted sense, in view of the marked subtraction such construction would necessarily make from his security. Stated plainly, what is contended for is that, the factum probandum being the felonious taking of the property, this could only be established by the testimony of one or more witnesses who were present and saw the theft or larceny actually committed; or it may be stated thus, that the parties intended by the words to exact a higher degree of proof to charge the company with liability for the loss than the law requires to convict the burglar or thief of the crime itself. Admitting that the evidence here was circumstantial, if adduced on the trial of one charged with the theft and found sufficient to exclude all reasonable doubt with respect to the guilt of the party charged, conviction would follow, and imprisonment, and yet, with the guilty one in jail, the evidence would be insufficient for a recovery on the policy, because the thief convicted and in jail had not been seen when perpetrating the crime. We are unwilling to believe that the parties intended by the 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 suffi- nical 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

"The assured shall also produce direct and affirmative evidence that the loss of article or articles for which claim is made was due to the commission of a burglary, theft, or larceny; the disappearance of such article or articles not to be deemed such evidence."