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Spead vs. Tomlinson

From the October 24, 1901 issue of the Christian Science Sentinel


The above is the title of a lawsuit brought in the Superior Court at Concord, N. H. In what we here say, we take our facts from the daily newspapers reporting this case, rather than from private sources. According to the newspaper accounts a suit was brought by Mrs. Jennie A. Spead against Rev. Irving C. Tomlinson, First Reader of First Church of Christ, Scientist, of Concord, N. H., who is also a Christian Science practitioner, to recover six thousand dollars damages alleged to have been sustained by her through the treatment of Mr. Tomlinson.

The Plaintiff's Claim.

The Concord Daily Patriot thus briefly sets forth the plaintiff's claim:—

"The plaintiff claims that in November, 1899, she consulted the defendant when she was suffering a severe pain from appendicitis; that the defendant professed to her that he could cure disease and that he could save her harmless from the effect of pain from which she might be suffering; that it was his duty to use reasonable skill and care in the treatment of the disease and the relief and removal of pain; and the defendant did not use reasonable skill and care, and that the plaintiff thereby suffered damage."

This is as the plaintiff claimed, not in accordance with the testimony of Mr. Tomlinson.

The Defence.

The same paper gives the following statement of the defence:—

"The defendant has filed a plea and a brief statement, which accurately sets forth the principles followed by all Christian Scientists in the treatment of sickness and disease, and which show that they rely on and apply the principles of their religious system, and, in the treatment of sickness and disease, rely for relief upon the power of God, sought through prayer. In other words, the Christian Scientists rely solely upon spiritual means in distinction from the ordinary physician, who relies solely upon material means to effect relief."

The Statement.

Merrimack ss. Superior Court.
October term, 1901.
Jennie A. Spead vs. Irving C. Tomlinson.

Defendant's plea and brief statement.

The defendant says that he is not guilty as the plaintiff has alleged and of this he puts himself on trial.

By his attorneys,

And the plaintiff doth the like.

The defendant makes the following brief statement of defence under the above issue:—

(1) The defendant has never held himself out to the plaintiff or to the public as a physician or surgeon, or advertised as such, or used the title of M. D. or Dr. or any title which has shown or tended to show that he is a practitioner of any of the branches of medicine, and with reference to the treatment of sickness and disease the defendant says that he teaches and practises according to the faith of the Christian religion as revealed in the Holy Scriptures, as exemplified and practised by Christ Jesus.

(2) That as a Christian Scientist, the defendant, in the treatment of sickness and disease, relies solely upon the power of God, sought by prayer, to effect relief; that in seeking to obtain relief from sickness or disease for those who may desire his help, he uses spiritual means alone and makes no use of drugs, instruments, or material means of any kind whatsoever; that he has never represented or claimed to the plaintiff or the public that he has any knowledge of the science or methods of medicine or surgery as those terms are generally used and understood, or that he has ever attempted to make use of those methods in seeking to bring relief to those in sickness or disease.

(3) That the defendant since January, 1899. has been and now is First Reader or pastor of First Church of Christ, Scientist, in Concord, N. H.; and that the foregoing method of treating sickness and disease by the power of God alone, through prayer, is a part of the religious belief and practice of the defendant and other Christian Scientists, and is the only method taught at the religious services of said church or elsewhere or used by the defendant or other members of the denomination; and that the plaintiff for some months prior to November 15, 1899, was a regular attendant upon such religious services, and was fully informed as to the foregoing religious teachings and practice of the defendant in the treatment of sickness and disease as a part of his religious faith.

(4) That the plaintiff, with full knowledge of all the foregoing facts, voluntarily sought the aid of the defendant, and the defendant thereupon, at her request, treated her solely in accordance with the foregoing method taught by the religion of Christian Science and practised by the defendant as a follower of that religion.

(5) That upon the foregoing statement the plaintiff has no legal cause of action against the defendant.

By his attorneys,


The above statements of plaintiff's claim and of the defence give a fair idea of the questions which came before the Court and jury. After a four days' trial, elaborate arguments by counsel, and the charge of the judge to the jury, the case was finally submitted to the jury. After several hours' deliberation the jury reported that they were unable to agree. The Court thereupon discharged them. This leaves the case undecided. It remains, in its legal aspects, just where it did before the trial before this Court and jury began. Inasmuch as the case is still pending we withhold comment, confining ourselves to what actually transpired. Were the case finally disposed of we might feel inclined to comment at considerable length upon it, or some phases of it.

Mr. Streeter's Argument.

The Hon. Frank S. Streeter, counsel for Mr. Tomlinson, according to the newspaper reports, made a strong argument on his side of the case. He submitted some pungent and far-reaching propositions in the form of interrogatories which sooner or later will have to be answered before the bar of public opinion, for the same queries so patly presented by Mr. Streeter are pressing themselves upon public attention everywhere. The following is in part what Mr. Streeter is reported to have said:—

"I understand that there are but two questions which are to claim the attention of the jury. First, whether this defendant was negligent; and second, whether he made any false representations knowingly.

"Why was this suit brought? Was it brought for damages, or for making an attack on a religion which to-day has one million followers?

"The attack is an attack upon the theory that disease may be cured by prayer.

"From the time of Mrs. Spead's first attack until Mr. Tomlinson's services were first requested, she was under the general care of Dr. McMurphy. This term of treatment amounts to six hundred and sixty days.

"Mr. Tomlinson treated her four days. She paid him one dollar, and now wants this jury to award her damages in the sum of six thousand dollars, because a Christian minister for four days sent up his prayers to Almighty God on her behalf.

"I ask you with all candor where did she get her hurt during the four days that Mr. Tomlinson was treating her? She tells you she was so sick on one night that she could not reach a glass of water that was near her bedside, and yet that her mother left her alone that night. Do you believe, gentlemen, that a mother would leave a daughter that way?

"If Mrs. Spead was in that deplorable condition, why is it that her mother and sister have not been here to testify to that fact? Why are they silent here, and why were nearly twenty-four hours allowed to elapse between the discharge of Mr. Tomlinson and the call for Dr. Walker?

"The fundamental thing which Mr. Tomlinson taught her was that he relied solely on the power of God, sought by prayer, to effect relief, and that in trying to help those who seek his services he uses spiritual means alone. She was fully informed that he made no pretensions to the knowledge and skill of the ordinary medical practitioner.

"Was this man sincere in his belief? He has stood here, in the face of this court, jury, and public, and endeavored to state his belief. This woman has not dropped a single suggestion that his character as a Christian gentleman is not above reproach. So far as any evidence that has been offered she stands to-day a believer in the absolute sincerity of these people.

"In my belief this woman is no more a factor in this litigation than is the gilded dome of the state house a factor in making our laws. This is an assault on the Christian religion. Mr. Tomlinson may be wrong. I don't know. Do you?

"You will be asked to say that prayer is fraud.

"Didn't she know exactly what kind of thing she was going to get? Was there the slightest delusion on her part or deceit on his?

"Take the proposition which these two counsel say is a lie. Mr. Tomlinson's proposition is that the power of God can cure sickness through prayer. I don't envy the condition of mind of men who stand up and say it is a lie. That the power of God can't heal. I don't envy these gentlemen the honor of standing before the courts of New Hampshire and a jury and charging that when a Christian man says the power of God can be invoked to cure disease, he is not right; that such a man is a fraud, a humbug, a cheat, a charlatan, and a quack, just because he claims that prayers will cure. They are welcome to the glory they might get out of the establishment of such a statement. We might as well meet the issue now as any time, and the people who support these churches might as well have the case decided as to whether a man who believes in prayer is a hypocrite; who believes that prayer will heal is a fool.

"Before guilt can be placed on this man you must find that he knew he was fathering false teachings. What evidence is there of this? Not a syllable, gesture, or inference. Is this man a cheat because he believes that prayer will cure the sick? Then you have got to declare against the Christian ministers who stand in the pulpits in these United States.

"But they say Mr. Tomlinson took money. Do they want to sneer at payment for Christian service? Then they sneer at the Supreme and Superior Courts who engage clergymen to open their sessions with prayer. When President McKinley was stricken down, almost every head in the broad land was bowed in prayer, and are you prepared to say that those who prayed are humbugs?

"I tell you, gentlemen, there is something in me that rebels against an assault of this exercise which I cannot help regarding as sacred. Within recent years we have had our state advertised as a place of abandoned farms; then later we were pictured as decaying fast religiously, our rural religion being held up as most deplorable.

"But one more thing need be added, and that would be to have a jury of New Hampshire citizens say that the man who believes in prayer to God is a cheat and that the corner-stone of the Christian religion is a fraud."

Judge Stone's Charge.

Judge Stone closed his charge to the jury at 6.45. It was followed with breathless interest, and was in part as follows:—

"We are now near the close of this unique and very interesting case. It only remains for the court to make such suggestions to you as he thinks proper, and then the issues will be left to your decision.

"The subject of religion has been referred to many times during the trial. Religion in the abstract is man's relation to God and to his fellow-man.

"There is no more sublime subject that the human mind can contemplate than the subject of religion. It is not for you or for me, gentlemen, to say whether one sect or faith or church is right, or another. Man's relation to his God is a very sacred subject. It is personal to him. His religion is guarded with the greatest vigilance by our laws.

"It will be a sad day when any of those things ever come before a court or a jury for adjudication, but they never will, so long as this country, or federal constitution and state constitution, remain intact as they are now.

"Let us see if Mr. Tomlinson is guilty of negligence as set forth in the first count.

"Did he bring to the knowledge of that case and the treatment of that case the average knowledge of Christian Scientists, and did he treat that case in the manner in which Christian Scientists do? If he did that in all respects, and was guilty of no carelessness or negligence, then your verdict will be for the defendant, because he has not been careless or negligent.

"Mr. Tomlinson treated this lady, and it is for you to say whether he treated her prudently and skilfully, with the average knowledge of a Christian Scientist. If he did in every respect, he is not liable.

"If he did not, if he was careless and did not treat her with the average prudence and learning of a Christian Scientist, if you should find that way, then you will inquire: did she know as much about this matter as he?

"Because, if she knew all about this, as much as he knew in every particular, she can't complain here. She can't say that she was imposed upon here if she had the same knowledge that he had in every respect.

"Unless you should find that it is common knowledge, that it is universal experience that one suffering from appendicitis must refrain from eating solid food, must refrain from exercise, that they must refrain from doing anything which she says he told her she might do, he would be liable.

"The third count embodies this idea, that when the defendant, Mr. Tomlinson, told this lady in answer to her question, if he could cure her of appendicitis, and he answered, 'I can, and if you will follow my directions I will,' did he make that answer fraudulently, intending to mislead and deceive that woman and to induce her to obtain his services, procure his services for hire.

"Did he knowingly and fraudulently make that statement to this woman to mislead her? That is what the third count amounts to.

"I want to say to you gentlemen, that this is a case, as counsel have said to you, of a great deal of importance to both these parties. They both of them have their rights, and you have but one duty to perform—render a verdict according to the law and evidence. This is your full duty."

There are two points especially prominent in this able charge: First, that the defendant is liable only for such skill and care in the treatment of disease as are imposed upon him by the rules and regulations governing the practice of Christian Science according to the teachings and method thereof. Second, if the plaintiff knew what the method of treatment by the defendant was and voluntarily submitted herself to such treatment, she cannot complain. The evidence, as we gather from the newspapers, clearly shows that the plaintiff did know of Christian Science methods, as she had been to some extent a student of Science and an attendant at its church services and for several months before placing herself in Mr. Tomlinson's hands, a regular attendant at the Wednesday evening meetings. The Judge's charge is unquestionably sound law, and will stand the test of judicial review anywhere.

Mr. Tomlinson testified that he gave no directions as to exercise or diet in this case.

There is one thing in connection with this case that may be made useful to Christian Science practitioners: that Christian Science practice is prayer, in the highest and best sense of the word, and should be plainly and unequivocally so named both in court and out of court.

Editorial Comment.

The Boston Globe of October 16, 1901, contains the following apt and sensible editorial comment upon this case:—

"The jury in the Tomlinson case, involving the legal status of Christian Science, where death or injury is alleged to have resulted from its practice, have disagreed.

"In the charge to the jury the court was very wary of any attempt to discard Christian Science on the alleged ground that it was not a religion, but a superstition.

"It is very easy to throw out 'the other fellow's' belief, as not being a religion, but if not very carefully restricted this privilege would soon result in a chaos of judgments. And if we grant that Christian Science is a religion, have we any right to discredit the claim that cures may be wrought with it?

"In this connection it is to be noticed that in a certificate filed by the Chelsea board of health these words are used: 'Disease, chief cause, typhoid fever; contributing cause, Christian Science.' Now this is, to say the least, decidedly discourteous. Suppose some 'irregular' practitioner had lost a case, and had filed with the board of health, 'Disease, chief cause, typhoid fever; contributing case, medical science,' would it not have been reprimanded?

"In a court of law many maintain that no man is justified in saying what is not religion for other people, or what is not 'science.' The 'regulars' must not expect to 'down' Christian Science on what are in courts of law ruled to be pure assumptions."

The Concord Evening Monitor of October 17 has the following able editorial:—

"It is to be regretted that the outcome of the Spead-Tomlinson case in the present term of the Superior Court was not in such form as to permit its immediate transfer to the Supreme Court for an adjudication of the fundamentals involved. As it is, the case now stands exactly as if it had never come into court at all. It is the first case of its kind; all the other proceedings against Christian Science practitioners in other states having arisen under the medical registration acts of those states. In New Hampshire, by the terms of its medical registration law, passed in 1897, Christian Science practitioners are expressly exempted from its provisions. But neither in this state nor in any other state, has any court passed upon the fundamental which underlies all cases of this sort, the question being whether a practitioner is justified in relying upon spiritual means alone for the healing of disease. This question will have to be passed upon some time by some, competent tribunal; and from no bench in the land can one look for sounder decisions than from our own Supreme Court as at present constituted. A ruling upon this question would establish the rights of all; the rights of the healer under the constitutional guaranties of religious freedom, and the rights of the patient who seeks and receives spiritual assistance for mortal distresses. In seeking such an adjudication abuse will not take the place of argument, rhetoric cannot supplant cold legal syllogisms. It will be based upon the organic law as it sets forth the privileges of each citizen under the law, and it will put an end to a great deal which we now have that is narrow and bigoted and selfish—and therefore powerless except to prolong the unnecessary controversy which such a decision would terminate."

The Concord Daily Patriot of the same date thus tersely comments upon the case:—

"It is greatly to be regretted that, on account of the disagreement of the jury in the case of Spead vs. Tomlinson. the real question upon which Mr. Tomlinson based his defence cannot be at once carried to the Supreme Court for final decision.

"The question is of paramount importance and its determination by the highest law court may produce farreaching results. Mr. Tomlinson states that he and other Christian Scientists in the treatment of sickness and disease rely solely on the power of God sought through prayer to effect relief, in other words, that they rely on spiritual means alone. It is claimed, as we understand, by those differing from him that such relief is so opposed to the general convictions of mankind and so repugnant to reason and the teachings of common sense, that its practice in daily life cannot be justified.

"The question of the efficacy of prayer to God is thus definitely raised and the controversy thereon is transferred from the forum of religion to that of the civil tribunals. The teaching of the Christian church that 'the effectual fervent prayer of a righteous man availeth much,' is questioned in the law courts. Is the doctrine true or false? May it be relied upon by its sincere believers or is it fraught with peril to those who, believing, practise it?

"The consequences flowing from a judicial decision of such a question cannot stop with Christian Scientists, but must be widespread and vitally affect every Christian sect which holds as a principle of religious belief and faith to the proposition that God can and does answer the prayers offered to Him from pious hearts.

"The question is fundamental and the decision will be important."

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