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::' the California Association for the Study and. Prevention o: Tuberculosis,
that those who attempt to prevent the establishment of properly conducted
sanatoria, are not only in opposition to scientific facts, but that such per-
sons are sacrificing human life on the altar of supposed material prosperity,
(although it has been shown that property values in the neighborhood of
crccerly conducted sanattria really inirease in value : and be it further

" Resolved, That this Executive Board deprecates the unwise action
of all such persons as being unscientific, inhumanitarian and illogical; and
that all persons who will really study this question must come to the con-
clusion that the action of such persons is nothing else than an expression
of tuberculo-phobia, and to that extent a menace to the great movement
now in progress, which has as its end, the doing away with tuberculosis as
a scourge to the human race."

Opinions of Life Insurance Companies*

In March, 1914, The National Association for the Study and
Prevention of Tuberculosis addressed communications to five
of the largest life insurance companies in the country, requesting
answers to the following questions:

1. Is residence or employment in a tuberculosis hospital,
sanatorium or dispensary counted as an adverse factor in

*See remarks of Dr. Pettit, page 17.

36



considering the issuance of a life insurance policy to a doctor,
nurse, attendant or other employee of such institution, who
upon examination is non-tuberculous ?*

2. Is residence in the neighborhood of such an institution
as above mentioned considered as an adverse factor in issuing
a policy to a non-tuberculous applicant ?

Two of the companies answered the first question in the nega-
tive and two in the affirmative, while one indicated an affirma-
tive attitude, though not stating definitely. The answers to
the second question were unanimously in the negative.

It should hardly be necessary to say that life insurance com-
panies would have most rigid and conservative ideas as to what
is and what is not an adverse factor in issuing a policy. Their
error, if any, would certainly be on the side of conservatism.
That they do not consider residence near a tuberculosis sana-
torium as an adverse factor must quiet the fears of reasonable
men and women who have believed a danger existed or might
exist from the presence of such an institution. The fact that
some companies look with a degree of suspicion upon employees
of tuberculosis institutions, in the light of so much testimony
supporting an opposite opinion, indicates their extreme care-
fulness and accordingly gives additional support to their con-
viction that residence near a tuberculosis institution is not an
adverse factor.

To emphasize this point, the answers to the questions, giving
the name of the company except where it has been requested
to withhold it, are given below:

From Arthur B. Wright, M.D., Medical Director of The

Travelers' Insurance Company, Hartford, Connecticut:

" This Company has not modified in any way the form of policy

issued to a doctor, nurse, attendant or other employee of a tuberculosis
hospital or sanitarium provided examination is first class in every other
respect, the assumption being that such employee would be in better posi-
tion to follow out principles of precaution than others. Our experience with
this class of risks has been very favorable.

" In regard to Question 2 would state that we do not consider as an ad-
verse factor residence in the neighborhood of such an institution. The same
principle would prevail as regards this feature, inasmuch as proper precau-
tions would be followed by the institution itself."



* A recent report by Dr. Hamel, published in the Medico-Statistical Contributions of
the Imperial Health Office of Germany, gives the results of an investigation into the
incidence of tuberculosis among physicians and nurses employed in German sanatoria and
hospitals. Dr. Hamel's report, which embraces 549 institutions and clinics, 2,861
physicians and 14,140 nurses of all types, shows that the rate of infection among these
healthy employees of tuberculosis sanatoria and hospitals is no larger and is even slightly
less than a similar rate recognized by insurance companies for New York City.

37



From Dr. Lee K. Frankel, Sixth Vice-President of the Metro-
politan Life Insurance Company of New York City:

" Referring to the two questions asked I can answer these only

as far as the Metropolitan Life Insurance Company is concerned.

" 1. Residence or employment in a tuberculosis hospital, etc., is not
counted as an adverse factor in considering the issuance of a life insurance
policy to a doctor, nurse, etc.

"2. Residence in the neighborhood of a sanatorium is not considered
an adverse factor in issuing a policy to a non- tuberculosis applicant."

From a high official of a company which does not wish its
name used in connection with this report :

"Applicants for insurance who reside near or are employed in a tuber-
culosis hospital, sanatorium, or dispensary, are considered on their individual
merits. Of course, no applicants are accepted for insurance who on examina-
tion are found to be tuberculous. The practice regarding the acceptance of
applicants of this class varies according to local circumstances. The pos-
sible risk of tuberculous infection is carefully taken into account.

" The results of the German Collective Sanatoria Experience establishing
for employees a varying degree of liability to infection, are evidently sugges-
tive of an extra risk, which it would not be proper for us to ignore.

" Residence in the neighborhood of tuberculosis hospitals or sanatoria is
not considered an adverse factor in the issuing of a policy to a non-tuber-
culous applicant. There is no evidence to prove that the disease is spread
by infection from a well managed institution to the population of the sur-
rounding community, but, of course, there is a certain degree of risk in the
case of indiscreet treatment of tuberculous patients in boarding-houses or
private homes, not under proper medical supervision and control. All of
the American life insurance companies transact business without discrimina-
tion in localities which for climatic or other reasons are particularly suitable
for the treatment of tuberculosis patients, and as far as known, they have
not experienced an appreciably higher mortality from tuberculosis among
their policyholders living in such localities when compared with those living
elsewhere."

From F. C. Wells, Senior Medical Director of The Equitable

Life Assurance Society of the United States, New York City:

" I beg to say that, first вАФ we look with much suspicion and dis-
favor upon any doctor, nurse, attendant or other employee who is spending
his time in a tubercular hospital. Second, we cannot see how residents in
the neighborhood of such an institution as a tuberculosis hospital would be
an adverse factor in issuing policies to non-tubercular applicants, provided
they do not come in contact with the disease in any form."

From the Medical Director of a company which does not
wish its name used in connection with this report:

"1. Residence or employment in a tuberculosis hospital, sanatorium or
dispensary would be regarded as an adverse factor in considering the issuance
of a life insurance policy to an applicant.

" 2. Residence in the neighborhood of such an institution would not be
regarded as an adverse factor."

San Francisco Health Board

In 1909, the San Francisco Board of Health expressed a favor-
able decision on the question of permitting the local anti-

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tuberculosis society to operate a dispensary in a two-story
building especially constructed for the purpose, located in a
fairly prosperous and thickly settled residential section of that
city. The following extract of an account of the decision is
taken from the " San Francisco Call," September 8, 1909:

" That a tuberculosis dispensary in a densely populated district is not a
menace to public health was the verdict of the sanitation and legislation
committee of the health board yesterday, this decision being the direct out-
come of the controversy between the Jackson Street Association and the
San Francisco Association for the Study and Prevention of Tuberculosis.

The property owners maintained that a dispensary of that character

was a public menace, while the others held that far from being a danger
to public health, it would be a public benefit."



New York State Health Department

A summary of the decisions rendered by the New York State
Department of Health under the law of 1909 (see page 31) shows
that in the first three years, 1909-1911, twenty-seven cases
were decided. Of this number eighteen applications were grant-
ed, six were withdrawn before decision was rendered, and only
six were denied.

Two of the applications denied were for locations at Liberty,
New York, and one at Narrowsburg in the same region. Some
years ago the village of Liberty was a summer resort, but like
many another interior resort, it had to yield its popularity to
the seashore and the mountain playgrounds with special attrac-
tions, which have been made accessible to the public in recent
years by railroads. The village apparently owes its present
prosperity to the fact that it has become within the last ten years
a well-known refuge for consumptives. Some of the inhabitants
of Liberty fail or refuse to face the very apparent facts of the
case and continue to oppose the influx of consumptives.

The application of Brith Abraham, a Jewish insurance order,
in 1910, was denied on the grounds that the village and town of
Liberty were already bearing their share of the burden of caring
for tuberculosis cases and that the time had come when those
desiring to erect sanatoria should be pointed in another direc-
ton. The application of Dr. Horace Greeley to establish a
sanatorium at Liberty at a later date was denied on the same
grounds, with the exception that Brith Abraham asked for
permission to erect a sanatorium on unimproved property,
while Greeley asked for permission to establish a sanatorium

39



in a well adapted farmhouse on improved property of sixty-
acres just outside of the village.

At the Greeley hearing it developed that if he (Greeley)
wished to conduct a boarding house for tuberculosis cases or
other persons or both, he might do so without asking permission
from the local or state authorities. He might use sanitary
precautions or he might not, provided he did not wish to conduct
a " sanatorium " for tuberculosis cases. The residents of
Liberty who opposed the location seemed indifferent as to whether
the applicant conducted a boarding house, but they did object)
to a sanatorium on the grounds that it would give Liberty am
undesirable reputation as a resort for consumptives, because
of the advertising that would be used.*

* Copies of the opinion of Commissioner Porter in the Greeley case are on file in the
office of the National Association.



40



CHAPTER VI



Court Decisions

Where the location of hospitals has been so bitterly opposed,
it is natural that in a number of instances recourse should have
been had to the courts. Some of their decisions rendered in
cases of this character are particularly pertinent.

Boston, Mass.

The courts of Massachusetts were among the first to give
recognition to the status of a tuberculosis sanatorium in a given
community. In 1893, the Supreme Court of Massachusetts,
in the case of the Free Hospital for Consumptives of Boston,
decided that this institution was not a menace either to property
or to health The decision which was based upon the testimony
of the best experts that could be secured, has since been sus-
tained by the benefit which the institution has been both to
the health and property of the community.

Asheville, N. C.

In January, 1909, the Sisters of Mercy of Asheville, N. C,
were temporarily enjoined by the courts from operating a
sanatorium for tuberculosis sufferers. Later, the injunction
was removed and the Sisters were permitted to operate their
sanatorium.

Orange, N. J.

In 1909, a temporary injunction was issued against continuing
the tuberculosis camp at Orange, N. J., but motion for a perma-
nent injunction was later denied. The camp consisted of a
remodelled barn located on the rear of the property of the
Orange Memorial Hospital and near to the abutting property

41



of residents whose homes faced on the street back of the hospital.
The residents maintained that the camp was a nuisance and
menaced both their property values and their health.

Vice- Chancellor Howell's opinion on the case (Brikholz vs.
Lindsley), is contained in a letter to the defendant's lawyer,
A. F. Skinner, Newark, N. J., which is printed in full:*

" In the case of the tuberculosis camp in Orange, I have come to the con-
clusion that an injunction should not issue, and I give you very shortly my
reasons for denying the motion, and will ask you to send a copy of this letter
to Mr. Lord.

" Hospitals and pest houses are not nuisances per se. Their character as
nuisance depends upon their manner of operation, and that operation, in order
to be liable to the injunction process of the court, must be of such character
as to damage the complainant, not generally, but with respect to the use of
his property. There are many things, which a person does not like to have
planted next door to his residence, but which are entirely beyond the reach
of the law of nuisances. The Camp, so-called, seems to be conducted with
great care and propriety. The answering affidavits are very full, and while
they show a situation which is unpleasant and which no one would like to
have next door to him, yet, I think that the affidavits show that the business
is so carefully carried on and the rights of the adjacent property owners so
well observed that it is impossible for me to say that the complainants are
suffering any special damage over and beyond that is suffered by every mem-
ber of the community.

" There is another argument, which comes to mind from the character of
the neighborhood; if the camp should be enjoined, there still remains in the
same neighborhood, the tuberculosis ward of the Orange Memorial Hospital.
It is true, that the hospital patients do not enter and leave the premises
from the street, on which the complainants live, but it is there and the in-
junction in this case would not remove any objection to the operation of a
hospital.

" I have come to this conclusion without any reference to the statutes,
which were cited, because I do not see anything in either of these three acts
can result in giving the complainants, as private suitors, any new or additional
right or cause of action. It may be that these statutes would be available to
the public in a public prosecution, but I fail to see how the complainants
can derive any benefit from them in this private action.

"As I look at the complainants' case, it is and must be directed to show
facts, which will convince the court that the camp is being conducted in such
a way as to make a nuisance. This is the question of fact, which ought to
be investigated on the final hearing.

" I will advise an order denying the motion."



Richmond, Va.

In an effort to prevent Dr. William Parker, of Richmond,
Va., from operating the Chimbarazo Sanatorium, the city
council passed an ordinance requiring a license from the Board
of Health to operate such an institution within the city limits.
The courts declared the ordinance null and void on the grounds
that the council had no power to enact it.



* Copies of the petition and other papers in the case are on file in the office of the
National Association.

42



Seattle, Wash.

In the case of Everett vs. Paschall, (61 Wash. 47) the
Supreme Court of the State of Washington in 1910 issued a
permanent injunction restraining Paschall from operating a
private tuberculosis sanatorium in the residential section of
Seattle. The sanatorium which accommodated about ten
patients, was located directly across an alleyway from the
property of the plaintiff. The lower court denied an injunc-
tion but the supreme court reversed the decision on the
grounds that the sanatorium constituted a nuisance. The de-
cision apparently applies only to hospitals in residential sec-
tions. Following is a digest of the court's opinion:

Defendant maintained a private sanatorium for the treatment of persons
afflicted with tuberculosis, and plaintiff prays for an injunction. The lower
court found as follows: That the danger zone of tuberculosis is about three
feet, beyond which there is no danger of infection or contagion; that defendant
conducted his sanatorium with a due regard for the safety of his patients and
the v public, that it was a great benefit to the community for the disease is
very prevalent, one-seventh of the deaths in the United States being caused
thereby; that it was not a nuisance per se; and that plaintiffs were not enti-
tled to an injunction. The Supreme Court of Washington held that the
hospital is not a nuisance within the definition of the common law, for it
created no physical inconvenience whatever; that but a new element in the
law of nuisance has been developed, namely, the comfortable enjoyment of
one's property; that under this law the maintenance of the sanatorium is a
nuisance. In reaching this conclusion, the court says that, in determining
what is a nuisance, regard should be had for the notions of comfort and con-
venience entertained by persons generally of ordinary tastes and suscepti-
bilities. The discomfort must affect the ordinary comfort of human exis-
tence as understood by the American people in their present state of en-
lightenment. The neighbors have dreaded and fear contagion. Such fear
detracted from the comfortable use of their property, so an injunction is
allowed.

Redlands, Cal.

In 1910, an effort was made to prevent Dr. G. F. Moseley
from operating the Mentone Sanatorium at Redlands, Cali-
fornia. The buildings had previously been used for a sanatorium
but the people objected to their being used again for the purpose.
In order to restrain Moseley, the Board of Supervisors of San
Bernardino County, in July, 1910, passed an ordinance with a
fine and imprisonment penalty attached, declaring tuberculosis
hospitals located in residential districts a menace and a public
nuisance and prohibiting their location.

As a test case, Dr. Moseley was put in jail and applied for a
writ of habeas corpus. On December 21, 1910, Judge Frank
F. Oster rendered a decision* in favor of the defendant on the

* Copies of this decision are on file in the office of the National Association.

43



grounds that the Board of Supervisors exceeded their authority
in passing the restrictive ordinance. The question of whether
the hospital was a menace was not decided or considered by
the court. The decision on this point reads:

" Now, while there has been much evidence introduced here on the theory
of a public nuisance, we have no concern in that matter on this hearing. It
is simply a question of whether the board of supervisors have the constitu-
tional legislative power to enact this particular ordinance, and inasmuch as
they have sought to make that a public nuisance which, by their own specifi-
cations, constitutes only a private nuisance, it seems to me their authority |
is absolutely null and that they have no such power, and that the ordinance
is, therefore, unreasonable. It follows that the defendant must be discharged
from custody."

Houston, Tex.

A more recent and far more pertinent and explicit decision
was rendered in August, 1913, in connection with the attempt
of the Anti-Tuberculosis League of Houston, Texas, to locate
a tuberculosis dispensary in that city. Permission was gained
from the county authorities to erect a special building for the
purposes on the grounds of the county jail in the business dis-
trict of the city. Property owners and some physicians, in-
cluding the local health officer, protested against the site and the
case was taken into court. After an extended hearing, in which
evidence of every possible nature bearing on the case was
admitted, Justice Kittrell* rendered a decision in favor of the
League, which is of more than ordinary and local significance.
Part of the opinion is quoted herewith:

" In this case, the evidence manifestly preponderates in favor of the defend-
ants. Under that point, there is no reasonable grounds for difference of!
opinion.

" The question involved is whether the establishment of a clinic for the
treatment of persons afflicted with either incipient or clearly developed^
tuberculosis will in all probability be so harmful to property owners and resi-
dents in the section of the city adjacent to the site of the proposed clinic, asi
to give them the right to injunctive relief. The case is one in which the pref-
erences and interests of the few must yield to the welfare of the many. In!
every part of the United States, warfare is being systematically and scien-
tifically waged against tuberculosis, both for the purpose of prevention and
cure. The results achieved in New York show a reduction in the number
of cases of something like 30 per cent., and the increase of the dreadful disease
makes it necessary for the protection of society that all reasonable means be
resorted to in order to accomplish its extermination or at least such mitiga
tion of its ravages as can be brought about by advanced methods of treatment.

" The work must be done somewhere or be stopped altogether, and the
highest interests of society demand that it should not be stopped and the
power of the court should not be put in motion to arrest such work except
upon the clearest proof that its prosecution will inevitably result in injury
to petitioners.

* Copies of the opinion in this case are on file in the office of the National Association.

44



" The proximity to the county jail is also urged as a ground for relief, but
the hygienic conditions of that institution are far better than are those of
many homes, and the evidence is not sufficient to show that such danger
exists as is alleged.

" The evidence, the far greater part of which was not only heard but taken
down in writing with my own hand, convinces me that a clinic, such as is
proposed, when conducted along the lines marked out, will not imperil the
health of the neighborhood, or result in any depreciation of the value of
property, and because of the preponderance of the evidence is against the
contention that it will, a permanent injunction is refused, and the temporary
injunction will be, and is, dissolved."



45



CHAPTER VII



Summary and Conclusions



Hospital not a Menace to Health

Among the many conclusions which may be drawn from th
array of facts presented in the preceding chapters, none is moi
evident than that a tuberculosis hospital in itself is not a menac
to the health of those living near it. This is the most frequer
and, in practically all cases, the basic objection to the locatio
of tuberculosis hospitals or sanatoria. Obviously, if there wei
no fear of infection, the hue and cry frequently raised relati\
to the probable damage to property through the location of a
institution for tuberculosis would be largely dissipated an
would lose its force.

That such an objection, however, is not a valid one, is show
in the first place by the testimony of practically every supe]
intendent who has expressed an opinion with reference to tb
effect of his particular institution upon the health of thos
living near it. In not a single case has the National Associs
tion been able to find evidence that would indicate the slightes
danger of infection from a tuberculosis sanatorium to those wh
live on surrounding property, or who pass the doors of th
institutions at frequent intervals. The testimony of America
hospital superintendents is borne out furthermore by that (
similar officers of European institutions who have been aske
about this question. In addition, it is greatly strengthened b
proof submitted from many other sources, which demonstrate
that the infection of healthy employees through associatio
with patients within a well-regulated sanatorium is almost ur
known.

In the second place, this conclusion is affirmatively recognize
in opinions by various courts of law and official bodies such <
local and state boards of health, that have been asked to pa

46



upon the question of the infectiousness of tuberculosis. The


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Online LibraryNational Association for the Study and PreventionThe effect of tuberculosis institutions on the value and desirability of surrounding property → online text (page 4 of 5)