ERROR to the Circuit Court for the Northern District of California.
The opinion of the court was delivered by: Mr. Justice Swayne stated the case and delivered the opinion of the court.
Mr. Brady, for the plaintiff in error; Messrs. Carlisle and McPherson, contra.
This is a writ of error to the Circuit Court of the United States for the Northern District of California.
Graham was the plaintiff in the court below. The complainant sets forth a contract, whereby Roberts agreed to transport him and his wife and child as first cabin passengers from New York to San Francisco, by the Panama route, and to furnish them with suitable accommodations, provisions, and supplies on the way.
Among other breaches, it is alleged that the defendant did not furnish them with first cabin fare, but that the child was furnished with only second cabin fare of the poorest quality; that he did not furnish them with suitable and proper accommodations, provisions, and supplies, but that on the contrary he overloaded the steamer Moses Taylor, on which they were conveyed from Panama to San Francisco, 'with a number of passengers, wholly out of proportion to her size, and much greater than she could suitably accommodate, and that by reason thereof, the plaintiff and his wife and child were subjected to great inconvenience and injury.'
In the course of the plaintiff's testimony he gave evidence tending to prove his illness, and that it was caused by exposure, in his not having sufficient bed or berth clothing on the Moses Taylor; 'that bed-clothing had been furnished him, but that he was compelled to deprive himself of it, in order to supply his child, which child had not been furnished with a berth or bed-clothing.'
The evidence being closed, the defendant's counsel asked the court to instruct the jury, that in assessing the damages by reason of the sickness of the plaintiff himself during the voyage, they must exclude from consideration sickness arising from the want of sufficient bed-clothing on the Moses Taylor, because 'there is no allegation in the complaint on which to base a recovery for such injuries, and because the allegation is, that the plaintiff's sickness was caused by exposure and detention at Panama, before the arrival there of the Moses Taylor.'
This instruction the court refused to give. 'And the said judge thereupon charged the jury that if they found from the evidence that the plaintiff's sickness and consequent injuries was caused by x posure by reason of not being furnished with a sufficient quantity of bed-clothing on the steamer Moses Taylor, then they must estimate the damages to plaintiff caused by such exposure and want of sufficient clothing or covering for his berth, and by his illness consequent thereon, and include such damages in their verdict.'
To this refusal to instruct, and to the instruction given, the defendant excepted.
It is objected that the plaintiff was allowed to recover for a special damage not alleged in the complaint. As a general proposition, that cannot be done. Special damage, whether resulting from tort or breach of contract, must be particularly averred, in order that the defendant may be notified of the charge, and come prepared to meet it.
Special, as contradistinguished from general damage, is that which is the natural, but not the necessary, consequence of the act complained of. In this connection, in the case before us, two questions are presented for our consideration: Was the sickness of the defendant, alleged to have been induced by his exposure on the Moses Taylor, special damage, within the rule of pleading on that subject? and if so, was the right of the defendant to object to a recovery upon that ground waived by his conduct at the trial?
The complaint avers that the defendant, by this breach of the contract, 'was subjected to great inconvenience and injury.'
It does not appear that the defendant objected to the admission of the testimony, that he moved to have it ruled out, or that he made any allusion to the subject until he asked the court, at the close of the argument, to instruct the jury, as shown by the bill of exceptions.
In Ward v. Smith,*fn1
the suit was upon a lease. The declaration averred that the defendant refused, 'on request, to permit the plaintiff to take possession and have the use of the premises, whereby the plaintiff had sustained loss, and had been obliged to ...