1. In a suit against a common carrier for not carrying a party
according to contract, the allegation of a breach "whereby the
plaintiff was subjected to great inconvenience and injury" is not
an allegation of special damage.
2. An objection of variance between allegation and proof must be
taken when the evidence is offered. It cannot be taken advantage of
after it is closed.
MR. JUSTICE SWAYNE stated the case and delivered the opinion of
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
Page 73 U. S. 579
in his not having sufficient bed or berth clothing on the
"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
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,
"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 exposure by reason of not being
furnished with a sufficient quantity of bed clothing on the steamer
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
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.
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
Page 73 U. S. 580
by his exposure on the Moses Taylor,
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
In Ward v. Smith,
] 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 hire other premises at great cost and
expense for rent and charges."
The plaintiff proved on the trial that the premises had been
taken for his wife's business, who was a milliner, were
advantageously situated for that trade,
"and that by not being suffered to occupy them, he sustained
considerable loss by the passing by of a profitable part of the
year for that business in the meantime."
The plaintiff recovered. It was urged by the defendant, upon a
motion for a new trial,
"that there was no special damage averred in the declaration,
for that there were no particular customers named therein as having
withdrawn their custom from the defendant's wife; and further, that
there was no averment of the business of the wife, or that the
plaintiff had sustained any loss in her business."
Richards, Chief Baron, said:
"As to the objection of evidence of special damage having been
admitted, there was, in fact, no special damage, as such, proved.
The object of the witness' testimony was to show that the plaintiff
had sustained inconvenience. "
Page 73 U. S. 581
Baron Graham said, that no special damage had been proved. He
"Loss of customers and general damage occasioned thereby,
however, may have been given in evidence under this declaration;
for it charges general loss,
without specifying any
particular individuals whose custom had been lost, and it was
competent for the plaintiff to show certain damages
sustained by breach of the agreement in this action, without
stating his loss more specially in the declaration.
It would not be easy to distinguish that case, as to the point
under consideration, from the one before us. It is of undoubted
authority, and is conclusive.
The objection of variance not taken at the trial, cannot avail
the defendant as an error in the higher court, if it could have
been obviated in the court below; nor can it avail him on a motion
for a new trial. [Footnote 2
If parol evidence be received without objection, to prove the
contents of a record, it is sufficient for that purpose. [Footnote 3
] In McMicken v.
defendant made no objection to the introduction of the testimony,
but prayed the court to instruct the jury that it was insufficient
to warrant a verdict against him. The jury found for the plaintiff.
It was held by the appellate court that he should have objected to
the admission of the evidence, and that not having done so, he was
concluded by the verdict. The judgment was affirmed.
In the case before us, the plaintiff was entitled to be apprised
of the objection if it were intended to be relied upon, at an
earlier period in the progress of the trial. The court would
doubtless have permitted an amendment if deemed necessary, upon
such terms as the interests of justice might seem to require.
The defendant's right to make the objection was waived and
concluded by the delay. He could not make it at the time and in the
manner it was presented.
Page 73 U. S. 582
Upon both grounds we hold that the rulings of the circuit court
11 Price 19.
Mosher v. Lawrence & Westcott,
4 Denio 421;
Lawrence v. Barker,
5 Wendell 305.
Newberry v. Lee,
3 Hill 523.
6 Martin, N.S. 86; see also Goslin v. Corry,
& Granger, 347; and Doe v. Benjamin,
9 Adolphus &