Merchants' Wharfboat Ass'n v. Heidingsfelder

Cooper, C. J.,'

delivered the opinion of the court.

The only material difference between this case and that of these appellants against Wm. Wood & Co., ante 661, is that in this case the plaintiff himself delivered his cotton to the appellant for shipment to New Orleans, and was present at the wharfboat when the steamer “ Richardson ” passed down the river, and asked the wharfinger whether he intended shipping the cotton by that boat, to which he replied that he did not, as there was another boat coming down on which he would ship, to which the plaintiff made no objection, and did not insist upon the shipment of his cotton.

The plaintiff testified that on previous occasions he had requested the defendant to ship by the “ Richardson,” which it had declined and refused to do, and he explains his failure to make such request at that time because of such previous refusals.

The defendant asked the court to instruct the jury that the plaintiff’s failure to dissent to the retention of his cotton precluded him *681 from recovering if the injury resulted from such failure alone to ship by the “ Richardson.” This instruction the court modified by inserting these words: “ Provided such conversation and the former conversations and transactions between the plaintiff and defendant were such as to have caused a reasonable man to dissent.” Since the cause must, for the reasons given in the case of appellants against Wm. Wood & Co., be reversed, we think it proper to say 'that the instruction ought not to have been given either as asked or as modified by the court.

The instruction as asked by the defendant was erroneous because it did not contain the necessary qualification that the plaintiff, to be bound by his acquiescence, must have had notice of the danger to which the cotton would be subjected by its retention, and the qualification annexed to it by the amendment not only failed to cure this defect, but added to it another by submitting to the jury a wholly immaterial and insufficient reason for his failure to dissent, viz. : former “ conversations and transactions ” between the parties.

Unless the plaintiff had notice of the danger to which the cotton was exposed by its retention, his consent thereto ought not to preclude a recovery, since his consent to its remaining could not be construed into his voluntarily subjecting it to such danger. Under such circumstances he would only be refused compensation for injury proximately flowing from the delay. If, on the other hand, he knew the danger to which the cotton would be exposed, and with this knowledge made no objection when informed of the purpose of the wharfinger to retain it until the arrival of the boat by which it -was the habit of the defendant to ship, he cannot in avoidance of his own act of assent invoke against the defendant its failure to ship out other cotton on previous occasions when its retention did not subject it to danger.

If the plaintiff was seeking only to recover damages for delay in forwarding his cotton, and the defendant should say, “ You assented to it,” the plaintiff might very well reply, “ True, I did not dissent, but it was because you had uniformly delayed over my objections, and I had come to consider it useless to object.” But *682 the plaintiff now contends that there were exceptional circumstances which warned the defendant of danger. It is these very circumstances which lie at the foundation of his right to recover, and if, knowing them to exist, he consented that the cotton might be kept in the yard, he cannot break the force of such consent by evidence that on former occasions the forwarder had elected between means of conveyance where delay only and not danger followed such election.

Reversed and remanded.