Bell v. Morrisett, 51 N.C. 178, 6 Jones 178 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 178, 6 Jones 178

H. D. BELL v. WILLIAM J. MORRISETT.

In an action for the breach of a warranty of soundness, where the allegation was, that the slave labored under a chronic disease, of which he died within a few months after the sale, it was Held that the declarations of the slave as to his health and condition, made two months before the sale, and at longer periods, and that similar declarations made several weeks after the sale, were competent.

A witness, who is not a physician, cannot be asked whether, from his appearance, he believed a slave in good health.

Action of assumpsit, tried before Dice, J., at the last Term of Camden Superior Court.

The action is assumpsit, on a parol warranty of the soundness of a slave sold to the plaintiff. Upon the trial, on general issue, the plaintiff alleged that at the sale, the slave was laboring under a chronic disease, which resulted in his death six months afterwards; and in order to establish that allegation, the plaintiff, amongst other evidence, offered to prove the declarations of the slave as to his health and condition, which were made two months before the sale, and at longer periods, and also similar declarations made several weeks after the sale. This evidence was objected to by the defendant, but admitted by the Court.

The defendant offered a witness, who testified, that a month before the sale the slave appeared to be well, and said he was then in good health. The defendant then asked the witness, if, from his appearance, he did not think, he was in good health. The question was objected to, on the ground, that the witness was not a physician, and could not give his opinion as to the state of the slave’s health, and the Court ruled it out.

A verdict was given for the plaintiff, and from which judg* ment, the defendant appealed.

Smith, for the plaintiff.

Pool and Jordan, for the defendant.

Ruffin, J.

Evidence of the nature of that given on the part of the plaintiff, is natural evidence on the question of the health of the person declaring his symptoms and sufferings; and they are admissible from necessity; Roulhac v. White, 9 Ire. Rep. 63. Of course, they are only evidence of the condition of the person at the time they are made. The objection taken here, is, that these declarations refer to periods too remote from the sale. But they may be, for that reason, only the stronger, or better evidence to the point, to 'which they were directed, that is, the soundness or unsounduess at the time of the warranty. That will depend much on the na* ture of the disease. The particular disease in this case, is not mentioned, but only that it was a chronic disease, which finally proved fatal. Row, the longer back such an affection may be continuously traced, the more convincing will it be of the esistence of the disease at the sale, especially when, soon after the sale, it exhibited itself manifestly again.

The Court concurs, too, that the question put to the defendant’s witness, ought to have been ruled out. The witness had already testified to the appearance of the slave, that is, given the jury the benefit of his eye-sight as to the state of the health of. the slave ; and it was not competent for him to give his inferences from the appearance of the negro. His opinion was worth nothing, because, for the want of skill and science, he was not competent to form an opinion, entitled to any consideration in law; Lush v. McDaniel, 13 Ire. 485, is authority on both points.

PER Cueiam, Judgment affirmed.