
    Nicholas Bertholi v. Heloise Deverges and others.
    Appeal from the District Court of the First District* Buchanan, J.
    
      Latour, and Roselius, for the plaintiff.
    
      Canon, for the appellants.
   Simon, J.

The plaintiff in this action, seeks to recover the price of a female slave by him purchased of the defendants’ ancestor, on the 10th of November, 1838. The disease with which the slave is alleged to have been afflicted at the time of the sale, is a pulmonary affection of a chronic character, called by the physicians “ phthisis pulmonaris,” or consumption, which caused her death, in July, 1839.

The defendants deny the allegations on which the plaintiff’s claim is based. They aver that at the time of the purchase, the slave was free from any redhibitory sickness, and that she was not afflicted with the disease described in the petition.

The case was tried by a jury who gave their verdict in favor of the plaintiff for the sum of $855, the amount of the purchase ; whereupon judgment was rendered accordingly against the defendants, who, after having vainly attempted to obtain a new trial, took the present appeal.

The evidence adduced on the trial of this cause appears somewhat contradictory as to the time of the first existence, or appearance of the disease. The contradictions arise more particularly from the opinions of the physicians who were called to examine the slave after the sale. One of them says, that he discovered the malady the first time that he saw the girl; and the two others testify that when they were called in consultation, they were of opinion that she was not afflicted with any pulmonary disease. They all agree, however, upon the malady being of a chronic character; and one of the two physicians whose opinion was, that the disease did not exist at the time of the consultation, states that the lungs of the slave, when she died, were in the state of a well confirmed phthisis or pulmonary consumption; that confirmed phthisis is of a chronic character; and that in this case, the lungs were totally disorganized. We are aware of the difficulty of relying with any degree of certainty, upon the opinions of physicians called transiently in consultation. We know that “ doctors will differand their science, being an occult one, it is not astonishing that the variety of systems by them respectively adopted, should cause necessarily, and oftentimes, a great difference in their opinions. However this may be, it is certain that the death of the slave, was occasioned by the disease which was recognized by the plaintiff’s family physician on his first examination of the subject; and in order to arrive at the truth with regard to the origin of the malady, and the time of its first appearance, we shall proceed to a close examination of the facts and circumstances testified to by all the witnesses.

It appears that the first time Madame Dias saw the slave after the sale she appeared to be sick, and that the witness, three or four days after the sale, noticed that the girl was afflicted with a cough. Another witness, Paturzo, who used to go often to the plaintiff’s, went to see him three days after the sale, and he testifies that two or three days after the sale, the slave coughed a good deal, complained of her chest, and had a bad color. Dr. Vionet, who was plaintiff’s family physician, was called about the middle of December, (four or five days after the sale,) saw the girl, and was not pleased with her appearance. She had, he states, too narrow a chest, and her face showed that she suffered. Sometime after, he discovered that she had incipient symptoms of phthisis, and suggested to call a consultation of physicians, ad vising the plaintiff to select those who were the family physicians of the defendants. The consultation took place, and the witness was of opinion that the disease originated from a pulmonic affection which must have dated four or five (the word is left blank in the record,) previous to the consultation. This consultation took place in December, 1838. The witness further says, that he has no doubt that the disease did not exist when he first saw the girl; that she was regularly attended by him, and well treated and taken care of by the plaintiff, and not allowed to work. She died with the malady which he discovered when he first saw her; and he adds, that it must have existed five or six months before. This disease, in his opinion, was of a chronic nature.

Dr. Fortin, who was the family physician of the defendants at the time of the sale, testifies that having been called in consultation with Drs. Vionet and Tricou, to examine the slave at the plaintiff’s, he was of opinion that she was not affected with a pulmonary disease. He states the circumstances on which his opinion was based ; explains the course and progress of the malady in certain cases ; and says, that he had treated the girl while she was in possession of the defendants for a cough which yielded to his treatment, and left her in good health. This was in 1838. The sickness at the defendants’ lasted a long while, but she was not so sick as to require daily attendance from him. He adds, that it is a fact that in winter, phthisis takes a more rapid course ; that he does not believe that on the 18th of December, 1838, the slave had the pulmonary disease ; and at all events, if she had it, the means which he used failed to indicate the existence of the malady. He states further, that he does not think that six months had elapsed between the time he last saw the slave at the defendants’ and the consultation.

Dr. Tricou recollects very well that, at the time of the consul* tation, a point in one of the slave’s lungs was affected so that she did not breathe well; but without having a clear indication of the existence of the disease, he could not certify that she was consumptive. If she had been so, they would have known it. The affection of the point was caused by a fluxion which had been cured by Fortin. He insists also upon the girl’s not having any symptom of phthisis, when he saw her, and gives his reasons upon which he then founded his belief.

The facts and circumstances of the case, disclosed by the evidence, which we have endeavored to recite in substance, weré, it seems to us, well calculated to induce the jury to believe, notwithstanding the opinions of two of the physicians, that the slave was at the time of the sale affected with the disease which caused her death. Indeed, the testimony would leave very little doubt in our minds, that the malady recognized by Dr. Vionet, when he first saw the girl a few days after the sale, was a continuation of the sickness for which she had been treated by Dr. Fortin, who perhaps mistook the momentary relief which he procured her, for a complete cure. Certain it is, as we have already said, that she died with a well confirmed phthisis, in the opinion of the physicians who examined her lungs after her death ; that the malady made its appearance within a very few days after the sale, from which time, the girl lingered, and her disease grew worse and worse until she died. The circumstance of her having been treated for a cough, which lasted a long while, when she was in the possession of the defendants, and about six months previous to the consultation, coupled with the other circumstances rela.'ive to the appearance of the malady, to the affection of the lungs that prevented her breathing freely as stated by Dr. Tricou, and to its progress after the sale, militate strongly in favor of fhe opinion of Dr. Yionet, that the disease, chronic in its nature, must have existed five or six months before. The jury thought so, and so did the Judge of the District Court in overruling the defendants’ motion for a new trial; and we have not been able to discover any reason to be dissatisfied with their judgment.

Judgment affirmed.  