
    Victoire Paty v. Mrs. Aglaé Martin.
    Tho conjectures of medical men as to the probable duration of a disease have not, per se} the weight of proof of the fact of duration.
    APPEAL from the Pifth District Court of New Orleans, Eggleston, J.
    
      Clarice & Bayne, for plaintiff. D. Augustin, for defendant and appellant.
   Buchanan, J.

This is a redhibitory action. Plaintiff purchased, in July, 1858, of defendant, the slave Nancy, guaranteed against redhibitory maladies.

In November, 1858, this suit was brought. The petition alleges, that the slave was laboring under an incurable disease, described as chronic inflammation and enlargement of the womb, at the time of the sale, to the knowledge of defendant.

Plaintiff had judgment.

The proof does not, in our opinion, support the allegations of the petition.

I. As to the existence of the disease at the time of sale.

In the latter part of October, 1858, the slave was sent to Mercier’s hospital by plaintiff, and was examined by Drs. Mercier and Alpuente, who pronounced her affected [with chronic inflammation of the womb, which they conjecture to have been, at that time, of six months standing. There is a bill of exceptions reserved as to this statement of conjectures of those physicians. This court has frequently had occasion to express its opinion respecting this kind of evidence. The conjectures of medical men as to the probable duration of a disease, have not, per se, the weight of proof of the fact of duration. See the cases of Dupré v. Demarest, Dupré v. Prescott, and Roca v. Slawson, in 5th An.

In the present case, we have, in opposition to this conjectural evidence, the testimony of Drs. Martin and Turpin, who were the physicians of the family of defendant, previous to the sale of the slave Nancy to plaintiff; also the testimony of Barbey, an intimate and frequent visitor in defendant’s family ; of Mrs. Reilly, a white servant in that family; and lastly, of Dr. Raneé, who was employed, on behalf of plaintiff to examine the slavei professionally, at the time of her purchase.

In addition to the facts proved by these witnesses, it may be observed, upon the speculative or theoretical view of the case, that Dr. Martin proves that an inflammation of the womb may assume the chronic form in the space of three months from its commencement; in which statement he is not contradicted by any of the other professional witnesses examined.

II. The petition alleges, not only that the disease complained of existed at the time of tlio sale, but that, to the knowledge of defendant. This allegation is (lisproved by-the evidence, which shows the existence of another disease in the slave at the time of the sale, to-wit, a tumor in the neck, which was made known to the purchaser; who assumed the risk of the same. The conveyance of the slave to plaintiff refers to the title by which defendant acquired her; and that title describes the slave as maladive. The nature of her sickness, and plaintiff’s knowledge of the same, are proved by the witnesses.

III. As to the curability of the disease, Dr. Mercier alone declares it incurable ; and this remark of his seems to apply, not so much to this individual case, as to this class of diseases. He has never known an inflammation of the womb to he cured. But all the other physicians examined, refrain from so positive a declaration. On the contrary, they consider such diseases to be curable in their nature.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment for defendant, with costs in both courts.  