Barker v. Coleman , 35 Ala. 221 ( 1859 )

A. J. 'WALKER, C. J.

Of the exceptions to the-rulings of the court below, there are several to the exclusion of evidence offered by the plaintiff for the purpose of showing the acts and declarations of third persons, not transpiring in the presence, or with the knowledge of the defendant. Those rulings of the court were manifestly correct.

[2.] There was no error in the rejection of evidence of the slave’s declarations, as to what had been the matter with him at a previous time. The proposed declarations were neither made to a physician, nor descriptive of the symptoms and nature of the disease under which he was then laboring. They did not fall within the principle laid down in Rowland v. Walker, 18 Ala. 719; Eckles & Brown v. Bates, 26 ib. 655, and Wilkinson v. Mosely, 30 ib. 562; and they were not admissible in evidence. Blackman v. Johnson, in manuscript.

We understand the witness Seth Cravy, in saying that the slave said he had chills, to mean that the declaration was made in reference to sickness which then afflicted him. That portion of his testimony being thus understood, everything to which he deposed was admissible in evidence. Iiis testimony contributed to show that the slave was sound when purchased by the plaintiff. So, also, the evidence of W. T. Jones, to which the plaintiff objected, was pertinent to the question of the negro’s health at the time of the sale, and there was no error in overruling the objection to it.

[3.] That the negro was in bad health, diseased, and incapable of doing hard work, were facts, which may have been obvious to the senses of the witness ; and the plaintiff should have been permitted to prove those facts, if he could. It was not proposed to ask the witness for an opinion on the subject. The plaintiff’s proposition was, not to prove the opinion of the witness, but, as we understand it, to pz’ove the health of thenegz’o, as learned, like the other facts, through the observation of his senses. If the witness had been interrogated,. and had stated his opinion, it would have been proper to have excluded the evidence. We have considered this question in the cases of Milton v. Rowland, 11 Ala. 732; Wilkinson v. Mosely, 30 ib. 562 ; and Blackman v. Johnson, in manuscript; and the principle settled in them demands the decision, that the couzi erz’ed in refusing to permit proof that the negz’o was in bad health, deseased, and incapable of doing hard work.

We need not consider the question raised by the refusal to charge, as the point will not probably again arise.

The judgment of the court below is reversed, and the cause remanded.