Dean v. Traylor ( 1850 )

By the Court

Lumpkin, J.

delivering the opinion.

[1.] This was an action of assumpsit, for the breach of a warranty of the soundness of four slaves — Sofa and her three children — in this: that the mother was laboring under consumption at the time of the sale, and that the offspring had partaken of the same disease, by inheritance. A verdict of $750 having been rendered for the plaintiff, a new trial was moved for, on the ground, that the finding of the Jury was contrary to law and evidence ; and it is for the refusal of the Court to grant this application, that this writ of error is prosecuted.

We have scrutinized the testimony thoroughly, and are satisfied that the verdict, as to the woman, was justified by the proof; but we think it wholly insufficient as to the children.

We do not doubt that pulmonary consumption is an hereditary disease; in other words, that the tuberculous constitution is transmitted from parent to child, is a fact not to be controverted. Indeed, it may be regarded as one of the best established points in the etiology of disease. I am aware that, in the medical world, there are two parties,holding diametrically opposite opinions upon this subject — one maintaining that the disease is always hereditary and never acquired; the other, that no diseases are hereditary, but that they are always the result of circumstances, which come into action after birth; but in this, as in every thing else, truth, I apprehend, will be found in the middle ground, between these two extremes. How far consumption, cancer, insanity, or any other diseases, in the parent, will probably re-produce themselves in the offspring, is not very satisfactorily ascertained. The most moderate calculation is, that in children subjected after birth to similar circumstances, the hereditary influence does not appear to be exerted beyond i per cent. The most eminent physicians entertain no doubt that hereditary disease may fail to appear in one generation, and afterwards develop itself in a succeeding generation. This, they say, has frequently happened; and such, I believe, is the common observation Upon this subject Even family likenesses and peculiarities, transmitted through many generations, are matters of daily occurrence and remark. I deem it altogether useless to spend more time in establishing a physiological fact, which appears to have passed into a proverb among the Jews, as early, atdeast, as the days of Ezekiel, the prophet — “ Tho fathers have eaten sour grapes, and the children’s teeth are set on edge.”

Without trespassing further, then, upon territory belonging more appropriately to another profession, and assuming that this disease is transmissible by natural generation, still, We think the evidence, as to the children, was defective in this: it neither appeared from the testimony, that the children were born subsequent to the development of the disease in the mother, or that consumption was an ancestral disease in the family, either on the maternal or the paternal side. And one of these facts should have been proven, to warrant a recovery; for it is clear, that if the disease in the woman was not hereditary, but produced in her by exposure, or any other supervenient cause, then the offspring born prior to that period, could not have derived the taint from their mother.

The Jury, in assessing the damages, we gather from the record, as- well as the admissions of counsel in the argument, seem to have taken the price of the woman, $600, and added to it $150 on account of the children. So far as the woman is concerned, we are willing that the verdict should stand; and acting under the ample powers conferred upon this Court, by the Statute creating it, of “ awarding such order and direction in the premises, as may be consistent with the law and justice of the case,” we shall remand this cause, with the following instructions, to-wit:

That there was error in the Superior Court, in the finding of the Jury, in reference to the children of the woman Sofa — the evidence being wholly insufficient to sustain the recovery on account of the alleged unsoundness in them; and that, so far, the judgment of said Court be reversed, in refusing a new trial; and that a new trial be had in this case, unless the plaintiff shall remit all of said verdict except the sum of $600, with interest thereon from its date, and the cost of the case below, with liberty to strike out of the declaration so much thereof as relates to the children of Sofa. It is further directed, that the cost incurred in this Court, be paid by the defendant in error.

It is better for both parties — vendor and vendee — that further time be allowed, to test the existence of the disease in the children — the testimony going merely to establish the symptoms or predisposition to consumption, rather than the actual complaint itself. If they have it, and derived it from their mother, $150 will not compensate for the injury. The opinions, on the other hand, of the highly respectable and intelligent physicians who were examined on the trial, may turn out to be erroneous ; and in that event, the seller should be relieved altogether from any liability on account of the children.