Kerries v. Botts , 14 La. 432 ( 1840 )

Morphy, J.,

delivered the opinion of the court.

This suit is to recover back from defendant the purchase money of a negro woman sold to the plaintiff. It is alleged, that the slave at the time of, and previous to the sale, was afflicted with a large hernia or rupture, a disease which renders her services so inconvenient and imperfect, that he would not have purchased the slave, had he known of its existence. The plaintiff is brought into this court as appellee, with two verdicts in his favor. A new trial, it appears, had been granted by the judge a quo, on the ground that the evidence had disclosed the defect complained of to be an apparent one, for which no action lies. On the second trial, the defendant gave in evidence the admission of the plaintiff’s counsel, that when this slave was sold, she appeared to be a strong, healthy girl. This evidence seems to have been of signal advantage to the plaintiff. Its weight with the jury was such, that they gave their verdict for the plaintiff, this time, without leaving their seats. They, no doubt, concluded that the plaintiff, from this apparent state of healthiness, , , - , . , , . . „ , was deterrea from making such a close examination of the girl as he might otherwise have done. The present does not appear to us to come within the cases provided for by law, where defects are discoverable on simple inspection, Louisiana Code, article 2497. To discover this malady and ascertain its character, it required, independent of professional skill, a peculiar kind of examination which is not generally resorted to in relation to female slaves, unless some suspicion is raised by their looks and appearance. That such was not the case here, the defendant has taken the trouble of sufficiently proving for the plaintiff. As to the malady itself, and its character, the testimony is strong and conclusive. Several physicians examined, agree in describing it to be an irreducible umbilical hernia, subjecting the woman to the continual danger of strangulation, if, in doing her work, she lifts any weight, and greatly exposing her life in case of parturition. The defendant’s counsel has contended that, notwithstanding all this, it was not a redhibitory disease, and that the jury were, no doubt, scared into their verdict by the very scientific terms used by these learned gentlemen of the medical profession. If such be the case, it is fortunate for the purposes of justice that they were frightened into the right path; but leaving aside technical names and definitions, the physicians declare, in substance, that the disease materially impairs the value of the slave, incapacitates her for any hard labor, and that she cannot even perform the household work, for which she was bought. We must, then, consider this.disease as a redhibitory one, for it is not to be supposed that the plaintiff would have purchased her, had he known . . . ' , . , ‘ it. Louisiana Code, article 2496.

A disease, known8'*at the dSs’ahsi°aveesó valueless, that it posed the owner purchased 'her had he known it, is a redhibitory one, which authorizes a rescission of the sale and return ot the pnce.

. It is, therefore, ordered, that the judgment of the District Qourt be affirmed, with costs.