Blackman v. Johnson
35 Ala. 252
Ala.
1859
Check Treatment
A. J. WALKER, C. J,

That a slave is unsound, is not necessarily a matter of opinion, or scientific deduction. It is often a fact perfectly obvious to the senses. The observation of a man writhing from day to day with pain> *255or languishing upon a bed of illness, or covered with a cutaneous eruption, would authorize the announcement by the observer, as a fact, that he was unsound. Hence, this court has said, that “ the most ignorant witness may be permitted to state the fact of disease, when open to the perception of the senses,” (Milton v. Rowland, 11 Ala. 732;) “that the apparent condition of the physical system, as to health or sickness, is certainly a matter of fact,” (Bennett v. Fail & Patterson, 26 Ala. 605;) and that such expressions as, the slave was sick, had fever, was pregnant, •&e., coming from a witness not an expert, were legal evidence, (Wilkinson v. Mosely, 30 Ala. 562.) The statements of the witnesses Plant, Jarnigan, and Blackman, that the slave was unsound, were admissible,.and the court erred in rejecting them. If their observation did not justify their assertion, it was the appropriate office of a cross-examination to expose their delusion or falsehood.

[2-3.] The declarations of the physician, called to minister to the slave John, were but the declarations of a third person, and there was no error in exclhding them. That the witness, on a given occasion, thought the negro would die, was not a fact having a legitimate bearing in the case, and was not admissible in evidence. So, also, the fact that the slave prayed himself, and called upon others to pray for him, was not evidence, and was properly rejected.

[4.] The declaration of the slave to his attending physician, that a specified remedy had at one time been resorted to, was not competent evidence. Our previous decisions upon the admissibility of the statements of diseased slaves to their physicians, do not justify the admission of such evidence. — Wilkinson v. Moseley, 30 Ala. 562; Eckles & Brown v. Bates, 26 ib. 655 ; Rowland v. Walker, 18 ib. 749. There may be cases, where past treatment has so affected the character of the disease, and has exerted so continuous and protracted an influence upon the disease and the health of the patient, that a knowledge of it would constitute a material element in judging of the disease ; and it may be that, in such cases, the declarations of the slave, as to his past treatment, would be admissi*256ble. It does not appear that this is such a case, and we merely mention it to avoid misapprehension of the extent of our decision.

[5.] The fact that the contract of the parties was in writing, docs not preclude the admission of parol evidence of fraud in the sale of the slave by the plaintiff to the defendant. The representation of the plaintiff, as to the character of the disease of the slave and its curableness, certainly pertained to, and affected the question of fraud, and was admissible. There was evidence in the case conducing to show that that representation was untrue, and prejudicial to the defendant. It would be an invasion of the province of the jury, for the court to assume that the falsity of the representations was not sufficiently shown.

[6.] It is contended that, from the whole evidence, it is clear that the plaintiff did not know of the falsity of the representation made by him; that in the absence of such knowledge, there was no fraud; and that the evidence being clearly insufficient to establish fraud, it might be rejected. This argument erroneously assumes, that a false representation is only fraudulent, when made with a knowledge of its falsity. The law, as settled in this State, is otherwise. — Atwood v. Wright, 29 Ala. 346 ; Read v. Walker, 18 Ala. 323; Munroe v. Pritchett, 16 Ala. 785 ; S. C., 22 Ala. 501; Foster v. Gressett, 29 Ala. 393 ; Lanier v. Hill, 25 Ala. 554.

Judgment reversed, and cause remanded.