5 Rob. 222 | La. | 1843
This is a redhibitory action, in which the plaintiff seeks to recover the price of a slave named Permili, on the allegation, that prior to, and at the time of the sale to him, she was affected with a confirmed and incurable consumption, of which she died about ten months after the sale. There was a judgment below in favor of the defendant, from which the plaintiff took this appeal.
The buyer, who institutes a redhibitory action, must prove, that the alleged vice or malady existed before the sale to him, unless it makes its appearance within the three days immediately following the sale, in which case it is presumed to have existed before. Civil Code, art. 2508.
The sale to the plaintiff took place on the 17th of April, 1839. The witnesses of both plaintiff and defendant agree in representing the slave Permili, or Amelia, as having been at that time a stout, fat, and healthy looking girl; and persons who knew her, while she was owned by the defendant, declare, that she was always apparently in perfect health, and was never sick to their knowledge. Dr. Stone, who was called by the plaintiff to see the girl, towards the end of 1839, or in the beginning of 1840, found
Dr. Davézac visited the girl shortly after the sale. She had a cough which, yielding to treatment, induced him to discontinue his visits. He cannot tell whether the disease of which Permili died, was constitutional or not, as he did not examine her, having at the time no reason to suspect, that she had any thing more than a cough ; that tubercles properly so called, cannot exist in the lungs, unless hereditary, but that death may be occasioned from consumption arising from cold or accidental causes, without tubercles in the lungs ; that physicians may, by the nature of the expectoration, discover frequently whether tubercles exist in the lungs without autopsy, but these indications are deceptive, and may lead to the belief, that tubercles exist, when there are none, &c.
This testimony leaves it doubtful whether the malady of which the slave died, existed previous to the sale. It broke out long after its date, and after the girl had had a bad cold for two or three
Judgment affirmed.