Woodbury v. Robbins

64 Mass. 520 | Mass. | 1852

Cushing, J.

The declaration and pleadings, and the nature of the case, made but one question for the jury, whether the horse in question had the glanders or not at the time of sale. It was for the plaintiff to prove this; and if he did, he was entitled to a verdict.

We dispose of the case here on certain expressions of the judge who tried the cause. He said truly that the general question was, whether the glanders actually existed in the horse at the time of the sale, and then proceeded to say “ That a state of blood or condition of body, which might render the horse predisposed to take the glanders if he should be so exposed as to contract any disease, would not constitute the disease until the glanders actually existed in the horse; that any swellings of the glands or seeds of the disease, which were not in fact the disease, and did not show its actual existence, would not be sufficient.”

We are not satisfied of the accuracy of the second of these propositions. It is true that a state of the blood constituting predisposition to a disease does not constitute the disease itself, any more than other forms of predisposition would. Thus, depression of mind may predispose a person to receive yellow fever, but such depression is not yellow fever. So, irregularity or debility of the digestive organs may predispose to cholera, but it is not cholera. In neither of these cases, can even the seeds of the specific disease be said to exist, Other causes must supervene to produce the specific disease, whether predisposition to it exist or not. Predisposition gives facilities for the disease to attack, but does not of itself develope into the disease. But as to seeds of disease, it is different. It is a figurative expression; it is not a logical one, but of sufficiently definite meaning. The seeds of a specific disease are the incipient state of the disease; a condition perfectly distinguishable from predisposition. To pursue the figure: soil prepared for planting is predisposed, in the language of medicine; yet, such predisposition is not the plant, either in its germinal or its grown state. But the seed is the plant in germ; it is the specific thing, and becomes in time the fully grown plant, unless prevented by external causes. So, in the case of a disease, such as smallpox, for instance, which is capable of being communicated to another, while it is in a latent state, and before the patient is himself conscious of its existence. The disease is in him, but undeveloped ; he has the seeds of it in his system.

The jury, in the present case, were to decide the question of glanders. They had, in law, a right to judge whether the seeds of glanders did not exist; whether it was not a case of incipient glanders; and if they came to that conclusion, then it was glanders, and, of course, unsoundness in violation of the warranty. This conclusion is the more absolute, in consideration of the fact that glanders are contagious like smallpox, which ground of distinction is admitted in the case of Stephens v. Chappell, cited by defendant’s counsel, and is fully reasoned out by the court, who cited other cases to the same point, fully establishing that even the incipient and latent stage of diseases of this nature is unsoundness. Stephens v. Chappell, 3 Strobh. 80.

The moment that symptoms of glanders appear in a horse— indications of the incipiency of the disease—that is, if he really have the seeds of it in him, he is unsound, although it may be some time before the disease becomes fully developed in its most offensive conditions. And it is the future history of the case which is to show whether it was the glanders or not. Symptoms are not always decisive; but the result shows whether or not a true prognostication was deduced from the symptoms. If, in the words of the testimony here, the seeds ripen into the unmistakable glanders, then the seeds are the glanders: it is only the difference between inchoate and consummate glanders. In this view of the subject, we sustain the exceptions, and direct a new trial in the court of common oleas. New trial granted.