Roberts v. Fleming

BICE, C. J. — The statements contained in the return of a commissioner appointed to take the deposition of a witness, in relation to the execution of the power conferred by the commission, are to be taken as true, until proof to the contrary is adduced. — Code, § 2323; King v. King, 28 Ala. R. 315, and authorities therein cited. In the absence of evidence to the contrary, the presumption is, that every act shown by the return to have been done by the commissioner, in the execution of the power conferred on him by the commission, was done according to law. In such case, the courts must apply the maxim, “ rite esse acta omnia prcesumuntur.” — King v. King, supra. The truth of the statements contained in the return of the commissioner who took the depositions of Connor and Lancaster, is not assailed by evidence; and, as those statements must therefore be regarded as true, we hold that they show that he substantially performed his duty, as directed by section 2322 of the Code, and that the mo [687] tions to suppress those depositions were properly overruled. — See the cases cited infra. We are aware that King v. Ring, supra, was a chancery case; and that there is a difference, in some respects, between depositions at law, and depositions in chancery. But, upon the question as to the credit due to the uncon-tradicted return of a commissioner, and the presumption arising therefrom, the rule laid down in that case is as applicable at law, as it is in chancery, — as is very clearly shown by Ulmer v. Austill, 9 Porter, 157, and other cases at law cited in King v. King; see, also, Sanford v. Spence, 4 Ala. R. 287; Dearman v. Chapman, 5 ib. 202; Luckie v. Caruthers, ib. 291. 2. The witness Connor was a physician, and had been engaged in the practice of medicine for thirteen years. About the 15th of February, 1854, (not more than two months after the sale,) he was called to see the negro girl, whose soundness is here in controversy. He made a thorough examination of her, and ascertained her condition and disease, which he describes. He says he has a knowledge, “but a limited knowledge of the value of negroes; and gives his “ reasons for considering her valueless in her present condition.” In the third direct interrogatory propounded to him and other witnesses- for the plaintiff) the following questions were embraced: “What is your opinion of the curability of said disease, when taken at the stage at which you found this ? Is it easy or difficult .of being cured ? Does said disease, at the stage at which you found this, have any effect upon the physical strength of its victim ? If so, what, and to what extent ? What effect did said disease have upon the ability of this negro to perform the labor common to similar negroes who are sound ? Did said disease have any effect upon the value of said negro ? If so, what ? What would she have been worth 31st December, 1853, if she had been sound ? What was her value in the condition she was in when you saw her ?” The only part of the answers of the witness to these questions, to the introduction of which an exception was taken by the defendant, was the following: “ as her medical bill for attention [688] to her, would exceed the profit sbe could render her owner.” "We think the sense of that part of the answer is, to some extent, illustrated by the context; and that it amounts to no more, in substance, than the opinion of the witness, that for the time to come, the value of the services of the negro girl would be less than the value of the medical attention she' would require. As the witness had some knowledge of the value of negroes, and was a man of science — a physician — and had made a thorough examination of the negro girl, we think the opinion given by him was admissible, relating as it did to a material matter in the cause. The opinion is the necessary result of two facts — to-wit, the value of her services, and the value of the medical attention she would require; as to each of which the witness had shown himself competent to give his opinion, and more competent to judge than the jurors. True, the jury were to decide upon the value of the opinion, as well as upon the value of the evidence on which it was founded; but the court would be going too far to decide, that the jury could not derive any assistance from that opinion, in forming their conclusion upon the question whether the negro girl was permanently and incurably unsound and wholly worthless. — McCreary v. Turk, 29 Ala. R. 244; Ward v. Reynolds, at the present term; McKee v. Nelson, 4 Cowen, 355; Tullis v. Kidd, 12 Ala. R. 648; 1 Greenleaf on Ev. § 440. 3. Whether there was error in allowing the amendment of the complaint, we need not decide; because, if there was, it was cured by the withdrawal of the amendment, by leave of the court. — See Burch v. Taylor & Co., at the present term. 4. In Hogan v. Thorington, 8 Porter, 428, this court said: “A plaintiffj in general, is entitled to recover for all losses resulting directly from a breach of the warranty;” and held, that the purchaser of a slave warranted sound, who has proven entirely valueless, may recover, among other things, “all proper expenditures for medical aid,” &c. Upon the authority of that case, we hold, that there was no error in that part of the charge excepted to, and no error in refusing the charge asked. — See Milton v. [689] Rowland, 11 Ala. Rep. 732; Marshal v. Wood, 16 Ala. R. 806 ; Cox v. Walker, cited in note to Clare v. Maynard, 6 Ad. & E. 519 ; Chesterman v. Lamb, 2 Ad. &. E. 129; Addison on Contracts, (edition of 1857,) 273, 1138, 1139, 1147-1149 ; Lewis v. Peake, 7 Taunton, 153; Pennell v. Woodburn, 7 C. & P. 118. 5. Whether, before the Code, it would have been necessary to have set forth in the complaint such expenditures as special damages, we need not inquire; for, however that may be, it is not under the Code necessary to set them forth in the complaint as special damages, as is evident from the forms laid down in the Code, and from sections 2227, 2228, and 2234 of the Code. Judgment affirmed. Walkee, J., not sitting.