By His Court.
McDonald, J.
delivering the opinion.
Most of the grounds taken in the rnqtion for a new trial* are abandoned in this Court, by the plaintiff in error. We shall, therefore, refer to those only on which we place our reversal of the judgment in the Court below.
[1.] At the time it was proposed to examine Dr. Harrison, .one counsel on each side had to address the jury; the case was on its final trial before a special jury; the counsel for the plaintiff did not claim surprise; that his witnesses to rebut, if any, had been discharged; or the like. There was no sufficient reason brought to the mind of this Court, to require it to hold that in a case in the last resort, when the witness is in Court, and counsel on each side are to be heard on the evidence, the testimony should not be heard, notwithstanding the case may have been partially argued before the [584]*584|ury It would certainly be a more convenient practice fotr counsel who do not intend to waive the testimony of a witness who absents himself uuder the circumstances which Dr. Harrison did, to make it known to (he Court, as soon aa the absence of the witness is known, and to make such mo-lion as the interest of his client requires. The majority of this Court think that the testimony of Dr. Harrison ought to have been given. I think myself that as the cause was in the last resort, and counsel on both sides were to be heard, it ought to have been received, if competent. My doubt is on that point, and I have a pretty fixed opinion, that according to the facts stated in his aflidav’t, it was inadmissible. It was a verbal report of a single case which had occurred in his practice, which it was proposed he should testify to. Medical books, of authority in that profession, cannot be read Collier vs. Simpson, 5 Carrington & Payne 73. If Dr. Harrison had reported his case in a Medical Journal, it could Bot have been read. There is a good reason fur excluding particular cases. There may have been an idiosyncrasy in the subject of the treatment; the symptoms may have been fallacious; the causes producing the disease may have beets different from those superinducing the disease in the caso under examination, and numerous other reasons might be assigueJ for excluding evidence of particular cases, to influence the decision of a cause depending, ofteu, on its own peculiar facts. The rule which admits professional opinions to be received as evidence, a kind of evidence so linio Tellable, and so fraught with danger to those whose rights aud interests it is to affect or control, ought not to be extended. My brethren are, however, clear that the evidence was admissible and ought to have been received.
[2.] The action being on the warranty of soundness of the negro sold, whether the negro was diseased at the timo of the sale and warranty, was a matter of great consequence. The evidence was conflicting on this point, and the Court [585]*585Instructed the jury, “ that they might find according to the weight of probability;” that “ the jury were not to consider the facts as they would in a criminal case, and refuse to find for the plaintiff, because they might have reasonable doubts as to the existence of the disease at the time of the sale; that whichever way they believed the weight of probability to be, they were authorized to find.”
The plaintiff must make out his case to the satisfaction of the jury. He must not leave it doubtful, cither from the circumstances which surround it, or from the character of his witnesses. Long vs. Hitchcock, 9 Car. & Payne 619. There was no positive evidence in the case, in legat'd to the commencement of the disease, or the existence of it at the timo of the warranty. It depended on circumstances testified to, and some of these circumstances were conclusions of fact drawn by Medical gentlemen of skill and science in the\r profession, from certain indications of disease found on a post mortem, examination of the diseased negro. Other Medical gentlemen of like skill and science, testified of their knowledge of the negro while in life, and from that knowledge, drew conclusions of fact., directly the reverse of those testified to by the physicians who made the/tost mortem examination. These facts and all other matters in proof, ought to have been well weighed and considered by the jury, and according to the weight of the evidence they should have found their verdict. We think that the charge to the jury that “ whichever way they believed the weight of probability to "be, they were authorized to find,” is not sustained by the law, and was calculated to mislead the ju«y. Under this ¡charge, the jury might' have collected, on each side, every circumstance which they considered as giving rise to a probability, and putting them in opposite scales, there might have been a slight preponderance in favor of the plaintiff, but not sufficient to satisfy them that he was entitled to a verdict; and yet under the charge “that according to fte weight of probability, they were authorized to find a [586]*586verdict,” they may have found the veidict rendered in the cause. Upon weighing probabilities, it might be found that :there was the preponderance of a slight probability in favor of one of the parties, but not of that decided character to satisfy the mind that the right was with that party. The evidence should so preponderate in favor of the party for ■whom the verdict is rendered, as to satisfy ¡he jury that he is entitled to it.
[3.] We regret when we send a cause back fora new trial, to be compelled to remark on the evidence. We find it necessary, however, when a point is made in t/ie record, involving the proofs in the case, which it is indispensible to decide. One cf the grounds in the motion for a new trial is that the- verdict of the jury is decidedly and strongly against the weight of evidence. One of the principal issues iu the cause, 1 may say the main issue, was whether the negro Rose was afflicted with the disease of which she died at the time of the warranty. She was sold, and her soundness of body and mind warranted, on the 27th November, IS55. She died suddenly on the 29th day of January afterwards, and she died of pericordial dropsy. These facts, I apprehend, are indisputable. The question in controvirsy is whether she was diseased on the 27th day of Novemher, 1855. Two physicians, Drs. Boon & Hammond, think she was. They so give their professional opinion ; the former that her disease was chronic and she had it at least three months before her death, and the latter, that she may have had it for more than a year. He says also, her heart was diseased. It was enlarged, and the left auricle was diseased*
The witness Philips testified, that the negro was carried to the place where he had Dorsey’s other negroes, about the 2.7th November, 1S55, and she rati away in December, and was gone for several days, when it was quite cold. She was well treated. She never complained once, from the time she was carried to the place, and was in unusually good spirits about bed time of the night she died. Dr. Boon testified, that perl[587]*587cordial dropsy is usually attended with symptoms, before it results in death, such as difficulty and shortness of breathing, depression of spirits, heaviness in the chest, palpitation of the heart, &c. &c.; and these symptoms are increased by active labor or severe exercise of any sort.
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By His Court.
McDonald, J.
delivering the opinion.
Most of the grounds taken in the rnqtion for a new trial* are abandoned in this Court, by the plaintiff in error. We shall, therefore, refer to those only on which we place our reversal of the judgment in the Court below.
[1.] At the time it was proposed to examine Dr. Harrison, .one counsel on each side had to address the jury; the case was on its final trial before a special jury; the counsel for the plaintiff did not claim surprise; that his witnesses to rebut, if any, had been discharged; or the like. There was no sufficient reason brought to the mind of this Court, to require it to hold that in a case in the last resort, when the witness is in Court, and counsel on each side are to be heard on the evidence, the testimony should not be heard, notwithstanding the case may have been partially argued before the [584]*584|ury It would certainly be a more convenient practice fotr counsel who do not intend to waive the testimony of a witness who absents himself uuder the circumstances which Dr. Harrison did, to make it known to (he Court, as soon aa the absence of the witness is known, and to make such mo-lion as the interest of his client requires. The majority of this Court think that the testimony of Dr. Harrison ought to have been given. I think myself that as the cause was in the last resort, and counsel on both sides were to be heard, it ought to have been received, if competent. My doubt is on that point, and I have a pretty fixed opinion, that according to the facts stated in his aflidav’t, it was inadmissible. It was a verbal report of a single case which had occurred in his practice, which it was proposed he should testify to. Medical books, of authority in that profession, cannot be read Collier vs. Simpson, 5 Carrington & Payne 73. If Dr. Harrison had reported his case in a Medical Journal, it could Bot have been read. There is a good reason fur excluding particular cases. There may have been an idiosyncrasy in the subject of the treatment; the symptoms may have been fallacious; the causes producing the disease may have beets different from those superinducing the disease in the caso under examination, and numerous other reasons might be assigueJ for excluding evidence of particular cases, to influence the decision of a cause depending, ofteu, on its own peculiar facts. The rule which admits professional opinions to be received as evidence, a kind of evidence so linio Tellable, and so fraught with danger to those whose rights aud interests it is to affect or control, ought not to be extended. My brethren are, however, clear that the evidence was admissible and ought to have been received.
[2.] The action being on the warranty of soundness of the negro sold, whether the negro was diseased at the timo of the sale and warranty, was a matter of great consequence. The evidence was conflicting on this point, and the Court [585]*585Instructed the jury, “ that they might find according to the weight of probability;” that “ the jury were not to consider the facts as they would in a criminal case, and refuse to find for the plaintiff, because they might have reasonable doubts as to the existence of the disease at the time of the sale; that whichever way they believed the weight of probability to be, they were authorized to find.”
The plaintiff must make out his case to the satisfaction of the jury. He must not leave it doubtful, cither from the circumstances which surround it, or from the character of his witnesses. Long vs. Hitchcock, 9 Car. & Payne 619. There was no positive evidence in the case, in legat'd to the commencement of the disease, or the existence of it at the timo of the warranty. It depended on circumstances testified to, and some of these circumstances were conclusions of fact drawn by Medical gentlemen of skill and science in the\r profession, from certain indications of disease found on a post mortem, examination of the diseased negro. Other Medical gentlemen of like skill and science, testified of their knowledge of the negro while in life, and from that knowledge, drew conclusions of fact., directly the reverse of those testified to by the physicians who made the/tost mortem examination. These facts and all other matters in proof, ought to have been well weighed and considered by the jury, and according to the weight of the evidence they should have found their verdict. We think that the charge to the jury that “ whichever way they believed the weight of probability to "be, they were authorized to find,” is not sustained by the law, and was calculated to mislead the ju«y. Under this ¡charge, the jury might' have collected, on each side, every circumstance which they considered as giving rise to a probability, and putting them in opposite scales, there might have been a slight preponderance in favor of the plaintiff, but not sufficient to satisfy them that he was entitled to a verdict; and yet under the charge “that according to fte weight of probability, they were authorized to find a [586]*586verdict,” they may have found the veidict rendered in the cause. Upon weighing probabilities, it might be found that :there was the preponderance of a slight probability in favor of one of the parties, but not of that decided character to satisfy the mind that the right was with that party. The evidence should so preponderate in favor of the party for ■whom the verdict is rendered, as to satisfy ¡he jury that he is entitled to it.
[3.] We regret when we send a cause back fora new trial, to be compelled to remark on the evidence. We find it necessary, however, when a point is made in t/ie record, involving the proofs in the case, which it is indispensible to decide. One cf the grounds in the motion for a new trial is that the- verdict of the jury is decidedly and strongly against the weight of evidence. One of the principal issues iu the cause, 1 may say the main issue, was whether the negro Rose was afflicted with the disease of which she died at the time of the warranty. She was sold, and her soundness of body and mind warranted, on the 27th November, IS55. She died suddenly on the 29th day of January afterwards, and she died of pericordial dropsy. These facts, I apprehend, are indisputable. The question in controvirsy is whether she was diseased on the 27th day of Novemher, 1855. Two physicians, Drs. Boon & Hammond, think she was. They so give their professional opinion ; the former that her disease was chronic and she had it at least three months before her death, and the latter, that she may have had it for more than a year. He says also, her heart was diseased. It was enlarged, and the left auricle was diseased*
The witness Philips testified, that the negro was carried to the place where he had Dorsey’s other negroes, about the 2.7th November, 1S55, and she rati away in December, and was gone for several days, when it was quite cold. She was well treated. She never complained once, from the time she was carried to the place, and was in unusually good spirits about bed time of the night she died. Dr. Boon testified, that perl[587]*587cordial dropsy is usually attended with symptoms, before it results in death, such as difficulty and shortness of breathing, depression of spirits, heaviness in the chest, palpitation of the heart, &c. &c.; and these symptoms are increased by active labor or severe exercise of any sort. He says it is possible for the disease to exist without evidencing its presence by symptoms. This was the plaintiff’s evidence on this issue, and if there had been no evidence on the other side, it clearly warranted the finding ip favor of the plaiutifE Giving full effect to the professional opiuions of the gentlemen examined by the plaintiff, they established a case of fatal disease at the time of the warranty, and sustain the verdict given by the jury, without referring to defendants proof.
For the defendant, it was proven by Ur. Green that he isa practicing physician, that he had possession of the negro for two mouths immediately preceding the sale. She left his house on the day of the sale. Site was constantly employ-1 ed, when he had her, in cooking, washing, cleaning up the house, &c. She was never sick a day, and never complained for a moment that he ever heard of, and had all the appearance of a perfectly healthy rngro. He gave it as his opinion, that it was impossible she could have been afflicted with the disease evidenced by the condition of the chest, described by Urs. Boon & Hammond, while she was in his employment, because he was satisfied that she could not have done the work she did, if she had béen thus diseased, without exhibiting marked and distressing symptoms of its presence. The symptoms of the disease he described as Dr. Boon, saying that they always attend it, and that any kind of active labor or severe exercise, is sure to develop© them. He said further, that the disease as described by them, might come on in a month or even in less time, and particularly, if the patient had been much exposed to cold.
Dr. Parker testified, that the negro was with him for five or six months immediately preceding the time she was witbt [588]*588Dr. Greene, and was not side a day or an hour while sha was with him, and he never heard of her complaining, huí once, and that was ol a slight pain in the knee which passed off of itself in a few hours. She had the appearance of a perfectly healthy negro all the time. He is a practicing physician and did not believe that the disease discovered on the post mortem examination could have existed when the negro was with him, because he did not believe, that with it, she could possibly have done the work she did. lie spoke of the symptoms as always distressing, and as being greatly Increased by active labor. He said the disease described by Drs. Boon & Hammond, frequently produced, within three or four weeks, as bad a condition of the heart, liver, pleura and chest, as was found in this case, and often results in death in less than that time. Did not think she could have had the disease as far back as 27th November, 1855.
This was the evidence of the defendant on the same issue; and giving full effect to the professional opinions of the physicians examined by him, the disease could not have existed at the time of the sale, and the verdict of the jury could not on that evideuce alone be sustained.
Each parly was entitled to a vcidict (hen, according to the testimony submitted by himself exclusively. But in aniving at a conclusion, the evidence must be collated. Dr. Iiammond, the record says, substantially supported the evidence of Dr. Boon, and he must therefore be taken to have described the symptoms of the disease as he did. There is nothing in the record before us to show that the witnesses testifying in the cause are not all entitled to equal credit. We will refer to the testimony. According to Dr. Boon’s evidence,'the general rule is that pericordial dropsy is attended with symptoms before it results in death. But he says, is is possible for it to exist without its evidencing its presence by symptoms. Its existence without symptoms is an exceptional case, then, as such case is possible and not usual. The [589]*589plaintiffs witness, Or. Boon, says, the symptoms are increased by active labor and severe exercise. Or. Green for defendant, Bays, that any kind of active labor or severe exercise, is sure to develop them. There is no discrepancy in this testimony. It may stand together. Dr. Boon docs not say that this disease, if existing in a subject living in a quiet state, indicating no symptom of its presence, would not be surely developed, if that subject were put to active labor or severe exercise. If this be true, and the testimony of the witnesses, int this respect, may be reconciled in this way, the verdict is decidedly against the weight of evidence; for the evidence of the defendant is, that the negro was kept in active service performing labor down to the day of sale, and exhibited no symptom whatever of disease, and had all the appearance of health. After the sale, for two months and two days, she had led an inactive, quiet life, and down to the night of her death, made no complaint, and exhibited no symptom indicating the presence of the disease.
If, with labor and exercise, the disease would always be developed, and without them, it might not, the inference would be, that it had its origin after her habits of labor and exercise had ceased. In respect to the abstract professional opinions of tito witnesses, whicli I shall not attempt to reconcile, I will remark that, if they be irreconcileable, they balance eaclt other, as the witnesses are equal in number, and nothing appears in the record to entitle the witnesses of one party to more credit than the other.
Judgment reversed.