Stephens v. Chappell

34 S.C.L. 80

• Court: Court of Appeals of South Carolina
• Decided: May 15, 1848
• Status: Published

Opinion

Evans, J.

delivered the opinion of the Court.

In this case the presiding Judge said to the jury that “such a thing as the typhoid fever being considered like small pox or having a beginning before the symtoms are discovered, cannot be“that the disease must be in a formed state, evidenced by symptoms before it could affect the sale.” The main question which we are called on to decide, is whether this charge was correct. In looking through the cases heretofore decided, I do not find any thing which touches the present case. They are all cases of chronic disease, existing at the time, or cases where the negro had been exposed to the infection of some contagious disorder which developed itself afterwards. Timrod v. Shoolbred, was a case of small pox; Williams v. Vance, of measles; Venning v. Gantt, of diseased lungs; Furman v. Miller, was a case of dropsy. All these were cases of organic disease existing at the time of sale, or of contagious disorders developing themselves af-terwards, by fixed and well known laws of nature. As to whether' typhoid fever was or was not contagious, there seems to have been, as usual, a diversity of .opinion among the learned doctors who were examined at the trial. That those who breathe the impure air of a sick room, are more liable to take the disease, I can readily believe. So, also, those who are exposed to the malaria of our swamps, are more liable to bilious fever than those who are not exposed to it. Diseases in general, I should suppose, are the effect of the physical agencies with which we are surrounded. The functions of our bodies are checked and obstructed in their healthful action by exposure to cold, to heat, and to strong currents of atmospheric air. These produce derangements of that most complex machine, the human body; and hence, if not relieved, the whole system becomes disordered, or the disease fastens itself on some particular organ. In this way disease is produced, and when developed by symptoms perceptible to our senses, constitutes that state of the body which we call unsoundness. I apprehend no disease of the body springs up without the agency of some external cause, and in one sense it may be said that no disease ever developed itself, the geeqg 0f which did not exist in the system prior to its exter- ‘ nal exhibitions by symptoms, unless we may except those cageg from an original defect in organization, there never was a healthy action of the system. These external agencies, as they are more or less active, produce disease in a longer or shorter time, and not unfrequently their eifects are wholly counteracted by other agencies, either natural or artificial. Whilst, therefore, these causes or seeds of disease, as they have been called, exist merely in a latent state, there cannot be said to be any thing more than a liability or predisposition to disease, which may or may not ripen into actual disease. It is not so in small pox, or other contagious diseases. There the actual presence and existence of the disease is as well established as if the disease had already developed itself by external symptoms. We have the certainty of science, the fixed and unchangeable laws of nature for our guide. But it is not so in cases of febrile or other acute diseases. In these there is no certainty; all is conjecture and speculation. One learned doctor will tell us that typhoid fever and yellow fever are contagious in some cases; another, that they are slightly so; another, that it is an unsettled question ; and a fourth, that they are not at all contagious. I should conclude from this, that nothing is certainly known about it. A man of great wisdom and much personal observation may form conjectures, which may approximate to the truth, but never can determine with any certainty. Human tribunals should act on facts that are certain, and not on those which in their very nature are uncertain. When, therefore, we undertake to define that which affects the every-daybus-iness of life, we must do it with reference to what is within the compass of human knowledge, and not give it such definition as will admit, the speculation of the mere theorist, whose confidence in his opinions is often in direct proportion to his inexperience and ignorance of the facts upon which all theory ought to be based. I have heard it said that scrofula and some other diseases are hereditary, and of course the patient comes into the world with the seeds of the disease, or a predisposition to it; and if this be evidence of unsoundness, it will be immaterial whether the disease developed itself in one month or 20 years after the sale. I come, therefore, to the conclusion that there is no safety in adopting any other rule than that adopted by the Circuit Judge, that unsoundness consists in some organic disease in a formed state, evidenced by symptoms, or some clearly contagious disease, such as measles or small pox, the infection of which existed in the system at the time of the sale. This, judging from my own experience, and our adjudged cases, has been the general understanding of the profession on the subject. It follows from this that the question was correctly put to the jury, whether the negro had the typhoid fever at the time of sale ; and that the inquiry proposed to be made of the doctors, as to how long the disease had existed in its incipient state, was properly overruled by the Circuit Court, as irrelevant to the issue.

The motion is dismissed.

O’Neall, J. Frost, J. and Withers, J. concurred.

Motion refused.