STONE, J.
The question of a misjoinder of counts has been frequently considered in this court, and it has been invariably held, that the defect can be taken advantage of on general demurer. — Copeland v. Flowers, 21 Ala. 472; Sheppard v. Furniss, 19 Ala. 760; Jefford v. Ringgold, 6 Ala. 544.
2. The power of the court to permit an amendment, after a demurrer for misjoinder of counts has been sustained, seems not to have been heretofore considered in this court. The English authorities are not entirely in harmony on the question of the effect of such misjoinder. See Jennings v. Newman, 4 T. R. 347; 1 Chitty’s Pl. 6 Amer. ed., 236. Neither is there uniformity in the American decisions. — Cooper v. Bissell, 16 Johns. 146; Pell v. Lovett, 19 Wend. 546; S. C., 22 Wend 369; Governor v. Evans, 1 Pike, 349. However the rule may exist in other States, we are satisfied that, under our statute of 1824, (Clay’s Digest, p. 334, § 119,) the court was authorized to grant the amendment on terms.
3. Case and trover may be joined in the same-action. [572]*572See 1 Chitty’s Pl. 240 ; Horsley v. Branch, 1 Humph. 199. Hence the demurrer to the declaration was rightly overruled.
4. The 1st, 2d, 5th and 6th pleas, each assume to answer the whole declaration. They do not negative the negligence charged in the first count; and for that defect, the demurrer to them was rightly sustained.
5. The 3d plea was frivolous, aud the court did right in striking it out. Non assumpsit is no defense to an action in toi't.
6. Separate motions were made to exclude several portions of the testimony of Mrs. Linn. • The testimony which the defendant sought to exclude was mostly of one and the same character. It consisted of expressions by tlie witness that the slave was sick, — had fever, — was pregnant, &c. The argument is, that inasmuch as the witness is not shown to b¿ a physician or midwife, she cannot be heard to give opinions. Neither one of these inquiries involves, necessarily, a knowledge of the science of medicine. Most persons, of ordinary experience, are able to answer them. They are usually determinable by the services, and we think the motion to exclude them was correctly overruled. — Milton v. Howland, 11 Ala. 732.
7. The opinion of this witness, that the slave needed tlie services of a physician, rests on a different principle. The opinion of the witness, on this point, had been directly called for in the interrogatories; aud those interrogatories had been crossed, without pointing out this or any other objection. It was too late to move its exclusion at the .trial. Parties cannot in this way speculate- on the chances of a favorable answer, and, if unfavorable, then have the testimony excluded. — Francis v. Ocean Ins. Co., 6 Cow. 404; Washington v. Cole, 6 Ala. 214.
8. The statements of the slave, made to Mrs. Linn, that she (the slave) was pregnant, &c., were admissible under the authority of Eckles & Brown v. Bates, 26 Ala. 655; and Rowland v. Walker, 18 Ala. 749.
9. The 'objection to the 'question propounded to Dr. Ames shorild have been sustained. It did not call for his opinion, based on a state of facts either known to the [573]*573witness, or stated hypothetically in tlie inquiry. He was asked to give his opinion of the “condition of the girl, as described by the witnesses Moore and Mrs. Linn,” The bill of exceptions informs us, that the testimony of these witnesses was in conflict. Before Hr. Ames could give his opinion, as called for by this question, he must first determine the condition of the slave. To do this, he was required to pass on the credibility of the witnesses; to weigh, reconcile, and construe their evidence. All this was 'a' clear invasion of the province of the jury. — 1 Greenl. Ev. § 440, and authorities cited. But, if there had been no conflict in the testimony, the question would have been equally inadmissible. If it was desirable to obtain Dr, Amos’ opinion of a case of which he had no personal knowledge, the proper question would be, to ask his opinion on a supposed or hypothetical state of facts. The question might be varied, either in the direct or cross examination, so as to obtain his opinion on each phase of the case which any part of the testimony tended to establish. This form of question will leave with the jury the. undisturbed right of weighing the evidence, and determining what it proves. — Sills v. Brown, 9 Car. & P. 601.
10. The bill of exceptions informs us, that the defendant offered to prove that the slave Adeline was not a cook, washer and ironer; that this testimony on the motion of plaintiff was rejected, and defendant excepted. If this testimony was offered as an excuse or reason for the act of Wilkinson in sub-hiring the slave, it was clearly inad-, missible under any circumstances. If, in letting Adeline to hire, Moseley had represented her as a cook, washer and ironer, when she was not, the hirer, on discovering, the representation to be false, would have been authorized to return the slave to him, and thus put an end to the contract. Such misrepresentation, however, would,not have authorized him to sub-let her to another and .differ-, ent service. This remark must, of course, be, confined, to eases in, which, by the terms of the contract of hiring, the right to employ the slave is restricted either as to place, or service. — Seay v. Marks, 28 Ala. 532.
11. But the pertinency of the question may be consid[574]*574ered in another point of view; namely, as affecting the value of the slave. These qualifications would enhance the market value of the slave, and, of course, would increase the plaintiff’s recovery. The absence of them would, for the same reason, prevent such increased recovery. Whether the plaintiff had offered any proof, tending to show that she was a cook, washer and ironer; or whether these qualities were estimated in fixing her value, the record does not inform us. It is my individual opinion, that, under the rule which requires us to indulge all reasonable intendments in support of the ruling of the primary court, we ought to intend that no such testimony had been given, and that no such claim was set up. — See School Commissioners v. Godwin, at the January term, 1857, and authorities cited.
Another answer may be made to this assignment of error. The offer seems to have been one and indivisible, to prove that Adeline was not a cook, washer and ironer. Although the declaration avers, that under the contract of hiring, Wilkinson was to keep the slave in Montgomery, and employ her as a cook; and although the witness swears that, at the time of the contract, plaintiff represented that Adeline had cooked two years in the country, there is nothing in the record which tends, in the slightest degree, to show any claim or pretense that she was either a washer or ironer.- According to my view, the offer being general to introduce a mass of evidence, a part of which was illegal, the court was not bound to separate the legal from the illegal, but was authorized-to reject the whole. — 19 Ala. 358 ; 20 Ala. 392; Ib. 828. Judge Walker, however, thinks the testimony should have been received, as furnishing a predicate for fixing the value of the slave. The difference between us cannot work any inconvenience in practice; and on another trial, the course of the examination will determine the materiality of the evidence, no matter which course be pursued.
12.
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STONE, J.
The question of a misjoinder of counts has been frequently considered in this court, and it has been invariably held, that the defect can be taken advantage of on general demurer. — Copeland v. Flowers, 21 Ala. 472; Sheppard v. Furniss, 19 Ala. 760; Jefford v. Ringgold, 6 Ala. 544.
2. The power of the court to permit an amendment, after a demurrer for misjoinder of counts has been sustained, seems not to have been heretofore considered in this court. The English authorities are not entirely in harmony on the question of the effect of such misjoinder. See Jennings v. Newman, 4 T. R. 347; 1 Chitty’s Pl. 6 Amer. ed., 236. Neither is there uniformity in the American decisions. — Cooper v. Bissell, 16 Johns. 146; Pell v. Lovett, 19 Wend. 546; S. C., 22 Wend 369; Governor v. Evans, 1 Pike, 349. However the rule may exist in other States, we are satisfied that, under our statute of 1824, (Clay’s Digest, p. 334, § 119,) the court was authorized to grant the amendment on terms.
3. Case and trover may be joined in the same-action. [572]*572See 1 Chitty’s Pl. 240 ; Horsley v. Branch, 1 Humph. 199. Hence the demurrer to the declaration was rightly overruled.
4. The 1st, 2d, 5th and 6th pleas, each assume to answer the whole declaration. They do not negative the negligence charged in the first count; and for that defect, the demurrer to them was rightly sustained.
5. The 3d plea was frivolous, aud the court did right in striking it out. Non assumpsit is no defense to an action in toi't.
6. Separate motions were made to exclude several portions of the testimony of Mrs. Linn. • The testimony which the defendant sought to exclude was mostly of one and the same character. It consisted of expressions by tlie witness that the slave was sick, — had fever, — was pregnant, &c. The argument is, that inasmuch as the witness is not shown to b¿ a physician or midwife, she cannot be heard to give opinions. Neither one of these inquiries involves, necessarily, a knowledge of the science of medicine. Most persons, of ordinary experience, are able to answer them. They are usually determinable by the services, and we think the motion to exclude them was correctly overruled. — Milton v. Howland, 11 Ala. 732.
7. The opinion of this witness, that the slave needed tlie services of a physician, rests on a different principle. The opinion of the witness, on this point, had been directly called for in the interrogatories; aud those interrogatories had been crossed, without pointing out this or any other objection. It was too late to move its exclusion at the .trial. Parties cannot in this way speculate- on the chances of a favorable answer, and, if unfavorable, then have the testimony excluded. — Francis v. Ocean Ins. Co., 6 Cow. 404; Washington v. Cole, 6 Ala. 214.
8. The statements of the slave, made to Mrs. Linn, that she (the slave) was pregnant, &c., were admissible under the authority of Eckles & Brown v. Bates, 26 Ala. 655; and Rowland v. Walker, 18 Ala. 749.
9. The 'objection to the 'question propounded to Dr. Ames shorild have been sustained. It did not call for his opinion, based on a state of facts either known to the [573]*573witness, or stated hypothetically in tlie inquiry. He was asked to give his opinion of the “condition of the girl, as described by the witnesses Moore and Mrs. Linn,” The bill of exceptions informs us, that the testimony of these witnesses was in conflict. Before Hr. Ames could give his opinion, as called for by this question, he must first determine the condition of the slave. To do this, he was required to pass on the credibility of the witnesses; to weigh, reconcile, and construe their evidence. All this was 'a' clear invasion of the province of the jury. — 1 Greenl. Ev. § 440, and authorities cited. But, if there had been no conflict in the testimony, the question would have been equally inadmissible. If it was desirable to obtain Dr, Amos’ opinion of a case of which he had no personal knowledge, the proper question would be, to ask his opinion on a supposed or hypothetical state of facts. The question might be varied, either in the direct or cross examination, so as to obtain his opinion on each phase of the case which any part of the testimony tended to establish. This form of question will leave with the jury the. undisturbed right of weighing the evidence, and determining what it proves. — Sills v. Brown, 9 Car. & P. 601.
10. The bill of exceptions informs us, that the defendant offered to prove that the slave Adeline was not a cook, washer and ironer; that this testimony on the motion of plaintiff was rejected, and defendant excepted. If this testimony was offered as an excuse or reason for the act of Wilkinson in sub-hiring the slave, it was clearly inad-, missible under any circumstances. If, in letting Adeline to hire, Moseley had represented her as a cook, washer and ironer, when she was not, the hirer, on discovering, the representation to be false, would have been authorized to return the slave to him, and thus put an end to the contract. Such misrepresentation, however, would,not have authorized him to sub-let her to another and .differ-, ent service. This remark must, of course, be, confined, to eases in, which, by the terms of the contract of hiring, the right to employ the slave is restricted either as to place, or service. — Seay v. Marks, 28 Ala. 532.
11. But the pertinency of the question may be consid[574]*574ered in another point of view; namely, as affecting the value of the slave. These qualifications would enhance the market value of the slave, and, of course, would increase the plaintiff’s recovery. The absence of them would, for the same reason, prevent such increased recovery. Whether the plaintiff had offered any proof, tending to show that she was a cook, washer and ironer; or whether these qualities were estimated in fixing her value, the record does not inform us. It is my individual opinion, that, under the rule which requires us to indulge all reasonable intendments in support of the ruling of the primary court, we ought to intend that no such testimony had been given, and that no such claim was set up. — See School Commissioners v. Godwin, at the January term, 1857, and authorities cited.
Another answer may be made to this assignment of error. The offer seems to have been one and indivisible, to prove that Adeline was not a cook, washer and ironer. Although the declaration avers, that under the contract of hiring, Wilkinson was to keep the slave in Montgomery, and employ her as a cook; and although the witness swears that, at the time of the contract, plaintiff represented that Adeline had cooked two years in the country, there is nothing in the record which tends, in the slightest degree, to show any claim or pretense that she was either a washer or ironer.- According to my view, the offer being general to introduce a mass of evidence, a part of which was illegal, the court was not bound to separate the legal from the illegal, but was authorized-to reject the whole. — 19 Ala. 358 ; 20 Ala. 392; Ib. 828. Judge Walker, however, thinks the testimony should have been received, as furnishing a predicate for fixing the value of the slave. The difference between us cannot work any inconvenience in practice; and on another trial, the course of the examination will determine the materiality of the evidence, no matter which course be pursued.
12. We think the witness Moore should have been permitted to testify, “that prudent planters generally did not call a physician to attend their negroes, unless in dangerous cases; but that they allowed and permitted [575]*575their overseers to administer medicines to slaves when sick, except in dangerous cases, when physicians were called in.” If such bo the rule with prudent planters, we know of no other means of proving it. Of course, it will be for the jury to determine, from all the testimony adduced, whether any, and what general regulation on this subject, prevails on the plantations ; and whether, under that regulation, a physician should have been called to this slave.
13. In the case of the Ala. & Tenn. Rivers R. R. Co. v. Burke, 27 Ala. 535, this court held, on a case strikingly like the present, that a hirer is bound to the observance of only that “degree of care used by the generality of mankind in relation to their own slaves.” If this was a plain case, and the generality of mankind, either themselves or by their overseers, administered medicines in such cases, then, in the absence of an express contract requiring greater care, the defendant was not required to send for a physician.
We are sensible that the rule thus announced by us is not free from difficulty. Sometimes a case which, to ordinary observers, would appear plain and simple, is in fact of most complicated character. Sometimes the treatment, even if the case be plain and simple, is inappropriate in the extreme. Even physicians of the most extensive learning and experience frequently differ in their treatment of diseases of the same type ; and perhaps the generality of mankind, not of that profession, in treating disease, would differ yet more widely. We apprehend that no certain and fixed rule could be laid down, for the treatment of all diseases, even of the same name. We further suppose that the multitude of persons, who make up what is called the “generality of mankind,” have almost as many theories for administering medicine, as there are individuals composing that multitude.
The right to administer medicine, in a plain case, must carry with it, to some extent, the right to determine when a case is, and when it is not, a plain one. This right is not, however, without its limitation. The planter or his overseer, who assumes to administer medicine in a plain [576]*576case, must bring to tbe service sucb reasonable knowledge and experience of tbe diseases be treats, as are possessed by, tbe generality of mankind. If, possessing tbis knowledge and experience, tbe disease appear to be a plain and simple one, and be treat it, we tliink be would not be liable, even if be erred; provided sucb custom exist as was attempted to be proved in tbis case. To bold otherwise, vvould be to require of hirers of slaves greater care and diligence than persons generally bestow on their own property, or even their wives and children.
On tbe other band, if to one of reasonable knowledge and experience, tbe disease appear to be complicated and difficult; or if tbe treatment so administered by tbe hirer or bis overseer be palpably \nproper in tbe case as it' appears to .be, tbe custom attempted to be set up would not afford a defense. If injury result from sucb misdb rected treatment, tbe hirer wohld be clearly liable. While we require of hirers only that degree of care bestowed by the generality of mankind upon their own property, we are unwilling to expose tbe property, hired to stupid and, feckless empiricism. — Swigert v. Graham, 7 B. Monroe, 661; Harrison v. Snyder, 3 Barb. Sup. Ct. 380.
jh'f— WeHo^hink tbe case of Deane v. Keate, 3 Camp. 4, is in conflict with tbis view. In that case, there was no proof of any custom of tbe generality of mankind on tbe particular subject. — See Edw. on Bailments, 320.
14. Tbe second count in tbe declaration, though special in form, is nothing more or less than a count in trover. No negligence, or want of care, is charged in it. It avers only a breach of duty, in sending tbe slave to tbe country, when, by tbe alleged terms of tbe‘contract, tbe hirer was bound to keep her in tbe city. True, tbe count avers tbe loss of tbe slave, as a consequence of her being sent to the country; but tbis is tbe statement of a conclusion. No act, or omission of duty, is charged in tbis count, which, per se, could have caused tbe death of tbe slave. Hence we feel authorized to declare that it charges no negligence.
15. This, then, being a count in trover, tbe same defense which will defeat a, recovery under tbe third count, [577]*577must defeat a recovery under the second. The charge asked should have been given in reference to this count, as well as the third. — Moseley v. Wilkinson, 26 Ala. 411-16, and authorities cited; Edw. on Bailments, 813; Hooks v. Smith, 18 Ala. 338.
16. The charge given and excepted to is calculated to mislead the jury. It leaves out of view a very important inquiry, and hinges the defendant’s liability on an erroneous principle. The gravamen of the first count is, 1st, that the slave needed the services of a physician; 2d, that it was the duty of the defendant to supply a physician; 3d, that he failed to do so; and, 4th, that in consequence of such failure, the slave was lost to plaintiff. Each of these propositions should have been submitted to the jury for decision; and the existence of all was necessary to a recovery under the first count. The defendant was not liable, under that count, unless the jury were satisfied, under all the proof, that the death “was the result of the violation of duty on the part of defendant.” — Wilkinson v. Moseley, 18 Ala. 288-293; Edw. on Bailments, 320.
Eor the errors above pointed out, the judgment of the circuit court is reversed, and the cause remanded.
Rice, C. J., not sitting.