Milton v. Rowland

GOLDTHWAITE, J.

1. The only material question growing out of the circumstances attendant upon this deposition is, as to the authority of the court to make the order under which it was taken. If, as it is fair here to assume, the defendant had ascertained the deposition in the first instance, was irregularly taken, there is no reason why he should wait until the objection was sprung by his adversary. All that a liberal practice should require, or a strict one demand, is, that the opposite party should not be put to expense, and trouble, of a new examination, if willing to abide by the first. Having refused to waive objections to the deposition, or rather commission, as it was, the court had the same power to direct it to be taken over as it had in the first instance. And this is the sum and substance of what.was done.

2. Some stress is laid on the fact, that the notice of the retaking of the deposition was merely verbal. The statutes do not prescribe the notice shall be in writing, though the usual practice is for fit to be so ; but however well the omission to give the notice in writing might justify a court in *737 suppressing a deposition, when the fact of notice is denied by the opposite party, we think the form or manner of notice is of no importance, when one in point of fact is proved, and not denied on the other side. The statutes evidently leave the time, as well as the manner of notice, a matter of discretion with the court or officer allowing the commission. [Dig. 164, § 1, 2; 167, § 15, 16.] Though it is possible this discretion does not extend beyond a personal notice to the party or his attorney. [McEwen v. Morgan, 1 Stewart, 190.]

3. The fact that the court for its own information, and probably to guide its own judgment, made inquiries of a physician as to the extent of information usually possessed by those practising as midwives, is not a matter which affects the case. If the judgment on the point presented is right, it matters little how the information was got at, and if wrong, the medium of information will not prevent the reversal.

4. It is insisted however, that the answers of the witness ’ must be considered as giving her opinion only, that the death of the child was caused by sucking its mother’s milk, and that the opinions only of persons of skill in the particular matter are evidence. It will be seen the witness was questioned as to her experience in such matters, and very possibly a cross examination on this point would have rendered it certain that she either did, or did not, possess the skill and science to authorize her opinions to be received. It would be going very far to exclude testimony on the ground that a particular fact was not proved when the examination itself was of a general matter which presupposed, the information or skill to speak of it. [See Carson v. Bank, 4 Ala. Rep. 148.]

5. But however the rule is to be applied in cases generally, we think the party here is not entitled to raise the question, as it was not raised in the court below. The exception taken at the trial, so far as any thing is specific, is to the allowing the witness to speak of the existence in the slave, of particular diseases. Now we apprehend the most ignorant witness may be permitted to state the fact of disease, when open to the perception of the senses, though he *738 might not be so skillful in the cause, or causes, as to enable him to give his opinion as evidence to govern a jury. The question raised at the trial was, whether what the witness said as to the slave’s being afflicted with particular diseases, was admissible, but is now turned into one as to the capacity of the witness to speak of the causes of the child’s death. We are clear there was no error in admitting the answers as to the diseases, and as to the opinion, if the question had been raised at the trial, that might have been examined into further, or rejected entirely.

6. If it is contended the exception taken is sufficiently broad to cover every sentence of the answer, we reply that this general mode of reserving a matter will not be sufficient. An exception to each interrogatory, or answer, and to each sentence of the same, is no more specific than one made in gross to the entire deposition. Is the court to stop and criti-cise and scrutinize a deposition when such an exception as this is taken ? The object of an exception should be to call the attention of the court to some specified defect in the proceedings, so- that a. considerate judgment may be given upon it, and' that the opposite party, if necessary, may waive it if improper, or sustain the position if necessary by other evidence. When sufficient information for- this is not afforded, there is no merit in the exception.

7. Coming then to the charges which the court refused to give, at the instance of the plaintiff, the first may be disposed of, with the brief remark, that when there is a warranty of a-personal chattel, the law does not impose on the buyer the duty to return it if the warranty is untrue; but he is allowed to keep the chattel and sue for the breach of warranty. [Stephens’ N. P. 1295, and cases there cited.] Such being the rule, there was no error in refusing this charge.

8. The second charge involves to some extent the same question which arises out of the qualification of the third. It is as to the- true measure- of-damages for the breach of warranty of the slave under the circumstances in proof. In the recent case of Anderson & Willis v. Dudley, at this term, we had occasion to consider this question, and a majority of the court then held the measure of damages to be the difference between the value of the article as warranted to be, and its *739 value in the condition it was at the time of the warranty. The qualification of the third charge is in accordance with that decision, but it is supposed that when the thing is after-wards sold at the same or a greater price than was paid for it, the only measure of damages is, the expense and trouble necessary to bring it to this condition. The case of Hogan v. Thorington, 8 Porter, 428, is cited as sustaining this distinction. The question there was, not whether the expenses, &c. were the only damages which could be allowed, but whether they were recoverable at all. We then said, “ it is not for the warrantor to object, that the purchaser has been amply compensated by the increased price at which he sold the slave. This resulted, doubtless, from the demand, and in consequence of the enhanced value of such property in market, at the two periods of the purchase and sale. The unsoundness of the slave when the warrantor parted with her, contributed nothing to such a result, she would have been sold by the purchaser for as much, if she had then been sound, and no expenditure of money by him. would have been necessary. It is then clear the purchaser has sustained a loss by the breach of warranty, or rather has been prevented from realizing the profit he was entitled to, by so much as the sums paid for medical attendance diminished it.” From this quotation it will be apparent, the court then considered the purchaser was entitled to recover as damages, the value between the thing as it was, and its value as represented to be, and that the price afterwards obtained was a criterion by which the difference in value might be estimated. The same distinction was held by Lord Denman in Cox v. Walker, 6 A. & E. 523.] The price at a fair subsequent resale is then not conclusive as furnishing the rule, though it certainly is a circumstance whieh may be given in evidence to the jury, as one of the means to ascertain the value of the chattel. Although it would have been more proper to have explained the influence that the subsequent sale had on the cause in ascertaining the amount of damages sustained by the breach of warranty, we cannot say there was error in refusing the charge as requested, inasmuch as it assumes the only reduction which the defendant was entitled to, was a *740 sum sufficient to cover the expenses and trouble in healing the slave.

9. The last charge was properly refused, if for no other reason, on that assigned by the court. There was no evidence of fraud in the sale, as distinct from the warranty, and we have already stated the rule, that in such cases the purchaser is not bound to return the chattels. The case of Barnett v. Stanton, 2 Ala. Rep. 181, has no application to this, under the circumstances in proof, for it does not appear, the defendant insisted there was a rescission of the contract.

10. Although errors have been assigned on the charges which the court gave, these cannot be revised here, because no exception seems to have been taken in this connection.

We have thus examined the entire case, and find nothing to warrant the reversal of the judgment.

Judgment affirmed.