Reynaud v. Guillotte

Martin, J. I concur in the opinion of Judge Porter, as to the plea of prescription. On the question of fact, the incurability of the slave’s sores, I think the decision of the first judge ought not to be disturbed. He heard the witnesses’ testimony from their own mouths, and had the opportunity of interrogating them; and I believe that independently of this circumstance, my mind would have come to the same conclusion. Two physicians have been examined; Dr. Kerr informs us that when he first saw the slave, the disease appeared to have been of long standing, and one of those which, if healed speedily, would soon break out again; this *234 implies his belief perhaps, that if the proper length of time was taken to heal the sores, they would not break out again. But this was his first impression, and when, after two months attendance he discontinued his visits, he appears to have been of a different opinion; for he told the owner, he thought the disease would be difficult to heal, and if healed at all, would break out again. Hence I conclude, he thought no radical cure could be effected. It is true he swears that he told the owner he thought the disease difficult to cure, &c. without swearing he actually thought so. But physicians, like all other professional men, have duties incident on their profession, which they cannot, without reason, be presumed to disregard. Dr. Kerr could not tell to his employers that he thought the disease difficult of cure, &c. if he did not really think it such, without being guilty of very gross prevarication, and the idea of so base a dereliction of duty cannot find admittance in my mind. Impressed then with the opinion that one of the two doctors, on whose testimony I am to base my judgment, was that the disease was difficult to heal, but if it yielded to the medi *235 cal art, so far that the sores might be healed, the sores would break out again—that the other, Dr. Chabert, entertained but little hopes of a cure; I cannot conclude that the parish judge drew an illogical conclusion from the testimony, when he held that the incurability of the disease was satisfactorily proven. The medical science is one of conjecture, and the conjectures of the professors of it, must by a magistrate not conversant in it, be taken as approximating more to the truth, than those which he himself can form. A circumstance appears to militate against the decision of the parish judge. The case was first tried by a jury, who found a verdict for the defendant. I can give but very little weight to it; we have not the evidence which was before the jury; and it is not clear, at least to me, that with that on which the parish judge pronounced, they would have given the same verdict. I think we ought to affirm the judgment of the parish court.