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36 Ala. 78

Kelly v. Cunningham

Supreme Court of Alabama

Decided January 15, 1860

Supreme Court of Alabama · decided 1860-01-15

Tried before the Hon. Nat. Cook. This action was brought by Lewis Cunningham, against Christopher Kelly, to recover damages for a breach of warranty of the soundness of a slave, named George, who was sold by defendant to plaintiff in January, 1854.

Relies on Garrett v. Logan · Rowland v. Walker

Good law ✅— No negative treatment on recordhow we know

Decided 1860-01-15

How this case has been cited

Cited by 3 later decisions — most recently November 1904

3 state decisions

1018601870188018901900decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

A. J. WALKER, O. J.

¶1“Whenever the bodily cr mental feelings of an individual are, material tobe .proved, the usual expressions of such feelings, made at the time in question, are original evidence. So, also, the representations by a sick person, of the nature, symptoms and effects of the malady under which he is laboring at the time, are received as original evidence.” — Rowland v. Walker, 18 Ala. 749; Eckles & Brown v. Bates, 26 ib. 655; Phillips v. Kelly, 29 ib. 628; Holloway v. Cotten, 33 ib. 529; *80Blackman v. Johnson, 35 ib. 252. These declarations aro admitted, to the extent indicated, on a principle of necessity, and as a part of the res gestee, whether made to a. physician or not, and whether made by a slave or a free person. But the principle does not include declarations which do not describe the feelings of the declarant, or the symptoms and effects of his malady, but which simply declare the existence and past .duration of a disease, in the detection and proper denomination of which some degree of skill ia necessary. The declarations of' the slave, “that he had the dropsy, that it was an old disease, and had been on him a long time”, were' inadmissible!

¶2[2.] The plaintiff’s right to recover the reasonable charges of the physicians who attended upon the diseased slave, .did not depend upon the fact of his having paid them. — Garrett & Hill v. Logan, 19 Ala. 344; Miller v. Garrett, 35 ib. 96.

¶3The judgment is reversed, and the cause remanded.

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