There can be no difficulty as to what must be the disposition of this case. It cannot be successfully contended that there was any evidence which proved, or in any degree conduced to prove that the negro was diseased or unsound in the proper and legal sense of the term, at the time of the sale and warranty ; much less that she was laboring under the disease-, and in its incipient state, of which she died.
In the case of McKinney v. Fort, the doctrine was recognized, that, to establish a breach of warranty of soundness, in case of the death of a negro from disease, it must be proved that the negro was unsound at the time of the sale, and that the unsoundness then existing was the occasion of his death. (10 Tex. R. 220.)
There not only was no evidence of any unsoundness at the time of the sale; but, on the contrary, the only evidence directly to that point proved the contrary; that, though the negro had had an attack of pleurisy previously, she had recovered from the attack, and was sound and well of that disease. Even if the effects of the disease remained in her system, of which there was no evidence, and could be but a mere inference, from the opinion of the witness to the effect that, having had one attack she would be more liable to have another; and that, “ as a general rule the pleurisy leaves permanent consequences of the disease in the system,” it can scarcely be seriously contended that the evidence warranted the conclusion that that was the occasion of her death; or that the sickness of which she died was superinduced, or even remotely occasioned by her former attack, of which the witness testified ; or, indeed, that she died of any disease or unsound*309ness existing at the time of the sale. After so great a lapse of time, and under the circumstances immediately attending her last sickness, the supposition that her death was the effect of the natural progress, or even that it was the remote consequence of any disease or nnsoundness existing at the time of the sale, is quite too improbable to be seriously entertained. There might have been more reason perhaps for such a supposition, if her last sickness were not traceable directly to an immediate, natural and adequate cause; that is, her exposure to the inclemency of the weather, for five or six days, during which there was rain and snow, attended with a change from warm to extremely cold weather, with no shelter or protection from its extreme inclemency but a frail leaky camp; and though taken sick at the camp, having to walk and carry her infant through the snow, several miles to her master’s residence. This was followed by a severe attack of pleurisy ; of which, after a partial recovery and relapse, she died. And there could have been, it would seem, no doubt, and should have been no hesitancy on the part of the jury in coming to the conclusion, without the aid of professional opinions, as the only natural and probable inference to be drawn from the facts, that the disease of which she died was thus contracted. The facts were as open to the observation and understanding of non-professional as professional men. Or at least they were sufficiently so to warrant them in acting upon them from their own knowlege of antecedence and sequence, or cause and effect. It did not require professional knowledge in such a case, to perceive the relation of the sickness to the exposure; or to refer the one directly and certainly to the other as its cause. For all men are supposed to have a sufficient acquaintance with the obvious effects of known natural causes, upon subjects on which they are accustomed constantly to act in the common affairs of life, to form rational and sound conclusions, without the aid of professional knowledge: however necessary such knowledge may be to the formation of just conclusions on subjects, not thus obviously within the experience, *310•comprehension, and knowledge of all men, but requiring for ■their proper understanding, professional knowledge and skill.
It is' difficult to conceive how, in view of the facts of this case, any mind could resist the conviction that the sickness which resulted in the death of the negro was occasioned by the exposure to which she was subjected by the acts of the plaintiff; and for which the defendant was in no way responsible.
But it is said that, as it was proved that the negro had “ a small, contracted chest;” and as, in the opinion of a professional witness, (a physician) this was occasioned by premature pregnancy, and rendered her less able to endure the fatigue incident to slave labor, and more liable to diseases of the chest than she otherwise would have been, she was consequently unsound within the legal definition of that term, as given by Parke, B. in the case of Kiddell v. Burnard (9 Mees. & Welsb. R. 668.) The learned Judge there said, “ The rule “ as to soundness is, that if, at the time of the sale, the horse “ has any disease which either does diminish the natural use- “ fulness of the animal, so as to make him less capable of work “ of any description, or which in its ordinary progress will “ diminish the natural usefulness of the animal; or if the “ horse has, either from disease or accident undergone any al- “ teration of structure, that either actually does at the time, “ or in its ordinary effects will diminish the natural usefulness “ of the horse, such horse is unsound. If the cough actually ■“ existed at the time of the sale, as a disease, so as actually to “ diminish the natural usefulness of the horse at that time, “ and to make him then less capable of immediate work, he “ was then unsound; or if you think the cough, which in fact “ did afterwards diminish the usefulness of the horse, existed “ at the time of the sale, you will find for the plaintiff.” (Id. 669-70.)
This certainly is a comprehensive and clear exposition of the rule. And it will require but little attention to its import to determine with what justice it can be claimed to support *311the plaintiff’s case. By the very terms of the definition, and in the application of the rule to the case then before the Court, to constitute unsonndness within the meaning of the rule, the particular disease which either does or in its natural progress will diminish the natural usefulness of the animal, must have existed “ as a disease ” at the time of the sale. And this is in accordance with the rule as recognized in the case of McKinney v. Fort. But this cannot be claimed as a conclusion fairly deducible from the evidence in the present case. Again, it must be a disease which diminishes the natural usefulness of the animal; not merely a natural weakness or deficiency in physical proportion and power ; or a constitutional susceptibility to disease, which cannot be said to diminish the natural usefulness of the animal. The meaning of the rule is not that a warranty of soundness, is a warranty that the animal possesses a given amount of capacity for service and endurance, It is that the animal has no disease which diminishes, or in its ordinary progress will diminish the capability for service which the natural form and proportions of the particular animal enable it to possess in the absence of disease ; not that a form naturally delicate and feeble shall posses the strength, hardihood and powers of endurance of a robust, gigantic form.
But it is earnestly insisted that there was in the case of this negro an unnatural want of development of the chest, arising it is said, from an “accidental” cause, described by the physician whose testimony is relied on to establish the fact of tmsoundness. If another witness (Henby) who seems to have possessed superior means of information and a more accurate knowledge of the fact to which he deposed, the age of the negro, is to be believed—and it is corroborated by the statement of the age of the negro in the bill of sale, where it was not likely to be exaggerated,—the physician was entirely mistaken as to the fact; and consequently in all his inferences and deductions on that subject, which were based on the assumed fact of the immaturity of age of the negro. And there *312can be little doubt that he was mistaken, as the witness who testified to the fact, appears to have had superior means of information and to have testified from a knowledge of the fact; and not as to a mere matter of opinion, formed from the deceptive indications afforded by her appearance simply, as the physician, it seems, did. It can scarcely be seriously contended that opinions and deductions thus formed should serve as a basis of judicial action on such a subject.
But if the physician was not mistaken in his opinions, it is difficult to conceive how it can be earnestly insisted that the negro had, in the language of the rule as stated by the learned Judge whose opinion has been quoted and is relied on by counsel, “ either from disease or accident undergone any alteration of structure,” that either did or in its ordinary effects would diminish her natural usefulness, or as contended by counsel, give an unnatural liability and tendency to disease. The opinion of the witness did not tend in any degree to the supposition that there was any alteration of the structure of the chest from any cause; but simply that there was not a full development of physical proportions in that particular. The want of development from such a cause, even if the supposition were probable, would seem a very different thing from having undergone an alteration of structure “ either from disease or accident.” Surely it cannot be supposed that by disease or accident the learned Judge meant to include natural causes, such as that to which the witness ascribed the want of proper physical development in this case. Even a natural deformity, if such a thing may be supposed, could not be described by any appropriate use of the words disease or accident ; and if equally open to the observation of both buyer and seller would not be included by a general warranty of soundness. Nor would any mere liability or tendency to disease, however unnatural, be a breach of such a warranty. It is unnecessary further to trace the supposed analogy between the case put by the learned Judge whose opinion seems to be so confidently relied on in the present case ; or rather to notice further the total want of analogy in the cases.
*313The present is not the case of an article bought for a particular purpose and warranted fit for that purpose, for which it turns out to be unfit. It is the ordinary case of a general warranty of the soundness of a negro. The utmost that cam •be claimed to have been established by the evidence on behalf of the plaintiff is that the negro had not a well developed chest, and that in this respect she was naturally weak, and more than ordinarily susceptible to diseases of the chest and pleurisy, and was less able to endure fatigue and hardship than an ordinarily stout and robust negro. But there was nothing in this which can be held to amount to a breach of the warranty. Her feebleness and incapacity to endure ordinary labor was as open to the observation of the plaintiff as to his vendor; and it should have served as a caution to deter him from subjecting her to extraordinary exposure and service which must have required, in her condition, quite extraordinary powers of endurance. In that exposure and service am adequate cause should have been found for her sickness and death, without recourse to her former owner, or seeking for a remote possible cause in her supposed liability to disease. The mere predisposition to disease is not disease in a legal sense, or in a sense which will amount to a breach of warranty of unsoundness. To hold the contrary, and especially to maintain the right of the plaintiff to recover the value of the property for a breach of warranty upon evidence of the character disclosed by the record in this case, would be a novel and dangerous precedent. If the evidence here relied on were to be held sufficient to establish the defendant’s liability upon his warranty, it would be difficult to define or fix any limit to the meaning of unsoundness. It would be extremely dangerous to dispose by warranty of this, or any other, animate property. The vendor would indeed make the disposition at his imminent peril.
It is unnecessary to revise the ruling of the Court upon the question of the measure of damages. The action seems so devoid of merits on the facts, that it is not probable that *314question will again claim the attention of the Court in this ease. And if it should arise upon another trial, it will suffice here to say, that the case of a total loss of property is to be distinguished, as, in the instructions asked by the defendant and refused, it does not seem to have been from a partial loss. But in so far as the instructions asked were intended to enunciate the general proposition that damages should be awarded in a sum commensurate as nearly as may be, with the injury sustained, that proposition, except in reference to those cases in which exemplary damages may be given, is as a general rule correct.
We are of opinion that the verdict was contrary to law and the evidence; and consequently that the Court erred in refusing a new trial. The judgment is therefore reversed and the cause remanded for further proceedings.
Reversed and remanded.