Opinion
(December Term, 1857.)
A warranty that a slave "is sound in mind and health" is not broken by the existence of a contraction of the little finger of each hand, though it diminished the usefulness and value of the slave.
ACTION of COVENANT, tried before SAUNDERS, Judge, at Fall Term, 1857, of Edgecombe Superior Court.
Moore, for the plaintiff, argued as follows: The only question is whether the slave's hands were in a state of health.
No counsel appeared for the defendant in this Court.
The following is the covenant declared on, viz: "Received of John Harrell twelve hundred dollars for negro slave Kennedy. The said slave I warrant sound in mind and health, and also warrant the right and title of said slave Kennedy to said Harrell, his heirs, c."
The breach assigned was, that the slave was not healthy within the meaning of the term as used in the covenant.
The defect specified and proved, was a fixed contraction, inwardly towards the palm, of the little finger of each hand, to such an extent as to diminish the value of the slave one hundred dollars, which defect was not apparent. It did not appear whether the defect existed at the birth of the slave in question, or whether it was occasioned by an injury afterwards. There was no soreness, or want of strength in the fingers, and it was only their peculiar structure that prevented a free use of them.
The Court being of opinion that the alleged defect was not covered by covenant, the plaintiff submitted to a nonsuit and appealed.
"Health" is derived from "heal." Webster, verb. Health.
"Heal," as a trans. verb, means "to restore to soundness — to make sound."
As an intrans. verb — "to grow sound — to return to a sound state."
All derivatives of heal strictly preserve the sense of the root and imply soundness.
Health is "that state of an animal or living body in which the parts are sound, well organized and disposed, and in which they all perform freely their natural functions."
When applied to mind it expresses "soundness." Webster.
Healthful — "Being in a sound state, as a living or organized being, having the parts or organs entire, and their functions in a free, active and undisturbed operation." Webster.
See the derivative healthfulness, c.
"Health" implies all that soundness does.
See "sound — soundness." Webster.
See "sound." Walker.
"Healthy" expresses more than "sound."
"We are healthy in every part, but we are sound in that which is essential for life." Crabbe's Syn.
"Sound, sane and healthy."
The King visits all around; comforts the sick, congratulates the sound Dryden.
Here, "sick" and "sound" are placed in opposition. Of course "sound" means "healthy."
"A sound pulse, a sound digestion, sound sleep, are so called, with reference to a sound and healthy constitution." — Watts — Johnston's Dict'y. verb. "Sound"
"Health is a faculty of performing all actions proper to a human body in the most perfect manner." Johnson.
Nyston's Medical Dictionary, a standard French work, defines as follows: "Sanite — exercise libre et facile des fonctions," which translated is, " Health is the free and easy action or exercise of the functions."
Soundness of mind in a slave, means that degree of intellect which enables the slave to discharge well all the ordinary labors imposed on slaves; Sloan v. Williford, 3 Ire. 307. "Soundness of body means that there is no malformation, and that the structure of the body has undergone no change, either from disease or accident, whereby to render it less fit for service," but it does not import that the structure of the body of the animal is perfect and free of defect, for there is no model; "but in regard to an organ, (and the same may be said of a limb as the hand) as the eye, for instance, there is perfection, and if there be a defect in it, so as to make it unfit for ordinary purposes, (or as before said, less fit for service) the animal is unsound," and the defect is the same, whether "caused by disease or accident" or is coeval with birth; Bell v. Jeffreys, 13 Ire. 356.
The criticism, in the opinion of the court, on "health and soundness," is not correct. Every limb or organ which admits of being cured or healed of its infirmity, is unhealthful; every blind man is infirm; so is every man with a lame hand and fingers which cannot perform the ordinary functions of fingers. A feeble organ is not in health, though the residue of the body may be. A man with a paralyzed arm, though he eat and sleep and walk well, is not in health. The residue of his body may be both sound and healthy, but he is not sound in body, nor healthful in body, for the body comprises every part of the man. One whose leg is cut off cannot be healthful in body, for there is not the body of a man; nor can he be sound in body, not because he is sickly, but because there is not the body of a man.
Christ healed the withered hand; can it be said of that man that he was healthy? He healed the blind man and the dumb man. Did he heal a man that was healthy? We cannot heal health, therefore we cannot heal a healthy man.
What we can heal, must be unhealthy. The contracted fingers admit of healing, therefore they are not healthy. They are part of the slave, so he is not healthy.
Is a limb healthy which cannot, by reason of malformation, perform the ordinary functions of a limb?
Had the covenant in the present case been, that the slave was "sound and healthy,"the defect in the conformation of the little finger of each hand, would have been a breach of it within the principle laid down by this Court in Bell v. Jeffreys, 13 Ire. Rep. 356. In that case, myopia, or shortness of sight, was held by all the Judges not to be unhealthiness, but a majority of the Court decided that it was unsoundness, within the meaning of a warranty of soundness, when it existed to such a degree as to render the slave unfit to perform the common and ordinary business of the house or field. In the present covenant, the meaning of the term "sound" is restricted to the "mind and health," and imports that the slave was sound in mind and sound in health. No pretense is made that he was of unsound mind, and the only question is, was he of unsound health? And this, we think, notwithstanding the learned and ingenious argument of the counsel for the plaintiff, is expressly decided against him by the whole Court in the case above referred to of Bell v. Jeffreys. "The word `healthy'"says Judge PEARSON, in delivering the opinion of the court," in its ordinary acceptation, means free from disease or bodily ailment, or a state of the system peculiarly susceptible or liable to disease or bodily ailment." From that he concluded that mere shortness of sight was not unhealthiness, and with that conclusion the Chief Justice, RUFFIN, agreed. Now, it seems to us, that the defect in the structure of the little fingers can be no more a want of soundness in health, in the ordinary acceptation of the term "health," than was myopia or shortness of sight, as it was proved to exist in the case of Bell v. Jeffreys.
PER CURIAM, Judgment affirmed.