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more efficient custody and guardianship of their persons. The reason for the rule that an insane person is liable for his torts is that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it.66 The foregoing grounds of liability may be applied to torts involving intent as well as to those not depending upon the mind or capacity of the wrongdoer, but whether justly so is where the difference of judicial opinion arises, some applying the same irrespective of intent, while others do not carry the rule to that extent.

§ 34. Same Continued-Wrongs not of Intent.-The justice in applying the rule of liability of lunatics for torts to that class of torts where intention or malice are not involved cannot be questioned. For injuries to rights of property, corporeal or incorporeal, the law does not regard the intent of the wrongdoer as the loss and damage of the person injured, consequently lunatics are responsible for all such torts.67 For example, a lunatic is responsible for

he may commit, though he is not punishable criminally. When one receives an injury from the act of another, this is a trespass, though done by mistake, or without design. Consequently, no reason can be assigned why a lunatic should not be held liable." Opinion per Bennett, J., in Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349; also Ewell's Leading Cases, 635.

"Nor is it material, in a civil action for the recovery of damages, whether the injury was willful or not. It is no ground of defense that the mind or will did not concur in the act by which an injury was occasioned": Tally v. Ayres, 3 Sneed (Tenn.), 677, 680. 65 Id.

66 Beals v. See, 10 Pa. St. 56, 49 Am. Dec. 573; Karow v. New York Continental Ins. Co., 57 Wis. 46, 46 Am. Rep. 17, 15 N. W. 27; Holdom v. A. O. U. W., 159 Ill. 619, 50 Am. St. Rep. 183, 43 N. E. 772.

67 Avery v. Wilson, 20 Fed. 856; Bullock v. Babcock, 3 Wend. 391. A most learned exposition of the law with reference to the liability of lunatics is found in the opinion by Judge Dick of the circuit court of the western district of North Carolina, in Avery v. Wilson, 20 Fed. 856: "A lunatic is often civilly liable for his torts. The

injuries to property of another while in his possession. He is liable for an injury caused by the de

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current of authority seems to establish the doctrine that a lunatic is not liable for injuries to the sensibilities and reputation of a person, as in such cases malice is an essential ingredient to the tort; as libel, slander, malicious prosecution, and malicious arrest under regular process. A person non compos mentis is regarded by the law as incapable of a wicked intention to do such injuries. There are other cases of injuries to the person by a lunatic about which there is some conflict of decision, as assaults, batteries, false imprisonment, etc., in which a wrongful intent or culpable negligence are ingredients. In batteries there must be an intent, express or implied, to do the injury; and legal malice is always presumed when a wrongful act is done intentionally, without just cause or excuse. Express malice is some manifestation of ill-will to a person, or an evil design or corrupt motive in doing an act which is injurious to another.

"Torts to the person are embraced in the legal maxim, 'Actio personalis moritur cum persona.' They are torts committed by force, and are usually prompted by sudden passion, or vindictive feelings, and in many cases large punitive damages are properly assessed by a jury against the tort-feasors. As the wrongful intent and motive of the wrongdoer are the usual and substantive grievance complained of, and punitive damages are generally assessed, I am of opinion that actions for such torts should not be sustained against lunatics, as they are incapable, for want of reason, of such intent and motive, unless substantial damages, capable of ready estimation, have been suffered. In no case can vindictive damages be assessed against a person non compos mentis. This liberality of the law to this unfortunate class of persons can work no serious injury to society, as they can be legally confined when considered dangerous; and the disposition, power, and right of self-defense will generally be sufficient to insure the personal safety and security of the citizen against the unreasoning and motiveless action of an imbecile.

"Injuries to property, corporeal and incorporeal, constitute a third class of torts, in which it is generally conceded that lunatics are responsible for compensatory damages to the extent of the actual injury sustained. . . . . In civil actions for violations and encroachment upon established rights of property, the law does not so much regard the intent of the wrongdoer as the loss and damage of the person injured."

The above opinion is largely obiter: Avery v. Wilson, 20 Fed. 856. 68 Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349; Lancaster etc. Bank v. Moore, 78 Pa. St. 407, 21 Am. Rep. 24.

Torts, Vol. I-5

fective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which he is the owner, and of which his guardian has the care and management. So is he liable for setting fire to a building,70 or for the wrongful conversion of property.71

§ 35. Same Continued-Wrongs of Intent.-Upon the question of the liability of a lunatic where intent, malice or degree of care and skill are essential elements of torts, judicial opinion is not in perfect accord. Some courts hold a lunatic responsible for such torts on the grounds already stated, that where loss must fall upon one of two persons equally innocent, it must be borne by the one who caused it. Upon this theory it has been held that a lunatic "is liable in a civil action for any tort he may commit"; as trespass in killing a person under circumstances that would have constituted a felony had the person who did the killing been sane at the time. so has it been held that a lunatic is liable for actual damage done by his slanders and libels, the same as his other torts, the courts sustaining this view allowing insanity to be shown by way of mitigation,73 because not having the element of intention or malice, he can only be held for compensatory, and not

69 Morain v. Devlin, 132 Mass, 87, 42 Am. Rep. 423.

And

70 Insurance Co. v. Showalter, 3 Pa. Super. Ct. 452; Cross v. Kent, 32 Md. 581.

71 White v. Farley, 81 Ala. 563, 8 South. 215.

72 McIntyre v. Sholty, 121 Ill. 660, 2 Am. St. Rep. 140, 13 N. E. 239; Holdom v. A. O. U. W., 159 Ill. 619, 50 Am. St. Rep. 183, 43 N. E. 772; Jewell v. Colby, 66 N. H. 399, 24 Atl. 902.

73 Williams v. Hays, 143 N. Y. 442, 42 Am. St. Rep. 743, 38 N. E. 449; Ullrich v. New York Press Co., 50 N. Y. Supp. 788, 23 Misc. Rep. 169; McDougald v. Coward, 95 N. C. 368; Dickinson v. Barber, 9 Mass. 225, 6 Am. Dec. 58; Yeates v. Reed, 4 Blackf. 463, 32 Am. Dec. 43; Horner v. Marshall, 5 Munf. (Va.) 466. Compare Bryant v. Jackson, 6 Humph. 199; Gates v. Meredith, 7 Ind. 440.

for vindicatory, damages.74 In two states liability for slander is denied.75 Weaver v. Ward (1678), Hob. 134, seems to have been the earliest case upon the question of a lunatic's liability. It was said in that case, by way of obiter, that insanity was no excuse for trespass by shooting, so far as concerns the allowance of compensatory damages. If greater damages are sought on the ground of intent or malice, some states hold insanity to be an excuse. It has been considered that an insane person may commit a fraud.” The rule is very well stated in a recent case that an insane person is liable for his torts the same as a sane person, "except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient."78

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§ 36. Same Continued-Liability for Negligence.Insane persons are held to the same degree of care as sane persons. In respect to this liability there is no distinction between torts of nonfeasance and of misfeasance.79 The doctrine which holds an insane person responsible for what in a sane person would be called willful or negligent conduct does not apply to personal conduct, in case incapacity results solely from exhaustion. This rule. exhaustion. This rule was adopted

74 Holdom v. A. O. of U. W., 159 Ill. 619, 50 Am. St. Rep. 183, 43 N. E. 772; Jewell v. Colby, 66 N. H. 399, 24 Atl. 902.

75 Bryant v. Jackson, 6 Humph. 199; Gates v. Meredith, 7 Ind. 440.

76 Jewell v. Colby, 66 N. H. 399, 24 Atl. 902; Krom v. Schoonmaker, 3 Barb. 647.

77 Spaulding v. Harvey, 129 Ind. 106, 28 Am. St. Rep. 176, 28 N. E. 323.

78 Williams v. Hays, 143 N. Y. 442, 42 Am. St. Rep. 743, 38 N. E. 449.

79 Williams v. Hays, 143 N. Y. 442, 42 Am. St. Rep. 743, and note, 38 N. E. 449; Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349.

where a master of a vessel becomes insane, by reason of his long continuance on duty during a storm.80

§ 37. Liability of Married Women for Torts-Introductory. In discussing the liability of a married woman for her torts, there are two things to be kept in mind, viz., the law as to her responsibility under the common law, and her husband's liability for her torts, and to what extent this matter has been changed by statute. As is well known, the legal status of married women has been materially modified by statute in perhaps all the states. There is, unfortunately, not perfect uniformity in the language of the statutes in the various states, the law with respect to this matter being almost of local concern. In many of the statutes it is the unanimous opinion that the legislation changes the general common-law doctrine as to her liability for torts, while in other states the legislation has not had this effect. It is beyond the compass of this work to go into detail with respect to the local features of such legislation in each state, but we will endeavor briefly to set forth some general features.

§ 38. Same Continued The Common Law. In setting forth the common-law liability of married women for their torts, it must be stated with reference to the manner or circumstances under which the same are committed. For all torts committed by the wife during coverture, in the presence of the husband or by his direction, command or procurement, the latter alone is liable.8 The reason for this rule

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80 Williams v. Hays, 157 N. Y. 541, 68 Am. St. Rep. 797, 52 N. E. 589.

81 2 Kent's Commentaries, 143-149; Schouler's Domestic Relations, 56, 75; Handy v. Foley, 121 Mass. 259, 23 Am. Rep. 270; Ball v. Bennett, 21 Ind. 427, 83 Am. Dec. 356; Brazil v. Moran, 8 Minn. 236, 83 Am. Dec. 772; Flesh v. Lindsay, 115 Mo. 1, 37 Am. St. Rep.