Note 36 — Chapter II · NEGLIGENT INTERFERENCE
Reading edition
Gates v. Miles, 3 Conn. 64, 70; McIntyre v. Sholty, 121 Ill. 660; Amick v. O’Hara, 6 Blackf. 258, 259; Cross v. Kent, 32 Md. 581; Feld v. Borodófski, 87 Miss. 727; Bullock v. Babcock, 3 Wend. 391; Krom v. Schoonmaker, 3 Barb. 647. (imprisonment); Ward v. Conatser, 4 Baxt. (Tenn.) 64; Brennan v. Donaghey, 19 N. Zeal. Gaz. L. R. 289, affirming s. c. 2 New Zeal. Gaz. L. R. 410 Accord.
The rule is the same as to torts in general. Behrens v. McKenzie, 23 Ia. 333, 343; Chesapeake R. Co. v. Francisco, 149 Ky. 307; Morain v. Devlin, 132 Mass. 87 (nuisance); Gibson v. Pollock, 179 Mo. App. 188; Jewell v. Colby, 66 N. H. 399; Re Heller, 3 Paige, 199; Williams v. Hays, 143 N. Y. 442 (compare Williams v. Hays, 157 N. Y. 541); Williams v. Cameron, 26 Barb. 172; Lancaster Bank v. Moore, 78 Pa. St. 407, 412; Morse v. Crawford, 17 Vt. 499 (conversion).
A lunatic has been held liable under a statute giving an action to the widow and children of one killed by the “careless, wanton, or malicious” use of firearms. Young v. Young, 141 Ky. 76.
In McIntyre v. Sholty, supra, Magruder, J., said, p. 664: “It is well settled that, though a lunatic is not punishable criminally, he is liable in a civil action for any tort he may commit. However justly this doctrine may have been originally subject to criticism on the grounds of reason and principle, it is now too firmly supported by the weight of authority to be disturbed. It is the outcome of the principle, that, in trespass, the intent is not conclusive. Mr. Sedgwick, in his work on Damages (margin, p. 456), says that, on principle, a lunatic should not be held liable for his tortious acts. Opposed to this view, however, is a majority of the decisions and text writers.”
“So long as the primitive notion prevailed that the doer of harm was absolutely responsible therefor, the insanity of the doer could afford no defence, either to a criminal prosecution or a civil action. 7 Harv. L. Rev. 446. When this notion was so far modified that misadventure or accident on the part of the doer became a defence, it would have been entirely logical for the courts to treat the acts or the omissions of lunatics as involuntary, and consequently not tortious but accidental.” Burdick, Torts (2d ed.), 60. See also Ames, Law and Morals, 22 Harv. L. Rev. 97, 99–100; Hornblower, Insanity and the Law of Negligence, 5 Col. L. Rev. 278.
“827. A person who causes damage to another while in a condition of unconsciousness or in a condition of morbid disturbance of mental activity incompatible with the free determination of the will is not responsible for the damage....”
“829. A person who ... is by virtue of 827 ... not responsible for any damage caused by him shall nevertheless where compensation cannot be obtained from a third party charged with the duty of supervision make compensation for damage in so far as according to the circumstances (e. g. according to the relative positions of the parties) equity requires compensation and he is not deprived of the means which he needs for his own maintenance suitable to his station in life and for the fulfilment of his statutory duties to furnish maintenance to others.”—German Civil Code, §§ 827, 829.