Feld v. Borodofski

40 So. 816, 87 Miss. 727

• Court: Mississippi Supreme Court
• Decided: November 15, 1905
• Status: Published

Opinion

C'ali-ioon, J.,

delivered the opinion of the court.

It is well settled that a lunatic is not liable at all criminally, nor for punitory damages in civil actions. It seems equally well settled that he is liable for compensatory damages for injuries he inflicts on the person or on property. McIntyre v. Sholty, 121 Ill., 660 (13 N. E. Rep., 239; 2 Am. St. Rep., 140, and notes); Morse v. Crawford, 17 Vt., 499 (44 Am. Dec., 349); Behrens v. McKenzie, 23 Iowa, 333 (92 Am. Dec., 428, and notes); Williams v. Hays, 143 N. Y., 442 (38 N. E. Rep., 449; 26 L. R. A., 153; 42 Am. St. Rep., 743, and notes); 1 Suth. on Dam., p. 43; 2 Suth. on Dam., p. 1101; 16 Cyc. (2d ed.), 623. This rule does not apply, of course, in actions for slander, where the intent is material. The case before us is within the general rule of liability, being an assault and battery, where intent is not material, and not within the exception where it is material. The fact that the declaration charges that the act was wrongfully done does not bind the appellee to show intent or malice. The injui*y is the thing, regardless of intent — or malice, which is involved in intent.

We do xxot think a claixn for damages is oxxe for probate against the estate of a deceased person, under Code 1892, § 1933. That section has reference to contractual claims, axxd not to those ex delicto. It mxxst be such a claixxx as xnight be paid, if the estate were solvent, by an executor or administrator, and which, if bona ;fide and proper, would afford him protection. Sumrall v. Sumrall, 24 Miss., 258. This could never be with axx uncertain demand for daxnages for assault and battery. The claixn to be probated must be one which, if paid by the executor or administratox’, would, prima facie, exxtitle him to credit. Gray v. Harris, 43 Miss., 421. The terms of the statute' fully sxxstaixx this, as does the reasoxxixxg of the court in Robinett v. Starling, 72 Miss., 652 (18 South. Rep., 421), and in cases cited ixx appellee’s brief, as also in 2 Words & Phrases, 1205, 1206.

Affirmed.