Jewell v. Colby

• Decision Date: 18 March 1891
• Citation: 24 A. 902,66 N.H. 399
• Parties: JEWELL v. COLBY.
• Court: New Hampshire Supreme Court

24 A. 902

66 N.H. 399

JEWELL

v. COLBY.

Supreme Court of New Hampshire.

March 18, 1891.

Case reserved from Merrimac county; Riodgett, Judge.

Action by John S. Jewell, as administrator of Martha Fortier, against Madison G. Colby, for damages for causing the death of plaintiff's intestate, by his wrongful act, under such circumstances as amount in law to felony. Case discharged.

Frank N. Parsons, for plaintiff.

Sanborn & Hardy, for defendant.

BINGHAM, J. In the agreed case it appears that the defendant is guilty of causing the death of Martha Fortier by his wrongful act, unless it is otherwise by reason of insanity. The question presented is whether the defendant is liable for his torts, and especially those committed when insane. The executor or administrator of a deceased person whose death was caused by the wrongful act or neglect of another may recover damages of the wrongdoer for the injury to the deceased person and his estate caused by such act, although the death in law may be a felony. The cause of action survives, and may be prosecuted by an executor or administrator, the same as by an injured person when death does not ensue. Laws 1887, c. 71; French v. Flannel Co., 20 Atl. Rep. 363, (Hillsborough, March 14, 1890.) Generally, an insane person is liable for his. torts to the extent of compensation for the actual loss sustained by the injured party, but when the wrong lies in the intent, and the intent is an impossibility, there can be no recovery. Cooley, Torts, 103; Sedg. Dam. (5th Ed.) 456, note 1; Hill. Torts, 228, § 4; Bank v. Moore, 78 Pa. St. 407; Jackson v. King, 15 Amer. Dec. note, 308; Morain v. Devlin, 132 Mass. 87; Bullock v. Babcock, 3 Wend. 391, 393. There may be an exception, however, in the case of an inevitable accident. Brown v. Collins, 53 N. H. 442, 451. On the facts stated in the case, evidence of the defendant's insanity is not admissible to defeat the right to recover, or at all, unless the plaintiff claims punitive, exemplary, or a greater sum in damages than compensation for the actual loss sustained, and the action may be maintained. If greater damages are sought on account of the intent or motive of the defendant, insanity is a good answer to the same, as an insane person has no will or motive, and the measure of damages is compensation for the actual loss. Krora v. Schoonmaker, 3 Barb. 647. Case discharged.

BLODGETT, J., did not sit. The others concurred.