McIntyre v. Sholty

• Decision Date: 27 September 1887
• Citation: 121 Ill. 660,13 N.E. 239
• Parties: McINTYRE, Adm'r, v. SHOLTY, Adm'r.
• Court: Illinois Supreme Court

121 Ill. 660

13 N.E. 239

McINTYRE, Adm'r,

v.SHOLTY, Adm'r.

Supreme Court of Illinois.

September 27, 1887.

Error to appellate court, Third district; OWEN T. REEVES, Judge.

Blades & Neville, for plaintiff in error.

Kerrick, Lucas & Spencer and Tipton & Beaver, for defendant in error.

MAGRUDER, J.

This is an action of trespass, brought by defendant in error against plaintiff in error, in the circuit court of McLean county, under the ‘Actrequiring compensation for causing death by wrongful act, neglect, or default;’ being chapter 70 of the Revised Statutes, entitled ‘Injuries.’Hurd, Rev. St. 1885, p. 695.Jury was waived by agreement, and the case was tried without a jury before the judge of the circuit court, who gave judgment for the plaintiff for $2,500.This judgment has been affirmed by the appellate court, and is brought before us for review by writ of error to the latter court.

Hannah Sholty was the wife of Levi Sholty, a farmer living in McLean county, near Bloomington.About February 17, 1886, a working-man upon Levi Sholty's farm discovered a man in the barn, who, to all appearances, had been concealing himself there for some time.The person so concealed is proven to have been defendant's intestate, Benjamin D. Sholty, a brother of Levi Sholty.Some efforts seem to have been made on February 17th or 18th to get the officers of the law in Bloomington to go out to the farm and arrest Benjamin D. Sholty, called by the witness David Sholty.This effort, however failed.Accordingly, Levi Sholty and his hired man, and a number of his neighbors, gathered at his house on the afternoon of February 18, 1886, for the purpose of watching for the intruder, and getting him out of his hiding-place.The barn was 40 or 50 feet wide, and from 80 to 100 feet long.It was situated about 150 or 200 feet north-west from the house.The granary was in the western end of the barn, and in the end that was furthest from the house.About 6 o'clock in the evening, David Sholty was discovered in the granary by his brother Levi and one McCoy, who were on watch just outside of the granary door.He shot at them twice with a pistol, while they were trying to prevent his escape, and to capture him.Others who were waiting in the house came to their assistance.A rope was obtained, with the intention of tying him, if captured.Presently there was a cry of fire, and the flames were seen to be breaking out at the eastern end of the barn, being the end nearest towards the house.At this time Mrs. Hannah Sholty, plaintiff's intestate, went from the house towards the barn, and had advanced about half of the distance between the two, when David Sholty appeared in the door at the eastern end of the barn, with a shot-gun.He was plainly visible in the light made by the fire that had broken out.He called upon Mrs. Sholty and her daughter Mary, who was with her, to stop.They stopped, turned, and had advanced a few feet on their way back towards the house, when David Sholty fired at them with the gun in his hand.Both were shot.The daughter was wounded in the wrist, and the mother was killed.This action is brought by her husband, as administrator of her estate, to recover damages for her death, against the administrator of the estate of David Sholty, who is said to have perished in the flames of the burning barn.

The defendant introduced no testimony, except that the examination of one witness was begun, and abandoned, after a few preliminary questions, on account of the ruling of the court as hereafter stated.The defense proposed to show by the witness on the stand, and by others there present in court, that defendant's intestate, Benjamin D. Sholty, was insane at the time Mrs. Sholty was killed.The court refused to receive evidence of his insanity, and exception was taken to the ruling.The question presented relates to the liability of an insane person for injuries committed by him.

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...