Opinion-of the court bt
JUDGE SETTLE
Reversing.
The appellee, Florida Gibson, a young woman of excellent character, residing in Madison county, instituted in the ,-circuit court of that county a"n action for slander against the appellant, Bettie H. Irvine, and her husband, I. Shelby Irvine, laying her damages at $30,000. These are the slanderous words set forth in the petition, viz:
“Florida Gibson left here this summer, and had a baby, and I know it is so.” It is averred in the petition that the slanderous words were falsely and maliciously spoken and published by Bettie H. Irvine of and concerning the appellee, and though it appears from, the bill of evidence, made a part of the record, that other harsh and false charges derogatory to the character of the appellee were made by Mrs. Irvine, the words- complained of were shown -to have been spoken but one time, and in the hearing of but one person. I. Shelby Irvine entered a motion to require the appellee to elect which of the defendants she would prosecute her action against, which motion was sustained by the lower court. Appellee elected to prosecute her action against Bettie EL Irvine, which caused its dismissal as to I. Shelby Irvine. Thereafter I. Shelby Irvine, as the husband of Bettie H. Irvine, and assuming to act as her next friend, filed an answer to the petition, in which it was averred that she was a person of unsound mind and unable to defend the action for herself, ‘and that if the slanderous words were spoken by her it was when she was of unsound mind and unable to understand what she said, *316or the meaning of the words used. On motion of appellee this answer was by the court stricken from the file, and the court then appointed two able and experienced members of the Madison county bar guardians ad litem to defend for Bettie H. Irvine. The guardians ad litem by answer set up for their ward the defense that the words complained of were not spoken by her, or, if they were spoken, that she was at the time of the speaking laboring under a pronounced and well-defined monomania or delusional insanity upon the subject of her husband’s relations with women, which incapacitated her from knowing what she said' of the appellee, or the meaning or effect of the words complained of. In addition, the answer contains the following testimonial to the appellee’s character: “They further state that the plaintiff is a woman of most excellent character, esteemed by her friends, and respected by the community as a woman of pure life and chaste character.” The answer of the guardians ad litem, except as to the testimonial to appellee’s character, was controverted by the reply filed by the appellee, and upon the issues thus formed the case went to trial, which resulted in a- verdict and judgment for the appellee for $30,000 in damages.
The guardians ad litem entered motion and grounds for a new trial, which was refused by the trial court, and the case is now before us for review upon the appeal of Bettie H. Irvine, by the guardians ad litem. And Bettie H. Irvine having died since the taking of the appeal, the same has been revived in the name of I. Shelby Irvine, administrator of her estate, he having been appointed as such administrator by the Madison county court.
The grounds relied on for a new trial are eighteen in number, but as, in our view of the case, the fourth ground authorized the granting of the new trial asked, it will not *317be necessary to consider the others. This ground, complains of the failure of the lower court to- instruct the jury that insanity or monomania was a complete defense to the action. In other words, it is contended by the appellants that the lower court should have either peremptory directed the jury to find for the appellant, Bettie H. Irvine, or instructed them that if they believed from the evidence that at the time of the speaking of the slanderous words, if she .did speak them, she was of unsound mind, that is, laboring under such monomania or delusional insanity upon' the subject of her husband’s relations with other women as to incapacitate her from knowing what she said in using’the slanderous words of appellee complained of, or the meaning or effect of such words, they should fin'd for the defendant.
Mr. Justice Cooley, in his admirable work on Torts, discusses at great length the responsibility of lunatics for torts.' He seems to be of the opinion that though they can not, because of the absence of a criminal intent, be punished for acts that would be criminal if committed by a sane person, nevertheless in certain eases they or their estates may be held civilly liable for torts committed by them, but that they nor their estates are.„responsible in actions for slander or libel. An illustration of this point may be found on page 99 of the volume supra, where it is said: “The case of an injury suffered at the hands of a lunatic furnishes us with an apt illustration:--' Let it be. supposed that one of this unfortunate class meets a traveler on the highway, and by force or by terror of ,his threats takes from him his horse and vehicle, and abuses or destroys them. In a 'sane person this may be highway robbery; but the lunatic is incapable of a criminal intent, and therefore commits no. crime. Neither is the case one in which a contract *318to pay for the' property or for the injury can be implied, for the law can imply no' contract relations where the capacity to enter into them is withheld. But a plain wrong has been done, because the traveler has been deprived of his property, and, if the person at whose hands the wrong has been suffered is possessed of an estate from which compensation can be made, no reason appears why this estate should not be burdened to make it. In other words, it seems but just that the consequences of the unfortunate occurrence should fall upon the estate of the person committing the injury rather than upon that of the person who has suffered it. . . . One eminent law writer has doubted if there ought to be any responsibility in such a case. In the case of a compos mentis, he says, although the intent be not decisive, still the act punished is that of a party competent to foresee and guard against the consequences of his conduct, and inevitable accident has always been held an excuse. In the case of a lunatic, it may be urged both that no good policy requires the interposition of the law, and that the act belongs to' the class of cases which may well be termed inevitable accident.” In discussing whether a person of unsound mind is responsible for slanderous or libelous words, Mr. Cooley further says: . . It has been seen that in some cases malice is a necessary ingredieut of the tort. How can a non compos be responsible in such cases; such, for instance, as a malicious prosecution or libel? Legal malice certainly can not be imputed to one who in law is incompetent to harbor an intent. It would seem a monstrous absurdity, for instance, if one were held entitled to maintain an action for defamation of character for the thoughtless babbling of an insane person, or for any wild communication he might send through the mail or post upon the wall. There can be no tort in *319these cases, because the wrong lies in the intent, and an intent is an impossibility. The rules- which preclude criminal responsibility are strictly applicable here, because there is an absence of the same necessary element. And if, in the case of defamatory publications, it may be said that, after all, the requirements- of, malice as an element in the wrong' is only nominal, still" there can be no tort because presumptively the utterances, or rather publications, which proceed from a diseased;brain, can not injure.” Cooley on Torts, p. 103.
“In reason, an insane person cam not have the malice essential in slander and libel.- And this doctrine may be ■ deemed to be sufficiently, though not very firmly, established.” Bishop, Noncontract Law, section 506.
“Inasmuch as malice, actual or implied, is an element of slander, a person is not liable in damages therefor, if, at the time of speaking the defamatory words, he was totally deranged, or was the victim of insane delusion on the subject to which the -words related.” 16 Am. & Eng. Ency. Law (2d Ed.) 622.
“Insanity is a complete defense to.an action for slander or libel.” Townsend on Slander (3d Ed. section 248; Bryant v. Jackson, 6 Hump. (Tenn.) 199; Horner v. Marshall, 5 Munf. (Va.) 466; McDougald v. Coward, 95 N.C., 368" court="N.C." date_filed="1886-10-05" href="https://app.midpage.ai/document/mcdougald-v--coward-3670277?utm_source=webapp" opinion_id="3670277">95 N. C., 368.
This court is asked for the first time to say whether or not insanity is a good defense in an action of slander. -In view of the authorities supra, we are of the opinion that the 'question should be answered in the affirmative. Insanity, however viewed anciently, is in modern times deemed .a visitation from God, a disease or malconstruction of the mind. If God does not hold accountable for their misdeeds those whom he suffers to be thus afflicted, shall his creatures, intrusted with the enforcement of human laws, re*320fuse to excuse their ostensible evil doing. Surely not. But while such is our view of the law, we would say that, in order to defeat a recovery in a case like the one at bar upon the ground of insanity, it should satisfactorily appear from the evidence that at the time of speaking the defamatory words the person uttering them was either totally deranged, or laboring under an insane delusion on the subject to which the words related. In considering the evidence introduced as to the condition of mind of the unfortunate woman against whom the recovery was had in this case, we have been profoundly impressed by its weight-and force. Without undertaking to discuss it in detail, or to mention the names of witnesses, we find that it manifests the facts that Mrs. Irvine was the fortunate possessor of practically unlimited wealth, a happy home, and devoted husband. It seemed to be the constant aim of the husband to minister to her happiness. Both time and money were lavishly expended by him in the effort to restore her health and surround her with all that makes life desirable. She was apparently as devoted to her husband as he was to her. During all their married life he gave her no cause to doubt his affection for or loyalty to her, and in his relations with respect to other women his conduct was exemplary in the extreme. But with the passing years disease, such as sometimes afflicts her sex, came upon her, insidiously at first, but later with such force as to undermine her constitution, wreck her health, and practically destroy her mind. For fifteen years before her death she was thus afflicted. Repeated operations were performed upon her by the best and' most experienced physicians and surgeons, and -she was taken by her husband to sanitariums and health resorts in the effort to restore her health, but without avail. According to the *321evidence, soon after the disease fastened upon her body, her mind began to give way, and about four‘years before her death her health became so impaired that she was possessed of delusions and imaginings, which for "the remainder of her life controlled her actions, dominated her will, and wrecked her mind. From an affectionate and trusting wife she, without cause, became jealous and suspicious of her husband, and her mind dominated by the -delusion that he was unfaithful to her. When laboring under these delusions she was incapable of being reasoned-'with, or of knowing or understanding what she said or did. When told that her suspicions against her husband were groundless, and her charges of infidelity on his part untrue, she would grow excited, and cry out with rage. She was especially under the delusion that her husband had become the father of a child by a young woman who lived with the appellee, and she, without cause, accused the latter of harboring the mother and child. Any woman that she met, particularly one with a child, became to her disordered mind and frenzied imagination the object of her husband’s love. This condition of Mrs. Irvine’s mind was established by the testimony of divers witnesses, several of them the most distinguished physicians and specialists on diseases of the mind in the country; others being business men, friends, and neighbors of herself and her husband, who knew her well, and had every opportunity to become acquainted with her condition of mind. These witnesses all agree that her mind was disordered, and her reason dethroned, on the subject of her' husband’s relations with other 'women. The physicians testified that her disease of mind was known as monomania, and that it was incurable. There were witnesses introduced by the appellee who testified to the effect *322that Mrs. Irvine was of sound mind, but all of these witnesses were non-experts, and only two, certainly not more than three of them, had such association with or knowledge of Mrs. Irvine as gave them opportunity to testify understandingly in regard to her mind. What they stated amounted in the main to mere expressions of opinion, with little to base the opinion upon.
It was said by this court in Brown v. Commonwealth, 14 Bush, 398" court="Ky. Ct. App." date_filed="1878-12-09" href="https://app.midpage.ai/document/brown-v-commonwealth-7379639?utm_source=webapp" opinion_id="7379639">14 Bush, 398, in discussing non-expert evidence on the question of insanity: ““Opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, no better evidence can be obtained.” Again: ■ “The court must be satisfied that the witness ha^ had an opportunity, by association and observation, to form an opinion as to the sanity of the person in reference to whom he is to speak.” Tested by this rule, we incline to the opinion that the testimony of all ibut three of appellee’s witnesses as to the condition of ■Mrs. Irvine’s mind was of little, if any, value, and much of it incompetent.
If correct in our view of the law of this case, it follows that the instructions of the lower court to the jury were altogether erroneous. In addition to the customary and general instruction setting forth the grounds which, if sustained by the evidence, would authorize the jury to find for the plaintiff, the court should have instructed them as to the measure of damages; and, finally, that if they believed from the evidence that at the time of the speaking of the defamatory words by the defendant she was insane, or laboring under delusional insanity upon the subject of her husband’s relations with women which incapacitated her frqm knowing or understanding the meaning of the defamatory words, they should find for the defendant.
*323It is proposed of record by the appellee that this court, in the event it should find the amount of the verdict and judgment excessive, may, instead of reversing the judgment, reduce the amount thereof to such a sum as it may deem proper. We are of the opinion that we are not authorized to enter the remittitur. If the judgment is erroneous, we can only reverse it, and our jurisdiction over the case ceases' with its reversal. The remitittur can not be entered after the reversal, for the further reason that there will be nothing upon' which it can operate, because by the reversal the judgment is rendered void. And by such a- course of action as is here proposed, the parties in other cases, following the precedent thus set, by like means would avoid the consequences of erroneous proceedings, to the prejudice of those against whom they were committed.
It is also insisted for appellee that iff the court should find it necessary to reverse the judgment of the lower court it should put the appellant upon terms by requiring him to enter his assent of record that the present judgment shall stand as security for whatever damages may be found for appellee upon a second trial, and Turner’s Adm’r v. Booker, 2 Dana, 334" court="Ky. Ct. App." date_filed="1834-10-27" href="https://app.midpage.ai/document/turners-administrator-v-booker-7379952?utm_source=webapp" opinion_id="7379952">2 Dana, 334, is relied on in support of this contention. We are unable to grant this request, because without power to do so; nor do we regard Turner’s Adm’r v. Booker, supra, as authority in point. The judgment in that case went against Turner in the lower court by;default. He moved for a new trial, for cause set out in his affidavit. The motion was laid over to the succeeding term, before which time Turner died. The judgment was all the while suspended by the motion for a new trial. The motion for a new trial was finally ovverruled by the lower court, and upon appeal to this court it was held that the affidavits presented by Turner in the lower court were sufficient to *324authorize a new trial; consequently the case was reversed; but, as a naked reversal would' operate to abate the action altogether, upon its return to the lower court on account of Turner’s death it was deemed just to put the administrator of his estate upon terms, as was done, because it was not the fault of Booker, but that of Turner, that he did not make defense before judgment and obtain a trial of the case upon its merits. The court therefore refused to allow his fault to be made the possible instrument of a great injustice. The case at bar is wholly different. Here there was a trial; ihe appellant administrator, his deceased wife, and her guardians ad litem are without fault, but grave errors were committed by the lower eourt to appellant’s prejudice, resulting in a verdict for damages with one exception unprecedented in this State as to amount. In that case the motion for a new trial only suspended execution against Turner. Here the rights of the surety on the supersedeas bond have intervened, and will be affected. This court can only declare the law, though the effect' of its so doing in this case will be to abate the appellee’s action upon its return to the lower court because of the- death of the appellant, Mrs. Irvine.
For the reasons indicated the judgment'is reversed, and cause remanded, with directions to the lower court to set aside the verdict and judgment and dismiss the petition.
Petition for rehearing by appellee overruled.