| Vt. | Mar 15, 1845
The opinion of the court was delivered by
No question was made on the trial in regard to the ownnership of the Ox, or as to the fact, that he was killed by the defendant. The oxen, it seems, were bailed by the plaintiff to the defendant, to be used by him to pay for their keeping, and it appears, that while the defendant had them in his possession under this contract, he destroyed one of them by strangling him.
The defence was put upon the ground that the defendant was in
It is a common principle, that a lunatic is liable for any tort, which he may commit, though he is not punishable criminally. When one receives an injury from the act of another, this is a trespass, though done by mistake, or without design. Consequently, no reason can be assigned, why a lunatic should not be held liable. The fact, that the plaintiff might have known that the defendant was insane, when he let him have the oxen, cannot toll his right'of action. To give to it that effect, it would be necessary to infer from it the plaintiff’s assent to the trespass. Though this wight evince, a want of prudence in the plaintiff, in entrusting his oxen in such hands. Yet it is no evidence, tending to prove his assent to their destruction. It is possible, that, if the evidence had shown that the plaintiff had bailed the oxen to an insane man, under an expectation that he might destroy them, so as to charge himself in trespass for their value, the rule wight have been different There might have been some little plausibility in claiming that this was equivalent to an assent, on the part of the plaintiff, to the trespass.
The bill of exceptions states, that the defendant’s counsel proposed to ask the witnesses, who were acquainted with the defendant and had conversed with him, their opinion as to his insanity; which the court overruled. The counsel on both sides seem to cpnsider the question, on this bill of exceptions, to be, whether the opinion of a witness, (who is not a professional man,) as devoid from personal observation of the defendant can be given in evidence, touching his insanity. The law is well settled, and especially in this state, that a witness may give his opinion in evidence, in connection with the facts upon which it is founded, and as derived from them; though he could not be allowed to give his opinion founded upon facts proved by other witnesses. If we are to understand the bill of exceptions as the parties seem to understand it, we think the evidence would have been improperly rejected, in a case in which the insanity of the defendant was properly in issue. But in this case the plea of insanity, if made out on the trial, could not have availed the defendant; and of course there was no error in the rejection of this testimony, which can avail the party. In this view
No sound objection can be urged against this form of action, as arising from the contract of bailment. It must, at all events, have been determined by the tortious act of the defendant.
As it appears from the whole case that the plaintiff is entitled to judgment, the judgment of the county court is affirmed.