
    D’Autremont et al. v. Fire Ass’n of Philadelphia.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    Insurance—Setting Fire to Property—Insanity op Assured.
    An insane person cannot be held, in setting fire to his property, to have had such a fraudulent or wrongful design as to defeat the insurance thereon, though his estate may afterwards be called upon to respond for the act.
    Case submitted on agreed statement.
    Controversy between Sarah C. D’Autremont and others, executors, etc., plaintiffs, and the Fire Association of Philadelphia, defendant, submitted without action, pursuant to section 1279, Code Civil'Proc. Judgment for plaintiffs.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Richardson & Robins, for plaintiffs. William F. Cogswell, for defendant.
   Macomber, J.

Charles' D’Autremont, the plaintiffs’ testator, received from the defendant, which is a foreign corporation, on the 15th day of June, 1890, a policy of fire insurance against loss or damage to property of the insured, to the amount of $2,000 on buildings and their contents owned by the insuisd, and located in Angelica, if. Y. The sum of $800 thereof was upon the insured’s dwelling house, $700 on a frame barn and the attachments thereto, $425 on farm produce, and $75 on a frame hog house and granary. While this policy was in force, the frame barn and attachments thereto were destroyed by fire, together with certain farm produce therein, and the adjacent hog house and granary were somewhat injured by fire. The total loss sustained by the insured was the sum of $1,017. The submission contains certain facts in regard to a claim made by the defendant for diminution of the amount of damages by reason of an agreement relating to a permission given by the defendant that the premises might be vacant. But, inasmuch as no point is made on this subject in the brief of the learned counsel for the defendant, I shall assume that the amount of damages, if the plaintiffs are entitled to recover anything, is the sum stated above. After the policy had been issued by the defendant to plaintiffs’ testator, and prior to the burning of the property insured, which was March 30, 1891, the insured became insane, and while in that condition, and being so far mentally disordered as not to understand that the act he was about to commit would cause the destruction of his property or of his own life, and while acting under the influence of some insane impulse, which he was wholly unable to resist, he set fire to these buildings, and himself perished therein. The question, therefore, presented for our determination is whether the personal representatives of the insured can recover upon this policy, when the loss was caused solely by the act of the insured himself. It is well understood that a lunatic is not liable criminally for his unlawful acts, for the reason that he is incapable of forming a purpose, or having an intent, which is an essential element in the commission of crime under our laws. Pen. Code, § 20. It is equally well established, on the other hand, that an insane person is responsible civilly for any tort committed by him where a wrongful intent is not an essential thing to be proved. Under this head comes the class of negligence cases, where carelessness or ignorance is the foundation of the action. It has been decided in the courts of this state that in such a case as that the plea of insanity is not effective. Krom v. Schoonmaker, 3 Barb. 649. Inactions upon policies to recover damages occasioned by loss through fire, it is not a defense which the insurance-company may avail itself of to show that the loss was caused by the carelessness, negligence, or want of care of the insured, or any of his agents or servants. The insurance company, in order to establish such a defense, must go-further, and show that the act was so grossly negligent as to indicate an intention to commit a fraud upon the rights of the insurer. The simple fact of the existence of negligence in either the insured or his agents, however great the degree, provided it does not reach the point of a wrongful or fraudulent purpose, or a wanton disregard of others, is not a defense to a policy of fire insurance. Gates v. Insurance Co., 5 N. Y. 469. I am unable to see-that an insane person can form a fraudulent or wrongful design in the destruction of his own property, so as to defeat a policy of insurance thereon, any more than lean see that he can form a criminal intent in the commission of crime. The learned counsel for the defendant cites the case of Cross v. Kent, 32 Md. 581, where it was held, in an action against a party for setting fire to a barn, that evidence of his lunacy was not admissible in mitigation, of compensatory damages. But, as it seems to me, that case falls within the-general doctrine stated above, that an insane person’s estate may be called upon to respond for his acts which are simply tortious. On the whole, I think that the question submitted to us should be answered in favor of the plaintiffs, Karow v. Insurance Co., 57 Wis. 56, 15 N. W. Rep. 27.

It follows that the plaintiffs should recover the sum of $1,017 and interest thereon from August 10, 1891. Judgment ordered for the plaintiffs on the submission, with costs. All concur.  