(After stating the foregoing facts.) With reference to the rule adopted in the first division of the opinion, the authorities are uniform to the effect that in such a tort by an incompetent upon a nonconsenting plaintiff, where intent is no .ingredient of the tort committed (which is the case here), insanity or incompetency, of large or small degree, is no defense to a civil. action for mere compensatory damages. It is stated in a general note in 26 L. R. A. 153, that “the general doctrine that insane persons must be held liable to make compensation for damages caused by their torts, distinguishing these from criminal liability, has been recognized from a very early period.” In the case of Weaver v. Ward, Hobart’s Reports, 134 (published in 1646), it was held that “if a lunatic hurt a man he shall be answerable for the trespass.” The English writers of a very early date lay down *751the same doctrine. Thus, in-Hale, P. C., 15, it is held that in cases of lunacy or other like disability, such conditions do not relieve from liability for making compensation in civil cases. In Bacon’s Abridgement, on the topic of Idiots and Lunatics, it is said: “It is clearly agreed that if one who wants discretion commits a trespass against the person or possessions of another, he shall be compelled in a civil action to give satisfaction for the damage.” It is said in McIntyre v. Sholty, 121 Ill. 660 (13 N. E. 239), affirming 24 Ill. App. 605, that for killing a person, the defense of insanity will not avail to defeat a judgment for mere compensation in a civil case. In that case the shooting was under such circumstances as would have made the act a felony if the defendant had been actually sane. In the case of Jewell v. Colby, 66 N. H. 399 (1891), it was said that evidence of insanity was not admissible to defeat the right to recover, or at all, unless plaintiff claimed punitive or exemplary damages, or a sum greater than mere compensation for the actual loss sustained. The authorities, we might interject here, are uniform to the effect that such an afflicted person can not be held liable for punitive or vindictive damages, but only compensatory damages are ever allowable against aii incompetent. The rule here enunciated was recognized, arguendo, in the case of Central of Ga. Ry. Co. v. Hall, 124 Ga. 322, 332 (52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. Cas. 128), where the following language was used: “Nevertheless, in 16 Am. & Eng. Enc. Law (2d ed.), 622, it is said: ‘A lunatic .is not responsible for crime, because he is not a free agent, capable of intelligent voluntary action, and therefore is incapable of guilty intent; but in a civil action for an injury done to the person or property of another, the intent is generally immaterial, and the rule is that an insane person is liable for his torts the same as a .sane person, except for those torts in which malice, and therefore intention, is a necessary ingredient. . . In respect to this liability there is no distinction between torts of nonfeasance and misfeasance; and consequently an insane person is liable for injuries caused by his tortious negligence. Insane persons are held to this liability on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it.” One of the leading cases upon the subject is that of Williams v. Hays, 143 N. Y. 442 (38 N. E. 449, 27 L. R. A. 153, *752155, 42 Am. St. Rep. 743), where the court said: “The important question for us to determine then, is whether the insanity of the defendant furnishes a defense to the plaintiff’s claim, and I think it does not. The general rule is that an insane person is just as responsible for his torts, as a sane person, and the rule applies to all torts, except, perhaps, those in which malice, and therefore intention, actual or imputed, is a necessary ingredient, like libel, slander, and malicious prosecution. In all other torts, intention is not an ingredient, and the actor is responsible, although he acted with a good and even laudable purpose, without malice. The law looks to the person damaged by another, and seeks to make him whole, without reference to the purpose or the condition, mental or1 physical, of the person causing the damage, ^he liability of a lunatic for his torts, in the opinion of judges, has been placed upon several grounds. The rule has been invoked that, where one of two innocent persons must bear a loss, he must bear it whose act- caused it. It is said that public policy requires the enforcement of the liability, that the relatives of a lunatic may be under inducement to restrain him, and that tort-feasors may not simulate or pretend, insanity to defend their wrongful acts, causing damage to others. The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.” In Ruling Case Law, 596-, § 51, the rule is stated in practically the same language. In Cooley on Torts, p. 98, attention is called to the fact that in such cases the question of motive is usually of aggravation only. In Buswell on Insanity, 355, the same general rule is stated. Instructive notes leading to the same conclusion are to be found in 21 Ann. Cas. 1350; 26 L. R. A. 153, and 42 L. R. A. (N. S.) 84. Although the grant of a new trial could not be sustained on the general grounds, under the law as set forth in the first headnote, a new trial was, however, properly granted for the reasons set forth in the second headnote. See Morris v. Imperial Ins. Co., 106 Ga. 461, 462 (5) (32 S. E. 595); Allen v. Schweigert, 113 Ga. 69, 70 (4) (38 S. E. 397).
Judgment affirmed on the main bill of exceptions; reversed on the cross-bill.
Stephens and Bell, JJ., concur.