The opinion
Gray, C. J.
By the common law, as generally stated in the books, a lunatic is civilly liable to make compensation in damages to persons injured by his acts, although, being incapable of criminal intent, he is not liable to indictment and punishment. Bac. Max. reg. 7. Weaver v. Ward, Hob. 134. 2 Rol. Ab. 547. 1 Hale P. C. 15, 16. 1 Hawk. c. 1, § 5. Bac. Ab. Idiots & Lunatics, E. Haycraft v. Creasy, 2 East, 92, 104. 1 Chit. Pl. (2d Am. ed.) 65. Morse v. Crawford, 17 Vt. 499 . Cross v. Kent, 32 Md. 581 . Ward v. Conatser, 4 Baxter, 64 . Bullock v. Babcock, 3 Wend. 391, 393, 394 . Behrens v. McKenzie, 23 Iowa, 333, 343 . Lancaster Bank v. Moore, 78 Penn. St. 407, 412. See also Dickinson v. Barber, 9 Mass. 225 ; Brown v. Howe, 9 Gray, 84 , 85.
But this case does not require the affirmance of so broad a proposition. This is not an action for a wrong done by the personal act or neglect of the lunatic, but for an injury suffered by reason of the defective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which the lunatic himself, and not his guardian, is the owner. Harding v. Larned, 4 Allen, 426 . Harding v. Weld, 128 Mass. 587, 591 . The owner of real estate is liable for such a defect, although not caused by his own neglect, but by that of persons acting in his behalf or under contract with him. Looney v. McLean, 129 Mass. 33 . Gorham v. Gross, 125 Mass. 232 . Bartlett v. Boston Gas Light Co. 117 Mass. 533 . And there is no precedent and no reason for holding that a lunatic, having the benefits, is exempt from the responsibilities of ownership of real estate. The ruling requested was therefore rightly refused.
Fxceptions overruled.