Brown v. Wood, s. 79-82.

• Decision Date: 01 April 1940
• Docket Number: Nos. 79-82.,s. 79-82.
• Citation: 293 Mich. 148,291 N.W. 255
• Parties: BROWN v. WOOD et al. and three other cases.
• Court: Michigan Supreme Court

293 Mich. 148

291 N.W. 255

BROWN

v.WOOD et al. and three other cases.

Nos. 79-82.

Supreme Court of Michigan.

April 1, 1940.

Consolidated actions by Erwin Brown, individually and as guardian of Susanne Brown, a minor, respectively, and by Murray Blodgett, individually and as guardian of Wallace Blodgett, a minor, respectively, against Archie Wood and another to recover damages resulting from an automobile collision. From judgments for plaintiffs against defendant Wood, he appeals.

Reversed. Appeal from Circuit Court, Bay County; James L. McCormick, judge.

Argued before the Entire Bench.

Albert W. Black and B. J. Tally, both of Bay City, for appellant Archie Wood.

Carl H. Smith, of Bay City, for appellees.

NORTH, Justice.

These four cases, consolidated and tried as one, were brought to recover damages resulting from an automobile collision. The plaintiffs Susanne Brown and Wallace Blodgett are minors who were riding in defendant's automobile at the time of the accident. These minors suffered personal injuries and suit in behalf of each was brought by a guardian. Erwin Brown is the father of Susanne Brown and Murray Blodgett is the father of Wallace Blodgett. Each of these parents brought suit for loss of services and earnings of the minor child and for money expended for necessary hospital, nurses' and physicians' care. The defendants Archie Wood and Harold Elliott were the drivers of the two automobiles involved in this collisionaccident. In the circuit court judgment in each case was entered in favor of defendant Elliott and no appeal has been taken. It is stipulated that negligence on the part of the defendant Archie Wood was the proximate cause of the accident. On trial without a jury the circuit judge in each case rendered a judgment against this defendant. He has appealed.

Like the two personally injured plaintiffs defendant Archie Wood was also a minor. He lived some 8 or 10 miles from Bay City where he was attending high school in October, 1937. Each school day he drove an automobile which he owned to Bay City and was accompanied to and from Bay City by the two minor plaintiffs and other high school students. In the declaration in each of these cases it is alleged that the injured minor was a passenger for hire at the time the collision occurred. All of the parties to the alleged passenger-for-hire contracts were minors. By an agreement between themselves each of these minor plaintiffs was paying defendant Wood 15 cents a day or 75 cents per week for riding with him to and from the Bay City Central High School.

The controlling question is whether under the circumstances of this case the defendant Archie Wood, being a minor and the accident having occurred while the minor plaintiffs were passengers in his automobile being carried for a consideration, can be held liable in this tort action.

It is elementary that an infant's contract, with certain exceptions not here involved, is voidable. And as a general rule an infant is liable for his torts provided he possessed the capacity, mental or physical or both, requisite to the commission of the tort with which he is charged. Cooley on Torts (4th Ed.) § 66. But it is also a general rule that if he tort with which an infant is charged is so connected with his contract that commission of the tort constitutes a breach of the contract, or if the tort is predicated on a transaction with the infant based upon contract, so that holding the infant liable in tort would in effect enforce a liability arising out of his contract, then since the infant cannot be held ex contractu he cannot be held liable for his tort. The injured party is not permitted to enforce against the infant indirectly by an action in tort a liability which he could not enforce directly against the infant by an action based upon contract. In the instant case a contract to which all parties were minors is disclosed. Were it not for the fact that the contract was voidable because of defendant's minority there would have been imposed upon him the obligation to carry the minor plaintiffs safely. This, by his negligence which resulted in the automobile collision, the defendant failed to do. Neither by their pleadings nor the testimony have plaintiffs attempted to establish a right of recovery under the Michigan Guest Passenger Act. Comp.Laws 1929, § 4648; Stat.Ann. 9.1446. Nor could there be recovery under the guest act because, so far as disclosed by the record, the defendant was guilty of ordinary negligence only. The sole ground upon which plaintiffs assert a right of recovery is the relation or ‘status' which existed between the minor plaintiffs and the minor defendant. In his findings the circuit judge said:

‘The plaintiffs do not allege and rely upon the failure to exercise the high degree of care necessary in case of carriers for hire, and the determination of negligence on the part of the defendant is not based upon a high degree of care but upon the failure to exercise the ordinary care imposed on adults and minors alike. * * *

‘In my opinion the liability of the defendant depends upon the relationship of the parties and not upon the enforceability of the contract of hire. * * *

‘Defendant did not assume to act as a host and the plaintiffs did not embark as passenger guests. Unless defendant can qualify as a host without benefit to him, he is liable regardless of his minority, even though it may be difficult to determine just what the relationship was.’

From our review of this record we are unable to conceive how the tort aspect of these actions can be separated from the contractual relation which these minor plaintiffs entered into with the minor defendant.

‘If a tort grows out of a contract relation, and the real injury consists in the nonperformance of the contract, the contract cannot be enforced indirectly by suing for the tort. * * *

‘The liability of infants for their torts and their immunity from liability for their contracts cancel each other in so far as the gravamen of the tort and the breach of the contract have a common basis of fact; the rule being that an infant cannot be held liable for a tort that would in effect be the enforcement of his liability on his contract.’ Berry, Laws of Automobiles, Vol. II, § 2.375, page 416.

‘ Torts Based on or Connected with Contracts.-The law is solicitous in holding the infant liable for his torts, not to impair the immunity given him against liability on his contracts. The tort must be a ‘tort simpliciter,’ and not one the essence of which is a breach of contract, and in a case of doubt the tendency has been to favor the infant, and to hold it more important to preserve his immunity from contract liability than to enforce his liability for torts. It has been said that the only satisfactory test is, can the infant be held liable without directly or indirectly enforcing his promise.' 14 R.C.L. 261, § 37. To the same effect see 31 C.J. 1091; Slayton v. Barry, 175 Mass. 513, 56 N.E. 574,49 L.R.A. 560, 78 Am.St.Rep. 510;Brunhoelzl v. Brandes, 90 N.J.L. 31, 100 A. 163;Jones v. Milner, 53 Ga.App. 304, 185 S.E. 586.

While this court has not heretofore had occasion to pass upon a case wherein the factual aspect duplicated that of the instant case, nonetheless in its former decisions reference has been made to the phase of the law just above noted and its soundness has, at least by implication, been approved. See Patterson v. Kasper, 182 Mich. 281, 147 N.W. 690, L.R.A.1915A, 1221, and Becker v. Mason, 93 Mich. 336, 53 N.W. 361, 362. In the last cited case recovery for seduction under a promise of marriage by an infant was sustained; but clearly decision was based upon the holding that the tort...