Churchill v. White

• Decision Date: 23 February 1899
• Citation: 78 N.W. 369,58 Neb. 22
• Parties: CHURCHILL v. WHITE.
• Court: Nebraska Supreme Court

58 Neb. 22

78 N.W. 369

CHURCHILL

v.WHITE.

Supreme Court of Nebraska.

Feb. 23, 1899.

Syllabus by the Court.

1. An infant who hires a team and buggy for a specified journey, and drives to another place, and in a different direction, takes upon himself all the consequences following therefrom. If the team is injured or the buggy is broken while being so driven, he is liable in damages for the tort, and his infancy is no protection to him.

2. Admissions or statements made by a party to a suit against interests, upon a material matter, may be proved without laying the foundation required in impeaching a disinterested witness.

3. To obtain a review of the rulings of the trial court on the admission of evidence, the particular rulings assailed must be specifically assigned in the petition in error.

Error to district court, Clay county; Hastings, Judge.

Action by George M. White against Howard Churchill. There was a judgment for plaintiff, and defendant brings error. Affirmed.Thomas H. Matters, for plaintiff in error.

Wm. M. Clark, for defendant in error.

NORVAL, J.

This was an action by George M. White against Howard Churchill to recover damages to plaintiff's buggy, alleged to have been caused by the wrongful act of the defendant. From a judgment for $60, entered on a verdict for plaintiff, the defendant has prosecuted this error proceeding.

The first assignment of error challenges the sufficiency of the petition filed in the court below, and upon which the cause was tried. Plaintiff, for a cause of action, alleges, in substance and effect, that plaintiff is engaged in the livery business at Clay Center, furnishing horses, harness, buggies, etc., for hire to those who may desire the same; that the defendant is a minor of the age of 19 years, residing with his father near the town; that on October 23, 1894, defendant hired from plaintiff a livery rig, consisting of a span of horses, a set of harness, and a two-seated covered buggy, to go four or five miles immediately south of Clay Center, to a dance at the residence of one A. R. Baker, and agreed to, and did, pay plaintiff, as use for said team, harness, and buggy, the sum of $1.50; that defendant, after obtaining possession of said rig, drove the same to the town of Harvard, situate 2 1/2 miles west and 6 1/2 miles north of Clay Center; thence, after obtaining or receiving other passengers, he drove to said Baker's residence, where he remained a few minutes, and drove the rig, with five passengers, directly west 2 3/4 miles, thence north 11 1/2 miles, to Harvard, and thence to Clay Center; that the defendant, while said rig was in his possession, and being driven out of the line of the route from Clay Center to the place of the dance, and on the return trip from Baker's to the town of Harvard, permitted the buggy to upset, and the team to run several rods, thereby breaking the buggy in numerous places, described with great particularity in the petition, cutting and bruising the heel of one of the horses; that the team was overdriven; and that defendant drove the rig in a direction, and used the same for a purpose, different than that for which it was hired; by reason thereof plaintiff has been damaged in the sum of $100.

The contention of defendant below (plaintiff herein) is that the action is founded upon a contract with an infant, and therefore no recovery against him can be had. While, ordinarily, infants are not liable on their contracts, except for necessaries, they are answerable for their torts. In 10 Am. & Eng. Enc. Law, 668, 669, the rule is stated thus: “An infant is liable for all injuries to property or person wrongfully committed by him. His privilege of infancy is given to him as a shield, and not as a sword, and it cannot be used for protection against the consequences of wrongful acts; for, where civil injuries are committed by force, the intent of the perpetrator is not regarded. * * * Although an infant is liable for his torts, he is not liable for the tortious consequences of his breach of contract. Whether the form of the action be contract or tort, the infant cannot be held for a mere violation of contract, but the contract cannot avail if the infant goes beyond the scope of it. The tort must be a distinct and substantive wrong in itself, even though it grow out of a contract, to make the infant liable. The contract must be generally put in proof to support the action, but that is because the tort, inasmuch as it is committed by departing from the terms of the contract, cannot be shown without showing the contract, and not because the contract is otherwise involved.” The text is abundantly sustained by judicial decisions. Although no recovery can be had against an infant for a breach of contract, the principle is well recognized, and has been often applied, that he is liable for a tort committed by him, notwithstanding it may have arisen out of, or in some way may have been connected with, a contract. In Fitts v. Hall, 9 N. H. 441, Parker, C. J., observed: “The principle to be deduced from these authorities seems to be that, if the tort or fraud of an infant arises from a breach of contract, although there may have been false representations or concealment respecting the subject-matter of it, the infant cannot be charged for this breach of his promise or contract by a change of the form of action. But if the tort is subsequent to the contract, and not a mere breach of it, but a distinct, willful, and positive wrong of itself, then, although it may be connected with a contract, the infant is liable.” In Freeman v. Boland, 14 R. I. 39, it was held that where an infant hires a horse and buggy of a keeper of a livery stable to go to a designated place, and drives beyond the place or in another direction, and injures the horse, the infant is liable therefor. To the same effect are Homer v. Thwing, 3 Pick. 492;Rotch v. Hawes, 12 Pick. 136;Hall v. Corcoran, 107 Mass. 251; Fish v. Ferris, 3 E. D. Smith, 567. In Towne v. Wiley, 23 Vt. 355, an infant who hired a horse to drive to an agreed place, 23 miles distant, returned by a circuitous route, which nearly doubled the distance, and stopped at a house on the way, leaving the horse standing out of doors during the night, without food, and it died from overdriving and exposure. It was decided that the infant was liable in damages, by reason of his having departed from the object of his bailment. Redfield, J.,...