Moore v. Eastman

Gilbert, J. The complaint avers a wrongful taking of the horse by the defendant, and that,- in consequence of his malicious, wicked and cruel treatment, the horse died. The defense is infancy, and that, at the time the alleged wrongful acts were committed, the horse was in possession of the defendant by virtue of a contract of bailment for hire; and that said wrongful acts occurred solely through the unskillfulness, indiscretion and want of judgment of the defendant, and not from any intentional or malicious or willful act or wrong on his part. The question is, what proof is requisite to a recovery upon such an issue. Acts, however aggravated, which merely establish a breach of the contract on the part of an infant manifestly are insufficient. The plaintiff cannot convert any thing that arises out of a contract with an infant into a tort, and then seek to enforce the contract through the medium of an action ex delicto. There must be a tort independent of the contract. The authorities all agree upon this principle. In Jennings v. Rundall, 8 T. R. 335, it was held that when a boy hired a horse, and injured it by immoderate driving, this was only a breach of contract for which he was not liable. So in [40] Green v. Greenbank, 2 Marsh. 485, the court of common pleas, in England, held that an infant was not liable to an action for falsely and fraudulently deceiving the plaintiff in an exchange of horses, because the deceit was practiced in the course of the contract. The principle of these cases was unanimously approved by the late court for the correction of errors in Campbell v. Stokes, 2 Wend. 143, which was an action of trespass for misusing a mare hired by the defendant, who was an infant. It was held, in that case, that a bare neglect to protect the animal from injury and to return it at the time agreed upon, would not subject an infant to an action of trespass ; but that the infant must do some willful and positive act which amounts to an election, on his part, to disaffirm the contract; that if the infant willfully and intentionally injured the animal an action of trespass would lie against him for the tort; but that if the injury complained of occurred in the act of driving the animal, through the unskillfulness and want of knowledge, discretion and judgment of the infant, he would not be liable. The rule thus established has not been changed in this State to my knowledge, but, on the contrary, has been repeatedly recognized and approved. People v. Kendall, 25 Wend. 399; Sanders v. Leavey, 38 Barb. 75; Robbins v. Mount, 4 Robt. 461. What then is the willful and positive act which amounts to an election to disaffirm the contract F Certainly such an election cannot be predicated of a use of the animal in the course of the bailment, however excessive, unless the excess was such as to indicate that it was resorted to for a purpose beyond that for which the horse was hired. Nothing of that kind appears in the case. Instances of the kind of wrong that will make an infant liable are not wanting in the adjudged cases. See Burnard v. Haggis, 14 C. B. (N. S.) 45, where an infant hired a mare on the terms that it was to be ridden on the road and not over fences in the fields, and the infant lent it to a friend, who took it off the high road, and in endeavoring to jump the animal over a hedge transfixed it on a stake and killed it. Towne v. Wiley, 23 Vt. 355; Homer v. Thwing, 3 Pick. 492; Lucas v. Trumbull, 15 Gray, 307; Fish v. Ferris, 5 Duer, 49, where the infant drove the horse farther than the stipulated journey, or on a different one; and cases where an infant obtains goods by fraud and then refuses to deliver them up on the demand of the party who has been defrauded; or where he has been intrusted with them for a special purpose, and has perverted them to another purpose, may be taken as examples. They are all con [41] sistent with, and, at least, furnish a negative confirmation of the principle before alluded to, that a mere violation of a contract, though attended with tortious results, will not make the infant liable ; but that to have that effect the act must he wholly tortious. In the case before us, taking the evidence on the part of the plaintiff alone, the defendant is fairly chargeable with only two or three acts of immoderate driving of the horse while performing the service for which he was hired, and with driving him when he was not in a fit condition to continue that service. There was no other basis for the inference that the injury to the horse was positive or willful. The question whether the injury was of that character, or was the result of indiscretion or want of skill and judgment on the part of defendant, was fairly submitted to the jury, and we think their verdict was correct. Several requests ■ were made to the judge to modify his charge. One of them was that if the jury should find the horse was over-driven, and in a cruel and unusual manner, they might infer the intent from such cruel driving. This was properly refused, because there was no evidence of such cruelty. The other requests, though variant in form, presented merely the converse of the propositions embraced in the judge’s charge, and, of course, were properly refused. The judgment must be affirmed. Judgment affirmed.