§ 24. Liability of Infant for Tort Arising Out of or Connected with Contract-General Doctrine Stated.-There is difficulty in harmonizing the cases and the rules of law deduced therefrom, with respect to the question of the liability of infants for a tort which may be considered to have arisen out of a transaction of which contract was an essential, or an incident. This arises, perhaps, more from a confusion of ideas and want of careful analysis of the particular wrong, and from an improper application of principles. The doctrine may be safely stated that an infant cannot be held responsible for a tort committed under a contract or in the execution of one. Some courts have adopted the rule that whether a contract is an inducement to a supposed tort or not, the infant cannot be held responsible. Where the conduct of the infant is in fact a violation of a contract, and is such that if he were an adult the person injured may sue either in tort or upon contract, then no suit can be maintained against the infant. The earlier doctrine as expressed by the English courts was to the effect that a contract could not be converted into a tort that one might sue an infant, the principle on which it was based being that, as infancy is a shield of protection, it would be inequitable to destroy it and change the form of the suit to tort from contract, so as to hold the infant liable. And this rule is steadily maintained in some states.22

22 Jennings v. Rundall, 8 Term Rep. 355; Penrose v. Curren, 3 Rawle, 351, 24 Am. Dec. 356 (where the foundation of the action is contract, disguise it as you may, it is an attempt to convert a suit originally in contract into a constructive tort, so as to charge the infant). In Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561, where an infant hired a horse, and wrongfully drove and mistreated it, it was held case would not lie because it would be an affirmance of the contract, and the plea of infancy would be good, but that trespass would lie: Stack v. Cavanaugh, 67 N. H. 149, 30 Atl. 350; Nash v. Jewett, 61 Vt. 501, 15 Am. St. Rep. 931, 18 Atl. 47

These principles find expression principally in cases involving contracts of bailment and fraud. It is considered by the courts coming to the foregoing conclusion that going to a different place with a horse than contemplated in the act of hiring does not amount to an actual conversion by an infant, and is wholly unlike a conversion unconnected with the contract, or a destruction of the property, or a refusal to deliver, and that fraud becomes part of the contract; that when it is necessary to call the contract in aid to make out the tort, that then the infant cannot be held.23

On the other hand, many cases are found which support the view that an infant may be held liable for a tort where the wrongful act either precedes the contract or follows the same as an independent act, but does not become a part of, or connected with, the same, or where the wrongful act is of such nature as to constitute a disaffirmance of the contract, or, as one. court states the rule-perhaps in the extreme-when the tort is subsequent to a contract, and so far connected with it, that but for the contract the tort would not have been committed.

Tort and contract, as acts of men, are of such different nature that it would seem that a party, even when acting under a contract, completely departs therefrom when he commits a tort, and does in fact

(false representation as to age); Wilt v. Welch, 6 Watts, 9, repudiating the doctrine that a positive willful act disaffirms a contract of bailment, which finds abundance of support; Tuckner v. Moreland, 1 Am. Lead. Cas. 280, 332; Schenk v. Strong, 4 N. J. L. 99; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659 (deceit in sale of horse); Doran v. Smith, 49 Vt. 353; Prescott v. Norris, 32 N. H. 101 (false warranty); Morrill v. Aden, 19 Vt. 505; Grove v. Nevill, 1 Keb. 778 (fraud). See cases, note 42, post. See discussion and authorities on this topic in 33 Am. Dec. 180, note; 18 Am. St. Rep. 720, note; Slayton v. Barry, 175 Mass. 513, 78 Am. St. Rep. 510, 56 N. E. 574; see extract from this case, note 42, post.

23 Tuckner v. Moreland, 1 Am. Lead. Cas. 280, 322, note. See ante, note. See cases, note 24, post.

commit an entirely different, independent act from the contract. When, however, the tort precedes or follows the contract, though but for the contract the tort may not have been committed, then it is considered as not to arise out of, and have no connection with, the contract, and the infant may be held liable. It would seem that the better reason is in favor of this rule, and a careful analysis of the cases demonstrates this to be so, and it is supported by the greater weight of authority.24

We have stated the two positions taken by the different courts on the question of the liability of an infant for torts which have some connection with, or relation to, a contract, or where the acts are wholly at variance with the idea of a contract, and amount to a repudiation thereof, or either precede or follow a contract, and have classified the cases generally under these two heads, but without respect to the kind of a contract involved therein.

24 Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189 (positive willful acts in bailments); Fitts v. Hall, 9 N. H. 441; Churchill v. White (1899), 58 Neb. 22, 76 Am. St. Rep. 64, 78 N. W. 369 (where an infant hired a horse for a specified journey, and drove to another place, held liable); Campbell v. Perkins, 8 N. Y. 430; Ashlock v. Vivell, 29 Ill. App. 388; Mathews v. Cowan, 59 Ill. 341; Moore v. Eastman, 1 Hun, 578; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Burnard v. Haggis, 108 Eng. Com. L. 45; Fish v. Ferris, 5 Duer, 49; Nolan v. Jones, 53 Iowa, 387, 5 N. W. 572; Wooley v. Holt (Exch. Div. 1876), 35 L. T., N. S., 631, following Burnard v. Haggis, supra; Ferguson v. Bobo, 54 Miss. 121; Homer v. Thwing, 3 Pick. 492; Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340; Elwell v. Martin, 32 Vt. 217; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519; Baxter v. Bush, 29 Vt. 465, 70 Am. Dec. 429; Vance v. Word, 1 Nott & McC. 197, 9 Am. Dec. 683; Barham v. Turbeville, 1 Swan (Tenn.), 437, 67 Am. Dec. 782 (fraud); Christian v. Welch, 7 La. Ann. 533 (fraud); Oliver v. McClelland, 21 Ala. 675. "An infant may be charged for a tort arising subsequent to, and so far connected with, his contract that but for the latter the tort would not have been committed": Fitts v. Hall, 9 N. HI. 441; Humphrey v. Douglass, 33 Am. Dec. 180, note, and cases.

The opinion is expressed that the greater weight of authority, and the better reason is in favor of the rule that a tort committed before or after the contract, or where a willful tort is such an act as amounts to a disaffirmance of the contract, or where in the commission of such a tort the infant acts beyond the scope or import of the contract, that the infant is in such cases liable.

It must be conceded, however, that where the complaint is that the infant merely unskillfully, negligently, and carelessly carries out or performs its contract, there is merit in the doctrine that want of knowledge, judgment and discretion by reason of infancy, is a defense, especially where he keeps within the terms of the contract. This rule, as adjudged in a few cases, seems not to be questioned.25

The general rules of law as deduced from the authorities have been stated in a general way, without particular classification of the kinds of torts for which infants may or may not be held responsible. A further classification may be helpful. None of the cases touching the responsibility of infants for fraud have been cited in connection with the statement of the general doctrine, this being done elsewhere.26 It is maintained that the same general doctrines above stated are applicable to such cases. It would seem that there is no conflict whatever among the authorities so far as the general doctrine is concerned, the only con

25 Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; Moore v. Eastman, 1 Hun, 578. "A failure by an infant to observe due care of a horse hired by him, and lack of moderation in driving, will not render him liable as for a tort. . . . where there was no willful and intentional injury inflicted by him": Young v. Muhling, 63 N. Y. Supp. 181, 48 App. Div. 617; Lowery v. Cate (Tenn., 1901), 64 S. W. 1069 (where an infant owner contracted to thresh wheat, and by reason of having no spark-arrester property was destroyed by fire).

26 Sec. 27, post.

flict of any consequence arising in its application to particular cases of tort. Judge Elliott of the Indiana supreme court well states what is a reasonable doctrine as follows:

...

"Aside from mere personal torts, it is scarcely possible to conceive a tort not in some way connected with contract, and yet all the authorities agree that the liability is not confined to mere torts. There is a connection between a contract and a tort in every case of bailment, of the bargain and sale of personal property, and of the purchase and sale of real estate, and if an infant is not responsible for his false representation of his age, in connection with such transactions, there is not within the whole range of business transactions any case in which he could not be made liable for his fraud. There are many cases where there is some connection between the contract and the tort, and yet it is unhesitatingly held that the infant is liable for his tort. The cases certainly do agree; it is, indeed, difficult, if not impossible, to perceive how it could be otherwise, that although there may be some connection between the contract and the wrong, the infant may be liable for his tort. The only logical and defensible conclusion is, that he is liable, to the extent of the loss actually sustained, for his tort, where a recovery can be had without giving effect to his contract. The test is . . . . can the infant be held liable without directly or indirectly enforcing his promise?" 27

It certainly is sound and logical to hold that whenever an infant commits a tort, whether by willful or intentional act, by negligence or fraud, that he departs from the contract.

The infant may waive the plea of infancy, and he 27 Rice v. Boyer, 108 Ind. 472, 58 Am. Rep. 53.