58 Neb. 22 | Neb. | 1899
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 nineteen years, residing with his father near the town; that
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. Ency. 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
In Fitts v. Hall, 9 N. H. 44, 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. [Mass.] 492; Rotch v. Hawes, 12 Pick. [Mass.] 136; Hall v. Corcoran, 107 Mass. 251; Fish v. Ferris, 3 E. D. Smith [N. Y.] 565.
Eaton v. Hill, 50 N. H. 235, was an action against an infant to recover damages for having so carelessly and immoderately driven plaintiff’s horse, which he had hired, as to cause the animal’s death. The plea was infancy. Bellows, C. J., in passing upon the question, employed the language following: “We think, then, that the doctrine is well established, that an infant bailee of a horse is liable for any positive and willful tort done to the animal distinct from a mere breach of contract, as by driving to a place other than the one for which he is hired, refusing to return him on d vr and after the time has expired, willfully beating him to death, and the like; so if he willfully and intentionally drive him at such an immoderate speed as to seriously endanger his life, knowing that it will do so. * * * In all these cases it may be urged that the law implies a promise, on the part of the
The seventh instruction is criticised, which reads as follows: “You are instructed, gentlemen, that, so far as this case is concerned, the infancy of the defendant does not affect the liability. The rule that one who hires property of this kind for one purpose and uses it for another or different purpose from that contemplated by the parties in the contract of hiring is liable for any harm that may happen it while he is so using it, applies to minors as well as to adults,” This instruction harmonizes with
It is insisted that error was committed in admitting the testimony of J. M. Lyons, George Nye, Robert Stewart, Thomas Stewart, George M. White, and Snyder White. The defendant on the trial testified that there was no agreement when the team was hired that it was to be driven from Olay Center to Baker’s to a dance. The testimony of the persons named above was, to the effect, that the defendant, when a witness for himself before H. G. Palmer, a justice of the peace of Olay county, in a criminal prosecution against said Churchill stated he hired the team and buggy to go to Baker’s four or five miles south of the place of hiring. It is urged that the testimony of said witnesses was impeaching in its character, and was improperly admitted, because no legal foundation therefor had been laid. In the case in hand the following question was propounded to the defendant on cross-examination by counsel for plaintiff: “I will ask you to state if you did not swear in the lower court, before H. O. Palmer, justice of the peace in the town of Sutton, Nebraska, on the 8th day of December, 1894, in
In the brief of defendant below' complaint is made of the receipt as evidence of plaintiff’s Exhibit 1 and testimony offered by the same party relative to the measure of damages “found on pages 6, 7,16, 26, 36, 38, 50, 56, and 59 of the bill of exceptions.” ■ The second assignment of the petition in error states: “The court erred in admitting all evidence on the part of the plaintiff over the objection of the defendant, to which exceptions were there and then duly taken.” There is no other assignment in the petition in error which in any manner attempts to present the rulings of the court on the admission of evidence, and the assignment quoted is entirely too general and indefinite to make available on review the decision of the
Affirmed.