Eurtbеr briefs were ordered by tbe court and were filed on March 16, 1914. The following opinion was filed May 1, 1914:
Tbe question presented is whether an infant owner of property is liable respondeat superior for tbe negligent act of a person in tbe employment of tbe infant and in charge of such property where tbe infant in no way personally participated in such act. Tbe contention of counsel for appellant is that be is not liable, for tbe reason that bе cannot appoint an agent, and that while be may be held for torts committed by himself be is not liable for tbe torts of one acting for him in bis absence and without bis direction or consent.
On tbe part of tbe respondent it is insisted thаt tbe defendant is liable upon tbe ground that tbe party who committed tbe tort was in tbe discharge of a lawful duty for the defendant, in the course of which he committed- the tort, therefore the defendant is liable. It is true that an infant mаy be liable for his personal torts. But it seems to be well settled that an infant cannot be made liable for the torts of one acting for him, because he has no power to appoint an agent or servant and therеby create the relation of master and servant. The liability of a master for the torts of his servant rests on
Cooley states the rule concisely thus:
“As the doctrine respondeat superior rests upon the relation of master and servant, which depends upon contract, аctual or implied, it is obvious that it can have no application in the case of an infant employer, and he, therefore, is not responsible for torts of negligence by those in his service. Nor can he be made a trespasser by relation through the ratification of a wrongful act which another has assumed to do on his behalf, but without his knowledge.” Cooley, Torts (3d ed.) 188.
In order to create a liability here there must not only be a valid cоntract between defendant and the janitor, but the acts of the janitor must be in the line of his employment under the contract. The doctrine of respondeat superior rests upon the performance of duty in the Course of employment, and such duty rеsts upon contract. Kumba v. Gilham,
It is clear that in the instant case the alleged contract could only be sustained, if at all, upon the ground that it was a contract for necessaries; and it is equally clear that such a contract is not a contract for necessaries. 22 Cyc. 584, 585; Hollingsworth, Contrаcts, p. 31; 16 Am. & Eng. Ency. of Law (2d ed.) 276.
The general rule respecting necessaries is that they must be such as to supply the personal needs of the infant. Tupper v. Cadwell,
Even if the alleged contract of janitorship in questiоn were executed it would not be binding on the minor if he were not benefited by it, and if benefited only to the extent of the benefit. 22 Cyc. 583; Ryan v. Smith,
If the alleged contract were voidable it could be repudiated at any time before the defendant' arrived at the age of twenty-
The question here is whether a valid contract creating the relation of master and servant between the infant and his alleged servant can be made. We think it clear that it cannot. True, as held in McCabe v. O’Connor,
It is contended by respondent that an infant may appoint an agent to do an act which is clearly to his advantage, citing Story, Agency, § 6; Mechem, Agency, § 54; and Ewell’s
It has been held that an infant might appoint an agent to ■do an act unquestionably to his advantage — as to receive seisin of an estate conveyed to him. The reason of the rule is based uрon the advantage received and the necessities of the case. Suppose an infant should appoint an agent to purchase necessaries and the agent should purchase and convert them tо his own use; could the infant be held liable for the purchase price ? Or suppose the agent agreed to pay double what the articles purchased were worth; could the infant be ■compelled to pay the agreed price ? We think not.
It is argued that in any event the contract between Powers .and the defendant is voidable only and not void. On this proposition Patterson v. Lippincott, 47 N. J. Law, 457,
Patterson v. Lippincott, supra, is to the effect that a contract for the infant’s benefit is voidable, and may be ratified after becoming of age, and that thе defense of infancy is a personal privilege. Jones v. Valentines’ School, supra, holds
In 22 Cyc. at page 514 the general rule is stated that an infant cannot appoint an agent and that such act is absolutely void, but it is said that such act may be voidable, and the case of appointment of an agent to sell a note is citеd, where it is held that the infant may, on coming of age, ratify or disaffirm the act. At page 593 the general rule is stated that contracts of infants may be voidable, subject to being disaffirmed or affirmed at majority. The theory of voidable contracts of infants is that they may be sustained for the advantage of the minor, but that they cannot be enforced during infancy if not beneficial to the infant, and if beneficial they can be enforced only to the extent that they are beneficial. And so jealous is the law of the rights of infants, that where a tort is committed by an infant growing out of a contract the infant is not liable if the basis of the cause of action be contract. 22 Cyc. 621; Lowery v. Cate,
Counsel fоr respondent cites us to Labatt on Master and Servant, where the idea is advanced that an infant ought to
The cases cited by counsel for respondent where the personal tort of the infant was the basis of the cause of action rest upоn a different principle. Infants are, of course, liable for their personal torts, but here, upon the allegations of the complaint, the cause of action rests upon the doctrine of re-spondeat superiortherefore the complaint states no cause of action.
By the Court. — The order appealed from is reversed, and the cause remanded with instructions to sustain the demurrer, and for further proceedings according to law.