Kuchler v. Milwaukee E. R. & L. Co. 157 Wis. 107.

ficiary, and upon his death continued in the name of the mother. It appears that the beneficiaries, the father and mother, intrusted the infant, deceased, to the care of his grandfather, who was driving the horse at the time of the collision. The grandfather was therefore the agent of the beneficiaries and his negligence their negligence.

recover.

Assuming, without deciding, that the motorman was guilty of ordinary negligence, the beneficiaries through their agent were also guilty of contributory negligence, therefore cannot It is clear that the plaintiff here is chargeable with the negligence of the driver. Bellefontaine & I. R. Co. v. Snyder, 18 Ohio St. 399; Williams v. Gardiner, 58 Hun, 508, 12 N. Y. Supp. 612; Schlenks v. Central P. R. Co. 15 Ky. Law Rep. 409, 23 S. W. 589; North Pennsylvania R. Co. v. Mahoney, 57 Pa. St. 187; Gress v. P. & R. R. Co. 228 Pa. St. 482, 78 Atl. 810; Bamberger v. Citizens' St. R. Co. 95 Tenn. 18, 31 S. W. 163; Paige v. N. Y. C. & H. R. R. Co. 111 App. Div. 828, 98 N. Y. Supp. 183; Chicago & N. W. R. Co. v. Schumilowsky, 8 Ill. App. 613; Baltimore & O. R. Co. v. State, 30 Md. 47.

By the Court. The judgment is reversed, and the cause remanded with directions to dismiss the complaint.

SIEBECKER, J., took no part.

Covault v. Nevitt, 157 Wis. 113.

COVAULT, Respondent, vs. NEVITT, by guardian ad litem, Ap

pellant.

March 16-May 1, 1914.

Infants: Liability for torts of employees: Contracts: Validity: Neces

saries.

1. An infant owner of property is not liable respondeat superior for the negligent act of a person in his employment and in charge of the property, where the infant in no way personally participated in such act.

2. An infant cannot make a valid contract appointing an agent or employing a servant.

3. A contract under which a person was employed by an infant as janitor to care for the infant's store building was not a contract for necessaries under which a liability could be enforced not for the benefit of the infant.

APPEAL from an order of the circuit court for Winnebago county: GEO. W. BURNELL, Circuit Judge. Reversed. Action against an infant to recover for negligence of serv

ant. The complaint, among other things, alleges that the defendant, an infant, owned real estate on a public street in the city of Oshkosh upon which there was a store building abutting on the street; that the defendant maintained trap doors in the sidewalk opposite said premises; that defendant had in his employ one Powers, who was janitor of said store building and who used the trap doors as means of ingress and egress from the basement of the building; that on November 16, 1912, said servant, while performing his duties as janitor, negligently raised and opened said trap doors; "that said servant failed and neglected to give any warning or notice of the intended raising and opening of said trap doors as aforesaid to possible pedestrians who might be lawfully walking along said public sidewalk at said time;" that "wholly because of the negligent manner of raising and opening the trap doors aforesaid, by defendant's servant, as herein before set forth, plaintiff was tripped, causing her to fall against the sidewalk with great force and violence."

VOL. 157-8

Covault v. Nevitt, 157 Wis. 113.

The defendant demurred to the complaint for the reason that it appeared upon the face thereof that it did not state facts sufficient to constitute a cause of action. The court below overruled the demurrer with leave to the defendant to answer upon payment of $10 costs. The defendant appealed from the order overruling the demurrer.

The cause was argued on December 9, 1913:

For the appellant there was a brief by Thompson, Thompson & Jackson, and oral argument by Carl D. Jackson.

For the respondent the cause was submitted on the brief of Earl P. Finch and Frederic J. Eaton.

Further briefs were ordered by the court and were filed on March 16, 1914. The following opinion was filed May 1, 1914:

KERWIN, J. The question presented is whether an infant owner of property is liable respondeat superior for the negligent act of a person in the employment of the infant and in charge of such property where the infant in no way personally participated in such act. The contention of counsel for appellant is that he is not liable, for the reason that he cannot appoint an agent, and that while he may be held for torts committed by himself he is not liable for the torts of one acting for him in his absence and without his direction or con

sent.

On the part of the respondent it is insisted that the defendant is liable upon the ground that the party who committed the tort was in the 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 may 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 thereby create the relation of master and servant. The liability of a master for the torts of his servant rests on

Covault v. Nevitt, 157 Wis. 113.

contract existing between master and servant, and an infant having no power to contract cannot be held for the torts of the servant. 1 Cooley, Torts (3d ed.) 188; 22 Cyc. 514, 620; 16 Am. & Eng. Ency. of Law (2d ed.) 308; Reeves, Dom. Rel. (3d ed.) 519; 26 Cyc. 968; Burns v. Smith, 29 Ind. App. 181, 64 N. E. 94; Cunningham v. Ill. Cent. R. Co. 77 Ill. 178; Sikes v. Johnson, 16 Mass. 389; Schenk v. Strong, 4 N. J. Law, 87; Lowery v. Cate, 108 Tenn. 54, 64 S. W. 1068; Hampel v. D., G. R. & W. R. Co. 138 Mich. 1, 100 N. W. 1002; Smith v. Kron, 96 N. C. 392, 2 S. E. 533; Prescott v. Norris, 32 N. H. 101; Roberts, Wallace & Graham, Duty and Liability of Employers, pp. 60, 67; Wood, Mast. & Serv. (2d ed.) secs. 4-6; Burnham v. Seaverns, 101 Mass. 360; Armitage v. Widoe, 36 Mich. 124; Holden v. Curry, 85 Wis. 504, 55 N. W. 965.

Cooley states the rule concisely thus:

"As the doctrine respondeat superior rests upon the relation of master and servant, which depends upon contract, actual 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 contract 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 rests upon contract. Kumba v. Gilham, 103 Wis. 312, 79 N. W. 325. In order to make one liable for the tort of another the relation of master and servant must exist. King v. N. Y. C. & H. R. R. Co. 66 N. Y. 181; Burns v. Smith, 29 Ind. App. 181, 64 N. E. 94. The general rule is that, "Since an infant cannot create an agency or

Covault v. Nevitt, 157 Wis. 113.

appoint a servant, and therefore cannot delegate powers to another, he cannot guarantee or insure the fidelity, care, or skill of such other." 22 Cyc. 620, and cases cited.

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, Contracts, 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, 12 Met. 559, 562. Manifestly the contract in this case is not a contract for necessaries under which a liability could be enforced not for the benefit of the infant. It has been held that repairs or improvements of a minor's real estate under certain circumstances are not necessaries for which the minor can be held liable. 22 Cyc. 595; Tupper v. Cadwell, supra; Price v. Sanders, 60 Ind. 310. And it has been held that a materialman furnishing material to a minor for use in a building can have no lien therefor. Hall v. Kjer, 47 N. J. Law, 340; McCarty v. Carter, 49 Ill. 53; Wornock v. Loar, 11 Ky. Law Rep. 6, 11 S. W. 438; Bloomer v. Nolan, 36 Neb. 51, 53 N. W. 1039; 2 Jones, Liens (2d ed.) § 1239. By citing the foregoing cases we do not approve them in every particular, nor do we pass upon the question whether a lien would exist under any circumstances, but cite the cases as showing to what extent courts have gone upon the subject.

Even if the alleged contract of janitorship in question 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, 165 Mass. 303, 43 N. E. 109.

If the alleged contract were voidable it could be repudiated at any time before the defendant arrived at the age of twenty