XIV. Action by personal representative to recover 141 fendant .... 143 ... XV. Effect of death of party plaintiff or de XVI. Assignment of cause of action for tort.... 150 XIX. Joint tort feasors ARTICLE I. INFANTS. ... SUBDIVISION 1. Nature and extent of liability ... 2. Liability of parents for torts of infants.... against infants 4. Right of parent to recover for injury to child. SUBDIVISION 1. Nature and Extent of Liability. 152 153 156 46 52 52 53 The law with respect to the liability of infants has proceeded upon the theory of compensation to the injured party than rather Art. 1. Infants. of consistently maintaining any logical doctrine as to the mental attitude of the wrongdoer or of basing the responsibility on the wrongful intention or inadvertence. The cases proceed upon the propriety of holding all persons liable for actual damages committed by them and of ignoring volition as a necessary element of a juridical cause. Tiffany on Persons and Domestic Relations, 407; Jaggard on Torts, 159. * * A minor is liable, like a person of age, for his neglects, for his trespasses, for his assaults, commonly for his frauds, for his unlawful conversions of goods, for tortiously taking money, for the wrong of bastardy, and generally for whatever may be the subject of an action ex delicto. * If the particular wrong is both a tort and a breach of contract not a violation also of a duty which the law has superinduced upon and above the contract — then, if infancy would be a defense to an action on the contract, it will be equally such should the injured party elect to sue in tort. Bishop, $$ 565, 566. ** * The general rule is that an infant is responsible for his torts as all other persons would be. The intent with which the wrongful act was done is unimportant except as it may in some event bear upon the question of damages. But in those cases in which malice is a necessary ingredient of the wrong an infant may or may not be liable according as his age and capacity may justly impute malice to him or preclude the idea of his indulging in it. Cooley (2d ed.), 120. "Where the minor has committed a tort with force, he is liable. at any age; for in case of civil injuries with force, the intention is not regarded; for in such a case a lunatic is as liable to compensate in damages as a man in his right mind." Reeve's Dom. Rel. 258. "The privilege of infancy is purely protective, and infants are liable to actions for wrong done by them; as to an action for slander, an action of trover for property embezzled, or an action grounded on fraud committed." Macpherson on Infants, 481 (41 Law Lib. 350). "Infants are liable for torts and injuries of a private nature; as disseisins, trespass, slander, assault," etc. Bingham on Infancy, 110. "All the cases agree that trespass lies against an infant." Erwin on Torts, p. 65. Art. 1. Infants. Kent (2 Comm. 241) cited Munger v. Hess, 28 Barb. 75 (78): "Infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts or frauds. But the fraudulent act, to charge him, must be wholly tortious, and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge the infant in trover, or case, by a change in the form of the action. He is liable in trover, for tortiously converting goods entrusted to him, and in detinue, for goods delivered upon a special contract for a specific purpose, and in assumpsit for money which he has fraudulently embezzled." Where the substantial ground of action rests upon promise, the plaintiff cannot, by changing the form of action, render a person liable who would not have been liable on his promise. Cooley (2d ed.), 124, citing Greene v. Greenbank, 2 Marsh. 485. Infants are generally liable in law for their torts not in any wise connected with contract. They can neither escape liability because commanded by another to do a wrong, nor create liability on their own part by authorizing and adopting the commission of the tort of another person. Hale, 96. An infant is not allowed to take advantage of his own fraud and will be liable in equity to make restitution, where that is possible, for any advantage he has thereby gained. Fraser (5th ed.), 7. * * Every person who commits a tort not depending upon fraud or malice, and not arising out of the performance of a contract, is liable to be sued notwithstanding infancy, coverture, or unsoundness of mind. Every person who commits a tort depending upon fraud or malice is liable to be sued unless from extreme youth or unsoundness of mind he is mentally incapable of contriving fraud or malice. Underhill (7th ed.), 150. Tenderness of age, in proportion as it affects capacity to act intelligently, may be material to their liability, where intention to do wrong or want of care is an essential ingredient to the injury. Hale, 76. The responsibilities of infants vary with their years. Bishop, $560. The plea of infancy is not available in an action against an infant for seduction. * Seduction is not in any way con * nected with the contract, but comes within the class of cases ex Art. 1. Infants. delicto, and may be maintained though the act was committed and the injury resulted during the minority of the wrongdoer. Rogers on Dom. Rel., § 726. The question whether an infant is liable on his tort for falsely representing himself to be of full age, whereby he induced another to contract with him, is one upon which great difference of judicial opinions have been expressed. In England it is thoroughly established that he is not liable. The English cases have often been approved in this country, and the tendency of authority here is with them. But other cases hold to the contrary. Cooley on Torts (2d ed.), 126, and cases cited. The fact that a tort is committed by an infant under authority or command of his parent may render the parent also liable, but it will not excuse the infant. Tiffany on Persons and Domestic Relations, 407; Jaggard on Torts, 160. It seems that where infants are actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults. Bullock v. Babcock, 3 Wend. 391; Tiffany on Persons and Domestic Relations, 408; Jaggard on Torts, 160. An infant is responsible for a tort committed by him. Campbell v. Stakes, 2 Wend. 139, citing Jennings v. Rundall, 8 T. R. 335; Green v. Greenbank, 4 Eng. Com. Law Rep. 375, and cited with approval in Campbell v. Perkins, 8 N. Y. 430 (431); M'Coon v. Smith, 3 Hill, 147; McCabe v. O'Connor, 4 App. Div. 354, 38 N. Y. Supp. 572; latter case affirmed on opinion below, 162 N. Y. 600. Infants are liable in the same manner as adults for trespass and assault. Bullock v. Babcock, 2 Wend. 391, cited and followed in Williams v. Hays, 143 N. Y. 442, the latter case collating numerous authorities upon the subject and substantially adopting the rule laid down in Reeve's Domestic Relations, that where a minor has committed a tort with force he is liable at any age. Same rule is held in Tifft v. Tifft, 4 Den. 175, having also been approved in the leading case of Hartfield v. Roper, 21 Wend. 615. It is reiterated in Conkling v. Thompson, 29 Barb. 218, where it is held that in an action ex delicto for injury to plaintiff's property, occasioned by the wrongful act of the infant, the infancy of the infant is no protection. He is as fully liable for damages sus Art. 1. Infants. tained as if he were of full age. See also Robbins v. Mount, 33 How. 24; Eckstein v. Frank, 1 Daly, 334. It is said in Campbell v. Perkins, 8 N. Y. 430 (440), citing The People v. Kendall, 25 Wend. 399, that "It is a well-settled rule that a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant by a change in the remedy." It is further said that the case of Wallace v. Morss, 5 Hill, 391, seems to militate against this doctrine, but that upon examination of that case it will be found that the authorities cited established nothing more than that the title to goods obtained by false representation does not pass, and the plaintiff was allowed to recover presumably in trover. Green v. Greenbank, 2 Marsh. 485; 4 Eng. Com. Law. Rep. 375, and Campbell v. Stakes, 2 Wend. 139, are cited with approval to the effect that the plaintiff cannot by changing the form of action make a person liable who would not have been liable on a promise. In Moore v. Eastman, 1 Hun, 578, it is held that to render an infant, who has hired a horse, liable in an action for trespass, he must do some willful and positive act which amounts to an election on his part to disaffirm the contract; a bare neglect to protect the animal from injury, and to return it at the time agreed upon is not sufficient. If he willfully and intentionally injure the animal, an action of trespass will lie against him for the tort, but not if the injury complained of occurred in the act of driving the animal through his unskillfulness and want of knowledge, discretion, and judgment. Cited and same rule held in Young v. Muhling, 48 App. Div. 617, 63 N. Y. Supp. 181. So fraudulent misrepresentations made by an infant to induce another to enter into a contract with him will not give it validity. Studwell v. Shapter, 54 N. Y. 249. The liability of an infant for a fraudulent representation is considered in Hewitt v. Warren, 10 Hun, 560, citing, collating, and commenting upon numerous authorities holding that where the substantive ground of the action is contract, as well as where the contract is stated as an inducement to an alleged tort, infancy is a defense. In that case the aggrieved party retained the benefit of the contract and did not disaffirm it. Authorities are also collated and considered in dissenting opinion in Little v. Gallus, 4 App. Div. 569 (582), 38 N. Y. Supp. |