
    WILLIAM E. MOORE, Appellant, v. NEWTON EASTMAN Respondent.
    
      Infants—contracts of—acts of—when sufficient to constitute a trespass.
    
    To render an infant, who has hired a horse, liable in an action of 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.
    Appeal from a judgment in favor of the plaintiffi-entered upon the verdict of ,a jury.
    This action was brought to recover against the defendant in trespass, for an injury to a horse of the plaintiff. The answer denies the complaint, and sets up a contract of bailment and. infancy. Evidence was given on the part of the plaintiff, to show that he let the horse to the defendant for two days; that the horse was taken sick on the journey, and that such sickness was occasioned by over-driving. That the defendant, against the advice of the doctor and hotel keeper, drove the horse, while so sick, at a fast gait; and that shortly after the horse reached the plaintiff’s stable, he died from the effects of such over-driving.
    
      Holt <&, Hill, for the appellant.
    
      T. P. Grosvmor, for the respondent.
   Gilbert, J.:

The complaint avers a wrongful taking of the horse, by the defendant, and that, in consequence of his malicious, wicked and cruel treatment, the horse died. The defense is infancy, and that,k at the time the alleged wrongful acts were committed, the horse was in the possession of the defendant, by virtue of a contract of j bailment for hire, and that said wrongful acts occurred, solely, \ through the unskillfulness and want of judgment of the defendant, i and not from any intentional, or malicious, or willful act or wrong on his part. The question is, what proof is requisite to a recovery j upon such an issue. Acts, however aggravated, which merely establish a breach of the contract on the part of an infant, manifestly are insufficient. The plaintiff cannot convert anything that arises out of a contract with an infant, into a tort, and then seek to' enforce the contract, through the medium of an action ex delicto. There must be a tort, independent of the contract. The authorities all agree on this- principle. In Jennings v. Rundall, it was held, that when a boy hired a-horse, and injured it by immoderate driving, this was only a breach of contract, for which he was not liable. So, in Green v. Greenbank, the Court of Common Pleas, in England, held, that an infant was not liable to an action for falsely and fraudulently deceiving the plaintiff, in an exchange of horses, because the deceit was practiced in the course of the contract. The principle of these cases was unanimously approved by the late court for the correction of errors, in Campbell v. Stakes, which was an action of trespass for misusing a mare, hired by the defendant, who was an infant. It was held in that case, that a bare neglect to protect the animal from injury, and to return it at the time agreed upon, would not subject an infant to an action of trespass, but that the infant must do some willful and positive act, which amounts to an election on his part to disaffirm the contract; that if the infant willfully and intentionally injured the animal, an action of trespass would lie against him for the tort; but that if the injury complained of, occurred in the act of driving the animal, through the unskillfulness and want of knowledge, discretion and judgment of the infant, he would not be liable. The rule thus established, has not been changed in this State, to my knowledge, but, on the contrary, has been repeatedly recognized and approved. What then is the willful and positive act, which amounts to an election to disaffirm the contract ? Certainly, such an act cannot be predicated of a use of the animal in the course of the bailment, however excessive, unless the excess was such as to indicate that it was resorted to for a purpose beyond that for which the horse was hired. Nothing of that kind appears in this case. Instances of the kind of wrong that will make an infant liable, are not wanting in the adjudged cases: Burnard v. Haggis, where an infant hired a mare, on the terms that it was to be ridden on the road, and not over fences in the fields, and the infant lent it to a friend, who took it off the high road, and, in endeavoring to jump the animal over a fence, transfixed it on a stake and killed it; Towne v. Wiley, Homer v. Thwing, Lucas v. Trumbull, and Fish v. Ferris ; where the infant drove the horse further than the stipulated journey, or on a different one; and cases where an infant obtains goods by fraud, and then refuses to deliver them up on the demand of the party who has been defrauded, or where he has been intrusted with them for a special purpose, and has perverted them to another purpose, may be taken as examples. They are all consistent with, and at least furnish a negative confirmation of, the principle before alluded to, that a mere violation of a contract, though attended with tortious results, will not make the infant liable, but that, to have that effect, the act must be wholly tortious.

In the case before ns, taking the evidence on the part of the-plaintiff alone, the defendant is fairly chargeable with only two or three acts of immoderate driving of the horse, while performing the service for which he was hired, and with driving him when not in a fit condition to continue that service. There was no other, basis for the inference that the injury to the horse was positive or willful.

The question whether the injury was of that character, or was the result of indiscretion, or want of skill and judgment on the part of the defendant, was fairly submitted to the jury, and we think their verdict was correct.

Several requests were made to the judge to modify his charge. One of them was, that if the jury should find the horse was over-driven, and in a cruel and unusual manner, they might infer the intent from such cruel driving. This was properly refused, because there was no evidence of such cruelty. The other requests, though variant in form, presented merely the converse of the propositions embraced in the judge’s charge, and, of course, were properly refused.

The judgment must be affirmed.

Judgment affirmed. 
      
       8 T. R., 335.
     
      
       2 March, 485.
     
      
       2 Wend., 137.
     
      
       The People v. Kendall, 25 Wend., 399 ; Munger v. Hess, 28 Barb., 75; Robbins v. Mount, 4 Robt., 553.
     
      
       14 C. B, N. S.,45.
      
     
      
       23 Vt., 355.
     
      
       3 Pick., 492.
     
      
       15 Gray, 307.
     
      
       5 Duer, 49.
     