Appeal from the Circuit Court of Winnebago county; the Hon.
WILLIAM R. DUSHER, Judge, presiding. Reversed and remanded.
JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.
Plaintiff filed a complaint against the defendant in the Circuit Court of Winnebago county, Illinois, which consisted of four counts. In Count I plaintiff alleged the following: Plaintiff, on January 13, 1956, owned and occupied a certain single family dwelling and two-car frame garage in the City of Rockford. In his garage plaintiff kept a number of listed items of personal property of the fair cash value of $1,202.90. On January 13, 1956, defendant, then of the age of five (5) years and eleven (11) months, "tortiously and wrongfully" set fire to plaintiff's garage causing the garage and contents to be burned and destroyed. As a result of the fire the plaintiff was compelled to expend $2,165 to rebuild and restore the garage and suffered the loss of all the contents of the garage valued at $1,202.90. Plaintiff prayed damages in the total amount of $3,367.90 for damage to building and loss of personal property in the garage, plus costs of suit.
Count II repeated all the allegations in Count I, but included an additional allegation which asserted that on the date in question defendant's father had in force a comprehensive general liability policy of Commercial Insurance Company of Newark, New Jersey (a copy of which was attached to the complaint), protecting the insured, including the defendant, from property damage claims up to $50,000 and further, that plaintiff agreed to look only to the insurance company for satisfaction of any judgment secured.
Count III alleged substantially the same facts as Count I, omitting, however, an allegation that the fire was "tortiously and wrongfully" set, but merely asserting that defendant set fire to plaintiff's garage, that by reason of plaintiff's necessary expenditures to restore and replace his property, the defendant became indebted to plaintiff in the sum of $3,367.90.
Count IV repeated and realleged the paragraphs contained in Count III, but added a paragraph setting forth the fact of insurance just as alleged in Count II, and plaintiff again agreed to look only to the insurance carrier for satisfaction of any judgment.
Defendant filed a motion to strike the four counts of plaintiff's second amended complaint on the ground that the counts were "wholly insufficient in law or fact to state a cause of action against defendant." After argument, the trial judge granted the defendant's motion. Plaintiff elected to stand by the complaint and thereupon a final judgment was entered against plaintiff and for defendant. From that judgment plaintiff perfected this appeal.
An examination of the plaintiff's amended complaint reveals that he advances what appear to be four theories of recovery. Count I sounds in tort ("tortiously and wrongfully"). Count II also alleges the same tortious conduct on the part of the defendant, but refers to the insurance coverage to which plaintiff agrees to look for a recovery. Neither Count I nor Count II, which use the words "tortiously and wrongfully," are based upon negligence on defendant's part as they do not accuse him of negligence, carelessness or failure to exercise any duty of care toward plaintiff. In short the tort alleged must be considered to have been an intentional or non-negligent one.
Count III alleges the same facts as Count I and Count II, but alleges a cause of action sounding in assumpsit (quasi contract) for the property destroyed. Count IV also sounds in assumpsit or quasi-contract for the property loss sustained by defendant's setting fire to the plaintiff's property; however, it contains an additional paragraph alleging the liability insurance policy purchased by defendant's father.
Plaintiff in his brief contends that an action for tortious damage to property may be maintained in Illinois against a child of almost six years of age; that at common law all persons of whatever age were subject to tort liability, and by Illinois statute the common law is considered as of full force until repealed by legislative authority. Plaintiff also urges that he has an action in quasi-contract against a minor of the age of six years. An additional argument which plaintiff advances is that the policy of insurance protects the defendant child's estate, thereby eliminating any reason for granting the child immunity for his torts or quasi-contractual debts.
Defendant maintains that the complaint was properly dismissed because there can be no cause of action for tortious damage to property by a child under the age of seven years. Defendant argues that in Illinois there is a conclusive presumption that a child under seven years of age is incapable of such conduct as will constitute contributory negligence; that based on such a conclusive presumption with reference to contributory negligence, the courts in Illinois have impliedly extended that conclusive presumption to negligence of a minor defendant and even to his non-negligent tortious conduct; that accordingly the defendant as a matter of law cannot be liable for the results of his setting fire to plaintiff's garage.
The principal issue, therefore, before us is whether a cause of action for such a non-negligent tort or pure tort, as it is sometimes called, may be maintained in Illinois against a minor of the age of six years. The parties agree that there are no decisions of any court of review in Illinois on this precise issue.
Two early decisions of the Supreme Court of Illinois contain dicta to the effect that infants are liable for their torts (Davidson v. Young, 38 Ill. 145; Wilson v. Garrard, 59 Ill. 51). Similar dictum is found in an opinion of this court (Hunter v. Egolf Motor Co., 268 Ill. App. 1, 4) and of other appellate courts (Reed v. Kabureck, 229 Ill. App. 36, 40). These precedents are of little assistance here since their facts are so markedly different from the facts in the instant case.
We point out again that no count of plaintiff's second amended complaint is based on negligence. Defendant cites the following cases as being determinative of the issue on appeal: Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; Maskaliunas v. Chicago & W.I.R. Co., 318 Ill. 142; Crutchfield v. Meyer, 414 Ill. 210; Illinois Cent. R. Co. v. Jernigan, 198 Ill. 297; Chicago West Division Ry. Co. v. Ryan, 131 Ill. 474; Village of Clayton v. Brooks, 150 Ill. 97; O'Connell v. Yellow Cab Co., 222 Ill. App. 118; United States Brewing Co. v. Stoltenberg, 113 Ill. App. 435; Moser v. East St. Louis & Interurban Water Co., 326 Ill. App. 542; DeVine v. Chicago Rys. Co., 189 Ill. App. 435. Upon examination we find that these are all cases involving the question of contributory negligence of a minor plaintiff and the conclusive presumption with regard thereto which Illinois follows in the case of minors below the age of seven years. There is nothing in the cases cited by defendant which would require or even justify extending this conclusive presumption to intentional or non-negligent conduct of a minor defendant. Contributory negligence involves the question of a standard of care, while no such question is a material consideration in the case of non-negligent torts. Accordingly, we are not persuaded by defendant's contributory negligence cases that the common law in Illinois bars a cause of action in pure tort against a minor below the age of seven years.
[1-3] The legislature has provided by statute that an infant under the age of ten years shall not be found guilty of any crime or misdemeanor (Ill. Rev. Stats. 1955, Ch. 28, § 591), but that statutory provision has never been construed to apply to tortious conduct. The Supreme Court of this state has definitely decided that a child under the age of seven years is incapable of such conduct as will constitute contributory negligence; that between the ages of seven and fourteen the question of contributory negligence of a child is an open question of fact and must be left to the jury to determine taking into consideration the age, capacity, intelligence and experience of the particular child and that when a child has attained the age of fourteen years he is held to the same degree of care for his ...