plaintiff charges the defendant with failure to maintain the truck in safe operating condition.
The defendant's answer, for its fourth defense, cites the written contract between the decedent and the defendant, in which the decedent agreed to hold the defendant harmless for any injury suffered by him arising from the use of the truck.
The plaintiff now moves to dismiss this defense as legally insufficient, arguing that this provision of the contract is not enforceable against her, since under Pennsylvania law the minor decedent did not have capacity to contract. The defendant takes the position that the plaintiff is suing on the contract and therefore may not, while suing on it, seek to avoid a portion of it.
The plaintiff's motion will be granted. Pennsylvania public policy calls for protection of minors by denying enforcement of their contracts, other than for necessities. In re O'Leary's Estate, 1945, 352 Pa. 254, 42 A.2d 624. This rule would be especially applicable where the minor has by means of an exculpatory clause apparently contracted away his right to recover damages.
We see no reason why the administratrix is not a proper party to take advantage of the decedent's minority and disavow his promise to hold the defendant harmless.
And Now, this 7th day of January, 1960, the fourth defense of the defendant's answer is Dismissed.