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Carver v. Carver

Filed: February 16, 1982.

J. R. CARVER, ADMINISTRATOR OF THE ESTATE OF BENJAMIN SCOTT CARVER
v.
PHYLLIS CARVER



Appeal by plaintiff from Friday, Judge. Judgment entered 13 April 1981 in Superior Court, Gaston County. Heard in the Court of Appeals 11 December 1981.

Wells, Judge. Judges Arnold and Martin (h.c.) concur.

Wells

This appeal presents the question of the effect of the enactment of G.S. 1-539.21 on the right of the personal representative of a deceased minor child to maintain an action for the wrongful death of the child against a parent of the child.

G.S. 28A-18-2 (successor to G.S. 28-173 and 28-174) provides in pertinent part:

Death by wrongful act of another; recovery not assets.

(a) When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their personal representatives or collectors, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding one thousand five hundred dollars ($1,500) incident to the injury resulting in death; provided that all claims filed for such services shall be approved by the clerk of the superior court and any party adversely affected by any decision of said clerk as to said claim may appeal to the superior court in term time, but shall be disposed of as provided in the Intestate Succession Act.

G.S. 1-539.21 is as follows:

Abolition of parent-child immunity in motor vehicle cases. The relationship of parent and child shall not bar the right of action by a minor child against a parent for personal injury or property damage arising out of the operation of a motor vehicle owned or operated by such parent.

Prior to the enactment of G.S. 1-539.21, our Supreme Court considered the issue of parent-child immunity in negligence actions in Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972). In Skinner, the personal representatives of two deceased minor children brought an action against the administrator of the estate of their deceased father in which the plaintiff alleged that the negligent operation of a motor vehicle by the deceased father proximately caused the deaths of the children. Justice Huskins, writing for a unanimous court, stated the issue in that case as follows:

A right of action for wrongful death did not exist at common law. Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216 (1912). In North Carolina such right of action is conferred by statute and exists only by virtue of G.S. 28-173 and G.S. 28-174. Horney v. Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966); Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963). Under these statutes the personal representative of a deceased person has a right of action only when the death of his intestate is caused by the wrongful act, neglect or default of another, "such as would, if the injured party had lived, have entitled him to an action for damages therefor." G.S. 28-173; Lewis v. Insurance Co., 243 N.C. 55, 89 S.E.2d 788 (1955).

In North Carolina and the great majority of other states, the rule is that "an unemancipated minor child cannot maintain a tort action against his parent for personal injuries, even though the parent's liability is covered by liability insurance. This rule implements a public policy protecting family unity, domestic serenity, and parental discipline. . . . Upon the same theory, an overwhelming majority of jurisdictions likewise hold that neither a parent nor his personal representative can sue an unemancipated minor child for a personal tort. . . . 'The child's immunity is said to be reciprocal of the parent's immunity.'" Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965).

Therefore, under the foregoing legal principles, the unemancipated minor daughters of Clyde Wesley Skinner, had they lived, could not have maintained an action against their father to recover damages for injuries caused by his ordinary negligence. Watson v. Nichols, 270 N.C. 733, 155 S.E.2d 154 (1967); Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676 (1952); Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923); Annot., 19 A.L.R. 2d 423. Having died as a result of their injuries, their personal representative could not have maintained an action for their wrongful death against their father had he survived the accident. Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19 (1964); Lewis v. Insurance Co., supra, Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835 (1931). Their father having also died as a result of the accident, the personal representative of these children cannot maintain this

wrongful death action against their father's personal representative. Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676 (1965). This conclusion follows as a matter of law unless the reciprocal immunity rule between parent and unemancipated ...


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