Carver v. Carver

• Decision Date: 30 April 1984
• Docket Number: No. 658PA82,658PA82
• Citation: 310 N.C. 669,314 S.E.2d 739
• Parties: J.R. CARVER, Administrator of the Estate of Benjamin Scott Carver v. Phyllis CARVER.
• Court: North Carolina Supreme Court

Page 739

314 S.E.2d 739

310 N.C. 669

J.R. CARVER, Administrator of the Estate of Benjamin Scott Carver v. Phyllis CARVER.

No. 658PA82.

Supreme Court of North Carolina.

April 30, 1984.

Ronald Williams, Charlotte, for plaintiff-appellant.

Golding, Crews, Meekins, Gordon & Gray by James P. Crews, Charlotte, for defendant-appellee.

EXUM, Justice.

This is a wrongful death action by the estate of a two-month-old child against the child's mother. The allegations are that the child was killed in an automobile accident caused by the mother's negligence. The child is survived by his mother, the defendant; his father, who was not present at the time of the accident; and three siblings. Two questions arise: (1) Does the doctrine of parental immunity bar this action? (2) Should the active negligence of one parent, if any, be imputed to the other parent under the family purpose doctrine so as to bar all recovery by the child's estate under the principle that no one should profit by his wrong? We answer both questions negatively, vacate the summary judgment for defendant, and remand for further proceedings.

I.

Luther Carver, who is not a party to this action, and defendant, Phyllis Carver, are husband and wife and parents of the deceased, Benjamin Scott Carver. On 8 April 1980 Mrs. Carver was operating the family automobile in which the deceased child was a passenger. While they traveled along Ike Lynch Road in Gaston County the automobile overturned, and the child was killed. His parents and three older siblings survive him. Mr. Carver owned the automobile which was used for family purposes, and Mrs. Carver was using it for those purposes at the time of the accident.

Initially, defendant successfully moved in the trial court to dismiss this action on the basis of the doctrine of parental immunity. The Court of Appeals reversed, holding that because N.C.Gen.Stat. § 1-539.21, effective 1 October 1975, ¹ abolished the doctrine of parental immunity in actions for personal injury and property damage arising out of the operation of motor vehicles, wrongful death actions arising out of the operation of motor vehicles would not be barred by the doctrine. Carver v. Carver, 55 N.C.App. 716, 286 S.E.2d 799, disc. rev. denied, 305 N.C. 584, 292 S.E.2d 569 (1982). Defendant then answered, engaged in discovery, and moved for summary judgment.

The motion was grounded on two propositions: First, that defendant's negligence, if any, was imputed to the child's father under the family purpose doctrine and second, since only the parents would be entitled to share in any recovery, there could in fact be no recovery under the principle that no person should profit by his wrong. Judge Allen allowed this motion and dismissed the action. Plaintiff failed to give timely notice of appeal, and the Court of Appeals denied his petition for writ of certiorari. Plaintiff then applied to this Court for a writ of certiorari, and we granted our writ on 2 February 1983 to review the correctness of Judge Allen's ruling. Defendant cross-assigns as error the Court of Appeals' earlier decision that parental immunity did not bar this wrongful death action.

II.

At the outset we note our agreement with defendant's position that we are not bound to follow the decision of the Court of Appeals on the first appeal of this matter that the action was not barred by the doctrine of parental immunity. Our denial of defendant's petition for further review of the Court of Appeals' decision on this point does not make that decision the law of the case in this Court nor does it mean "that this Court has determined that the decision of the Court of Appeals is correct." Peaseley v. Virginia Iron, Coal & Coke Co., 282 N.C. 585, 592, 194 S.E.2d 133, 139 (1973). See also Spartan Leasing, Inc. v. Brown, 285 N.C. 689, 208 S.E.2d 649 (1974).

Although we could now decide the question differently, we conclude that the Court of Appeals' decision on the parental immunity issue was well reasoned and altogether correct. The Court of Appeals, in an opinion by Judge Wells, concurred in by Judges Arnold and (now Justice) H.C. Martin, reasoned as follows: N.C.Gen.Stat. § 28A-18-2 (successor to 28-173 and 28-174) authorizes wrongful death actions when death "is caused by the 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." Had the deceased child in this case lived, he would have had a cause of action against his mother for any injuries caused by his mother's negligent operation of the automobile by virtue of N.C.Gen.Stat. § 1-539.21 which provides:

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.

Since parental immunity would not have barred a personal injury action brought by the child had he lived, it likewise does not bar this wrongful death action brought by his estate.

The Court of Appeals correctly recognized that, in determining whether any wrongful death action is maintainable, this Court has consistently analyzed the question in terms of whether the deceased had he lived would have had a claim against defendant for injuries inflicted. If so, then the estate of the deceased may maintain an action for wrongful death; if not, then the action for wrongful death will not lie. Raftery v. Vick Construction Co., 291 N.C. 180, 230 S.E.2d 405 (1976) (wrongful death action maintainable because personal injury action would have been had deceased lived); Skinner v. Whitley, 281 N.C. 476, 189 S.E.2d 230 (1972). Indeed, in Skinner, decided before the enactment of N.C.Gen.Stat. § 1-539.21, this Court held that the estates of two deceased minor children could not maintain wrongful death actions against the estate of their deceased father when all were killed in an automobile operated by the father. The decision's rationale was that since the children's actions for personal injuries, had they lived, would have been barred by the parental immunity doctrine, their wrongful death actions were likewise barred. The Court said, "This conclusion follows as a matter of law unless the reciprocal immunity rule between parent and unemancipated minor child is repudiated or modified in this jurisdiction." 281 N.C. at 479, 189 S.E.2d at 232. The Court went on to suggest that if the parental immunity doctrine were to be changed, it ought to be by legislation rather than adjudication. The legislature apparently responded to this suggestion in 1975 by enacting N.C.Gen.Stat. § 1-539.21.

Since, therefore, as the Court of Appeals reasoned, N.C.Gen.Stat. § 1-539.21 has abolished the doctrine of parental immunity in personal injury and property damage cases arising out of a parent's operation of a motor vehicle, the doctrine is no longer a bar to wrongful death actions by the deceased child's estate which likewise arises out of a parent's operation of a motor vehicle.

Defendant misses the point when she argues that because N.C.Gen.Stat. § 1-539.21 does not expressly mention wrongful death actions and expressly refers only to "personal injury or property damage" actions, the legislature intended to abolish parent immunity only in personal injury or property damage claims. It is not N.C.Gen.Stat. § 1-539.21 standing alone which abrogates parental immunity in wrongful death actions arising out of operation of motor vehicles; it is this statute and N.C.Gen.Stat. § 28A-18-2 read in pari materia, which bring about this result. It is, of course, a fundamental canon of statutory construction that statutes which are in pari materia, i.e., which relate or are applicable to the same matter or subject, although enacted at different times must be construed together in order to ascertain legislative intent. Great Southern Media, Inc. v. McDowell County, 304 N.C. 427, 284 S.E.2d 457 (1981); In re Arthur, 291 N.C. 640, 231 S.E.2d 614 (1977); State Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967); Black's Law Dictionary 711 (rev. 5th ed. 1979); Ballentine's Law Dictionary 657 (1948).

III.

We turn now to the second issue before us: Whether defendant's negligence, if any, in causing the death of the child is imputed to the child's father, who is also defendant's husband and owner of the car, under the family purpose doctrine so as to bar recovery in this wrongful death action. The parties agree that the automobile being operated by defendant was a family purpose automobile owned by the father-husband and was being operated by defendant-mother as a family purpose car. Defendant's argument in support of allowing her motion for summary judgment is this: Proceeds recovered in a wrongful death action do not constitute part of the estate of the deceased generally except for certain limited purposes. "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 Five Hundred Dollars ($500.00) incident to the injury resulting in death; ... but shall be disposed of as provided in the Intestate Succession Act." N.C.Gen.Stat. § 28A-18-2. The Intestate Succession Act provides that if the intestate "is survived by both parents, they shall take in equal shares, or if either parent is dead, the surviving parent shall take the entire share." N.C.Gen.Stat. § 29-15(3). The child here is survived by both parents. Only the parents, therefore, will be entitled to share in any recovery made in this action. Since both parents are responsible for the child's death, the mother through her active negligence and the father through imputed negligence under the family purpose doctrine, there can be no recovery because of the principle that no...