Cox v. Shaw

• Decision Date: 15 January 1965
• Docket Number: No. 526,526
• Citation: 263 N.C. 361,139 S.E.2d 676
• Parties: Ray COX, Administrator of the Estate of Lillie Cox Burgess, deceased v. Frances Lackey SHAW, Paul R. Burgess, and Barbara Burgess, Administratrix of the Estate of Paul D. Burgess, deceased.
• Court: North Carolina Supreme Court

Page 676

139 S.E.2d 676

263 N.C. 361

Ray COX, Administrator of the Estate of Lillie Cox Burgess, deceased v. Frances Lackey SHAW, Paul R. Burgess, and Barbara Burgess, Administratrix of the Estate of Paul D. Burgess, deceased.

No. 526.

Supreme Court of North Carolina.

Jan. 15, 1965.

Coltrane & Gavin, Asheboro, for plaintiff.

Miller & Beck, Asheboro, for defendant.

SHARP, Justice.

This appeal presents two questions: (1) May the administrator of a mother sue the estate of her unemancipated minor son for damages for her wrongful death caused by the son's negligence? (2) If not, may the wife-mother's administrator maintain the action against the surviving husband-father, under the principle of respondeat superior, for son's negligence?

At common law an unemancipated minor child may not maintain an action against his parent to recover damages for negligence. Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676; Small v. Morrison, 185 N.C 577, 118 S.E. 12, 31 A.L.R. 1135. Likewise, the administrator of an umemancipated minor child killed by his parent's negligence has no cause of action against the parent for the wrongful death. Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19; Lewis v. Farm Bureau Mutual Automobile Insurance Co., 243 N.C. 55, 89 S.E.2d 788; Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835; Annot., Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423, 439. This immunity from suit is founded on the same public policy which prevents a parent or his personal representative from maintaining an action against an unemancipated minor child or his representative for negligence. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753; Annot., Right of parent or representatives to maintain tort action against minor child, 60 A.L.R.2d 1285; 3 LEE, NORTH CAROLINA FAMILY LAW § 248 (3d ed. 1963).

The answer to the first question, therefore, is No, and the judgment dismissing the action against the administratrix of the son of plaintiff's intestate is affirmed.

We now consider the second question. G.S. § 52-10.1 permits one spouse to maintain an action against the other for injuries caused by his or her tort. If a husband's negligence results in the death of his wife, her personal representative may maintain an action against him for her wrongful death. King v. Gates, 231 N.C. 537, 57 S.E.2d 765. As a passenger in his own automobile the husband-father had the right to control and direct its operation by the driver, his son. If the son was negligent, his negligence is to be imputed to the father. Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543; Tew v. Runnels, 249 N.C. 1, 105 S.E.2d 108. The law is the same under the family-purpose doctrine, since negligence would have been equally imputable to the father had he not been present. Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17; Watts v. Lefler, 190 N.C. 722, 130 S.E. 630. If the son was negligent on the occasion in question and if the son's immunity from the wife-mother's suit is extended to the husband-father, the husband-father would then be liable to all persons whomsoever injured by his son's negligence save only the wife-mother, plaintiff's intestate.

The husband-father contends that the family-purpose doctrine was originated for the protection of third parties, not the family of the owner of the automobile, and that the doctrine should not be extended to permit a wife to recover from her husband under the principle of respondent superior for the negligence of the couple's son where the son, the active tort-feasor, is immune to her suit. In short, the husband-father contends that he is entitled to avail himself of his son's immunity.

Plaintiff relies upon the case of Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540, followed in Foy v. Foy Electric Co., 231 N.C. 161, 56 S.E.2d 418. In Wringht, a sixyear-old boy was permitted to sue his father's employer, a taxicab operator, for injuries caused by the father's negligence while operating a taxi. The father, with his employer's implied consent, was 'baby sitting' while driving the cab. The father himself was not a party to the suit. In affirming the judgment for the plaintiff, this Court, speaking through Seawell, J said: 'The personal immunity from suit because of the domestic relation does not extend to the employer so as to cancel his liability or defeat recovery on the principle of respondeat superior when the injury was inflicted by the servant acting as such.' Id. at 507, 50 S.E.2d at 544. (Italics ours.) The opinion pointed out that the decision did not turn on the fact that the defendant owed a higher duty because he was a carrier of passengers for hire.

Defendant stress that the defendant in Wright was a business employer, a stranger to the family circle. So, also, was the defendant in Schubert v. August Schubert Wagon Co., 249 N.Y 253, 164 N.E. 42, 64 A.L.R. 293, a case which obviously commanded the decision in Wright. In Schubert the plaintiff, as the wife of the negligent employee, was precluded by the law of the jurisdiction from suing her husband. The New York court, speaking through Cardozo, C. J., said: 'The disability of wife or husband to maintain an action against the other for injuries to the person is not a disability to maintain a like action against the other's principal or master.' Id. at 255, 164 N.E. at 42, 64 A.L.R. at 294. Cardozo, C. J., argued as follows: A master, otherwise liable for his servant's tort, is not exonerated when the servant has had the benefit of a covenant not to sue, has been discharged in bankruptcy, 'OR HAS ESCAPED LIABILITY UPON GROUNDS NOt inconsistent with the commission of a wrong unreleased and unrequited.' Id. at 256, 164 N.E. at 42, 64 A.L.R. at 294. The husband's negligent act which has injured his wife is still unlawful even though the law exempts him from liability for damages. When a servant commits a tort for which the master is derivatively liable, the master is brought under a distinct liability of his own. He may not hide behind his servant's immunity--'[u]nlawful the act remains, however shorn of a remedy.' Id. at 257, 164 N.E. at 43, 64 A.L.R. at 295.

The only case in point which our research has discovered is Silverman v. Silverman, 145 Conn. 663, 145 A.2d 826. There, plaintiff-wife sustained injuries as a result of the negligent operation of defendant-husband's family-purpose automobile by the couple's unemancipated minor son. From a judgment in her favor the husband appealed. The Connecticut court considered and rejected the same contention which defendant husband-father makes in this case, i. e., that the mother had as much right and duty to direct her son's operation of the vehicle as did her husband and that the son's negligence, if imputable to the father, was imputable to the mother, also.

'It does not appear that the mother was other than a passenger in the car. The negligence of the operator of an automobile cannot ordinarily be imputed to one who is a passenger in it. * * * The record is barren of any evidence that the mother had anything to do with the operation of the car. The negligence of a child is not imputed to a parent who does not control, or have the right and duty to exercise control of, the child's conduct in the operation of a vehicle; * * * unless the parent owns the vehicle and has the child drive it for him; * * * or the child was the agent of the parent in the operation of the vehicle at the time.' Id. at 668, 145 A.2d at 828.

As the owner-provider of the automobile, the husband-father, nor the wife-mother, was the one having the right to control its operation; our case is the same as Silverman. The court said:

'The principal question involved is whether the wife and mother has a cause of action against the husband and father under the family car doctrine for the tort of the unemancipated child even though she is precluded from recovering from the child. No reported cases upon this point have been cited by counsel, nor have we found any. * * * We must decide whether it is likewise against public policy to allow recovery from the husband because of the delict of his son, who was his agent but is himself immune to suit.' Id. at 664, 145 A.2d at 827.

In reaching the conclusion that the husband-father should be held liable to the wife-mother, the Connecticut court was largely influenced by its previous decision in Chase v. New Haven Waste Material Corp., 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497, in which an unemancipated minor child, injured by the negligence of his father acting in the scope of his employment, was permitted to recover from the father's business employer. Like our case of Wright, Chase was decided on the authority of Schubert v. August Schubert Wagon Co., supra.

The principle of Wright and Schubert is set out in RESTATEMENT (SECOND), AGENCY § 217 (1958) as follows:

'In an action against a principal based on the conduct of a servant in the course of employment: * * * the principal has no defense...