Watson v. Nichols

• Decision Date: 20 June 1967
• Docket Number: No. 770,770
• Citation: 270 N.C. 733,155 S.E.2d 154
• Parties: Jimmy Grey WATSON, by his Next Friend, Earl W. Vaughn, v. James Bradford NICHOLS, Marion A. Nichols and Charlene B. Nichols,Individually and as guardian ad litem for James Bradford Nichols, OriginalDefendants, and Emory M. Watson, Mary C. Watson and Mitchell Watson, Additional Defendants.
• Court: North Carolina Supreme Court

Page 154

155 S.E.2d 154

270 N.C. 733

Jimmy Grey WATSON, by his Next Friend, Earl W. Vaughn, v. James Bradford NICHOLS, Marion A. Nichols and Charlene B Nichols,Individually and as guardian ad litem for James Bradford Nichols, OriginalDefendants and Emory M. Watson, Mary C. Watson and Mitchell Watson Additional Defendants.

No. 770.

Supreme Court of North Carolina.

June 20, 1967.

Armistead W. Sapp, Jr., Greensboro, for original defendant appellants.

Jordan, Wright, Henson & Nichols, by G. Marlin Evans and Perry C. Henson, Greensboro, for additional defendant appellees.

HIGGINS, Justice:

This appeal is from the Superior Court judgment sustaining the demurrer to the cross action. In the cross action, the original defendants alleged, conditionally, that if they are held liable to the plaintiff, then Emory M. and Mary C. Watson, parents of the infant plaintiff, individually and through their agent, Mitchell Watson, were negligent and primarily liable to the plaintiff by permitting him to approach the moving mower from behind without notice or warning to James Bradford Nichols, the operator; that the negligence of the additional defendants was primary and any negligence on the part of the original defendants was secondary.

The cross action alleged that the additional defendants, Emory M. and Mary C. Watson, are the parents of the plaintiff, age 4 years, and of Mitchell Watson, age 10 years, all of whom are members of the household. These allegations render the cross action demurrable as to the parents, Emory M. and Mary C. Watson.

An unemancipated infant, who is a member of the household, cannot maintain an action based on ordinary negligence against his parents. Lewis v. Farm Bureau Mutual Auto. Ins. Co., 243 N.C. 55, 89 S.E.2d 788; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676; Small v. Morris, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135; 19 A.L.R.2d 423. Since the parent is not liable in a direct action against him, he cannot be made liable by cross action. The demurrer was properly sustained as to the parents.

This Court has never passed on the question whether one unemancipated infant may maintain an action for negligence against another unemancipated infant who is a member of the same household. Courts which have passed on the question have generally held the action may be maintained. These actions usually involve injuries growing out of automobile accidents. Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875, 81 A.L.R.2d 1150 (1960); Overlock v. Ruedemann, 147 Conn. 649, 165 A.2d 335 (1960); Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574 (1960); Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955); Rozell v. Rozell 281 N.Y. 106, 22 N.E.2d 254, 123 A.L.R. 1015 (1939); Munsert v. Farmers Mut. Auto. Ins. Co., 229 Wis. 581, 281 N.W. 671, 119 A.L.R. 1390 (1938).

At this time, and in this case, we do not find it necessary to pass on the question whether one infant member of a household may be held liable for a negligent injury to another infant member of the same household. The facts alleged in the cross action do not make out a case of liability against Mitchell Watson. In the cross action, the...