White v. Holding
| Decision Date | 27 March 1940 |
| Docket Number | 241. |
| Citation | 7 S.E.2d 825,217 N.C. 329 |
| Parties | WHITE v. HOLDING et al. |
| Court | North Carolina Supreme Court |
A M. Noble, of Smithfield, for plaintiff, appellant.
J R. Pool, of Smithfield, for defendants, appellees.
It is well settled in this State that: Person v. Doughton, 186 N.C. 723, 120 S.E. 481, 482; Martin v. Clark, 135 N.C. 178, 47 S.E. 397; Wilkinson v. Board of Education, 199 N.C. 669, 155 S.E. 562; Powers v Asheville, 203 N.C. 2, 164 S.E. 324; Rollins v Rogers, 204 N.C. 308; 168 S.E. 206; John v. Allen, 207 N.C. 520, 177 S.E. 634; Mebane Graded School District v. Alamance County, 211 N.C. 213, 189 S.E. 873; Reed v. Farmer, 211 N.C. 249, 189 S.E. 882; Mears v. Board of Education, 214 N.C. 89, 197 S.E. 752.
Admitting the facts alleged in the present action, which we must do in testing the sufficiency of the complaint challenged by demurrer, Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, and numerous other cases: (1) Are the defendants as county commissioners of Johnston County under a legal duty to perform the act sought to be enforced? (2) If so, does the plaintiff have a clear right to demand it? Both questions must be answered the affirmative.
1. The statute C. S. § 1681, relating to disposition of moneys collected as license taxes on dogs, provides that: "The money arising under the provisions of this article shall be applied to the school funds of the county in which said tax is collected: Provided, it shall be the duty of the county commissioners, upon complaint made to them of injury to person or injury to or destruction of property by any dog, upon satisfactory proof of such injury or destruction, to appoint three freeholders to ascertain the amount of damages done, including the necessary treatment, if any and all reasonable expenses incurred, and upon the coming in of the report of such jury of the damage as aforesaid, the said county commissioners shall order the same paid out of any moneys arising from the tax on dogs as provided for in this article. * *"
Speaking of the provisions of this statute, in the case of McAlister v. Yancey County, 212 N.C. 208, 193 S.E. 141, 143, relating to sheep alleged to have been killed by a dog, this Court said:
In like manner, if the plaintiff, as is alleged in the complaint in the present case, conceding for the moment that he has a clear right to so act, has made complaint to defendants as county commissioners of Johnston County and given to them "satisfactory proof" of the injury to William Joseph White, an infant, by a dog, the statute, C. S. § 1681, makes it the duty of the said county commissioners "to appoint three freeholders to ascertain the amount of damages done, including necessary treatment, if any, and all reasonable expenses incurred" by plaintiff as the result of such injury to and resulting in the death of his minor child, and upon their refusal to perform that duty, plaintiff can maintain an action against them for a writ of mandamus.
2. The authorities generally concur in support of the proposition that an individual may have a particular interest of his own in the performance of a statutory duty imposed on an officer or board, and that in such case he is the possessor of a separate and peculiar right which enables him to say that he is the party beneficially interested, and so entitles him to the writ of mandamus. 18 R.C.L., 327. Has the plaintiff in the case at bar such right?
From the allegation of expenses incurred by plaintiff "including the necessary treatment", admitted for the purpose of testing the sufficiency of the pleading, it is necessarily deducible as an inference of fact that some time elapsed between the injury to and death of plaintiff's child. Upon this allegation of fact, pertinent principles of law follow: It is elementary that a parent, primarily the father, as between the father and mother, nothing else appearing, is entitled to the services and earnings of his child during minority. See Killian v. R. Co., 128 N.C. 261, 38 S.E. 873; Floyd v. R. Co., 167 N.C. 55, 83 S.E. 12, L.R.A.1915B, 519; Daniel v. R. Co., 171 N.C. 23, 86 S.E. 174.
On the other hand, the father is under the duty to support his child during minority, if he is able to do so. Haglar v. McCombs, 66 N.C. 345, 346; Williams v. R. Co., 121 N.C. 512, 28 S.E. 367. See also Floyd v. R. Co., supra. Also, if the child should die during minority, it is the duty of the father to pay the funeral expenses. 46 C. J., 1278. Hunycutt & Co. v. Thompson, 159 N.C. 29, 74 S.E. 628.
If a minor child is injured by the wrongful act or omission of another, a cause of action arises under the common law on behalf of the child to recover damages for pain and suffering, permanent injury, and impairment of earning capacity after attaining majority. At the same time, the father ordinarily has a right of action for the loss of services of the child during minority and for other pecuniary damages sustained by him in consequence of such injury, including expenses of treatment. 46 C.J., 1294. See also Killian v. R. Co., supra; Rice v. R. Co., 167 N.C. 1, 82 S.E. 1034; Croom v. Murphy, 179 N.C. 393, 102 S.E. 706; Little v. Holmes, 181 N.C. 413, 107 S.E. 577; White v. Charlotte, 212 N.C. 539, 193 S.E. 738.
The father's right of action in accordance with the generally accepted view is based not only...
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Chapter 38 WRONGFUL DEATH
...324 N.C. 415, 379 S.E.2d 23 (1989) (parent cannot maintain action in individual capacity for wrongful death of child); White v. Holding, 217 N.C. 329, 7 S.E.2d 825 (1940) (where child dies as result of wrongful act or omission of another, only action that lies is for wrongful death in favor......