Clary v. Alexander County Board of Education , 285 N.C. 188 ( 1974 )

203 S.E.2d 820 (1974) 285 N.C. 188

Roger Dale CLARY and Phyllis Clary, Administratrix of the Estate of Fred H. Clary
v.
ALEXANDER COUNTY BOARD OF EDUCATION.

No. 12.

Supreme Court of North Carolina.

April 10, 1974.

Collier, Harris, Homesley & Jones by Jack R. Harris and Edmund L. Gaines, Statesville, for plaintiff.

Hedrick, McKnight, Parham, Helms, Warley & Kellam by Philip R. Hedrick, and Edward L. Eatman, Jr., Charlotte; Frank & Lassiter by Jay F. Frank and Michael T. Lassiter, Statesville, for defendant.

LAKE, Justice.

It is well settled that a personal injury to an unemancipated minor child, proximately caused by the negligence of another, may give rise to two separate and distinct causes of action. The first is on behalf of the child for the recovery of damages for the personal injury, including damages for pain and suffering, for permanent injury and for impairment of earning capacity after majority. The second is a right in the parent of the child (usually the father) to recover damages for the loss of services of the child during minority and for reimbursement for expenses incurred by the parent for necessary medical treatment of the child. Kleibor v. Rogers, 265 N.C. 304, 144 S.E.2d 27; Ellington v. Bradford, 242 N.C. 159, 86 S.E.2d 925; Strong, N. C. Index 2d, Parent and Child, § 5.

In this instance, the action on behalf of the child and that brought by the father in his own right were consolidated for trial. At the close of the plaintiffs' evidence, the defendant moved for a directed verdict in its favor in each action on three grounds: (1) The evidence was insufficient to justify the submission of the case to the jury, (2) the evidence was insufficient to show actionable negligence on the part of the defendant, and (3) the plaintiff was negligent as a matter of law so as to bar any claim for damages against the defendant.

In each action, the Superior Court granted the defendant's motion for a directed verdict on the ground that the child was guilty of contributory negligence. There was neither allegation nor evidence of contributory negligence by the father himself or that the child, at the time of the injury, was acting as the father's agent.

By reason of the deficiencies noted below in the proof supplied by the plaintiffs, the motion for a directed verdict should have been allowed in each case on the first ground stated in the motion. This being true, we do not reach and we express no opinion upon these questions: (1) Was the plaintiffs' evidence sufficient to support a finding of negligence by the defendant in the construction of the building, or in its maintenance or in instructing, through its employee, the basketball coach, this high school student to engage in the activity which resulted in his injury? (2) Did the evidence of the plaintiffs show that the plaintiff child, in carrying out his assignment, was guilty of contributory negligence as a matter of law? (3) If so, does such contributory negligence of the child bar the father's right to recover in his action?

It is correctly stated in 67 C.J.S. Parent and Child § 41(c), "The parent has no right of action unless he has sustained some direct pecuniary injury from the wrong done to the child." The burden is on the plaintiff father to allege and show that he has been damaged, through the loss of the child's services or through his having to pay or incur liability for medical treatment of the child's injuries. The complaint of the father alleges that he incurred expenditures for such medical treatment in the amount of $2,656, the recovery of which he prays. The answer of the defendant denies this allegation.

There is in the record no evidence whatsoever to show the amount of any medical or hospital bill or any payment by the plaintiff father, or by anyone else, for medical or hospital treatment of his injured son, or the incurring of liability therefor by the father. Nothing in the record, or in the briefs of the parties in the Court of Appeals or in this Court, suggests any stipulation of the parties with reference to this matter. There is, therefore, in the record before us a complete failure of evidence to show any damage suffered by the plaintiff father by reason of the alleged negligence of the defendant. Consequently, the plaintiffs' evidence was not sufficient to justify submitting the father's case to the jury.

Furthermore, the defendant Board of Education is a governmental agency created by statute for the purpose of performing governmental functions. Benton v. Board of Education, 201 N.C. 653, 161 S.E. 96. That being true, no action can be maintained against it to recover damages for a tort alleged to have been committed by it in the performance of its statutory duties, except insofar as its immunity to such suit has been waived pursuant to statutory authority. Huff v. Board of Education, 259 N.C. 75, 130 S.E.2d 26; McBride v. Board of Education, 257 N.C. 152, 125 S.E.2d 393; Fields v. Board of Education, 251 N.C. 699, 111 S.E.2d 910; Turner v. Board of Education, 250 N.C. 456, 109 S.E.2d 211; Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783; Benton v. Board of Education, supra. "[I]n the absence of an allegation in the complaint in a tort action against a city board of education, to the effect that such board has waived its immunity by the procurement of liability insurance to cover such alleged negligence or tort, or that such board has waived its immunity as authorized in G.S. § 115-53, such complaint does not state a cause of action." Fields v. Board of Education, supra. In this respect there is no distinction to be drawn between a county board of education and a city board of education. A fortiori, when such allegation in the complaint is denied by the answer, the burden is upon the plaintiff to prove the requisite waiver.

By an amendment to his complaint, the plaintiff father alleged that the defendant had waived its immunity to suit for tort by procuring liability insurance as authorized in G.S. § 115-53. The answer of the defendant to this allegation was: "The allegations of Paragraph XV of the Complaint, as amended, are not admitted, to the extent that they apply to the incident in question." (Emphasis added.) There is no evidence whatsoever in the record to show that the defendant Board of Education, at the time of the injury in question, had procured liability insurance so as to waive its immunity to suit as permitted by G.S. § 115-53. The Tort Claims Act, G.S. § 143-291 through G.S. § 143-300.1, has no application to an injury of the kind here in question. Thus, there was a complete failure of evidence to show an indispensable element of the plaintiff father's right to recover in this action. For this reason also, the plaintiffs' evidence was insufficient to justify the submission of the case of the father to the jury and the motion for a directed verdict in favor of the defendant should have been granted.

In the suit brought on behalf of the injured boy by his next friend, the plaintiff also alleged, by an amendment to his complaint, that the defendant Board of Education had waived its immunity to suit for tort by the procurement of liability insurance as authorized by G.S. § 115-53. The answer of the defendant, with reference to this allegation, was identical to the above quoted answer to the like allegation in the complaint of the father. The cases having been consolidated for trial, the evidence is the same as to each action. Thus, in the suit of the injured boy also, there is a complete failure of evidence to show a waiver by the defendant of its immunity to such action. For this reason, the evidence of the plaintiffs was insufficient to justify the submission of the boy's action to the jury and the defendant's motion for a directed verdict should have been allowed on this ground.

Although the Superior Court and the Court of Appeals inadvertently failed to note the insufficiencies of the plaintiffs' evidence in the respects herein set forth, the granting of the motion for a directed verdict in favor of the defendant was proper in each case and the judgment will not be disturbed.

Affirmed.