Watson Ex Rel. Vaughn v. Nichols , 270 N.C. 733 ( 1967 )

155 S.E.2d 154 (1967) 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, Original Defendants, 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 original defendants alleged:

"* * * that plaintiff's parents were at their residence and in charge of plaintiff during the afternoon of Monday, the 6th day of September, 1965, and were present and at their residence and in charge of their children, including minor plaintiff, at all times when the infant defendant was operating the Rugg Company mower on the premises of the infant plaintiff and infant plaintiff's parents.

* * * * * *

* * * the infant plaintiff, Jimmy Grey Watson, at the time when Emory M. and Mary C. Watson individually and through their agent and son, Mitchell Watson, were carelessly and negligently failing to exercise any supervision of the infant plaintiff as was their duty to do, the infant plaintiff, in some manner unknown to these answering defendants, flung himself, suddenly and without warning, behind the power mower * * * so as to cause the power mower to back up and run over his right foot, and which action on his part was the sole proximate cause of all of the injuries complained of. * * *"

The allegations place the plaintiff, age 4 years, and the son, Mitchell Watson, age 10 years, at the home, with their parents, throughout the mowing operations. Ordinarily when parents are present, in charge of their children of tender years, responsibility for their care and safety falls on the parents. In this case the parents were at home. Both the plaintiff and Mitchell were under their control. Any promise made by Mitchell to take care of Jimmy would not relieve the parents of that responsibility. The allegations of the cross action are insufficient to state a cause of action against Mitchell Watson. The demurrer was properly sustained as to him for that reason. The judgment of the Superior Court sustaining the demurrer to the cross action against the three additional defendants was properly sustained.

Affirmed.