Warren Ex Rel. Tate v. Long

141 S.E.2d 9 (1965) 264 N.C. 137

Peggy Joyce WARREN, by her Next Friend, Samuel McD. Tate,
v.
Rose S. LONG.

No. 356.

Supreme Court of North Carolina.

March 24, 1965.

John H. McMurray, Morganton, for plaintiff appellant.

Patton, Ervin & Starnes, by Sam J. Ervin, III, Morganton, for defendant appellee.

HIGGINS, Justice.

At the outset the Court is faced with the question whether the defendant's further defense, supported as it is by the pleadings and all the evidence, presents a bar to this action. This Court has held in many well considered opinions that an unemancipated child who is a dependent member of the household cannot maintain an action in tort against the head of the household. "The common law does not recognize the right of an unemancipated minor child, living in the household of its parents, to maintain an action in tort against its parents or either of them." 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. "This rule implements a public policy protecting family unity, domestic serenity, and parental discipline." Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753.

Ordinarily, the bar to actions in tort by the child is lifted by complete emancipation, which may be by act of the parent, by marriage, by arriving at the age of 21, or by leaving the household and becoming self-supporting. However, if "the child is so weak in mind or body that he is unable to support himself and remains in the parent's home, unmarried * * * the parent's duty to support the child continues." Gillikin v. Burbage, supra; Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R.2d 905. "And where a child is of weak body or mind and unable to care for itself after coming of age, the duty of the father to support the child continues as before." Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732.

Although the plaintiff is now 30 years of age, nevertheless, the pleadings and all the evidence disclose her complete dependence upon the defendant for a home, support, care and attention. That dependence is no less complete now than it was before she became 21. Upon the undisputed facts, Judge Patton correctly concluded, as a matter of law, that this action should be dismissed. Hence we need not consider the question of negligence.

The judgment of the Superior Court dismissing this action is

Affirmed.