Evans v. Evans

182 S.E.2d 227 (1971)

12 N.C. App. 17

Micah Scott EVANS, a minor by his guardian ad litem, Joyce B. Laws v. Iva Mae EVANS et al.

No. 7127SC471.

Court of Appeals of North Carolina.

July 14, 1971.

Certiorari Denied September 6, 1971.

Appeal Dismissed September 7, 1971.

Basil L. Whitener and Anne M. Lamm, Gastonia, for plaintiff appellant.

Jeffrey M. Guller, Gastonia, and James R. Carpenter, Carpenter, Golding, Crews & Meekins, Charlotte, for defendant appellee, Iva Mae Evans.

Certiorari Denied by Supreme Court September 6, 1971.

Appeal Dismissed by Supreme Court September 7, 1971.

PARKER, Judge.

Ever since the decision in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, decided in *228 1923, it has been the rule in this jurisdiction that an unemancipated child, who is a member of his parents' household, may not maintain an action based on ordinary negligence against his parents or either of them. Watson v. Nichols, 270 N.C. 733, 155 S.E.2d 154; Warren v. Long, 264 N.C. 137, 141 S.E.2d 9; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676. The purpose of the rule is said to be to implement a public policy protecting family unity, domestic serenity, and parental discipline. Upon the same theory it has been held that a parent cannot sue his unemancipated child for a personal tort. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753.

Appellant recognizes the rule announced in these cases, but vigorously urges that the time has come for this State to join those jurisdictions which in recent years have reexamined and abolished these family immunities, citing such cases as Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282; Gibson v. Gibson, 3 Cal. 3d 914, 92 Cal. Rptr. 288, 479 P.2d 648; Schenk v. Schenk, 100 Ill.App.2d 199, 241 N.E.2d 12; Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192; and Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193. If so, the task is for our Legislature or for our Supreme Court. This Court, as was the trial court, is bound by the rule heretofore announced and consistently followed by our Supreme Court in the cases first cited above.

Appellant also contends that the doctrine of parental immunity results in an unconstitutional denial to unemancipated children of due process and equal protection of the laws. We do not agree. The familial relationship has long been recognized as an appropriate and reasonable basis for imposing special rights, obligations and immunities.

The summary judgment dismissing plaintiff's claim against his mother, being in accord with the controlling decisions of our Supreme Court, is

Affirmed.

BRITT and MORRIS, JJ., concur.