Lewis v. FARM BUREAU MUTUAL AUTOMOBILE INSURANCE COMPANY

89 S.E.2d 788 (1955)

243 N.C. 55

J. B. LEWIS, Administrator of the Estate of William Isaac Lewis, deceased, v. FARM BUREAU MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, and Thomas Gilliam.

No. 314.

Supreme Court of North Carolina.

November 2, 1955.

Whitaker & Jeffress, Kinston, for defendants, appellants.

Jones, Reed & Griffin, Kinston, for plaintiff, appellee.

PARKER, Justice.

Under G.S. § 28-173, Death by Wrongful Act, the personal representative *789 of the deceased has a right of action only when the death of his intestate "is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor". See: Cowgill v. Boock, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405, headnote 3, construing a similar provision in the statute for wrongful death in Oregon. The right of action for wrongful death is based upon this statute, and must be asserted in conformity therewith. Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700.

This unemancipated four-year old child, if he had lived, could not have maintained an action against his mother to recover damages for injuries caused by her ordinary negligence. 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; illuminating annotation 19 A.L.R.2d 423.

In this State an action for wrongful death of this child cannot be maintained against his mother for ordinary negligence resulting in his death, since, had the child survived, he could not have maintained an action against her to recover damages for his injuries. Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835; Annotation 19 A.L.R. 2d, Sec. 13. For a case of gross negligence and intoxication see: Cowgill v. Boock, supra. As to wilful or malicious acts of negligence see: Annotation 19 A.L.R.2d, Sec. 14.

The defendants seek to have the child's mother joined as a party defendant under the provisions of G.S. § 1-240 as a joint tort-feasor. This cannot be done because the defendants cannot invoke either the statutory right of contribution, or the doctrine of primary and secondary liability, against the mother of the deceased child, who is not liable to the plaintiff in this action as a joint tort-feasor. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886. The doctrine of primary and secondary liability in tort actions is based on active and negative negligence of joint tort-feasors. Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648.

The defendants cannot invoke the doctrine that a passively negligent tort-feasor, who is compelled to pay damages for a wrongful death, is entitled to indemnity from the actively negligent tort-feasor because the rationale of this doctrine is based upon the principle that the actively negligent tort-feasor and the passively negligent tort-feasor are both liable in damages to the personal representative of the deceased for the joint wrong, and the mother of this child is not liable in damages to plaintiff for ordinary negligence in the death of his intestate, if such should be the fact. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768; Wright's Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E.2d 118; Johnson v. City of Asheville, 196 N.C. 550, 146 S.E. 229.

The order of the lower court is

Affirmed.