Evans Ex Rel. Laws v. Evans

Court of Appeals of North Carolina

Evans Ex Rel. Laws v. Evans

182 S.E.2d 227, 12 N.C. App. 17

CourtCourt of Appeals of North Carolina

DecidedSeptember 7, 1971

Docket7127SC471

StatusPublished

Cited by6 cases

This text of 182 S.E.2d 227 (Evans Ex Rel. Laws v. Evans) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Evans Ex Rel. Laws v. Evans, 182 S.E.2d 227, 12 N.C. App. 17 (N.C. Ct. App. 1971).

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Opinion

PARKER, Judge.

Ever since the decision in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, decided in 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, do-, mestic 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, 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.

*19 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.

Judges Britt and Morris concur.

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PARKER, Judge.

Ever since the decision in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, decided in 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, do-, mestic 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, 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.

*19 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.

Judges Britt and Morris concur.

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