Redding Ex Rel. Redding v. Redding

70 S.E.2d 676, 235 N.C. 638, 1952 N.C. LEXIS 443

• Court: Supreme Court of North Carolina
• Decided: May 21, 1952
• Docket: 672
• Status: Published

Opinion

DenNy, J.

The common law does not recognize the right of an un-emancipated minor child, living in the household of its parents, to maintain an action in tort against its parents or either of them. The common law in this respect was enunciated and adhered to in Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135.

It is not contended by the appellant that there is any difference in the factual situation in the present appeal and that presented and adjudicated in Small v. Morrison, supra. It is contended, however, that the time has come when the harshness of the common law, as enunciated in that case, should be modified or rejected altogether.

It is provided by G.S. 4-1, that so much of the common law “as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this state, . . . not abrogated, repealed, or become obsolete,” shall remain in full force and effect in this jurisdiction. Speight v. Speight, 208 N.C. 132, 179 S.E. 461; S. v. Hampton, 210 N.C. 283, 186 S.E. 251; S. v. Batson, 220 N.C. 411, 17 S.E. 2d 511, 139 A.L.R. 614; Moche v. Leno, 227 N.C. 159, 41 S.E. 2d 369; Scholtens v. Scholtens, 230 N.C. 149, 52 S.E. 2d 350.

The common law as enunciated by this Court in the case of Small v. Morrison, supra, has not been abrogated or changed by statute. On the other hand, that case has been cited as controlling in Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835; and with approval in Green v. Green, 210 N.C. 147, 185 S.E. 651, and Henson v. Thomas, 231 N.C. 173, 56 S.E. 2d 432.

The appellant takes the position that we avoided the harshness of the common law, as applied in the Small case, in the cases of Wright v. Wright, 229 N.C. 503, 50 S.E. 2d 540, and Foy v. Foy Electric Co., 231 N.C. 161, 56 S.E. 2d 418. We do not so construe those decisions. In our opinion, the facts involved in those cases excluded them from the common law rule laid down in the Small case.

We know of no jurisdiction in this country that bas abrogated the common law rule under consideration, by statute or otherwise, except in cases involving willful or malicious torts. See Anno. 122 A.L.R. 1352.

Tbe judgment of tbe court below is

Affirmed.