Summary
stating that, "when parents are present, in charge of their children of tender years, responsibility for their care and safety falls on the parents"
Summary of this case from Vares v. VaresOpinion
Filed 20 June, 1967.
1. Parent and Child 2 — Since an unemancipated infant who is a member of the household cannot maintain an action for negligence against his parents, in an action on behalf of an unemancipated child to recover for negligent injury from the power lawn mower of a neighbor, the defendants may not file a cross-action against the plaintiff's parents, either on the ground of primary negligence on the part of plaintiff's parents or for contribution, since such cross-action would indirectly hold the unemancipated minor's parents liable to him for the injury.
2. Parent and Child 5 — Responsibility for care of minor child rests upon parent when parent is present. In this action on behalf of a four-year old child to recover for injuries from a power lawn mower operated by a child of a neighbor, defendants filed a cross-action against the minor plaintiff's older brother, alleging that the brother promised to keep the plaintiff out of the way of the mower and negligently failed to do so, but the cross-complaint further alleged that the minor plaintiff's parents were at the scene at the time and in charge of plaintiff during the episode. Held: The cross-action was properly dismissed upon demurrer, since responsibility for the care and safety of minor children falls on their parents when they are present and any promise made by an older brother would not relieve the plaintiff's parents of that responsibilities. As to whether one unemancipated infant may maintain an action against another unemancipated infant who is a member of the same household, quaere?
APPEAL by original defendants from Lupton, J., March 6, 1967 Civil Session, ROCKINGHAM Superior Court.
Armistead W. Sapp, Jr., for Original Defendant Appellants
Jordan, Wright, Henson Nichols by G. Marlin Evans and Perry C. Henson for Additional Defendant Appellees.
The plaintiff, Jimmy Grey Watson, age 4 years, by his next friend, instituted this civil action against James Bradford Nichols, age 13 years, and Marion A. and Charlene B. Nichols, his parents, to recover damages for the personal injury the infant plaintiff sustained by reason of the alleged negligent acts of James Bradford Nichols in backing a power driven lawn mower over the infant plaintiff, inflicting serious injuries to his foot. The plaintiff alleged Marion A. and Charlene B. Nichols, parents of James Bradford Nichols, were negligent in that they procured a power driven lawn mower, equipped with a seat for the operator, and permitted their son, James Bradford Nichols, to operate it in and about the yard of the Nichols home and the adjoining Watson home when they knew, or should have known; that he was inexperienced and uninstructed in the safe operation of this dangerous instrumentality and that children, including the infant plaintiff, were accustomed to playing in and around both the Watson and Nichols residences and that the inexperienced operator, suddenly and without looking backward; reversed the mower and negligently backed the same over the infant plaintiff, inflicting serious injury.
The original defendants filed an answer and cross action in which they denied all negligence and attempted to interplead as additional defendants Emory M. Watson and Mary C. Watson, father and mother, and Mitchell Watson, infant brother of Jimmy Grey Watson, for the purpose of (1) having them declared primarily liable for any damages which the plaintiff may recover, or (2) having them held under G.S. 1-240 as joint tort feasors and be required to contribute to the payment of any judgment recovered by the plaintiff. The original defendants alleged as against the additional defendants that the father, mother and brother of the infant plaintiff were actively negligent in permitting James Bradford Nichols to enter their lawn with the mower and the original defendants were only passively negligent by the operation of the mower.
As against the additional defendants, the original defendants alleged that James Bradford Nichols, after mowing the Nichols yard, undertook to mow the Watson yard; that Mitchell Watson, age 10 years, promised James Bradford Nichols that he would look after the 4 year old plaintiff, and keep him out of the way of the mower; that if the original defendants were negligent, which they deny, then Emory M. and Mary C. Watson, individually and through their son and agent, Mitchell Watson, were negligent in permitting the infant plaintiff to fling himself "suddenly and without warning," and without the knowledge of the operator, James Bradford Nichols, in such manner as negligently to expose him to danger which proximately caused his injury.
The additional defendants filed a demurrer to the cross action which Judge Lupton sustained. The original defendants excepted and appealed.
This appeal is from the Superior Court judgment sustaining the demurrer to the cross action. In the cross action, the original defendants alleged, conditionally that if they are held liable to the plaintiff, then Emory M. and Mary C. Watson, parents of the infant plaintiff, individually and through their agent, Mitchell Watson, were negligent and primarily liable to the plaintiff by permitting him to approach the moving mower from behind without notice or warning to James Bradford Nichols, the operator; that the negligence of the additional defendants was primary and any negligence on the part of the original defendants was secondary.
The cross action alleged that the additional defendants, Emory M. and Mary C. Watson, are the parents of the plaintiff, age 4 years, and of Mitchell Watson, age 10 years, all of whom are members of the household. These allegations render the cross action demurrable as to the parents, Emory M. and Mary C. Watson.
An unemancipated infant, who is a member of the household, cannot maintain an action based on ordinary negligence against his parents. Lewis v. Ins. Co., 243 N.C. 55, 89 S.E.2d 788; Redding v. Redding, 235 N.C. 638, 70 S.E.2d 676; Small v. Morris, 185 N.C. 577, 118 S.E. 12; 19 A.L.R.2d 423. Since the parent is not liable in a direct action against him, he cannot be made liable by cross action. The demurrer was properly sustained as to the parents.
This Court has never passed on the question whether one unemancipated infant may maintain an action for negligence against another unemancipated infant who is a member of the same household. Courts which have passed on the question have generally held the action may be maintained. These actions usually involve injuries growing out of automobile accidents. Midkiff v. Midkiff, 201 Va. 829, 113 S.E.2d 875 (1960); Overlock v. Ruedemann, 147 Conn. 649, 165 A.2d 335 (1960); Herrell v. Haney, 341 S.W.2d 574 (Tenn., 1960); Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218 (1955); Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254 (1939); Munsert v. Ins. Co., 229 Wis. 581, 281 N.W. 671 (1938).
At this time, and in this case, we do not find it necessary to pass on the question whether one infant member of a household may be held liable for a negligent injury to another infant member of the same household. The facts alleged in the cross action do not make out a case of liability against Mitchell Watson. In the cross action the original defendants alleged:
". . . that plaintiff's parents were at their residence and in charge of plaintiff during the afternoon of Monday, the 6th day of September, 1965, and were present and at their residence and in charge of their children, including minor plaintiff, at all times when the infant defendant was operating the Rugg Company mower on the premises of the infant plaintiff and infant plaintiff's parents.
* * *
. . . the infant plaintiff, Jimmy Grey Watson, at the time when Emory M. and Mary C. Watson individually and through their agent and son, Mitchell Watson, were carelessly and negligently failing to exercise any supervision of the infant plaintiff as was their duty to do, the infant plaintiff, in some manner unknown to these answering defendants, flung himself, suddenly and without warning, behind the power mower . . . so as to cause the power mower to back up and run over his right foot, and which action on his part was the sole proximate cause of all of the injuries complained of. . . ."
The allegations place the plaintiff, are 4 years, and the son, Mitchell Watson, age 10 years, at the home, with their parents, throughout the mowing operation ordinarily when parents are present, in charge of their children of tender years, responsibility for their care and safety falls on the parents. In this case the parents were at home. Both the plaintiff and Mitchell were under their control. Any promise made by Mitchell to take care of Jimmy would not relieve the parents of that responsibility. The allegations of the cross action are insufficient to State a cause of action against Mitchell Watson. The demurrer was properly sustained as to him for that reason. The judgment of the Superior Court sustaining the demurrer to the cross action against the three additional defendants was properly sustained.
Affirmed.