Lee v. Mowett Sales Co.

Justice Exum

dissenting.

It would be difficult to mount a more persuasive argument for the judicial abrogation of the doctrine of parental immunity in tort actions such as this one, not involving the exercise of parental authority over a child or the exercise of those actions inherent in the parent-child relationship, than that mounted by Judge Becton in his dissent in this case in the Court of Appeals.

This case, however, does not require us to face the question whether the much-criticized doctrine should be abrogated altogether. This is not an action by a child against the child’s parent. This is a third-party claim brought by Mowett Sales Company, Inc., as defendant and third-party plaintiff, against Lee, the plaintiffs parent, for contribution in the plaintiffs action against Mowett Sales. None of the policy reasons said to justify parental immunity against ordinary tort actions by children appertain to cross-claims by third-party plaintiffs who are not children of the defendant.

In Watson v. Nichols, 270 N.C. 733, 735, 155 S.E. 2d 154, 156 (1976), relied on by the majority, the Court, without citing any authority and without any analysis of the issue, said simply, “Since the parent is not liable in a direct action against him, he cannot be made liable by cross-action.” To me this is an unwar*497ranted extension of the parental immunity doctrine in a situation to which none of the policy reasons said to justify the doctrine appertain. Watson did not nor does this case involve an action by the child against the parent. Both are actions by the child against third parties over which the child, of course, has no control. Such actions for contribution, or even indemnity, by third parties against the plaintiffs parents do not adversely implicate harmonious family relations, the maintenance of which is said to be the policy underlying the parental immunity doctrine.

Without, then, going so far as to abolish the doctrine, I would hold simply that the doctrine should not be extended to preclude the maintenance of Mowett Sales Company’s cross-action against Lee, the plaintiff’s parent, in this case. Insofar as Watson holds to the contrary, I would vote to overrule it.