dissenting.
The well-settled common law of North Carolina does not permit recovery for an unintentional tort between unemancipated minors and their parents. Gillikin v. Burbage, 263 N.C. 317, 139 S.E. 2d 753 (1965); Redding v. Redding, 235 N.C. 638, 70 S.E. 2d 676 (1952); Small v. Morrison, 185 N.C. 577, 118 S.E. 12 (1923). Nor is the personal representative of a deceased unemancipated minor permitted to bring a wrongful death action against a parent of the child. Skinner v. Whitley, 281 N.C. 476, 189 S.E. 2d 230 (1972); Lewis v. Insurance Co., 243 N.C. 55, 89 S.E. 2d 788 (1955). Of course there is a very limited exception to the prevailing common law rule in North Carolina created by G.S. § 1-539.21. This statutory exception applies only to personal injury and property damage actions arising solely out of the operation of automobiles owned or operated by the parent. This statute provides as follows;
The relationship of parent and child shall not bar the right of action by a minor child against a parent for personal injury or property damage arising out of the operation of a motor vehicle owned or operated by such parent.
(Emphasis added.)
This statute by its own terms creates a limited exception to the prevailing common law rule in North Carolina. It allows a child to sue a parent but not a parent to sue a child. It applies only in motor vehicle cases and then applies only to personal injury and property damage claims. The statute does not mention wrongful death actions. It was extended to cover that classification by the holding in this very case when it was initially before the COA on the dismissal of the administrator’s action for failure to state a cause of action. Carver v. Carver, 55 N.C. App. 716, 286 S.E. 2d 799, cert. denied, 305 N.C. 584 (1982). As is clearly demonstrated in the majority opinion, this Court’s denial of defendant’s petition for further review did not make that decision of *685the Court of Appeals the law of the case in this Court nor does it mean that this Court determined that the decision of the Court of Appeals is correct. I believe that this Court should now hold that G.S. § 1-539.21 does not extend to wrongful death actions, thus the common law continues to apply and this action is barred by the doctrine of parental immunity.
There was, when it was enacted, and there continues to be, good reason for the legislature’s omission of wrongful death actions from the provisions of G.S. § 1-539.21. This Court should not extend the statute in the face of strong public policy considerations which augur against it. It is the parents here who are the real parties in interest. The majority has properly barred the wife/mother from recovery as an actual distributee of the proceeds of the action under the maxim that one should not be allowed to profit from his own wrong.
Justice (later Chief Justice) Parker stated the principle in In re Estate of Ives, 248 N.C. 176, 181-82, 102 S.E. 2d 807, 811 (1958), as follows:
In an action to recover damages for wrongful death the real party in interest is the beneficiary under the statute for whom recovery is sought, and not the administrator. Davenport v. Patrick, 227 N.C. 686, 44 S.E. 2d 203.
‘It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and equity, and, indeed, admits of illustration from every branch of legal procedure.’ Broom’s Legal Maxims, Tenth Ed., 191.
This maxim embodied in the common law, and constituting an essential part thereof, is stated in the text books and reported cases. It has its foundation in universal law administered in all civilized lands, for without its recognition and enforcement by the courts their judgments would rightly excite public indignation. This maxim has been adopted as public policy in this state and we have decided in many cases instituted to recover damages for wrongful death that no beneficiary under the statute for whom recovery is sought will be permitted to enrich himself by his own wrong. Daven*686port v. Patrick, supra; Pearson v. Stores Corp., 219 N.C. 717, 14 S.E. 2d 811; Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835; Harton v. Telephone Co., 141 N.C. 455, 54 S.E. 299; Davis v. R.R., 136 N.C. 115, 48 S.E. 591. The right of a person otherwise entitled to receive the money paid for wrongful death, or to share in the distribution of such a sum paid, will be denied where the death of the decedent was caused by such person’s negligence. Davenport v. Patrick, supra; Goldsmith v. Samet, supra.
While the wife/mother is barred from taking as an actual distributee of the proceeds from this action, I believe it is inescapable that she will indeed benefit from the recovery which resulted from her own wrong. Should the husband/father choose to do so could he not give her some of, or indeed all of, the recovery? Should he die intestate would she not receive benefits under our laws governing intestate succession? Should he die testate could he not will her the funds recovered? Should the marriage terminate without a separation agreement would she not benefit from the recovery through equitable distribution? Should the recovery simply go into the family treasury, which is more likely, would she not benefit?
I believe that the overriding public policy of not allowing one to benefit from his own wrong dictates that the statute not be extended by judicial fiat to wrongful death actions. If the legislature chooses to do so, it may express its intent and will to so extend the statute by appropriate legislation.