{ "id": 8626935, "name": "A. GOLDSMITH, Administrator of FREEMAN SAMET, v. MRS. S. SAMET", "name_abbreviation": "Goldsmith v. Samet", "decision_date": "1931-11-04", "docket_number": "", "first_page": "574", "last_page": "575", "citations": [ { "type": "official", "cite": "201 N.C. 574" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "51 A. L. R., 1100", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "137 S. E., 188", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N. C., 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217697 ], "opinion_index": 0, "case_paths": [ "/nc/193/0372-01" ] }, { "cite": "157 S. E., 68", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N. C., 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621586 ], "opinion_index": 0, "case_paths": [ "/nc/200/0348-01" ] }, { "cite": "131 S. E., 400", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N. C., 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627969 ], "opinion_index": 0, "case_paths": [ "/nc/191/0130-01" ] }, { "cite": "77 S. E., 1094", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "162 N. C., 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270266 ], "opinion_index": 0, "case_paths": [ "/nc/162/0092-01" ] }, { "cite": "118 S. E., 12", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N. C., 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656989 ], "opinion_index": 0, "case_paths": [ "/nc/185/0577-01" ] } ], "analysis": { "cardinality": 240, "char_count": 3201, "ocr_confidence": 0.448, "pagerank": { "raw": 2.1733115624981666e-07, "percentile": 0.7714675643251788 }, "sha256": "93a8eb4bdeca8d747979937441b091c9f04dcc601c0c070aab2957b4c7824762", "simhash": "1:a7a27249f63872c5", "word_count": 579 }, "last_updated": "2023-07-14T22:25:15.863450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. GOLDSMITH, Administrator of FREEMAN SAMET, v. MRS. S. SAMET." ], "opinions": [ { "text": "Stacy, 0. J.\nIt was held in Small v. Morrison, 185 N. C., 577, 118 S. E., 12, that an unemancipated, minor child, living in the household of its parents, could not maintain an action in tort against its parents or either of them, upon the ground that no such action was known at the common law and none had been authorized by statute.\nThe policy of the law was not changed in this respect by C. S., 160, for there the right of action for death by wrongful act is limited to \u201csuch as would, if the injured party had lived, have entitled him to an action for damages therefor.\u201d Moreover, the amount recovered in such action is not liable to be applied as assets, in the payment of debts or legacies, but is to be disposed of as provided \u201cin this chapter\u201d for the distribution of personal property in case of intestacy. Hood, v. Tel. Co., 162 N. C., 92, 77 S. E., 1094; Carpenter v. Power Co., 191 N. C., 130, 131 S. E., 400. It is provided \u201cin this chapter,\u201d C. S., 137, subsection 6, that if, in the lifetime of its father and mother, a child dies intestate, without leaving husband, wife or child, or the issue of a child, its estate shall be equally divided between the father and mother. In the instant case, therefore, if recovery were allowed, the amount would be divided between the two wrongdoers. This is also contrary to the policy of the law. Parker v. Potter, 200 N. C., 348, 157 S. E., 68; Bryant v. Bryant, 193 N. C., 372, 137 S. E., 188, 51 A. L. R., 1100.\nAffirmed.", "type": "majority", "author": "Stacy, 0. J." } ], "attorneys": [ "E. Q. Bivens and Folger & Folger for plaintiff.", "Garter & Garter for defendant." ], "corrections": "", "head_matter": "A. GOLDSMITH, Administrator of FREEMAN SAMET, v. MRS. S. SAMET.\n(Filed 4 November, 1931.)\n1. Parents and Child B a \u2014 Unemancipated child living with parents may not maintain action in tort against them.\nAn unemancipated child living with his parents may not maintain an action in tort against them, nor can the administrator of the child recover damages against them for the child\u2019s wrongful death, as the statute, O. S., 160, gives a right of action for wrongful death only where the injured party, if he had lived, could have maintained such action.\n2. Equity A c \u2014 A person will not he allowed to benefit by his own tort.\nWhere an action for the wrongful death of a child is brought by his administrator against his mother, the complaint alleging that the death was caused by the negligent driving of the mother\u2019s car by her agent, the father, a recovery if permitted under the facts of this case would pass under the law of descent and distribution to the parents, O. S., 137(6), and the policy of the law would not permit them to benefit by their own tort.\nAppeal by plaintiff from Shaw, Emergency Judge, at July Term, 1931, of Sukry.\nCivil action to recover damages for an alleged wrongful death.\nIt is alleged that plaintiff\u2019s intestate, 15-year-old son of the defendant, living in the household of his parents, was killed by the negligent act of his father while driving the defendant\u2019s automobile, as her agent, from his home in Surry County to Greensboro, N. C.\nFrom a judgment sustaining a demurrer interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action, the plaintiff appeals.\nE. Q. Bivens and Folger & Folger for plaintiff.\nGarter & Garter for defendant." }, "file_name": "0574-01", "first_page_order": 648, "last_page_order": 649 }