Lewis v. FARM BUREAU MUTUAL AUTOMOBILE INSURANCE COMPANY

PARKER, J. Under G.S. 28-173, Death by Wrongful Act, the personal representative of the deceased has a right of action only when the death of his intestate “is caused by a wrongful ■ act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor.” See: Cowgill v. Boock, 189 Or. 282, 218 P. 2d 445, 19 A.L.R. 2d 405, headnote 3, construing a similar provision in the statute for Wrongful Death in Oregon. The right of action for wrongful death is based upon this statute, and must be asserted in conformity therewith. Webb v. Eggleston, 228 N.C. 574, 46 S.E. 2d 700. This unemancipated four-year-old child, if he had lived, could not have maintained an action against his mother to recover damages for injuries caused by her ordinary negligence. Redding v. Redding, 235 N.C. 638, 70 S.E. 2d 676; Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135; illuminating annotation 19 A.L.R. 2d 423. In this State an action for wrongful death of this child cannot be maintained against his mother for ordinary negligence resulting in his death, since, had the child survived, he could not have maintained an action against her to recover damages for his injuries. Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835; Anno. 19 A.L.R. 2d, Sec. 13. For a case of gross negligence and intoxication see: Cowgill v. Boock, supra. As to wilful or malicious acts of negligence see: Anno. 19 A.L.R. 2d, Sec. 14. The defendants seek to have the child’s mother joined as a party defendant under the provisions of G.S. 1-240 as a joint tort-feasor. This cannot be done because the defendants cannot invoke either the statutory right of contribution, or the doctrine of primary and secondary liability, against the mother of the deceased child, who is not liable to the plaintiff in this action as a joint tort-feasor. Lovette v. Lloyd, *57 236 N.C. 663, 73 S.E. 2d 886. The doctrine of primary and secondary liability in tort actions is based on active and negative negligence of joint tort-feasors. Bost v. Metcalfe, 219 N.C. 607, 14 S.E. 2d 648. The defendants cannot invoke the doctrine that a passively negligent tort-feasor, who is compelled to pay damages for a wrongful death, is entitled to indemnity from the actively negligent tort-feasor because the rationale of this doctrine is based upon the principle that the actively negligent tort-feasor and the passively negligent tort-feasor are both liable in damages to the personal representative of the deceased for the joint wrong, and the mother of this child is not liable in damages to plaintiff for ordinary negligence in the death of his intestate, if such should be the fact. Hunsucker v. Chair Co., 237 N.C. 559, 75 S.E. 2d 768; Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E. 2d 118; Johnson v. Asheville, 196 N.C. 550, 146 S.E. 229. The order of the lower court is Affirmed.