Morrissett v. Morrissett

397 P.2d 184, 80 Nev. 566, 1964 Nev. LEXIS 108

• Court: Nevada Supreme Court
• Decided: December 14, 1964
• Docket: 4781
• Status: Published

Opinions

OPINION

By the Court,

McNamee, J.:

This is a tort action brought by Edith L. Morrissett against her husband, E. J. Morrissett, to recover damages for personal injuries. The wife’s complaint charges that while she was in the car owned and being driven by her husband, he drove in a grossly negligent manner, causing a collision with another automobile which also was being driven in a grossly negligent manner. The husband’s motion to dismiss the action upon the ground that no cause of action against him was stated was submitted for decision on March 20, 1963 and the motion was granted on June 11, 1964.¹ Judgment of dismissal was entered June 15, 1964.

Appeal is from the judgment of dismissal.

The sole question on appeal is whether Nevada should continue to follow the rule of interspousal immunity for torts established in this state in the case of Kennedy v. Kennedy, 76 Nev. 302, 352 P.2d 833.

In Kennedy we upheld the common-law rule, which is the majority rule in the United States, that there is no cause of action in favor of a wife against her husband sounding in tort. It was there argued that NRS 12.020² and NRS 41.170³ should be construed as giving the wife a right to sue her husband for personal injuries resulting from his negligence. We concluded however that the common-law rule that a wife cannot sue her husband for a personal tort prevails in Nevada in the absence of a permissive statute to the contrary and that neither NRS 12.020 nor NRS 41.170 is such a statute.

Also in Kennedy we cited with approval the case of Peters v. Peters (1909), 156 Cal. 32, 103 P. 219, 23 L.R.A., N.S., 699, and Watson v. Watson (1952), 39 Cal.2d 305, 246 P.2d 19, which in construing a California code provision identical to NRS 12.020 held that there was no intent to depart from the common law so as to authorize a suit by the husband or wife against the other for injuries to the person or character.

In 1962, the California Supreme Court expressly overruled Peters and Watson.

In Self v. Self, 26 Cal.Rptr. 97, 376 P.2d 65, the court held that “at least for an. intentional tort one spouse may maintain an action against the other in California.” In Klein v. Klein, 26 Cal.Rptr. 102, 376 P.2d 70, the Self rule was extended to negligent torts. Both of these cases were influenced by legislative changes made since Peters and Watson, and particularly by the 1957 amendment of Cal.Civ.Code § 163.5 which provides that “all damages, special and general, awarded a married person in a civil action for personal injuries, are the separate property of such married person.” We had before us NRS 41.170, a similar statute, when we decided Kennedy, and we concluded as aforesaid that NRS 41.170 was not to be construed as to permit a wife to sue her husband for a personal tort. That was the law in Nevada when California chose in Self and Klein to disregard our construction of this type of statute.

We feel that any change in the common-law rule of interspousal immunity with respect to personal torts must be made by the legislature. Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389. To date, as shown by Kennedy and reiterated herein, its enactment of NRS 12.020 and NRS 41.170 have not effected such a change. As stated in the dissenting opinion of Justice Schauer in Klein: “When the Legislature sees fit to change the common law rule it is able — as we are not — to view the problem in all its ramnifications and to provide the necessary safeguards against abuses of the law.”

Affirmed.

Badt, C. J., concurs.

1 The record does not disclose the reason for this delay of almost 15 months.

2 NRS 12.020. “Action by or against a married woman. When a married woman is a party, her husband must be joined with her, except:

1. When the action concerns her separate property, or her right or claim to the homestead property, she may sue alone.

2. When the action is between herself and her husband, she may sue or be sued alone.

g * * *_»

3 NRS 41.170. “Option of husband and wife to sue jointly or separately. In cases where a wife sustains personal injuries by reason of the negligence of another, suit may be brought by the husband and wife jointly or separately at their option. When brought jointly, damages shall be segregated and those damages assessed by reason of personal injuries and pain and suffering shall be awarded to and belong to the wife, and damages assessed for loss of services and for hospital and medical expenses and other care shall be awarded to the husband. In cases where the wife sues separately, all damages sustained by the wife shall be awarded to and belong to the wife.”