Morrissett v. Morrissett

• Decision Date: 14 December 1964
• Docket Number: No. 4781,4781
• Citation: 80 Nev. 566,397 P.2d 184
• Parties: Edith L. MORRISSETT, Appellant, v. E. J. MORRISSETT, Respondent.
• Court: Nevada Supreme Court

Page 184

397 P.2d 184

80 Nev. 566

Edith L. MORRISSETT, Appellant, v. E. J. MORRISSETT, Respondent.

No. 4781.

Supreme Court of Nevada.

Dec. 14, 1964.

Gordon W. Rice and Leo P. Bergin, Reno, for appellant.

Goldwater, Taber & Hill, Reno, for respondent.

McNAMEE, Justice.

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 12.020 ² and NRS 41.170 ³ 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, 58 Cal.2d 683, 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, 58 Cal.2d 692 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 '[a]ll 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 ramifications and to provide the necessary safeguards against abuses of the law.'

Affirmed.

BADT, C. J., concurs.

THOMPSON, Justice (dissenting).

This case involves the common law rule of interspousal immunity for a negligent tort. In Kennedy v. Kennedy, 76 Nev. 302, 352 P.2d 833, this court applied the common law rule of immunity, pointing out that the legislature had not, by enacting NRS 12.020 or NRS 41.170, authorized a wife to sue her spouse for a negligent tort. We are asked to reexamine the validity of the common law principle in the light of today's conditions and to abandon it as archaic and unreasonable; in short, to overrule Kennedy.

It seems to me that the reasons for discarding the rule greatly outweigh those given in its support. At the moment, the states are almost evenly divided on the question. See Annot., 43 A.L.R.2d 647 (1955); 36 So.Cal.L.Rev. 456 (1963). Departure from the rule is the modern trend and is advocated by eminent tort scholars. Prosser, Torts, 2d ed., pp. 670-675; Harper & James, Torts, pp. 645, 646 (1956); McCurdy, Personal Injury Torts Between Spouses, 4 Vill.L.Rev. 303 (1959). The arguments for and against are fully articulated in the above citations and, more recently, in Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389 (against abolition); Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (for abolition); and Cramer v. Cramer (Alaska), 379 P.2d 95 (for abolition); and need not be repeated here. However, I do wish to briefly mention one phase of the total problem which, in the negligence area, persuades me to disagree with Kennedy and with the majority view in today's case.

I am convinced that the common law rule of interspousal immunity encourages the trial of negligence cases and discourages settlement. There is no sensible reason for treating this case differently than the usual guest case against joint tort-feasors. ¹ The great bulk of court litigation today is in tort, and particularly tort cases arising out of motor vehicle accidents. By far, most of these accidents involve more than one vehicle. Consequently, when a guest is the claimant, he will seek to fasten liability upon the drivers of the colliding vehicles as joint tort-feasors and, if successful, may obtain satisfaction of judgment from either or both. The joint tort-feasors, as judgment debtors, do not enjoy any right of contribution. Gensler-Lee of Reno, Inc. v. Geertson, 73 Nev. 328, 318 P.2d 1113. The result, of course, is that sometimes the tortfeasor least at fault may be required to pay the judgment. The result is justified, I suppose, because of the difficulty encountered in attempting to compare negligence and distribute the dollar loss as between joint defendants. This general scheme has proven to be reasonably workable. The hostdefendant in protected to the extent that his liability rests upon proof of gross negligence, intoxication or willful misconduct (NRS 41.180), while the codefendant may be found liable for ordinary...