Rupert v. Stienne

• Decision Date: 02 December 1974
• Docket Number: No. 7601,7601
• Parties: David C. RUPERT, by Gordon A. Rupert, his father and guardian ad litem, et al., Appellants, v. Andre Jean STIENNE and Ann Harper Rupert, Respondents.
• Court: Nevada Supreme Court

Page 1013

528 P.2d 1013

90 Nev. 397

David C. RUPERT, by Gordon A. Rupert, his father and guardian ad litem, et al., Appellants, v. Andre Jean STIENNE and Ann Harper Rupert, Respondents.

No. 7601.

Supreme Court of Nevada.

Dec. 2, 1974.

Rice & Goedert, Reno, for appellants.

Vargas, Bartlett & Dixon, Reno, for respondents.

OPINION

BATJER, Justice.

In this consolidated appeal we are asked to reconsider this court's announced position on interspousal and parental tort immunity. Morrissett v. Morrissett, 80 Nev. 566, 397 P.2d 184 (1964); Kennedy v. Kennedy, 76 Nev. 302, 352 P.2d 833 (1960), and Strong v. Strong, 70 Nev. 290, 267 P.2d 240, 269 P.2d 265 (1954).

STIENNE:

This case deals with the question of responsibility for injuries to one spouse caused by the negligent operation of a motor vehicle by the other.

Beverly Stienne was injured while riding in an automobile driven by her husband, Andre Stienne. The accident resulted from a collision with a vehicle driven by Siefried Wagner. Mrs. Stienne filed suit against her spouse and Wagner for injuries she sustained in the accident. The Wagner litigation has not yet been concluded, and is not now before this court.

The district court granted the respondent Andre's motion for summary judgment based solely upon the doctrine of interspousal immunity as announced in Morrissett v. Morrissett, supra, and Kennedy v. Kennedy, supra, which precludes tort action by one spouse against another. Pursuant to the provisions of NRCP 54(b), ¹ the district court expressly determined that there was no just cause for delay and directed the entry of judgment. This appeal followed.

In Kennedy, this court declared that the common law rule that a wife could not sue her husband for a personal tort prevailed in Nevada in the absence of a permissive statute to the contrary, and in Morrissett said: 'We feel that any change in the common-law rule of interspousal immunity with respect to personal torts must be made by the legislature.' That position ignored the fact that the rule is not one made or sanctioned by the legislature, but rather is one that depends for its origin and continued viability upon the common law. Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771, 775 (1972). Having been created and preserved by the courts, the doctrine is subject to amendment, modification and abrogation by the courts if current conditions so dictate.

Although NRS 1.030 provides that '(t)he common law of England, so far as it is not repugnant to or in conflict with the Constitution and the laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all courts of his state,' it does not require this court to follow forever the common law doctrines of interspousal tort immunity. Despite NRS 1.030, courts may reject the common law where it is not applicable to local conditions. In State ex rel. George v. Swift, 10 Nev. 176, 183 (1875), this court said: 'If applicable to our condition and not abrogated by constitutional or statutory provision, it was, and is, binding upon the courts of every State that has adopted the common law as the rule of decision. Moreover, being founded upon the gravest considerations of public policy, and expressing the wisdom derived from centuries of experience, it would seem that such a rule should not be lightly departed from.' (Emphasis added.)

This court rejected the common law rule of England which decreed that agreements to submit any and all disputes to arbitration were unenforceable and ruled instead that an agreement to arbitrate a future dispute was valid and enforceable. United Ass'n of Journeymen v. Stine, 76 Nev. 189, 351 P.2d 965 (1960). This court has also rejected the common law doctrine of riparian rights. Jones v. Adams, 19 Nev. 78, 87, 6 P. 442 (1885) (overruling Vansickle v. Haines, 7 Nev. 249 (1872)); Walsh v. Wallace, 26 Nev. 299, 327, 67 P. 914 (1902); Reno Smelting, etc., Works v. Stevenson, 20 Nev. 269, 21 P. 317 (1889).

The Supreme Court of Oregon in In re Hood River, 114 Or. 112, 227 P. 1065, 1083 (1924), after citing and discussing the holding in Reno Smelting, etc., Works v. Stevenson, supra, went on to say: 'The very essence of the common law is flexibility and adaptability * * *. (I)t finds widely different expression in different jurisdictions. If the common law should become so crystalized that its expression must take on the same form wherever the common-law system prevails, irrespective of physical, social, or other conditions peculiar to the locality, it would cease to be the common law of history, and would be an inelastic and arbitrary code. It is one of the established principles of the common law, which has been carried along with its growth, that precedents must yield to the reason of different or modified conditions.' Id. 227 P. 1086, 1087.

The doctrine of stare decisis must not be so narrowly pursued that the body of the common law is forever encased in a straight jacket. In State v. Culver, 23 N.J. 495, 129 A.2d 715, 721 (1957), Chief Justice Vanderbilt wrote: '. . . One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Dean Pound posed the problem admirably in his interpretations of Legal History (1922) when he stated: 'Law must be stable, and yet it cannot stand still.''

As in any case involving an attack upon a common law principle, we must reexamine the reasons behind the doctrine of interspousal immunity. State ex rel. George v. Swift, 10 Nev. 176 (1875).

At common law, a husband and wife were regarded as one because a metaphysical merger had taken place, and the legal existence of the wife and merged with that of the husband. Under this concept, either spouse was precluded from maintaining an action against the other for wrongful conduct whether intentional or negligent. 1 Blackstone Commentaries 442; Prosser, The Law of Torts, Ch. 23, Sec. 122, 4th Ed. 1971. This artificial concept cannot be seriously defended today and is not compatible with our current conditions.

The doctrine of interspousal tort immunity has been perpetuated on the notion that it fosters domestic tranquility and prevents fraud and collusion, and it has been frequently argued that fraudulent and collusive suits would flow from abandonment of the rule. There is a possibility of fraud or collusion in every negligence action where the tort-feasor is insured. Where the adversaries are husband and wife, not only are the parties in close personal relationship, but any recovery will inure to the benefit of the entire family, and the failure to recover will affect the entire family adversely.

However, to deny one spouse the opportunity to recover for the tortious conduct of the other because of the possibility of fraud and collusion, belies the centuries old trust in our jury system. An interspousal tort claim should not be saddled with the presumption of fraud ab initio. Courtney v. Courtney, 184 Okl. 395, 87 P.2d 660 (1938). Our adversary system will ferret out the non meritorious claims and dispatch those who would practice fraud upon the courts.

In Klein v. Klein, 58 Cal.2d 692, 696, 26 Cal.Rptr. 102, 105, 376 P.2d 70, 73 (1962), the California Supreme Court announced its position with regard to interspousal tort immunity and the collusion argument when it said: 'It would be a sad commentary on the law if we were to admit that the judicial processes are so ineffective that we must deny relief to a person otherwise entitled simply because in some future case a litigant may be guilty of fraud or collusion. Once that concept were accepted, then all causes of action should be abolished. Our legal system is not that ineffectual.' As Justice Thompson pointed out in his dissent in Morrissett: 'Photography, scientific investigative procedures, pre-trial discovery, cross examination, etc., are usually adequate safeguards against the fabricated claim. Trial courts and jurors are sensitive to the 'trumped up' charge.'

Marital discord which would purportedly stem from interspousal tort suits is equally non-persuasive as a reason for retention of the doctrine.

Interspousal suits are allowed in actions not sounding in tort. In Nevada a husband has been permitted to bring an action and recover money loaned by him to his wife for the improvement of her separate property. Kraemer v. Kraemer, 76 Nev. 265, 352 P.2d 253 (1960). In numerous cases decided in other jurisdictions one spouse has been permitted to bring an action against the other for a variety of torts committed against the complaining spouse's property rights. Prosser, The Law of Torts, Ch. 23, Sec. 122. Those actions are as likely to bring about conjugal discord, as are actions for personal torts, yet only personal tort claims have been precluded upon the ground that they would shatter the harmony of the family. Self v. Self, 58 Cal.2d 683, 26 Cal.Rptr. 97, 101, 376 P.2d 65, 69 (1962).

Such characterization runs against our fundamental concept of tort law. A person proximately injured by the act of another, whether wilfully or negligently, should, unless it is against public policy, be compensated. Klein v. Klein, supra. In abandoning the doctrine of interspousal immunity, the Supreme Court of the State of Washington reasoned that if a state of peace and tranquility existed, then no action would be commenced, or the spouses...