White v. Yup

• Decision Date: 12 September 1969
• Docket Number: No. 5706,5706
• Citation: 458 P.2d 617,85 Nev. 527
• Parties: Dorothy WHITE, Appellant, v. Henry YUP, Respondent.
• Court: Nevada Supreme Court

Page 617

458 P.2d 617

85 Nev. 527

Dorothy WHITE, Appellant, v. Henry YUP, Respondent.

No. 5706.

Supreme Court of Nevada.

Sept. 12, 1969.

[85 Nev. 528] Stewart & Horton, Reno, for appellant.

Leslie A. Leggett, Reno, for respondent.

OPINION

MOWBRAY, Justice:

Appellant, Dorothy White, sued respondent, Henry Yup, for damages resulting from a two-car collision at a street intersection, when a motor vehicle driven by Yup struck a car driven by Dorothy's husband, William White, in which Dorothy was riding as a passenger. Dorothy prayed in her first cause of action for $112,280.50 in damages for her own personal injuries suffered as a result of the accident, and in her second cause of action she asked for $10,000 in damages for the wrongful death of her 8-months-old fetus. The case was tried to a jury, and a verdict was returned in favor of Yup.

The collision occurred at the intersection of Locust Street and East Plumb Lane in Reno. The Whites were traveling south on Locust, and Yup was proceeding east on Plumb. At the time of the accident there were no traffic control signals, but there was a stop sign on Locust Street. The evidence is conflicting. William White testified that he came to a complete stop at the sign, then proceeded into the intersection, where Yup's vehicle struck the Whites' car. Yup, on the other hand, maintained that William failed to obey the stop sign and drove in front of Yup's car and that the collision resulted.

Dorothy seeks a reversal of the judgment and a new trial on the ground that the trial judge did not properly instruct the jury. She contends that he committed reversible error when he instructed the jury that her husband's negligence in the operation of his vehicle was imputable to her. ¹ We agree that the instruction was improper, and we reverse and remand the case for a new trial.

1. Ever since the case of Fredrickson & Watson Constr. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 (1940), it has been the law of Nevada that a husband's contributory negligence may not be imputed to his wife so as to preclude her recovery against a third person who has caused her injury. In Fredrickson, the court said, at 122, 102 P.2d at 629, in quoting from McKay on Community Property 398 at 296 (2d ed. 1925):

"The husband as head of the community sustains the same relation to the wife as at common law, so far as the present question is concerned--he is entitled to her services, and is liable for the expense of her care and cure, and for the violation of these rights he should recover. But neither at common law or by the law of community does he hold the wife's right to personal security and should not be permitted to recover for the violation of this right. It does not belong to him nor to the community. The wife's physical pain and suffering are not his loss nor the loss of the community."

And the court concluded, at 123, 102 P.2d at 629:

'From what has been said, it follows that the contributory negligence of the husband cannot be imputed to the wife in this state.' See also Choate v. Ransom, 74 Nev. 100, 323 P.2d 700 (1958); Lee v. Baker, 77 Nev. 462, 366 P.2d 513 (1961); NRS 41.170.

Respondent contends that the 'Family Purpose Statute,' NRS 41.440, ² enacted in 1957, has changed the rule announced in Fredrickson. He argues that the phrase in the statute, 'for all purposes of all civil damages', includes all owners of a family vehicle, whether they are plaintiffs or defendants. In other words, the third-party plaintiff or defendant may use NRS 41.440 both as a 'sword' (to fix liability on the owner of the vehicle) and as a 'shield' (to bar any action brought against him by the owner or any passenger in the vehicle). We do not agree. NRS 41.440 is a 'liability' statute, and it in no way abrogates the rule announced in Fredrickson. The very title of the act amending NRS chapter 41 to provide for the 'Family Purpose Statute' reads:

'AN ACT to amend chapter 41 of NRS relating to special actions and proceedings by creating new provisions imposing liability upon the owner of a motor vehicle for negligent operation thereof by immediate member of family.' (Emphasis added.) Ch. 37, Stats. Nev. 1957 at 60.

The origin, use, and standard definitions of the family purpose doctrine provide ample evidence that the rule is primarily a plaintiff's device. We reject any attempt to use the doctrine as a defense technique to impute a family member's contributory negligence to the family car owner or a member of the family who as plaintiff is seeking to recover personal or property damages arising when a defendant's automobile collides with a plaintiff's family purpose car.

The defendant in Bartek v. Glasers Provisions Co., 160 Neb. 794, 71 N.W.2d 466 (1955), unsuccessfully attempted to use the family purpose doctrine as a means of imputing the driver's contributory negligence to the plaintiff, who was the driver's wife. The court declared that the family purpose doctrine does not have for its objective the purpose of defeating a claim for damages by a passenger by imputing the negligence of the driver to such passenger, but instead, as a matter of public policy, has as its purpose the imposition of liability upon the owner of the car being used for family purposes. In Michaelsohn v. Smith, 113 N.W.2d 571, 574, 8 A.L.R.3d 1183 (N.D. 1962), the court said:

'The family purpose doctrine and the financial responsibility statutes, such as those of Iowa and Minnesota have their origin in an identical public policy, that of giving an injured party, who is free of negligence, a cause of action against a financially responsible defendant. The doctrine was an extension of previously established rules of liability in order to 'advance the dictates of natural justice.' Its application, therefore, should only be coextensive with its purpose. To extend the doctrine to deny the right of a non-negligent car owner to recover from a negligent driver of another car would defeat the public policy the doctrine is intended to serve. It is our view therefore that the negligence of Austin Michaelsohn, if any, may not be imputed to W. E. Michaelsohn.' See also Brower v. Stolz, 121 N.W.2d 624 (N.D. 1963).

We agree that the application of the Family Purpose Statute would be defeated if the doctrine were to be used to prevent recovery from a negligent defendant by a nonnegligent plaintiff, and we hold that it has not abrogated the Fredrickson rule. The trial judge committed reversible error when he gave the jury Instruction No. 7, supra, and the case must be reversed and remanded for a new trial.

2. Appellant offered Instruction B, ³ which the trial judge rejected. Respondent had moved prior to trial to dismiss Dorothy's second cause of action, i.e., the claim for damages resulting from the wrongful death of her 8-months-old fetus. The district judge denied the motion. Although that issue is not before us on this appeal, it becomes necessary, because we are remanding the case for a new trial, to consider the question in order to reach the propriety of proposed Instruction B.

At common law, actions for death did not survive the death of the injured party. W. Prosser, Law of Torts 920 (3d ed. 1964). Consequently, there was no right of action for an injury which resulted in death. Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808). To correct this defect, the British Parliament in 1846 adopted Lord Campbell's Act (Fatal Accidents Act, 9 & 10 Vict., ch. 93 (1846)), which most American jurisdictions have followed.

The Wrongful Death Act of Nevada, NRS 41.080, is typical, and reads as follows:

'Liability for death by wrongful act. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the persons who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.'

The statute sets forth two requirements to maintain a cause of action: (1) the death of a person and (2) the prior right of the deceased to maintain a cause of action had death not ensued.

Because the question raised is whether an action may be allowed where a viable fetus dies prior to birth as the result of an injury, it is necessary to determine whether there is a cause of action in Nevada (1) for prenatal injuries and (2) for the wrongful death of a stillborn child.

I. PRENATAL INJURIES.

The first case in which the question of recovery for prenatal injuries arose was Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (Mass. 1884), where the court denied the right of action. In Dietrich, a woman in the fourth month of pregnancy fell as a result of a defect in a street. The fall produced a miscarriage, and the child died upon birth. The court held that the child was not a 'person' within the statutes that gave a cause of action for negligent death to the administrator of the estate of a deceased person. The court reasoned that, since the mother and the fetus were physically inextricable, they should be considered one entity. This was undoubtedly the medical view accepted by the law at that time, but it has been altered over the years.

Dietrich has been effectively overruled by Keyes v. Construction Serv., Inc., 340 Mass. 633, 165 N.E.2d 912, 915 (1960), where the court said:

'We think it advisable that in respect to the subject of prenatal injury the law of this Commonwealth should be in general in harmony with that of the large and growing proportion of the other States * * *. There is no need to reverse the Dietrich decision which doubtless was right when rendered but we recognize that in view of modern precedent...