KENNEDY VS. KENNEDY (FAMILY)

Statutes cited

Key holdings

Practitioner summary

By the Court, McNamee, C.J. On the wife's appeal from dismissal of her negligence action against her husband for personal injuries, the sole question was whether a wife may maintain a personal-injury tort action against her husband. Recognizing the common-law rule barring such actions, the court held it prevails in Nevada absent a permissive statute. NRS 12.020 - allowing a married woman to sue alone when the action concerns her separate property or homestead, or when the action is between her and her husband - is procedural and did not create a substantive interspousal tort cause of action; the right to sue alone for injuries to her person came only in 1949 (NRS 41.170), which, like the rule that a wife's personal-injury damages are her separate property (Fredrickson-Watson Constr. Co. v. Boyd, 60 Nev. 117, 102 P.2d 627 (1940)), merely expresses the common law and neither created nor enlarged a cause of action. Adopting the majority rule, the court followed California's construction of the identical Code of Civil Procedure section 370 (Peters v. Peters, 156 Cal. 32, 103 P. 219 (1909); Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19 (1952)), noting Nevada's 1911 readoption of that code is presumed to carry the parent state's construction (Minden Butter Mfg. Co. v. District Court, 57 Nev. 29, 56 P.2d 1209 (1936)). Affirmed.

In plain language

A wife sued her husband for damages, claiming he negligently fired a gun and the bullet injured her. The trial court dismissed her complaint, and she appealed. The only question was whether a wife can sue her husband for personal injuries caused by his negligence. Under the old common law, a wife could not sue her husband in tort (for a wrong like a personal injury) at all. The wife admitted this but argued that a Nevada statute (NRS 12.020) had changed the rule. The Nevada Supreme Court disagreed. That statute simply lets a married woman sue on her own when a case concerns her separate property or her homestead, or when the case is between her and her husband - it is a procedural rule about who may bring suit, not a rule creating a new right to sue a spouse for a personal injury. A separate 1949 law (NRS 41.170) let her sue on her own for injuries to her person, but that just restated the existing common-law rule and did not create a new claim against her husband. The court noted that most states, even with similar statutes, hold that a wife cannot sue her husband for a personal injury, while a minority hold the opposite. Nevada adopted the majority rule. It pointed out that Nevada had borrowed this statute from California in 1911, and that California's highest court had already interpreted the identical language as not permitting spouses to sue each other for personal torts - so Nevada was presumed to have adopted that interpretation too. The court affirmed the dismissal, holding that a wife cannot sue her husband for a personal tort in Nevada unless a statute clearly permits it, and neither statute did.