Callow v. Thomas
| Decision Date | 01 April 1948 |
| Citation | 322 Mass. 550,78 N.E.2d 637 |
| Parties | CALLOW v. THOMAS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Middlesex County.
Action by Muriel Callow against Frederick Thomas for injuries sustained when plaintiff was riding as a gratuitous passenger in an automobile owned and operated by defendant. The case was reported to Supreme Judicial Court without decision.
Judgment for defendant.
Before QUA, C. J., and LUMMUS, DOLAN, WILKINS, and SPALDING, JJ.
M. Harry Goldburgh and J. Finks, both of Boston, for plaintiff.
K. C. Parker, of Boston, for defendant.
The plaintiff and the defendant were married in this Commonwealth on August 6, 1944, and thereafter lived together here as husband and wife. On November 9, 1944, while riding as a ‘gratuitous passenger’ in an automobile owned and operated by the defendant, the plaintiff was injured when the automobile, due to the gross negligence of the defendant, ran into a tree. The plaintiff was in the exercise of due care. The accident occurred on a public way in this Commonwealth and the defendant's automobile was registered in accordance with the laws thereof. On June 28, 1945, upon the petition of the plaintiff to annual the marriage because of the defendant's fraud, the Probate Court decreed that the marriage was ‘null and void.'1 Two months later the plaintiff commenced this action of tort to recover compensation for her injuries.
The foregoing facts were submitted to a judge of the Superior Court upon a case stated in which it was agreed that no inferences should be drawn. See G.L.(Ter.Ed.) c. 231, § 126. The judge at the request of the parties reported the case to this court without decision. G.L.(Ter.Ed.) c. 231, § 111; Scaccia v. Boston Elevated Railway Co., 317 Mass. 245, 248, 249, 57 N.E.2d 761, ‘upon the stipulation that if the plaintiff is entitled to recover, judgment shall be entered for the plaintiff in the sum of $3,000, otherwise judgment for the defendant.’
The question for decision is whether a wife after the marriage has been annulled can maintain an action against her former husband for a tort committed during coverture. The question is one of first impression in this Commonwealth. Indeed no case in any other jurisdiction has been brought to our attention, and we have found none, in which this question has been presented.
That no cause of action arises in favor of either husband or wife for a tort committed by the other during coverture is too well settled to require citation of authority. Recovery is denied in such a case not merely because of the disability of one spouse to sue the other during coverture, but for the more fundamental reason that because of the marital relationship no cause of action ever came into existence.2 That this is so is revealed by the fact that it has uniformly been held that even after divorce no action can be maintained by either spouse for a tort committed by the other during coverture. Phillips v. Barnet, 1 Q.B.D. 436; Abbott v. Abbott, 67 Me. 304, 24 Am.Rep. 27;Bandfield v. Bandfield, 117 Mich. 80, 75 N.W. 287,40 L.R.A. 757, 72 Am.St.Rep. 550;Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A.,N.S., 191, 116 Am.St.Rep. 387;Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S.W. 628, L.R.A.1916B, 881, Ann.Cas. 1917C, 901;Schultz v. Christopher, 65 Wash. 496, 118 P. 629, 38 L.R.A.,N.S., 780. There is nothing in our statutes enlarging the rights of married women that can be construed as altering this rule.3 See Lubowitz v. Taines, 293 Mass. 39, 198 N.E. 320;Luster v. Luster, 299 Mass. 480, 482, 483, 13 N.E.2d 438. Recognizing the common law rule and the fact that it has not been changed by statute, the plaintiff argues that the decree of nullity ‘effaced the marriage between the plaintiff and defendant ab initio, and, therefore, at the time of the accident the relationship of husband and wife did not exist.’
General Laws (Ter.Ed.) c. 207, § 14, which governs proceedings for annulment, so far as material, reads as follows: In general it may be said that an annulment is to be distinguished from a divorce in that it is not a dissolution of the marriage but is a judicial declaration that no marriage has ever existed. In other words, the decree of annulment makes the marriage void ab initio. Restatement: Conflict of Laws, § 115(1), comment b; Clarke v. Menzies, [1922] 2 Ch. 298; Dodworth v. Dale, [1936] 2 K.B. 503, 511; Mason v. Mason, [1944] N.I. 134; Millar v. Millar, 175 Cal. 797, 804, 805, 167 P. 394, L.R.A.1918B, 415, Ann.Cas.1918E, 184;McDonald v. McDonald, 6 Cal.2d 457, 461, 58 P.2d 163, 104 A.L.R. 1290;Griffin v. Griffin, 130 Ga. 527, 61 S.E. 16, 16 L.R.A.,N.S., 937, 14 Ann.Cas. 866;Henneger v. Lomas, 145 Ind. 287, 298, 44 N.E. 462,32 L.R.A. 848;Ridgely v. Ridgely, 79 Md. 298, 305, 29 A. 597,25 L.R.A. 800;Steerman v. Snow, 94 N.J.Eq. 9, 13, 14, 118 A. 696;Jones v. Brinsmade, 183 N.Y. 258, 76 N.E. 22, 3 L.R.A.,N.S., 192, 111 Am.St.Rep. 746,5 Ann.Cas. 378;Leventhal v. Liberman, 262 N.Y. 209, 211, 186 N.E. 675, 88 A.L.R. 782. See Loker v. Gerald, 157 Mass. 42, 45, 31 N.E. 709,16 L.R.A. 497, 34 Am.St.Rep. 252;Hanson v. Hanson, 287 Mass. 154, 157, 191 N.E. 673, 93 A.L.R. 701. And this is true even though, as here, the marriage be only voidable at the instance of the injured party. Dodworth v. Dale, [1936] 2 K.B. 503, 511-512; Mason v. Mason, [1944] N.I. 134; McDonald v. McDonald, 6 Cal.2d 457, 461, 58 P.2d 163, 104 A.L.R. 1290;Matter of Moncrief's Will, 235 N.Y. 390, 139 N.E. 550, 27 A.L.R. 1117;Sleicher v. Sleicher, 251 N.Y. 366, 369, 167 N.E. 501, 502.
But the doctrine that such a decree makes the marriage void ab initio has not always been applied unqualifiedly. See Sleicher v. Sleicher, 251 N.Y. 366, 369, 167 N.E. 501, 502.4 In England, where the question of the effect of a decree of annulment seems to have been considered to a greater extent than in this country, the rule is that such a decree makes the marriage void for most purposes but not for all. In discussing the effect of such a decree in Mason v. Mason, [1944] N.I. 134, it was said by Lord Chief Justice Andrews, (page 163).
This exception has been recognized in several decisions. Thus in Anstey v. Manners, Gow. 10, the plaintiff, after a sentence of nullity had been pronounced by the Ecclesiastical Court, brought suit against the former husband to recover for necessaries which he (the plaintiff) had supplied to the wife. Some of the necessaries were supplied during the supposed marriage and some were supplied afterwards. In a very brief opinion which is somewhat obscure it was held that the defendant was not liable for debts contracted after the date of the decree. The case has been considered as impliedly holding that the defendant was liable for necessaries furnished prior to that date. See Dodworth v. Dale, [1936] 2 K.B. 503, 512.
In Dunbar v. Dunbar, [1909] 2 Ch. 639, it was held that a completed and executed transaction, namely, an advancement, effected while the plaintiff and the defendant were living together as man and wife, was unaffected by a subsequent decree annulling a marriage which was voidable but not void.
In Dodworth v. Dale, [1936] 2 K.B. 503, it was held that a husband who had obtained an annulment of his marriage on the ground of his wife's impotency and who during the period of his purported marriage had filed tax returns as a married man, could not be compelled to pay additional taxes for that period on the ground that the defendants which he had taken for the support of his wife were improper. The court stated ‘that what has been done during the continuance of the de facto marriage cannot be undone-cannot be overturned by the operation of law’ (page 519).
In Fowke v. Fowke, [1938] Ch. 774, it was held that a decree of nullity granted on the ground of the wife's impotency did not affect a previous deed of separation whereby the husband convenanted to pay the wife an annuity so long as she continued to lead a chaste life. See also P. v. P. [1916] 2 Jr.R. 400; De Reneville v. De Reneville, [1947] A.C.5
We are of opinion that the exception recognized in these cases is sound and that the present case falls within it. At the time of the accident the parties were husband and wife for all intents and purposes. Had no proceedings been brought to annul the marriage, this status would have endured until the marriage was terminated by death or divorce. In other words, the marriage here was voidable and not void and was valid until it was set aside by the decree of nullity. 1 Bish.Mar.Div. & Sep. §§ 258, 259, 271, 281; Anders v. Anders, 224 Mass. 438, 441, 113 N.E. 203, L.R.A.1916E, 1273;Sleicher v. Sleicher, 251 N.Y. 366, 369, 167 N.E. 501, 502. It is to be observed that this is not a case of a marriage prohibited by law such as a bigamous marriage or one prohibited by reason of consanguinity or affinity between the parties. G.L.(Ter.Ed.) c. 207, §§ 1, 2, 4. Such a marriage is no marriage at all and is ‘void without a decree of divorce or other legal process.’ G.L.(Ter.Ed.) c. 207, § 8. While it doubtless is true that a decree of nullity ordinarily has the effect of making a marriage, even one which is voidable, void ab initio, this is a legal fiction which ought not to be pressed too far. To say that for all purposes the...
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