Fisher v. Toler

• Decision Date: 15 May 1965
• Docket Number: No. 43982,43982
• Citation: 194 Kan. 701,401 P.2d 1012
• Parties: Margaret Kathryn FISHER, Appellant, v. Eugene Milton TOLER, Appellee.
• Court: Kansas Supreme Court

Page 1012

401 P.2d 1012

194 Kan. 701

Margaret Kathryn FISHER, Appellant, v. Eugene Milton TOLER, Appellee.

No. 43982.

Supreme Court of Kansas.

May 15, 1965.

Syllabus by the Court.

The rule in this state is that neither spouse may maintain an action in tort for damages against the other, and an exception to the rule is not created by the fact that a divorce action was pending or that the injury was intentionally inflicted.

Kent McCormick, Wichita, argued the cause, and Henry E. Martz, Clyde Wendelken, and Elliott Fry, Wichita, were with him on the briefs for appellant.

Byron Brainerd, Wichita, argued the cause, and Lawrence Weigand, Lawrence E. Curfman, Charles W. Harris, Orval J. Kaufman, J. Ruse McCarthy, Donald A. Bell, J. L. Weigand, Jr., Spencer L. Depew, Paul M. Buchanan, and Charles R. Moberly, Wichita, were with him on the briefs for appellee.

PARKER, Chief Justice.

This is an action by a wife to recover damages for an intentional personal injury inflicted by her husband pending a divorce action.

The facts presented in chronological order are as follows:

On October 19, 1962, the defendant, Eugene Milton Toler, filed an action for divorce against his wife, Margaret Kathryn Toler. On December 3, 1962, after being duly summoned, Margaret entered her appearance in the divorce action and Judge E. E. Sattgast entered an order directing Eugene and Margaret not to molest each other. On December 4, 1962, Eugence drove his automobile against the automobile of Margaret with the alleged intention of killing her, resulting in her serious injury.

On February 7, 1963, Margaret was awarded a divorce decree on her amended cross-petition.

On October 11, 1963, more than six months after the granting of the absolute decree of divorce, Margaret commenced this action against Eugene for damages. In her petition she specifically alleged:

'On or about December 4, 1962, at the approximate hour of 12:40 A.M., the Plaintiff was driving a 1954 Chevrolet automobile in a southerly direction, with all lights illuminating, in the 2100 block of North Broadway, having just passed the intersection of 21st Street and North Broadway at a reasonable rate of speed and upon the inside lane for southbound traffic. At this time and place a 1955 Buick, license No. SG 92588, owned and operated by the Defendant, struck the rear of Plaintiff's vehicle at about the center, throwing her vehicle forward. Immediately thereafter, the Defendant backed his car up, drove over on the sidewalk west of North Broadway in front of Hanson Furniture Company and while the Plaintiff's vehicle was at rest and she still in it, rammed his car against hers three separate and distinct times, seriously and permanently injuring the Plaintiff.'

Defendant filed his answer and plaintiff replied.

The specific allegations of the pleadings are not material to a determination of the legal question presented for appellate review. After joinder of issues the defendant filed the following motion:

'COMES NOW the above-named defendant and moves the Court for judgment upon the pleadings filed herein and/or pursuant to G.S.1949 60-2704 and 60-2902 for the determination of a question of law prior to trial of the above-entitled action on the issue of facts, movant contending the issue of law to be:

'Whether in the State of Kansas a wife may maintain an action in tort for personal injuries or property damage against the husband allegedly arising out of acts of the husband occurring during the existence of the marriage?'

After consideration of well prepared briefs submitted by both parties the trial court entered judgment in which it concluded:

'* * * the Court finds that in the State of Kansas a wife may not maintain an action in tort for personal injuries or property damage against the husband allegedly arising out of actions of the husband occurring during the existence of the marriage and that judgment for the defendant should be entered upon the pleadings filed herein.'

Thereupon plaintiff perfected the instant appeal.

Appellant first contends that the case of Sink v. Sink 172 Kan. 217, 239 P.2d 933, should be overruled as in violation of G.S.1949, 23-203, Section 18 of the Kansas Bill of Rights, and the spirit of Section 6 of Article 15 of the Kansas Constitution. In Sink v. Sink, supra, we held:

'Neither spouse may maintain an action in tort for damages against the other.' (Syl.)

The opinion in that case considered the statute and constitutional provisions which the appellant has again attempted to raise. We adhere to the conclusion reached in the Sink case and it would serve no useful purpose to extend this opinion by again reiterating what was there said and held. The Sink case was cited with approval in the recent case of O'Grady v. Potts, 193 Kan. 644, 645, 396 P.2d 285. Readers who desire to review the more recent decisions on the general rule announced in the Sink case are referred to 43 A.L.R.2d Anno., 632 to 671, incl. For additional annotations see A.L.R.2d Supplement Service for 1960, 1961, 1962, 1963 and 1964.

Appellant suggests without further argument that:

'Even if it is not overruled, the Sink case is clearly and easily distinguishable from the case at bar. The fact situation in Sink v. Sink involved an allegation of negligence as the result of an automobile accident. Moreover, the litigants were not separated, in the process of divorce or already divorced. In the case at bar, the facts involve an intentional assault and battery committed during the pendency of a previously initiated divorce. Surely this Court under these facts can at least restrict the Sink holding to its own facts and distinguish it from what is involved here.'

Conceding that the facts in the case at bar...