Gordon v. Pollard
| Decision Date | 04 May 1960 |
| Court | Tennessee Supreme Court |
| Parties | Miss Doris GORDON, by next friend, v. Johnny POLLARD, Mrs. Lorene Pollard and C. P. Pollard. 11 McCanless 45, 207 Tenn. 45, 336 S.W.2d 25 |
Gayle Malone, Trenton, James D. Senter, Jr., Humboldt, for plaintiff in error.
Keith Short, Jackson, Harrell & Nowell, Trenton, for defendants in error.
This is an appeal in error from a judgment of the Circuit Court of Gibson County, sustaining a plea in abatement to the declaration filed by the plaintiff below, Miss Doris Gordon, who sued for damages arising out of an automobile accident which occurred on January 12, 1957.
The declaration alleges that she was riding as a passenger and guest in an automobile being operated by the defendant, Johnny Pollard, which automobile was owned and maintained by the defendants, Mrs. Lorene Pollard and C. P. Pollard, his mother and father, as a family purpose car. That by reason of the negligent operation of the automobile an accident occurred causing extremely severe injuries to plaintiff and by reason of which she incurred approximately damages of $7,500 including medical, doctors and hospital expenses. The second count of the declaration had allegations of statutory negligence on the part of the defendant, Johnny Pollard.
The defendants filed joint and several pleas in abatement to the declaration setting up as matters of abatement that at the time of the accident on January 12, 1957, the defendant, Johnny Pollard, was lawfully married to the plaintiff, Doris Gordon, and therefore, she did not have a cause of action for tort committed during coverture and that not having a cause of action against the defendant, Johnny Pollard, it would follow that she did not have a cause of action against his parents under the family purpose doctrine.
The pleas further charge as a matter of abatement that with reference to the decree of annulment the court did not have authority to entertain the proceedings and charged fraud, and that, therefore, the annulment proceedings were either null and void, or had the legal effect of granting the plaintiff an absolute divorce. In addition, the defendant, C. P. Pollard, charged that theautomobile belonged to the defendant, Mrs. Lorene Pollard, and that he could not be held liable under the family purpose doctrine.
The plaintiff, Miss Doris Gordon, then filed separate demurrer to the joint and several pleas in abatement, but generally stating that the pleas in abatement were insufficient on their face to bar the action of plaintiff; that the pleas in abatement and the exhibits showed on the face that the marriage between plaintiff and defendant, Johnny Pollard, was annulled by decree of the court holding the marriage void ab initio, and that there was no bar to plaintiff's suit against defendants; that the exhibits to the pleas in abatement show that the court had jurisdiction of the parties in the subject matter; that the defendant was notified of the proceedings; that the proceedings were valid on the face; that there was no sufficient basis set out in the pleas to sustain allegations of fraud; and that this was a collateral attack on the decree of the court.
The trial court sustained those grounds of the demurrer charging that the pleas in abatement and the exhibits thereto showed on the face that the annulment decree was valid and that the same could not be collaterally attacked, and overruled those grounds of the pleas in abatement attacking the validity of the annulment proceedings and the annulment decree.
The plaintiff excepted to that part of the ruling of the trial court overruling the grounds of the demurrer and sustaining that part of the pleas in abatement with reference to the effect of the annulment decree on her tort action. This appeal in error resulted.
One spouse cannot maintain an action against the other for an alleged tort which occurred in the State of Tennessee during coverture, because there is no civil right to be redressed. Prince v. Prince, Tenn.1959, 326 S.W.2d 908.
The common-law rule of interspousal immunity was not abrogated by the Married Women's Act of Tennessee, T.C.A. Sec. 36-601 et seq. Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S.W. 628, L.R.A.1916B, 881.
We are of the opinion that an annulment of a voidable marriage does not render the marriage void ab initio for all purposes. See Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637, 2 A.L.R.2d 632; Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501; Southern Railway Co. v. Baskette, 175 Tenn. 253, 133 S.W.2d 498.
An annulment of a voidable marriage does not create in a party thereto a right to maintain an action against the other party for a tort which occurred during the period the status of the parties was that of man and wife. Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388.
A marriage procured by fraud is, at most, a voidable marriage as distinguished from a void marriage. Heath...
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