Paulus v. Bauder
Decision Date | 20 September 1951 |
Citation | 106 Cal.App.2d 589,235 P.2d 422 |
Parties | PAULUS v. BAUDER et al. Civ. 4258. |
Court | California Court of Appeals Court of Appeals |
Stephen C. Johnson and Hubert L. Rose, San Diego, for appellant.
Gray, Cary, Ames & Driscoll and Ward W. Waddell, Jr., San Diego, for respondent.
Plaintiff and appellant sought damages for injuries received while riding as a guest or passenger in an automobile driven by defendant and respondent Frank A. Paulus, which automobile collided with another car driven by defendant Roy A. Bauder.
Judgment, on motion, was entered against appellant plaintiff and in favor of respondent defendant Frank A. Paulus, upon the theory that no cause of action exists in favor of one spouse against the other upon a claim arising out of a tort action. The Pauluses, after some years of married life, separated on August 27, 1949, and lived separated and apart. On October 3, 1949, appellant filed a complaint for divorce. On October 28, she secured an interlocutory decree. Neither alimony nor support money was sought. A final decree of divorce was entered on October 3, 1950, prior to the trial of this action. On February 13, 1950, after the entry of the interlocutory decree, respondent Paulus was operating his automobile, in which appellant was riding at the instance of respondent as a guest or passenger, on a road in San Diego County, and it collided with a car owned or driven by defendant Bauder. Appellant sustained injuries and damages alleged to be due to the negligence of both defendants.
Only two questions are presented on this appeal: (1) Can a wife maintain an action against the husband for a tort occurring after the entry of the interlocutory decree but before the entry of the final decree where the interlocutory decree settles their property rights and at the time of the trial they are single persons? (2) Can one spouse be a guest or passenger in the automobile of the other during the period after the interlocutory decree and before the final decree?
Appellant contends that these are first impression questions in California. Respondent argues that they are settled by the decisions in Peters v. Peters, 156 Cal. 32, 103 P. 219, 220, 23 L.R.A.,N.S., 699; and Cubbison v. Cubbison, 73 Cal.App.2d 437, 166 P.2d 387, and appellant maintains they are not applicable. The Peters case involved an action by the husband against the wife for injuries inflicted upon him when the defendant wife shot him in the leg for no particular reason. They were living together at the time. There it was definitely held that 'an action cannot be maintained by one spouse against the other for a battery committed during the continuance of the marriage relation.' (Italics ours.) And the court said: (Citing cases.) The court then concluded with the statement: 'It would be a forced interpretation to attempt to discern * * * in any of the provisions of the Civil Code, an intent to make a departure from the common law so radical, and so opposed to its general policy, as the authorization of a suit by the husband or wife against the other for injuries to the person or character.' The court there cites the language of Abbott v. Abbott, 67 Me. 304, 24 Am.Rep. 27, wherein it is said that the relation of marriage, while it continues, 'so to speak, acts as a perpetually operating discharge of all wrongs between man and wife, committed by one upon the other.'
The Cubbison case involved a suit by one spouse against the other arising out of an automobile accident. The husband and wife were separated at the time of the filing of the complaint. It was there held, citing the Peters case and the general rule, that one...
To continue reading
Request your trial-
Enke, Application of, 9571
...for taking an appeal has expired with no appeal taken. Vickers v. State Bar of Cal., 32 Cal.2d 247, 196 P.2d 10; Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422; In re Fulton's Estate, 8 Cal.App.2d 423, 48 P.2d 120; Green v. Green, 66 Cal.App.2d 50, 151 P.2d 679; Borg v. Borg, 25 Cal.App......
-
Spellens v. Spellens
...(Peters v. Peters (1909), 156 Cal. 32, 36, 103 P. 219, 23 L.R.A.,N.S., 699 (action for battery not allowed); Paulus v. Bauder (1951), 106 Cal.App.2d 589, 591-592, 235 P.2d 422(1) (action for injury in automobile accident sustained during interlocutory period not allowed); Cubbison v. Cubbis......
-
Taylor v. Patten, 8119
...Mont. 425, 15 P.2d 922; McKinney v. McKinney, 59 Wyo. 204, 135 P.2d 940; Watson v. Watson, 39 Cal.2d 305, 246 P.2d 19; Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422; Cubbison v. Cubbison, 73 Cal.App.2d 437, 166 P.2d 387; Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A.,N.S., 699; W......
-
Haumschild v. Continental Cas. Co.
...156 Cal. 32, 103 P. 219, 23 L.R.A., N.S., 699; Cubbison v. Cubbison, 1946, 73 Cal.App.2d 437, 166 P.2d 387, and Paulus v. Bauder, 1951, 106 Cal.App.2d 589, 235 P.2d 422. This court was first faced with this question in Buckeye v. Buckeye, 1931, 203 Wis. 248, 234 N.W. 342. In that case Wisco......