State ex rel. Angvall v. District Court of Thirteenth Judicial Dist., In and For Yellowstone County

• Decision Date: 12 August 1968
• Docket Number: No. 11462,11462
• Citation: 444 P.2d 370,151 Mont. 483
• Parties: The STATE of Montana ex rel. Jon ANGVALL, Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT, of the State of Montana, IN AND FOR the COUNTY OF YELLOWSTONE, Charles Luedke, District Judge Presiding, Respondents.
• Court: Montana Supreme Court

Page 370

444 P.2d 370

151 Mont. 483

The STATE of Montana ex rel. Jon ANGVALL, Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT, of

the State of Montana, IN AND FOR the COUNTY OF

YELLOWSTONE, Charles Luedke, District

Judge Presiding, Respondents.

No. 11462.

Supreme Court of Montana.

Submitted April 28, 1968.

Decided Aug. 12, 1968.

George C. Dalthorp, argued, Billings, for relator.

Robert L. Kelleher, argued, Billings, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an original proceeding wherein relator seeks an appropriate supervisory writ. In an action commenced in the respondent court by Patricia Angvall against relator, Jon Angvall, her husband, she sought damages for injuries sustained when struck by an automobile driven by him. Relator moved for summary judgnent, which motion was denied by the respondent court.

At the time Patricia Angvall was injured, she and relator, Jon Angvall, were husband and wife. It was alleged that the injuries occurred on September 18, 1966. On November 18, 1966, she filed her action for damages and on November 22, 1966, she filed an action to obtain an annulment of her marriage to Jon Angvall and a decree was entered on February 10, 1967.

In Montana the rule has always been that a wife may not maintain an action against her husband for personal injuries inflicted upon her by her husband while they are married. Conley v. Conley 92 Mont. 425, 15 P.2d 922 (1932); Kelly v. Williams, 94 Mont. 19, 21 P.2d 58 (1933). Nor has the rule been changed by the socalled Married Women's Act. Conley v. Conley, supra, p. 438, 15 P.2d 922. It should also be borne in mind that in the Kelly case, decided after the Conley case, this Court noted that the Legislature, between the time of the Conley and Kelly cases, considered and rejected a bill that would have allowed a wife to sue her husband for personal injuries inflicted upon her by him during coverture. Kelly v. Williams, supra, at p. 20, 21 P.2d 58. Since no statute has been enacted subsequent to the Kelly and Conley cases allowing a wife to sue her husband for personal injuries he inflicts upon her, the rule is still that as laid down in Conley and Kelly.

The rule also is that a former wife cannot sue her former husband for injuries inflicted upon her by the husband during coverture.

'At common law and in the absence of any constitutional or statutory provision affecting liability between spouses for personal torts, after divorce neither of the former spouses can maintain an action against the other for a personal tort committed during coverture, and this rule prevents such an action by the former wife against the former husband * * *'. 41 C.J.S. Husband and Wife § 396, pp. 886, 887. This Court sees no reason to distinguish between annulments and divorces as far as allowing actions subsequent to the termination of the marriage.

The only question remaining is whether Jon and Patricia Angvall were legally married at the time she sustained her injuries. Section 48-151, R.C.M.1947, enacted as section 11, chapter 232, Laws of 1963, which was in effect at the time of the marriage of Jon and Patricia Angvall, provided:

'It is unlawful for any person, who is a party to an action for divorce in any court in this state, or for any Montana resident who is a party to an action for divorce elsewhere, to marry again until six months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of six months from the date of the granting of judgment of divorce shall be void.' Section 48-151 was later repealed by section 1, chapter 63, Laws of 1967.

It is alleged that Jon Angvall, in violation of the above statute, did, on June 20, 1966, marry Patricia Angvall in Sheridan, Wyoming. In the district court Patricia Angvall contended that because Jon Angvall married within the six months period, in violation of the above statute, there was no valid marriage and she could, therefore, maintain her action; that is, that the marriage was from its inception null and void.

Former section 48-151 must be read in connection with the other sections of Title 48 covering marriages. Section 48-105 dealing with incompetency of parties to a marriage states that certain marriages are 'void from the beginning'. Also, section 48-111 dealing with subsequent marriages declares that two conditions must be met, otherwise a subsequent marriage is 'void from the beginning'.

On the other hand, former section 48-151 did not say that marriages within six months of a divorce are void from the beginning, only that they are void....