Watson v. Watson

[306]

SHENK, J.

This is an appeal from a judgment of dismissal of an action for malicious prosecution on the ground that it was sham and frivolous and not filed in good faith. The real question is whether the complaint states a cause of action enforceable by the plaintiff.

The plaintiff, William Watson, and the defendant, Dorothy Watson, were married in Nevada in March, 1948. At that time an interlocutory decree of divorce had been entered as between the plaintiff and his first wife in a California court, but the final decree was not entered until 1950. Immediately prior to his marriage to the defendant and while the California interlocutory decree was still in effect, the plaintiff obtained a Nevada decree of divorce from his first wife and represented to the defendant that he had been legally and finally divorced by that decree and was free to marry her. In November, 1949, the defendant sued the plaintiff for a divorce in California. The trial court held that the Nevada divorce decree was invalid and ineffective in dissolving the plaintiff’s prior marriage, and in December, 1950, entered a decree annulling the marriage between the plaintiff and the defendant on the ground that it was bigamous and void. In December, 1949, while the proceedings which resulted in annulment were pending, the defendant caused the plaintiff to be arrested on a charge of battery as defined by section 242 of the Penal Code. Upon trial the plaintiff was acquitted of this charge. That arrest and acquittal form the basis for the present action.

The defendant seeks an affirmance of the judgment on the ground that her marriage to the plaintiff was valid to the extent that it prevented the plaintiff from maintaining a tort action against her for a wrong committed during the purported coverture and that in any event the plaintiff is estopped from contending otherwise.

It is the established rule generally and is the law in California that where the parties are lawful spouses the one may not sue the other for damages in tort.

(Peters

v. Peters, 156 Cal. 32 [103 P. 219, 23 L.R.A.N.S. 699].) The rule equally applies to prevent an action for a tort occurring after the entry of the interlocutory decree but before entry of the final decree.