Paulus v. Bauder

[590]

GRIFFIN, Acting P. J.

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. Bander.

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 separate 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 Bander. Appellant sustained injuries and damages alleged to be due to the negligence of both defandants.

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, 23 L.R.A.N.S. 699]; and

Cubbison

v.

Cubbison,