Foote v. Foote

WARNE, J. pro tem.

*

On April 12, 1957, plaintiff Paula Fisher Foote, then Paula Fisher, was injured while riding in an automobile driven by Richard Foote. On September 14, 1957, Richard and Paula intermarried and ever since that date have been husband and wife. Thereafter, on March 14, 1958, Paula filed a complaint for damages for personal injuries against her husband, Richard, and his father, Grant Foote. Grant Foote being the owner of the automobile involved in the accident. Defendants demurred to plaintiff’s complaint on the ground, among others, of the marital status of the parties. The plaintiff has appealed from the judgment of dismissal following the order sustaining the demurrer of defendant Richard Foote without leave to amend on the ground that the trial court erred in holding that plaintiff could not maintain an action because she and Richard intermarried after the cause of action arose. Hence the sole question presented is whether a wife may sue her husband for a personal tort which occurred prior to marriage. In

Carver

v.

Ferguson

(Cal.App.), 254 P.2d 44, this court held that a premarital tort is a chose in action as defined by section 953 of the Civil Code and that the cause of action based thereon was a wife’s separate property under the terms of section 162 of the Civil Code, which provides, in part: “All property of the wife, owned by her before marriage, ... is her separate property.” And, since the cause of action constituted property and vested in the wife at the time of the accident and was

[437]

“owned” by her from that day forward, she could maintain an action against her husband for such premarital tort.

Although a hearing was granted by the Supreme Court followed by a settlement and dismissal of the appeal in the Carver case, nevertheless, after a reconsideration of our views therein expressed, we see no reason now to change or modify those views. Therefor, since the issue in the present ease is the same as presented in the Carver case, we adhere to that decision. From the opinion we quote the following:

“On May 2, 1950, Eleanor Carver was injured while riding in the automobile of William Ferguson, which he was then driving. She filed a complaint for damages on August 15, 1950, for personal injuries against Ferguson. On March 17, 1951, prior to the time set for trial of the matter, plaintiff and defendant intermarried, and ever since that date they have been husband and wife. On November 19,1951, the trial court granted defendant’s motion for dismissal of the action upon the ground of the marital status of the parties. From the judgment of dismissal, plaintiff appeals, presenting for determination the question of whether a wife may maintain, against her husband, an action for a tort which occurred prior to their marriage. The agreed statement of facts upon which the appeal is taken shows that defendant had public liability insurance at the time of the accident, although the materiality and relevance of this factor was and is expressly denied by the defendant.