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District Court of Appeal, Second District, Division 2, California.


Civ. 18790.

Decided: February 18, 1952

G. G. Baumen, Los Angeles, for appellant. Meserve, Mumper & Hughes, by Leo E. Anderson, Los Angeles, for respondent.

In March, 1948, in Nevada, appellant and respondent celebrated the conventional forms and outward show of a wedding though appellant was then bound by a valid marriage to another. For a while they dwelled together in nuptial bliss, but before many moons had smiled upon the new alliance they wished for its termination. Pursuant thereto respondent appeared before the chancellor demanding an annulment of the purported marriage on the ground of appellant's bigamy. But before they had successfully regained their marital independence by annulment, in December, 1949 respondent allegedly caused the arrest of appellant for which he instituted this suit for malicious prosecution. The court below granted a motion to dismiss the action on the ground that it was sham and frivolous and not filed in good faith.

The appeal is grounded upon the propositions that (1) the purported marriage was void ab initio and (2) since no marriage existed, a suit for a tort committed subsequently to the rites is a valid cause of action. Respondent counters with the theses that (1) inasmuch as ‘it was necessary that the trial court set aside and disregard this Nevada decree before the marriage of the parties to this action could be annulled’ the marriage was merely voidable and not void; (2) since respondent married appellant in good faith and under all legal presumptions relied upon the Nevada decree of divorce, the purported marriage must be regarded as valid; (3) therefore appellant cannot maintain a suit for malicious prosecution and unlawful arrest committed prior to the annulment; (4) since by the annulment action the community property rights of the parties were disposed of, appellant cannot litigate those rights again; (5) a divorced party who remarries is estopped to assert the invalidity of the decree against his former spouse.

Thus respondent's entire argument proceeds upon the theory that the ceremony in which the parties participated was in effect a valid marriage. Such is not the law. That ceremony created no more than a reputed1 marriage relationship which continued to, and at the time of, the alleged tort. The question therefore is whether the existence of such marital relationship operates as a bar to appellant's action.

It is concededly the established rule that one lawful spouse may not maintain a tort action against the other for a wrong committed during coverture, Cubbison v. Cubbison, 73 Cal.App.2d 437, 438, 166 P.2d 387; Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422, for the good reason that to permit such actions would violate sound public policy. Such a lawsuit tends to destroy conjugal and social serenity which is of more importance to society than the public disclosure of the details of a family's life and an occasional just award against a tort-feasor. Peters v. Peters, 156 Cal. 32, 35, 103 P. 219, 23 L.R.A.,N.S., 699. But in the action at bar neither the tranquility of the state nor the welfare of a family is at stake. A valid marriage of the parties never existed. Civ. Code, sec. 61; Vickers v. State Bar, 32 Cal.2d 247, 255, 196 P.2d 10. The only approach to a marriage here was the commission of the crime of bigamy. Such a union is void from its inception and is not merely voidable as contended by respondent. The distinction will be accentuated by an illustration. The marriage of a sterile woman who secretes the fact from her fiance is voidable at his option, Aufort v. Aufort, 9 Cal.App.2d 310, 311, 49 P.2d 620, although it might grow into an honorable union never to be adjudicated. But no family can be founded upon bigamy for the reason that it is a felony and the purported marriage is void ab initio because its consummation is against the peace and dignity of the sovereign. Therefore, the established rule relating to spouses of a valid marriage has no application where the alliance is bigamous. In such event, either spouse is at liberty to sue the other for a tort. The Supreme Judicial Court of Massachusetts, in holding that the wife of a voidable marriage cannot maintain a tort action against her mate took pains to emphasize that its holding did not relate to void marriages and indicated that if such were the case, a contrary result would follow. Callow v. Thomas, 322 Mass. 550, 78 N.E.2d 637.

Respondent argues that since community property rights may flow from a putative relationship, Estate of Krone, 83 Cal.App.2d 766, 189 P.2d 741, it is immaterial whether the purported marriage herein was void or voidable. Such contention assumes that the reason for barring suits between husband and wife is based upon the community property concept that a tort cause of action in either spouse is community property as the recovery therefrom would be. Such reasoning is incorrect. The existence of a valid marital relationship is the foundation of the rule against recovery from a spouse. Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422.

Respondent contends that (1) appellant is barred by the doctrine of res judicata from now asserting his tort claim; (2) all community property rights of the parties having been disposed of in the annulment action, appellant may not attempt to litigate such matters in this subsequent suit. Such argument, being grounded on the theory that appellant's cause of action is to be treated as the community property of the parties, would lead to error.

The fact that a right of action by a lawful spouse against a third party for personal injuries is a community asset, Zaragosa v. Craven, 33 Cal.2d 315, 202 P.2d 73, 6 A.L.R.2d 461, does not justify the conclusion that a claim for damages by a participant in a bigamy against the other constitutes property in which the tort-feasor has an interest. This is nonetheless true where the claim arose out of a wrong committed prior to the annulment of the void marriage.

Judgment reversed.


1.  The asserted marriage is referred to as ‘reputed’ rather than ‘putative’ for the reason that it is not clear that either party at the time was innocent of the legal inhibitions.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.

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