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District Court of Appeal, Second District, Division 4, California.

Catherine SELF, Plaintiff and Appellant. v. Adrian SELF, Defendant and Respondents.*

Civ. 26011.

Decided: April 11, 1962

Robert H. Lund, Long Beach, for appellant. Baird, Mooney & Baird and C. Duane Mooney, Long Beach, for respondent.

In her complaint plaintiff wife sought damages against her defendant husband for an alleged assault and battery which occurred on July 14, 1960. In his answer defendant alleged that on the date in question plaintiff and defendant were husband and wife. Defendant made a motion under Code of Civil Procedure, section 437c for a summary judgment supported by an affidavit to the effect that although an action for divorce is pending between them the parties have been husband and wife since their marriage on November 2, 1954. Judgment was for defendant from which plaintiff appeals.

The sole question raised is whether one spouse may sue the other for damages in tort. In the early case of Peters v. Peters, 156 Cal. 32, 103 P. 219, 23 L.R.A.,N.S., 699, decided in 1909, the Supreme Court ruled that an action cannot be maintained by one spouse against the other for battery committed during the continuance of the marriage relationship. In doing so it declared it was following the common law of England and the uniformity of decisions in courts of other states where the question has arisen. The court declared that to allow such actions would be contrary to the policy of the law and destructive of that conjugal tranquility which it has always been the policy of the law to guarantee and protect, and that the rule should be followed in this state unless some statutory provisions are enacted to the contrary.

The Peters case (Peters v. Peters, supra, 156 Cal. 32, 103 P. 219) was followed by Cubbison v. Cubbison, 73 Cal.App.2d 437, 438, 166 P.2d 387, wherein the court commented that although some jurisdictions may have departed at least in part from the rule the weight of authority holds to the contrary.

In Paulus v. Bauder, 106 Cal.App.2d 589, 235 P.2d 422, the court again referred to the rule of the Peters case (Peters v. Peters, supra, 156 Cal. 32, 103 P. 219) and stated that it saw no reason to depart from it, even though in that case the injury complained of resulted from an automobile accident sustained during the interlocutory period of divorce of the parties.

In Watson v. Watson, 39 Cal.2d 305, 306, 246 P.2d 19, the Supreme Court noted ‘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.’ Here again the tort allegedly occurred after an interlocutory decree of divorce but before entry of the final decree.

In the case at bar the plaintiff urges a unique construction of section 163.5 of the Civil Code, providing ‘All damages, special and general, awarded a married person in a civil action for personal injuries, are the separate property of such married person.’ Plaintiff contends the Legislature by this 1957 enactment has expressed the intent to change the rule of law of the Peters case (Peters v. Peters, supra, 156 Cal. 32, 103 P. 219.) The obvious purpose of the enactment of this action was to provide that such damages are not community property thereby eliminating the defense of contributory negligence when one spouse is injured by the negligence of a third person and the other spouse's negligence was a contributory factor. This section was inserted in the code following sections 162 and 163 which define what constitutes the separate property of the wife and husband, respectively, and section 164 which defines the community property of husband and wife.

We find no intent expressed or implied in the enactment of section 163.5 to modify or amend the basic rule pronounced by the Supreme Court in the Peters case. (Peters v. Peters, supra, 156 Cal. 32, 103 P. 219.)

Judgment is affirmed.

BURKE, Presiding Justice.


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