The plaintiff was injured in an automobile accident on June 3, 1933, while riding, as a guest, in a car owned and operated by W. Ridgley Edwards, Jr., who had a liability insurance policy in the defendant company. On June 10, 1933, the plaintiff filed suit against W. Ridgley Edwards, Jr., for the sum of the damages alleged to have been suffered by her as a result of the negligence of the defendant. On the day following the filing of the suit, the plaintiff and W. Ridgley Edwards, Jr., were married. The defendant, Edwards, thereafter excepted to the plaintiff's suit on the ground that the wife could not maintain an action, in tort, for damages against her husband. The exception was maintained and the suit was dismissed. The case was appealed to the Court of Appeal, in which court the judgment appealed from was affirmed; a rehearing was applied for and refused, and an application to this court for a writ of review was denied.
Pending the appeal in the suit against Edwards, the plaintiff filed this suit against the defendant, Edwards, surety. This defendant pleaded the same exceptions to the suit that Edwards had pleaded in the suit against him. The defendant's exceptions were maintained, and, on appeal to the Court of Appeal, the judgment was affirmed; a rehearing was applied for and refused; and an application to this court for a writ of review was granted. *Page 183
The codal provisions and jurisprudence are so conclusive of the point that the wife has no right to maintain an action for damages against her husband during the existence of the marriage that it would be a needless waste of time to cite and comment upon the authorities denying her that right, but it seems to be contended that, inasmuch as the plaintiff's suit was filed the day before she married Edwards, her claim was paraphernal, and that the marriage did not affect her right to assert it, quo ad, her husband's insurer.
In making this contention counsel overlooked or misinterpreted the provisions contained *Page 184 in the last paragraph of Act No. 55, of 1930, which provides that the defendant's insurer may urge the same defenses to a suit of this kind that it could urge in a suit, upon the same cause of action, if such it suit had been filed against it by the insured, the plaintiff's husband.
The Court of Appeal of the First Circuit, in the Palmer v. Edwards Case, 156 So. 781, and the Orleans Court of Appeal in Ruiz v. Clancy, 157 So. 737, are sound and in point.
The writ issued herein should be recalled and avoided, and the costs of this proceeding should be paid by relator. *Page 185