by him, we see nothing which is injurious to the public or against the public good or against good morals.'
The Supreme Court of South Dakota in construing a similar statute in Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, referred to the Thompson case at length, but adopted the view of the dissenting Justices.
North Dakota, Oklahoma, and Wisconsin expressly declined to follow the Thompson case. Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 242 N.W. 526; Courtney v. Courtney, 184 Okl. 395, 87 P.2d 660; Waite v. Pierce, 191 Wis. 202, 209 N.W. 475, 210 N.W. 822, 48 A.L.R. 276.
Among other cities that have also construed Married Women's Acts as permitting a wife to sue her husband in tort are, Katzenberg v. Katzenberg, 183 Ark. 626, 37 S.W.2d 696; Rains v. Rains, 97 Colo. 19, 46 P.2d 740; Gilman v. Gilman, 78 N.H. 4, 95 A. 657, L.R.A. 1916B, 907. All of these decisions were rendered subsequently to the decision of the Supreme Court in the Thompson case.
In the District of Columbia, there has been a strong tendency in the direction of liberalizing substantive and procedural rights arising out of family relationships. For example, it was recently held contrary to preexisting law, that a wife may maintain an action against her husband for moneys expended by her for the support of their minor child. Schneider v. Schneider, 78 U.S.App.D.C. 383, 141 F.2d 542. On March 25, 1946, the United States Court of Appeals for the District of Columbia held that a minor child might maintain an action against his father for support, Simonds v. Simonds, 154 F.2d 326, not yet reported.
Recently Mr. Justice McGuire of this Court held that a child might maintain an action in tort for prenatal injuries, Bonbrest v. Kotz, D.C., 65 F.Supp. 138.
In view of all of the developments just recounted, it is not unlikely that if after the lapse of over 35 years, the question were to be presented to the Supreme Court again, it might reach a different conclusion than that at which it arrived in the Thompson case by a vote of four to three.
It is the view of this court, however, that counsel for the defendant is in error in relying on the Thompson case in support of his motion for summary judgment. The principle of that decision does not govern the disposition of the instant case. Prior to the alleged assault a decree of absolute divorce had been entered terminating the bond between plaintiff and defendant. In the District of Columbia a decree of absolute divorce does not take effect until the expiration of six months after its entry (D.C. Code, Title 16, Sec. 421). The alleged assault is averred to have taken place during this six months' interval. To be sure, in the meantime the marriage is not entirely dissolved. Nevertheless, the status of husband and wife lacks its original character. It has been held that the sole purpose of postponing the effective date of the final decree is to preclude remarriage with its possible consequences, during the pendency of any appeal that may be taken, Tillinghast v. Tillinghast, 58 App.D.C. 107, 25 F.2d 531. The law does not contemplate that the marriage relationship shall continue until the expiration of the six months' time. In the interim the marriage status is held in suspended animation.
Thus in applying a similar statute, the Supreme Court of Wisconsin held that during the period between the entry of the divorce decree and its effective date the husband is not to be deemed 'husband' within the meaning of a provision of his wife's will, which devised and bequeathed certain property to him if he 'is my husband at the time of my decease.' Rogers v. Hollister, 156 Wis. 517, 146 N.W. 488. A somewhat similar conclusion was reached by the courts of Oklahoma in respect to a like statute. Atkeson v. Sovereign Camp, W.O.W., 90 Okl. 154, 216 P. 467, 32 A.L.R. 1108; In the matter of James H. Smith, 2 Okl. 153, 37 P. 1099.
In view of these circumstances, it does not seem to this court that the rule of Thompson v. Thompson and of Spector v. Weisman, is to be applied to a case in which a decree of absolute divorce between the parties has been entered prior to the alleged assault, even though the decree is not to become effective until the lapse of six months, and the assault took place during the intervening period.
I, therefore, reached the conclusion that this action may be maintained.
Defendant's motion for summary judgment is denied.
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