Bodenhagen v. Farmers Mut. Ins. Co.

• Decision Date: 05 November 1958
• Citation: 92 N.W.2d 759,5 Wis.2d 306
• Parties: Helen V. BODENHAGEN, Appellant, v. FARMERS MUTUAL INS. CO., a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 759

92 N.W.2d 759

5 Wis.2d 306

Helen V. BODENHAGEN, Appellant, v. FARMERS MUTUAL INS. CO., a Wis. corporation, Respondent.

Supreme Court of Wisconsin.

Nov. 5, 1958.

Rehearing Granted Feb. 3, 1959.

Padway, Goldberg & Previant, Milwaukee, for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Gerald A. Flanagan, Norman C. Skogstad, of counsel, Milwaukee, for respondent.

FAIRCHILD, Justice.

The parties agree that the law of Illinois, where the alleged tort occurred, will determine whether the plaintiff has a cause of action against her husband. Unless she has a cause of action against him, she has none against his insurer.

In 1931 this court had before it an action by a wife against her husband for personal injury caused by a tort which occurred in Illinois prior to the marriage of the parties. Buckeye v. Buckeye, 1931, 203 Wis. 248, 234 N.W. 342. This court decided that under the Illinois law the plaintiff's cause of action became extinguished when she married the defendant. 'It seems clear to us that, if plaintiff had prosecuted this suit in Illinois, she could not succeed. Her failure in the Illinois courts would not be grounded upon any rules peculiar to Illinois affecting remedy or procedure, but to the fact that her cause of action was completely extinguished.' 203 Wis. at page 253, 234 N.W. at page 343. A similar decision was made in Garlin v. Garlin, 1951, 260 Wis. 187, 50 N.W.2d 373.

These declarations of the law of Illinois must be considered incorrect because of a later decision of the supreme court of Illinois. Brandt v. Keller, 1953, 413 Ill. 503, 109 N.E.2d 729, 734.

In that case plaintiff Brandt (formerly Mrs. Keller) had been injured by the wrongful act of her husband Keller. After divorce she brought suit. The supreme court of Illinois decided that plaintiff could maintain her action. The opinion does not discuss any distinction between a cause of action and the remedy, but concluded that a husband's 'immunity from suit' was destroyed by the Married Women's Act of 1874, Ill.Rev.Stat.1957, c. 68, § 1 et seq. Mr. Justice Bristow, writing for the court pointed out that at common law, a married woman had no separate identity and that the husband's immunity from suit inevitably followed, since any recovery on behalf of the wife in a suit against her husband, would become his property and he would be in effect, suing himself. He quoted from a discussion of the subject in Welch v. Davis, 410 Ill. 130, 101 N.E.2d 547, 548, 28 A.L.R.2d 656, where the court had said that the unity theory had ceased to be a justification and that the 'only support upon which the husband's immunity rests today is one which was developed, largely as an afterthought, to maintain the common-law immunity after its original justifications had been wiped out. Today the immunity can be based solely upon the ground that domestic tranquility is fostered by the prohibition of actions by a wife against her husband.'

The Welch case involved an action for wrongful death brought by the administrator of a wife's estate against the executor of her husband's will. The court concluded that the statutory action for wrongful death was not within the contemplation of the common law rule that a wife can not sue her husband and awarded recovery.

Mr. Justice Bristow also cited with apparent approval a decision of the appellate court of Illinois. 'Tallios v. Tallios, 345 Ill.App. 387, 103 N.E.2d 507, where the court held that a wife could maintain an action against her husband's employer for injuries caused by her husband's negligence while she was riding in a truck driven by him in the furtherance of his employer's business, irrespective of whether the husband could have been sued by his wife for his negligent acts.'

There appears in the opinion in the Tallios case [345 Ill.App. 387, 103 N.E.2d 510], although it is not quoted in the opinion in the Brandt case, the following statement: 'The weight of authority is to the effect that the marital immunity of the spouse does not mean that there is no right of action, but merely denies the remedy against the spouse and does not destroy the right of action against the master.'

The opinion in the Brandt case indicates that the court considered the proposition that immunity of the husband from a suit in tort promotes domestic tranquility to be a fallacy and declined to find that the danger of collusion in tort actions between the spouses was a ground for holding such action to be against public policy. The court reached the conclusion that certain language in the 1874 act established the separate identity of a married woman in all litigation and removed all her common law disability with reference to suing and being sued. The language relied upon was 'that...