Bodenhagen v. Farmers Mut. Ins. Co.

• Decision Date: 10 April 1959
• Citation: 95 N.W.2d 822,5 Wis.2d 306
• Parties: Helen V. BODENHAGEN, Appellant, v. FARMERS MUTUAL INS. CO., a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 822

95 N.W.2d 822

5 Wis.2d 306

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

Supreme Court of Wisconsin.

April 10, 1959.

Goldberg, Previant & Cooper, Milwaukee, Albert J. Goldberg, Hugh Hafer, Milwaukee, of counsel, for appellant.

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

PER CURIAM.

The plaintiff wife at the time of the accident was domiciled in Wisconsin. Therefore, the instant appeal is governed by our opinion in Haumschild v. Continental Casualty Co., 1959, 7 Wis.2d ----, 95, N.W.2d 814. We therein hold that the law of the domicile is to be applied in determining whether there exists an interspousal immunity to suit in tort as to an automobile accident which occurred in a state other than Wisconsin. In the instant case Wisconsin is the state of admicile and under its law there is no such interspousal immunity. This requires that the original mandate herein be adhered to.

We, therefore, find it unnecessary to pass upon the issue argued upon the rehearing as to whether the Illinois interspousal immunity to suit in tort is procedural or substantive in nature. We withdraw that portion of the original opinion wherein we interpreted Illinois law to hold that such immunity barred only the remedy and not the cause of action. There is no question but that such immunity at common law was substantive in nature. Callow v. Thomas, 1948, 322 Mass. 550, 551, 78 N.E.2d 637, 2 A.L.R.2d 632; Bissonnette v. Bissonnette, 1958, 145 Conn. 733, 142 A.2d 527; Annotation 43 A.L.R.2d pp. 632, 634, sec. 1; and 27 Am.Jur., Husband and Wife, p. 191, sec. 589. We quote from Callow v. Thomas, supra, as follows (322 Mass. at page 632, 78 N.E.2d at page 638):

'That no cause of action arises in favor of either husband or wife for a tort committed by the other during coverture is too well settled to require citation of authority.'

The authority cited in our original opinion as holding that the common law interspousal immunity only barred the remedy and not the cause of action is the case of Tallios v. Tallios, 1952, 345 Ill.App. 387, 392, 103 N.E.2d 507, 510. The quotation from the Tallios case to such effect which appeared in our original opinion was but dictum unnecessary to the result. As authority for such dictum, the Tallios case cites only the Mississippi case of McLaurin v. McLaurin Furniture Co., 1933, 166 Miss. 180, 146 So. 877....