Buckeye v. Buckeye

• Decision Date: 13 January 1931
• Citation: 203 Wis. 248,234 N.W. 342
• Parties: BUCKEYE v. BUCKEYE.
• Court: Wisconsin Supreme Court

203 Wis. 248

234 N.W. 342

BUCKEYE

v.BUCKEYE.

Supreme Court of Wisconsin.

Jan. 13, 1931.

Appeal from a judgment of the Circuit Court for Milwaukee County; Edgar V. Werner, Judge.

Action by Mildred B. (Schwab) Buckeye against Garland M. Buckeye. From a judgment in favor of plaintiff, defendant appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

The plaintiff, on June 28, 1927, brought action against the defendant to recover for personal injuries sustained while a passenger in the defendant's automobile. From a judgment for the plaintiff, entered April 25, 1930, defendant appeals.

The accident upon which plaintiff's action is based occurred in Chicago. The plaintiff was a resident of Milwaukee. After the commencement of the action, but prior to the date of the trial, plaintiff married the defendant.Lines, Spooner & Quarles, of Milwaukee (Leo Mann and Howard A. Hartman, both of Milwaukee, of counsel), for appellant.

Fish, Marshutz & Hoffman, of Milwaukee (F. C. John, of Milwaukee, of counsel), for respondent.

WICKHEM, J.

[1] It is contended by the appellant that since the tort on which this action is based was committed in Illinois, and that since, by the law of Illinois, the marriage of the parties would have the effect of extinguishing the cause of action, the Illinois law must be held to govern and the cause of action to have been extinguished at the time of the trial. It does not appear in this case where the parties were married, but it is clear that they are domiciled in Wisconsin. It is presumed that the law of the place where the marriage was performed is the same as the law of this state, and the sole question is whether the law of Wisconsin or the law of Illinois governs in this controversy.

[2][3][4] It is not seriously in dispute that the law governing the creation and extent of tort liability is that of the place where the tort was committed. Goodrich, Conflict of Laws, p. 188; Bain v. Northern Pacific R. Co., 120 Wis. 412, 98 N. W. 241;Dorr Cattle Co. v. Des Moines Nat. Bank, 127 Iowa, 153, 98 N. W. 918, 102 N. W. 836, 4 Ann. Cas. 519. It is also the rule that a liability to pay damagesfor a wrong may be discharged or modified by the law of the state which created it. Goodrich, Conflict of Laws, p. 192; Dicey, Conflict of Laws (3d Ed.) p. 704; Phillips v. Eyre, L. R. 6 Q. B. 1. On the other hand, with respect to the legal consequences of marriage, both as to the status of the parties and as to all their property interests except interest in land, the law of the matrimonial domicile governs. In Northwestern Mut. L. Ins. Co. v. Adams, 155 Wis. 335, 339, 144 N. W. 1108, 1110, 52 L. R. A. (N. S.) 275, it was said:

“The fundamental principle upon which the line of cases just referred to rests is the principle that any sovereign state may regulate the conduct of its own residents within its limits, that marriage is a status, and that the parties to that status, so far as their ability to contract is concerned, are subject to the regulations and disabilities imposed upon them by the laws of the state of their domicile.”

In Goodrich, Conflict of Laws, p. 275, it is stated:

“In cases where the question concerns other property interests than ‘immovables,’ generally equivalent to interests in land, there must be considered separately the interests which spouses acquire in each other's movable property owned at the time of the marriage, and that subsequently acquired. The rule here is that upon marriage each spouse gets such interest in the movable property then owned by the other as the law of matrimonial domicile provides, no matter where the property is located at the time. The place where the marriage occurs is not material.”

[5] It is also clear that the law of the forum governs all matters relating to the remedy, the conduct of the trial, and the rules of evidence. Eingartner v. Illinois Steel Co., 103 Wis. 373, 79 N. W. 433, 74 Am. St. Rep. 871.

[6][7] Plaintiff was unmarried at the time of the accident upon which this action is based. At the time of the accident, she acquired a cause of action against the defendant, and was entitled, if she could properly serve him, to prosecute her action in Wisconsin. Pending the trial of the action, she married the defendant. According to the law of Illinois, if it is to govern, the cause of action is extinguished, for the reason that the husband and his wife are at law but one person. In Hoker v. Boggs, 63 Ill. 161, 162, it is said:

“Blackstone says: ‘By marriage, the husband and wife are one person in law, that is, the very being or legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband, under whose wing, protection and cover she performs everything,...