Garlin v. Garlin
| Decision Date | 04 December 1951 |
| Citation | 50 N.W.2d 373,260 Wis. 187 |
| Parties | GARLIN, v. GARLIN et al. |
| Court | Wisconsin Supreme Court |
Action brought by the plaintiff, Alza Garlin, wife of the defendant, Robert Garlin, to recover damages for personal injuries sustained by her as the result of her husband's negligent operation of his automobile while driving in Illinois.
Defendant demurred to the plaintiff's complaint on the ground that it does not state sufficient facts to constitute a cause of action. The court overruled the demurrer and from the order to that effect defendants appealed.
Hannan, Johnson & Goldschmidt, Milwaukee, Charles E. Nicoud, Milwaukee, of counsel, for appellants.
George Brawley, Milwaukee, for respondent.
The plaintiff and the defendant, Robert Garlin are husband and wife and residents of Wisconsin. While plaintiff was riding as a passenger in her husband's automobile in the state of Illinois she was injured as the result of her husband's negligent operation of his automobile which collided with another automobile. On behalf of the defendants, Robert Garlin and his automobile liability insurer, it is contended that plaintiff cannot recover in this action because under the law in Illinois there is no statute expressly giving a wife the right to maintain an action against her husband in tort. As the defendants contend, the law governing the creation and extent of tort liability is that of the state in which the tort was committed, and liability may be discharged or modified by the law of the state creating it. Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342. As we then stated: '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.'
In Illinois it is still the common law that a wife cannot maintain an action against her husband for injuries caused by his negligence or other torts. As stated in Welch v. Davis, 342 Ill.App. 69, 95 N.E.2d 108, 111:
'It remains to be determined whether or not an action can be maintained by a wife against a husband for personal injuries resulting from his wrongful conduct. * * * The general rule is announced in 89 A.L.R. 118, supplemented in * * * 160 A.L.R. 1402, as follows: 'Recent cases have adhered to what has been designated as 'the great weight of authority' and hold that statutes conferring additional rights on married women and the right to sue separately in their own names for redress of wrongs concerning their separate property and personal security confer no right on either spouse to sue the other for personal injuries.'
'* * * Reference may well be made again to the language in Main v. Main [1892, 46 Ill.App. 106]: ...
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Haumschild v. Continental Cas. Co.
...supra; Forbes v. Forbes, 1938, 226 Wis. 477, 277 N.W. 112; Bourestom v. Bourestom, 1939, 231 Wis. 666, 285 N.W. 426; Garlin v. Garlin, 1951, 260 Wis. 187, 50 N.W.2d 373; Scholle v. Home Mutual Casualty Co., 1956, 273 Wis. 387, 78 N.W.2d 902; and Hansen v. Hansen, 1956, 274 Wis. 262, 80 N.W.......
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Gandall v. Riedel, Civ. A. No. 6333.
...This is true notwithstanding the fact that under the Wisconsin law such an action would lie. The same rule is applied in Garlin v. Garlin, 260 Wis. 187, 50 N.W.2d 373, where it is held that a wife cannot sue the husband in tort in courts of Wisconsin where the accident happened in Illinois ......
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