Haumschild v. Continental Cas. Co.

• Decision Date: 10 April 1959
• Citation: 7 Wis.2d 130,95 N.W.2d 814
• Parties: Jacquelyn HAUMSCHILD, a/k/a Jacquelyn Gleason, Appellant, v. CONTINENTAL CASUALTY CO., a foreign corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 814

95 N.W.2d 814

7 Wis.2d 130

Jacquelyn HAUMSCHILD, a/k/a Jacquelyn Gleason, Appellant, v. CONTINENTAL CASUALTY CO., a foreign corporation, et al., Respondents.

Supreme Court of Wisconsin.

April 10, 1959.

Thomas P. Maroney, Milwaukee, for appellant.

Shaw, Muskat & Paulsen, Milwaukee, Jack R. Wiedabach, Milwaukee, of counsel, for respondents.

CURRIE, Justice.

This appeal presents a conflict of laws problem with respect to interspousal liability for tort growing out of an automobile accident. Which law controls, that of the state of the forum, the state of the place of wrong, or the state of domicile? Wisconsin is both the state of the forum and of the domicile while California is the state where the alleged wrong was committed. Under Wisconsin law a wife may sue her husband in tort. Under California law she cannot. Peters v. Peters, 1909, 156 Cal. 32, 103 P. 219, 23 L.R.A., N.S., 699; Cubbison v. Cubbison, 1946, 73 Cal.App.2d 437, 166 P.2d 387, and Paulus v. Bauder, 1951, 106 Cal.App.2d 589, 235 P.2d 422.

This court was first faced with this question in Buckeye v. Buckeye, 1931, 203 Wis. 248, 234 N.W. 342. In that case Wisconsin was the state of the forum and domicile, while Illinois was the state of the place of wrong. It was there held that the law governing the creation and extent of tort liability is that of the place where the tort was committed, citing Goodrich, Conflict of Laws (1st ed.), p. 188. From this premise it was further held that interspousal immunity from tort liability necessarily is governed by the law of the place of injury. This principle of conflict of laws has been consistently applied in all subsequent interspousal actions in automobile accident cases ¹ except the recent case of Bodenhagen v. Farmers Mutual Ins. Co., 1958, 5 Wis.2d 306, 92 N.W.2d 759, hereinafter discussed.

The principle enunciated in the Buckeye case and followed in subsequent Wisconsin cases, that the law of the place of wrong controls as to whether one spouse is immune from suit in tort by the other, is the prevailing view in the majority of jurisdictions in this country. Annotation 22 A.L.R.2d 1248, 1251-1253, entitled, 'Conflict of laws as to right of action between husband and wife or parent and child.' It is also the rule adopted in Restatement, Conflict of Laws, p. 457, sec. 378, and p. 470, sec. 384(2). However, criticism of the rule of the Buckeye case, by legal writers, some of them recognized authorities in the field of conflict of laws, and recent decisions by the courts of California, New Jersey, and Pennsylvania, have caused us to re-examine the question afresh.

In 1942, Prof. Walter Wheeler Cook of the Northwestern University Law School faculty published his book entitled, 'The Logical and Legal Bases of the Conflict of Laws.' It was his conclusion that the law of the domicile, and not the place of wrong, should be applied in determining whether a wife had capacity to sue her husband in tort. Pages 248-250 and 345-346 of text. Also, in 1942, Max Rheinstein in an article in 41 Michigan Law Review 83, 97, advocated that the law of domicile should be applied in conflict of laws situations to determine whether there is an immunity for tort grounded on family relationship. Ernst Rabel, in his 'The Conflict of Laws: A Comparative Study' (1945), pp. 322, 323, pointed out that in the civil law countries of western Europe prohibitions, which exclude lawsuits in tort between husband and wife, are considered part of family law and, therefore, the law of the domicile governs and not the law of the place of wrong.

The most comprehensive treatment of the problem that we have discovered is the excellent thirty page article in 15 University of Pittsburgh Law Review 397, entitled, 'Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and Reason Versus the Restatement,' by Alan W. Ford published in 1954. The article contains a careful analysis of the American cases on the subject commencing with our own Buckeye case. The author's conclusion is stated as follows (pp. 423-424):

'The lex fori and the lex loci delicti rules have already been criticized as inadequate. Between them, these two rules encompass all of the American cases. To find a more desirable alternative we must, therefore, go beyond those cases. The foreign experience briefly discussed above, is a useful starting point. As that experience suggests, there is some logic in separating questions of status and tort, in determining the incidents of the marital relationship by the family law, and the problems of tort by the law of torts. If a conflicts problem is involved, there is no reason why both questions should be determined by the law of torts. Instead, the two questions should remain separate, and problems of status or capacity could be referred, by an appropriate conflicts rule, to the law of the place of the domicile.'

Ford, in his article, cited four cases of interspousal immunity in which American courts have refused to apply the law of the place of wrong to an automobile accident situation but instead applied their own law of the forum: Poling v. Poling, 1935, 116 W.Va. 187, 179 S.E. 604; Mertz v. Mertz, 1936, 271 N.Y. 466, 3 N.E.2d 597, 108 A.L.R. 1120; Kircher v. Kircher, 1939, 288 Mich. 669, 286 N.W. 120, and Kyle v. Kyle, 1941, 210 Minn. 204, 297 N.W. 744. In all four cases one spouse sued the other in the state of domicile where there existed the immunity from suit in tort in a situation where the accident had occurred in a state which had abolished the immunity. The decisions were based on the ground that the public policy of the forum state forbade one spouse suing the other in tort. ² The holding in these four cases is highly significant because they are inconsistent in result with the theory that the injured spouse possessed a vested right in the cause of action which had accrued in the state where the alleged negligence occurred. Furthermore, these cases are authority for the principle that public policy may be a controlling factor to be considered by the court of the forum state in determining which law it will apply in resolving a conflict of laws problem. This factor of public policy is also acknowledged in Restatement, Conflict of Laws, pp. 9-10, sec. 5, comment b.

The first case to break the ice and flatly hold that the law of domicile should be applied in determining whether there existed an immunity from suit for tort based upon family relationship is Emery v. Emery, 1955, 45 Cal.2d 421, 289 P.2d 218. In that case two unemancipated minor sisters sued their unemancipated minor brother and their father to recover for injuries sustained in an automobile accident that occurred in the state of Idaho, the complaint alleging wilful misconduct in order to come within the provisions of the Idaho 'guest' statute. All parties were domiciled in California. The opinion by Mr. Justice Traynor recognized that the California court, in passing on the question of whether an unemancipated minor child may sue the parent or an unemancipated brother, had a choice to apply the law of the place of wrong, of the forum, or of the domicile. It was held that the immunity issue was not a question of tort but one of capacity to sue and be sued, and rejected the law of the place of injury as 'both fortuitous and irrelevant.' In deciding whether to apply the law of the forum, or the law of the domicile, the opinion stated this conclusion (289 P.2d at pages 222-223):

'Although tort actions between members of the same family will ordinarily be brought in the state of the family domicile, the courts of another state will in some cases be a more convenient forum, and thus the question arises whether the choice of law rule should be expressed in terms of the law of the forum or that of the domicile. We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile. That state has the primary responsibility for establishing and regulating the incidents of the family relationship and it is the only state in which the parties can, by participation in the legislative processes, effect a change in those incidents. Moreover, it is undesirable that the rights, duties, disabilities, and immunities conferred or imposed by the family relationship should constantly change as members of the family cross state boundaries during temporary absences from their home.'

Since the decision in Emery v. Emery, supra, two other courts have held that, when a court is confronted with a conflict of laws problem in order to resolve an issue of whether there is an immunity from suit for tort based upon a family relationship, the law to be applied is that of the domicile state. Koplik v. C. P. Trucking Corp., 1958, 27 N.J. 1, 141 A.2d 34; and Pittman v. Deiter, 1957, 10 Pa.Dist. & Co. R.2d 360. The conclusion reached by the New Jersey supreme court in the Koplik case, after first having rejected the law of the place of injury as applicable to the immunity question, is stated succinctly as follows (141 A.2d at page 40):

'As a final word on the subject we hold the view that even where an actual conflict of laws problem is directly presented, it is sensible and logical to have disabilities to sue and immunities from suit arising from the family relationship determined by reference to the law of the state of the family domicile when the suit is brought in that state. Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining. [citing Emery v. Emery, supra, and Ford's article in 15 University of Pittsburgh Law Review].'

Among recent law review articles and notes approving the holding of one or more of the aforecited three cases, which have held that immunity from suit based on family relationship is a matter of family law rather than tort...