Hosko v. Hosko, 6

• Decision Date: 02 June 1971
• Docket Number: No. 6,6
• Citation: 385 Mich. 39,187 N.W.2d 236
• Parties: Alice HOSKO, as Guardian for Eleanor Hosko, a mental incompetent, Plaintiff-Appellant, v. Steve HOSKO, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 236

187 N.W.2d 236

385 Mich. 39

Alice HOSKO, as Guardian for Eleanor Hosko, a mental incompetent, Plaintiff-Appellant, v. Steve HOSKO, Defendant-Appellee.

No. 6.

Supreme Court of Michigan.

June 2, 1971.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian by William H. Goodman, Detroit, for plaintiff-appellant.

Garan, Lucow, Miller & Lehman by David J. Cooper, Detroit, for defendant-appellee.

Before the Entire Bench.

PER CURIAM.

Eleanor Hosko was a passenger in a car driven by her husband, Steve Hosko. The car was involved in an accident on July 6, 1965, in which she suffered serious injury, including brain damage. She has been declared a mental incompetent.

Suit was brought by Alice Hosko, guardian for Eleanor Hosko, alleging negligence and gross negligence by defendant. Eleanor Hosko and Steve Hosko are still married. Defendant filed motion for summary judgment arguing that the suit is barred by the doctrine of interspousal immunity. Circuit Court Judge George E. Bowles denied the motion and also a motion for rehearing. The Court of Appeals granted defendant's application for leave to appeal and reversed, Chief Judge Lesinski dissenting. (20 Mich.App. 416, 174 N.W.2d 317). We granted leave to appeal. (383 Mich. 804).

Plaintiff challenges the continuing validity of the interspousal immunity doctrine and cites the amendment of the former Judicature Act ¹ at the time of adoption of the Revised Judicature Act of 1961, effective January 1, 1963, as indicative of legislative intent to abolish common law interspousal immunity. (M.C.L.A. § 600.2001 and § 600.9911; Stat.Ann.1962 Rev. § 27A.2001 and § 27A.9911).

Whether the common law doctrine of interspousal immunity had been affected by statute was first considered by this Court in Bandfield v. Bandfield (1898), 117 Mich. 80, 75 N.W. 287. The statute at that time read:

'Actions may be brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried.' 2 How.Ann.St. § 6297.

This Court said (p. 82, 75 N.W. p. 287--288):

'In many decisions the courts of Many of the states, notwithstanding the statute conferring rights upon a married woman over her separate property not conferred by the common law, have thus far, without exception, denied the right of a wife to sue her husband for personal wrongs committed during coverture. No such right is conferred by our statute unless it be by implication. The legislature should speak in no uncertain manner when it seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sustain such bold innovations.'

In Harvey v. Harvey (1927), 239 Mich. 142, 214 N.W. 305, the argument was again made, plaintiff pointing out that the statute discussed in Bandfield had been amended in the meantime to read as follows:

'Whenever a cause of action shall accrue to, or arise against any married woman, she may sue or be sued in the same manner as if she were sole.'

This Court said (p. 146, 214 N.W. p. 306):

'This graphically points out the unsoundness of the assertion that, granting the wife right to sue as though a Femme sole, gives her a right of action not accorded the husband. Surely the Legislature, in conferring equality of right to sue, did not confer a right of action never possessed by husband or wife at common law. While Married Women's Acts of the various states differ somewhat in phraseology, they are quite alike in purpose and effect.'

In Riser v. Riser (1927), 240 Mich. 402, 215 N.W. 290, this Court held that a wife cannot sue her husband for damages occasioned by his negligent act and thus cannot sue someone vicariously responsible for the husband's act.

In Kircher v. Kircher (1939), 288 Mich. 669, 286 N.W. 120, this Court was asked, as a matter of comity, to follow Colorado law since, if plaintiff had brought her lawsuit in Colorado, the situs of the tort, she would have been allowed to sue her husband. This Court declined to do so because 'to recognize comity in this instance would contravene the public policy of this forum.'

From the above cases, it must be concluded:

1. That the doctrine of interspousal immunity has prevailed in Michigan, and

2. That no statute considered by this Court up to the present time has had the effect of altering that doctrine.

In Mosier v. Carney (1965), 376 Mich. 532, 138 N.W.2d 343, interspousal suits were held to be maintainable in certain limited areas.

Effective in 1963, the legislature changed the language of the statute, considered in Harvey, to read: 'Actions may be brought by and against a married woman as if she were unmarried.' (M.C.L.A. § 600.2001; Stat.Ann.1962 Rev. § 27A.2001). ²

It is the contention of defendant that all Stat.Ann. § 27A.2001 does is to restate the former statute in a shorter form. It should be noted that the language of the former statute is conditional--'whenever a cause of action shall accrue to'--whereas, the new language clearly removes any heretofore provided protections or disabilities of a married woman inherent in the married state--'actions may be brought by and against a married woman as if she were unmarried.'

It must be concluded that the Revised Judicature Act of 1961 has abrogated the doctrine of interspousal immunity insofar as women are concerned and that the action in this case is maintainable by plaintiff. Conversely, in a suit brought by a husband against a wife, the action would also be maintainable in accordance with the clear language of the statute.

The Court of Appeals is reversed. Costs to appellant.

BRENNAN, Justice.

I cannot agree with the Opinion submitted for the Court.

Interspousal immunity is not merely a procedural bar; it is a substantive rule of the common law.

The 1963 amendment to the Married Women's Acts, quoted in the Court's Opinion deals with procedure.

To give the spouses a right to sue each other for personal tort, it is not enough that the statute merely give one a remedy against the other, but it is necessary that it expressly confer such a right of action, since the common law disability goes not merely to the remedy but to the cause of action. 41 Am.Jur.2d, Husband and Wife, § 526, p. 446:

'In many decisions the courts of many of the States, notwithstanding the statutes conferring rights upon a married woman over her separate property not possessed at the common law, have thus far, without exception, denied the right of a wife to sue her husband for personal wrongs committed during coverture. No such right is conferred by our statute unless it be by implication. The legislature should speak in no uncertain manner when it seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sustain such bold innovations. The rule is thus stated in 9 Bac. Abr. tit. 'Statute,' I(4), 245:

"In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law, farther or otherwise then the act expressly declares. Therefore, in all general matters the law presumes the act did not intend to make any alteration; for, if the parliament had had that design, they would have expressed it in the act." Bandfield v. Bandfield, 117 Mich. 80 (75 N.W. 287).

The common law rule of immunity from tort liability between husband and wife is based upon sound reasons of policy. Marriage is the foundation of family life. The family is the basic unit of society; the cornerstone of the community, the state and the nation. It is perceived that lawsuits between spouses, seeking money damages for real and fancied injuries, are incompatible with harmonious marriage.

Another reason persists. The unity of man and woman in the married state is still a reality. The marriage contract itself imposes legal duties and gives legal rights to both spouses. We have come to speak of 'consortium' as the sum total of the status and rights of the parties resulting from the relationship.

The duties of husband and wife have never been the subject of common law liability. Though the husband was entitled to the wife's services, he could not bring assumpsit to recover their value from her. Though a wife was entitled...