Pirc v. Kortebein

• Decision Date: 16 September 1960
• Docket Number: No. 59-C-116.,59-C-116.
• Citation: 186 F. Supp. 621
• Parties: George PIRC and Josephine Pirc, Plaintiffs, v. Rudie KORTEBEIN and Allied American Mutual Fire Insurance Company, Defendants and Third Party Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Third Party Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

186 F. Supp. 621

George PIRC and Josephine Pirc, Plaintiffs, v. Rudie KORTEBEIN and Allied American Mutual Fire Insurance Company, Defendants and Third Party Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Third Party Defendant.

No. 59-C-116.

United States District Court E. D. Wisconsin.

September 16, 1960.

Jesse J. Habush and Raymond L. McClory, Chicago, Ill., for plaintiffs.

Reuben W. Peterson, Jr., Milwaukee, Wis., for defendants and third party plaintiffs.

John R. Henderson, Milwaukee, Wis., for third party defendant.

GRUBB, District Judge.

This is an action to recover damages for personal injuries resulting from an automobile accident which occurred in the State of Wisconsin on May 6, 1958. The plaintiffs are husband and wife and are domiciled in the State of Illinois.

The defendants have brought suit against the State Farm Mutual Automobile Insurance Company, the insurer of plaintiff, George Pirc, by way of a third party complaint, claiming contribution against said insurer for any amount paid by the defendants to the plaintiff, Josephine Pirc. Defendants claim that plaintiff, George Pirc, was guilty of causal negligence, contributing to cause the injuries of the plaintiff, Josephine Pirc.

The third party defendant has now moved for summary judgment based on the argument that since plaintiffs are man and wife and are domiciled in Illinois, there can be no common liability to support a claim for contribution for in Illinois a wife cannot sue her husband for torts committed by the husband. The motion is also brought on the ground that the policy issued by the third party defendant contains a "household exclusion" clause and a "no action" clause.

It is undisputed that the plaintiffs are married to one another, are domiciled in Illinois, and that the accident which gives rise to this action occurred in Wisconsin. The issue is whether the plaintiff, Josephine Pirc, could have successfully sued her husband in Wisconsin on such a state of facts so as to provide the common liability requisite as the basis for contribution.

It is clear that the State of Illinois does not allow a wife to sue her husband in tort for in Chapter 68, Section 1, Illinois Revised Statutes 1953, the following is found:

"A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; provided, that neither husband nor wife may sue the other for a tort to the person committed during coverture. An attachment or judgment in such action may be enforced by or against her as if she were a single woman."

In contrast, it is also clear that Wisconsin does allow a wife to sue her husband in tort. Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 95 N. W.2d 814.

In the above-cited case, the Wisconsin Supreme Court reversed a long line of decisions which held that interspousal liability for tort was governed by the law of the state in which the accident occurred and ruled that henceforth the law of the state of domicile of the husband and wife would govern. The court stated at page 138 of 7 Wis.2d, at page 818 of 95 N.W. 2d:

"After most careful deliberation, it is our considered judgment that this court should adopt the rule that, whenever the courts of this state are confronted with a conflict of laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile. * *"

The third party plaintiffs, notwithstanding the Haumschild decision, argue that Josephine Pirc could have sued her husband in a Wisconsin court. This contention is based on the argument that the Illinois Statute simply bars the wife's remedy but does not extinguish her cause of action. The third party plaintiffs further argue that under the applicable conflict-of-law rule, the suit could be maintained here for Wisconsin, the forum State, does provide a remedy to a wife suing her husband in tort. On the question of whether the right or the remedy is barred in Illinois, the third party plaintiffs cite Tallios v. Tallios, 345 Ill.App. 387, 103 N.E.2d 507; Brandt v. Keller, 413 Ill. 503, 109 N.E.2d 729; and Hindman v. Holmes, 4 Ill.App.2d 279, 124 N.E. 2d 344.

It must first be noted that it is quite doubtful whether the Illinois Statute does bar only the remedy. The decisions cited by the third party plaintiffs do not clearly decide the issue. The most that can be said is that there is a possibility that in Illinois a wife does have a cause of action against her husband although not a remedy. See Bodenhagen v. Farmers Mutual Ins. Co., 5 Wis.2d 306, 92 N.W.2d 759, 95 N.W.2d 822.

This question need not be decided for the rule of the Haumschild decision is equally applicable regardless of the basis of the Illinois rule that a wife cannot sue her husband in tort. The Wisconsin Supreme Court in its opinion made it plain that it considered the public policy of the domiciliary state in regard to interspousal immunity to be of utmost importance.

If this court were not to decide the question as the third party plaintiffs wish, it would be tantamount to saying that the public policy of the State of Illinois in regard to interspousal immunity would be important if the bar were substantive but that it is not if the bar were procedural. This is hardly logical for the policy of the State of Illinois—that is, the furtherance of domestic tranquility—is equally important regardless of the method used to effectuate it.

The Haumschild opinion does not make the distinction being pressed by the third party plaintiffs but in fact states at page 137 of 7 Wis.2d, at page 818 of 95 N.W. 2d:

"We are convinced that, from both the standpoint of public policy and logic, the proper solution of the conflict of laws problem, in cases similar to the instant action, is to hold that the law of the domicile is the one that ought to be applied in determining any issue of incapacity to sue based upon family relationship." (Emphasis added.)

The third party defendant has also moved for summary judgment on the ground that the...