Wartell v. Formusa
| Decision Date | 25 January 1966 |
| Docket Number | No. 39206,39206 |
| Citation | 213 N.E.2d 544,34 Ill.2d 57 |
| Parties | Evelyn WARTELL, Appellant, v. S. Joseph FORMUSA, Admr., Appellee. |
| Court | Illinois Supreme Court |
George C. Rabens, Chicago, for appellant.
Ross, Kralovec, Sweeney & Marquard, Chicago (Charles V. Kralovec, Thomas C. Donovan, Jr., and Glenn H. Prohaska, Chicago, of counsel), for appellee.
Mr. and Mrs. Gerald Wartell, residents of Illinois, were passing through the State of Florida when they were involved in an automobile collision which caused the death of Mr. Wartell. Mrs. Wartell, who is the plaintiff in this action, suffered injuries in this accident and brought suit in the circuit court of Cook County against the executor of her husband's estate, alleging that her deceased husband was guilty of willful and wanton negligence in the operation of their car. At the time the complaint was filed, the executor had been discharged and the estate closed, and the complaint was therefore amended to designate as defendant, S. Joseph Formusa, as administrator de bonis non of the estate. The original complaint was filed within two years of the alleged tort although the amendment naming Formusa as defendant was made more than two years after the accident. Defendant's motion to dismiss the amended complaint on the ground that Formusa was not served with process within the two-year Statute of Limitations was denied. However, the court allowed defendant's subsequent motion to dismiss the action on the ground that it did not state a claim upon which relief could be granted. Plaintiff has appealed directly to this court from the order dismissing the cause, and defendant has cross-appealed from the denial of his earlier motion to dismiss the complaint.
Defendant's motion to dismiss the cause was based upon the theory that Florida law bars an action by one spouse against the other for a tort committed during coverture. The trial court allowed the motion and dismissed the cause but on a different ground: namely, that an Illinois statute, rather than Florida common law, barred the action. On appeal, plaintiff argues that both the Illinois statute and the Florida common law granting interspousal immunity are unconstitutional and that the judgment must be reversed whichever law is applicable. Defendant argues, however, that both the Illinois statute and the Florida common law are constitutional and that the judgment must therefore be affirmed whichever law governs.
The Illinois statute here in question provides in pertinent part: 'that neither husband nor wife may sue the other for a tort to the person committed during coverture.' (Ill.Rev.Stat.1963, chap. 68, par. 1.) The common law of Florida also appears to prohibit interspousal tort actions. (Amendola v. Amendola, 121 So.2d 805 (Fla.App.1960); Corren v. Corren, 47 So.2d 774 (Fla.1950).) Consequently, we are not here concerned with the customary conflict of laws case where it is necessary to choose between two conflicting laws. However, it is necessary to determine which law is applicable in this case by virtue of plaintiff's contention that either law is unconstitutional insofar as it prohibits a right of recovery against the estate of her deceased husband.
In our opinion, the law of Illinois clearly applies in this case. We can think of no reason why Florida law should control the question whether a husband and wife domiciled in Illinois should be able to maintain an action against each other for a tort committed during coverture. The fact that the alleged tortious act took place in Florida is of no significance in determining which law should govern the determination of this issue. The law of the place of the wrong should of course determine whether or not a tort has in fact been committed, but the distinct question of whether one spouse can maintain an action in tort against the other spouse is clearly a matter which should be governed by the law of the domicile of the persons involved. Here the domicile is Illinois. Illinois has the predominant interest in the preservation of the husband-wife relationship of its citizens, and to apply the laws of Florida to the question of whether interspousal tort suits may be permitted between Illinois residents would be illogical and without a sound basis. This position has been adopted by the Restatement Second of Conflict of Laws, Tentative...
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