Appeal by plaintiff from the Superior Court of Cook county;
the Hon. JULIUS P. HOFFMAN, Judge, presiding. Heard in the second
division of this court for the first district at the April term,
1951. Judgment affirmed. Opinion filed April 1, 1952. Rehearing
denied April 14, 1952. Released for publication May 23, 1952.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 14, 1952
This case involves the right of a wife to sue her husband for personal injuries sustained while a passenger in a car driven by her husband. The trial court decided against plaintiff and dismissed her suit. At common law a tort committed by one spouse against the person of the other could not give rise to a cause of action in favor of the injured spouse. This is still the law of Illinois unless the rule has been changed by the Married Women's Act of 1874 (Ill. Rev. Stat. chap. 68, secs. 1-21, inclusive) [Jones Ill. Stats. Ann. 64.01, 64.21].
Plaintiff relies on that Act. Her counsel concede that the Act does not give a corresponding right to the husband. The question is, therefore, whether the Act removes the common-law disability of the wife but preserves it as to the husband. Such a swing of the pendulum would certainly crash through the walls of grandfather's clock even though he himself wrote the Act. However, if the language of the Act expresses the intention to remove the disability of the wife and not that of the husband or should, pursuant to the rules of statutory construction, be thus interpreted, we must so find.
Recently, the Supreme Court of Illinois decided the case of Welch, Admr. v. Davis, 410 Ill. 130, 101 N.E.2d 547, sustaining the right of the administrator of a wife's estate to sue the husband's estate pursuant to the statute granting a right of action for wrongful death. The court there discussed matters so closely related to the issues involved here that we must first consider carefully the effect of that case. Paragraph 1 of the Wrongful Death Act fixes the limits for this type of action as that which "would, if death had not ensued, have entitled the party injured to maintain an action." To bring the case within the limits thus imposed, plaintiff relied on two basic grounds: (1) that the Wrongful Death Act created a new cause of action which was not defeated by a personal immunity which the husband might have had if the parties had lived; and (2) that under the Married Women's Act here in question, the disability of the wife had been removed. The Appellate Court, Third District, found no merit in either point. (Welch v. Davis, 342 Ill. App. 69, 95 N.E.2d 108.) The Supreme Court, however, held with plaintiff on the first point and did not decide the second. It held that the Wrongful Death Act created a new and independent cause of action, and that this was not a derivative or secondary action circumscribed by all the limitations and disabilities which might have been imposed upon the intestate had she lived. The court pointed out that this was not a suit by one spouse against the other, and that an immunity unrelated to the character or quality of the tort or wrongful act which caused the death should not be imported into an action for wrongful death. The court expressly stated that it did not undertake to determine whether that immunity survived under circumstances other than those there existing, and made clear that the decision was not to be taken as authority on the issue presented in the instant case. The opinion points out, however, that no Illinois case has settled the right of a wife to sue her husband in tort and we, therefore, consider the case before us to be one of first impression.
We have also considered an opinion rendered by the First Division of this court January 21, 1952, in Tallios v. Tallios, 345 Ill. App. 387, holding that the immunity of a husband does not extend to the defendant in a suit charging that the husband as agent of defendant negligently injured the wife. As in the case of Welch, Admr. v. Davis, supra, the court relied on the reasoning of JUSTICE CARDOZO in the case of Schubert v. August Schubert Wagon Co., 249 N.Y. 253, which held that the basis of liability against a principal was the tortious act; that the liability of the principal was not derived from the liability of the agent, and that the principal may be liable for an act with respect to which the agent has a personal immunity. As in Welch, Admr. v. Davis, supra, the court did not pass upon the question as to whether the wife may sue her husband for personal injury.
It is urged upon us with ardent advocacy that the language of the 1874 Act is clear; that it explicitly removes the disability of the wife; that it needs no interpretation; that he who runs may read, and that a court should not read into the Act what is not there written and revive any relic of that barbarous day when women were "chattels and the slaves of men." We must therefore first examine the precise wording of the statute to determine if it supports this position of plaintiff. The pertinent portion reads as follows:
"That 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, and an attachment or judgment in such action may be enforced by or against her as if she were a single woman."
Plaintiff's counsel argues that the phrase "in all cases" means that she may sue in every case, whether it is her husband or a third person, just as an unmarried woman might. Courts must not, they say, in any way circumscribe the meaning of the words "in all cases." A careful scrutiny of the Act reveals that if that was the intention, it was not carefully nor clearly drawn to effect that purpose. The Act first states that a married woman may in all cases sue and be sued without joining her husband with her. This clearly removes the disability of the wife so far as the technical need of joining her husband with her in any action is concerned. If anything, that language emphasizing as it does the joinder of the husband, refutes the idea that a suit against the husband was in contemplation. There is a substantial distinction between eliminating a formal requirement for the right to maintain a suit and removing a disability with respect to a suit against a particular person. The area within which a married woman may sue "without joining her husband" is thus defined "to the same extent as if she were unmarried." Do these words clearly express an intention to include the right of a wife to sue her husband? Extended to state that intention, the language would read: "We grant married women the right, without joining their husbands with them, to sue their husbands to the same extent as unmarried women might sue their husbands." It is obvious that the Act is not so plain on its face that it needs no interpretation. It should be interpreted according to the familiar rules of statutory construction.
Counsel for plaintiff have admitted that the Act gives no general right of inter-spousal actions for torts against the person. It is difficult to see how it could be otherwise. In order to accomplish that equalitarian result, we would have to read into the law the elimination of the common-law disability of the husband and that would in effect distort the provisions of the statute into a form which would make its general phraseology and its context absurd. It would obliterate the phrases "without joining her husband" and "to the same extent as if she were unmarried." It would make a new law. Unless we are willing to usurp the function of the legislature, we must accept the proposition that this Act cannot be stretched to include a right of action by husband against wife.
The primary rule of statutory construction is to give effect to legislative intent. For that purpose, courts consider the circumstances and conditions under which legislation is enacted and the evils or injustices sought to be corrected. Hoyne v. Danisch, 264 Ill. 467; People v. Kipley, 171 Ill. 44; Hogan v. Akin, 181 Ill. 448; Krome v. Halbert, 263 Ill. 172; Anderson v. City of Park Ridge, 396 Ill. 235, 254. If we examine the language of the entire Act, that is, the provisions in addition to those of the paragraph heretofore stated, we must conclude the intention was to eliminate the disabilities peculiar to married women. The disability here under consideration is not one peculiar to the wife. It is a disability of spouses, a disability common both to husband and wife, and in that respect does not have the discriminating odium attached to other disabilities. Where this same statute in other sections creates a right in the wife it is, wherever appropriate, followed by a reciprocal right in the husband. Thus, in paragraph 3 it is provided that when a husband deserts his family, the wife may prosecute or defend in his name and "under like circumstances, the same right shall apply to the husband . . . ." (Italics ours.) (See also sections 5, 8 and 11.)
The object of equality is defeated by holding that under the Act, the wife would have the right to sue her husband in tort for injuries sustained by her, and at the same time deny to him a corresponding right.
As we have stated, Welch, Admr. v. Davis, 410 Ill. 130, considers this question a matter of first impression. It is, however, significant that no court of Illinois in the seventy-seven years since the passage of the Act has considered that it gave a right to the wife to sue her husband. Indeed, several courts have indicated otherwise, although not deciding the question. Meece v. Holland Furnace Co., 269 Ill. App. 164; Merrill v. Marshall, 113 Ill. App. 447. The Supreme Court of Wisconsin likewise had occasion to declare that the law of Illinois did not give a right to the wife to sue her husband. Buckeye v. Buckeye, 203 Wis. 248, 234 N.W. 342; Forbes v. Forbes, 226 Wis. 477, 482, 277 N.W. 112. These cases are correctly distinguished by plaintiff's counsel, and are referred to only for the general proposition that where there has been occasion for courts to comment, it has been assumed that the Act did not give the wife the right to sue her husband for a tort committed against her person. Moreover, not only has there been no precedent, but no suit directly involving the right of a wife to sue her husband for personal injuries has ever been brought in Illinois so far as we are advised. This was a period in which personal injury actions zoomed from almost zero to many hundreds of thousands. Undoubtedly, there must have been a great number of suits which could have been brought but were not, on the assumption that in Illinois one spouse could not sue the other for a tort committed against the person. The only other conclusion would be that an astounding stupor had fallen on the alert and vigorous lawyers who practice in this field. It is fair to conclude that there was a consensus of all who had to do with the matter lawyers, judges and others that inter-spousal suits for torts against the person were not allowed in this State. Kent in his Commentaries, 12th Ed., vol. 1, p. 527, says: "In the construction of statutes, the sense which the contemporary members of the profession had put upon them is deemed of some importance. . . ."
If we look to other jurisdictions, we find that almost all the States have adopted legislation on the same subject, but there is no uniformity in the language used. A majority of the States, perhaps a very substantial majority, has held that statutes somewhat similar did not give the wife the right to sue her husband. The cases which hold to the contrary are referred to as cases following the minority rule. The decisions have been assembled in Annotations in 33 A.L.R. 1406, 89 A.L.R. 118, and 160 A.L.R. 1406. The most important precedent is Thompson v. Thompson, 218 U.S. 611. There, the court construed a statute of the District of Columbia which granted married women the right to sue separately "for torts committed against them, as fully ...