APPEAL from the Second Division of the Appellate Court for the
First District; heard in that court on appeal from the Superior
Court of Cook County; the Hon. JULIUS P. HOFFMAN, Judge,
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 19, 1953.
This is an appeal by plaintiff, Marjorie Brandt, from a judgment of the Appellate Court affirming the order of the superior court of Cook County, which dismissed plaintiff's action for damages against her divorced husband, defendant, Joseph Keller, for a personal tort inflicted by him while the marriage relation existed.
The sole issue presented herein is whether, under the Married Women's Act of 1874, a married woman can maintain an action for damages against her husband for personal injuries caused by his wilful and wanton misconduct.
According to the uncontroverted allegations of the complaint, the parties were estranged and met on the particular occasion only to consider divorce plans which were eventually consummated. Defendant was driving plaintiff as a guest passenger in his car, and allegedly wilfully and wantonly collided with a car coming from the opposite direction, causing plaintiff to sustain the personal injuries for which she is endeavoring to recover damages in this action.
The trial court sustained defendant's motion to dismiss plaintiff's complaint on the ground that no action may be brought by a wife to recover for a tort committed by her husband, notwithstanding the subsequent termination of the marriage. The Appellate Court, in affirming that judgment, held that, although this issue had not been conclusively determined under the Married Women's Act of 1874, (Ill. Rev. Stat. 1951, chap. 68, pars. 1 to 21,) that statute does not abrogate the husband's common-law immunity from tort actions instituted by his wife.
In determining the propriety of the Appellate Court's construction of the act, we shall review briefly the origin of the common-law rule immunizing the husband to suits by his wife, the relevant legislation affecting that rule, as construed by the Illinois courts, note the rationale and conclusions of courts of other jurisdictions construing similar statutes, and ultimately present our interpretation of the language and provisions of the applicable statute.
At common law a married woman had no separate identity before the law; she was regarded as a chattel with neither property or other rights against anyone, for her husband owned all her property and asserted all her legal and equitable rights. (Snell v. Snell, 123 Ill. 403, 407 et seq.; Hoker v. Boggs, 63 Ill. 161.) As a consequence of this status, which was founded upon the prevailing feudal economy, the rule evolved that the husband was immune to all suits by his wife, including actions for personal injuries he might inflict upon her. (30 C.J. 714.) This rule was inevitable, since any recovery on behalf of the wife in a suit against her husband would immediately have become his property, and since he alone could enforce a right of his wife, he would be, in effect, suing himself. Welch v. Davis, 410 Ill. 130.
While the common-law status of married women is merely of historical interest today, since it has been modified in varying degrees by statutes in England and in all of the States, the rule respecting the immunity of the husband to suit by his wife has persisted in many jurisdictions, particularly with reference to torts committed by him. The vitality of the rule in each jurisdiction depends upon the construction of the statutes emancipating married women.
With reference to such legislation in Illinois, the Married Women's Act of 1861 provided, in substance, that a married woman may own, acquire and convey property, together with all rents and profits therefrom in her own right the same as though she were sole and unmarried. This statute was held to confer upon a married woman the power to do whatever is needful to the effectual maintenance of her own property, including the right to prosecute suits in her own name, without joining her husband, for recovery of the property, or for an unlawful interference with it, even against her husband. (Emerson v. Clayton, 32 Ill. 493.) However, a married woman could not, under this statute, maintain a writ of scire facias against her husband to compel the payment of alimony, or maintain any other type of action against him unless it be for the recovery of her own property. (Chestnut v. Chestnut, 77 Ill. 346.) In the Chestnut case, the court stated: "If the provisions of the common law which prohibit a husband and wife from prosecuting suits at law against each other are to be repealed, altered or modified, it must be done by legislative action * * * not * * * by judicial construction."
In 1869 the Illinois legislature enacted a statute which provided that a married woman may receive, use, and possess her own earnings, and sue for the same, provided she shall have no right to compensation for labor performed for her minor children or her husband. While the statute was deemed to further emancipate and expand the rights of married women, neither it, nor its interpretation affects the query herein.
In 1874 the rights of married women were considerably broadened in scope by a statute (Ill. Rev. Stat. 1874, chap. 68,) substantially identical with the present law. The relevant sections provided, in substance: 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; that if husband and wife are sued together, the wife may defend in her own right; that a wife may make contracts and incur liabilities to the same extent and in the same manner as if she were unmarried; that the husband is not liable for his wife's torts, except in cases where he would be jointly responsible with her if the marriage did not exist; that a wife has the right to retain her earnings, but she is not entitled to compensation for labor performed for her minor children or her husband; that a wife may own, control and convey property, and the rents and profits therefrom, and that if either husband or wife unlawfully obtains or retains possession or control of property belonging to the other, either before or after marriage, the owner may maintain an action therefor, to the same extent as if he or she were unmarried. Recognition of this enlarged sphere of rights is found in the following cases: Thomas v. Mueller, 106 Ill. 36, 41; Crum v. Sawyer, 132 Ill. 443; Johnson v. Johnson, 239 Ill. App. 417; Glennon v. Glennon, 299 Ill. App. 13.
Although it has been held under this act that a married woman may contract with her husband, and sue him on contracts and on notes (Thomas v. Mueller; Crum v. Sawyer,) or for money spent for the support of their child (Johnson v. Johnson,) there has been no clear or conclusive determination of whether a married woman may now sue her husband for torts inflicted by him upon her. The only case involving this issue, adjudicated after the enactment of the act of 1874, is Main v. Main, 46 Ill. App. 106. That decision, however, does not refer to the act of 1874, nor purport to construe the terminology of the act or the effect of the new rights on the common-law rule, nor analyze the extent to which the 1874 act modified or expanded the rights conferred by the act of 1861. On the contrary, the decision is predicated upon Chestnut v. Chestnut, which was decided under the 1861 act, and upon the language therein pertaining to public policy. Therefore, it has been held that the determination of the Main case, denying a married woman the right to sue her husband in a tort action, cannot be deemed to constitute a binding precedent on this issue. Welch v. Davis, 342 Ill. App. 69, 72; Welch v. Davis, 410 Ill. 130.
Not only is there no clear determination of this issue under the act of 1874, but there are two conflicting dicta appearing in the case law. In Meece v. Holland Furnace Co. 269 Ill. App. 169, the court, in denying the right of a minor child to sue his parent for a tort, observed that the situation was analagous to that of a wife suing her husband. In Welch v. Davis, 410 Ill. 130, however, the court, while predicating its decision on the Wrongful Death Act, nevertheless intimated that there is no longer any basis in law for the husband's common-law immunity from tort actions by his wife, and that it can find support only on the doubtful theory of preserving domestic tranquility. With reference thereto the court stated: "Two obstacles thus combined at common law to preclude an action by a wife against her husband. First, there was the somewhat metaphysical difficulty concerning the parties: the husband, enforcing the right of his wife as plaintiff, would be suing himself as defendant; and, second, any recovery on behalf of the wife would immediately become the property of her husband, so that the action would have been a circuitous futility. Neither of those obstacles exists today. Everywhere they have been eliminated by statutes which permit married women to own property independently of their husbands and to sue in their own name. * * * The only support ...