APPEAL from the Circuit Court of Ogle County; the Hon. F.
LAWRENCE LENZ, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
While a passenger on a motorcycle driven by Roger Stanley, plaintiff was injured as the result of a collision between that cycle and an auto driven by Roger Steffa, who was, at that time, plaintiff's husband. *fn1 She filed suit against both Stanley and Steffa for injuries, and Steffa filed a motion for summary judgment alleging that the action in tort was barred by the inter-spousal tort immunity provision of section 1 of "An Act to revise the law in relation to husband and wife" *fn2 (Ill. Rev. Stat. 1973, ch. 68, par. 1).
Plaintiff appeals the granting of defendant Steffa's motion for summary judgment, contending that (1) article I, section 12, of the 1970 Illinois Constitution affords plaintiff a remedy and renders unconstitutional section 1 of the Act; (2) section 1 of that act denies plaintiff equal protection of the law guaranteed by article I, sections 2 and 18, of the 1970 Illinois Constitution; (3) section 1 of the Act is unconstitutional because the section contains more than one subject and the purposes of the Act, relating to suits between spouses, is not expressed in the title; and (4) inter-spousal tort immunity is an attempt to perpetuate a vestigial concept based upon the abrogated common law rule that a married woman's rights and property belong to her husband.
Second 1 of the Act provides:
"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." Ill. Rev. Stat. 1973, ch. 68, par. 1.
It is useful, here, to view the above enactment in its historical context. At common law, a married woman had no separate identity before the law. She was regarded as a chattel with neither property nor other rights which were enforceable against anyone. Her husband owned all her property and asserted all of her legal and equitable rights. It followed, therefore, that a husband was immune from suits by his wife, whether in tort or contract. (Brandt v. Keller, 413 Ill. 503, 505 (1953); Heckendorn v. First National Bank, 19 Ill.2d 190, 192 (1960), cert. denied, 364 U.S. 882.) In 1874, the rights of married women in Illinois were broadened by the Act, which originally provided only that a married woman could own property and sue in her own name. The inter-spousal immunity language was not an original provision. (Herget National Bank v. Berardi, 31 Ill. App.3d 608, 609 (1975).) In Brandt v. Keller, 413 Ill. 503, 513, the supreme court interpreted the 1874 act as reflecting a legislative intent to remove a married woman's common law disability with reference to suing and being sued, and refused to read into the statute the common law tort immunity. During its next session, the legislature amended the Act to include the provision that "neither husband nor wife may sue the other for a tort to the person committed during coverture." Heckendorn v. First National Bank, 19 Ill.2d 190, 193 (1960).
In upholding the constitutionality of the 1953 statute against an attack similar to that in the instant case, the court stated:
"As it was within the power of the legislature to determine public policy and grant such right [of a wife to sue her husband in tort] in 1874, it was also within its authority in 1953 to change this policy concept and to partially withdraw such right. This it did by a proviso which applies equally to husband and wife and is consonant with a widely held view of public policy as enunciated in a majority of decisions in this country." Heckendorn v. First National Bank, 19 Ill.2d 190, 195 (1960).
Article I, section 12, of the Constitution of 1970 provides that:
"Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly."
Plaintiff maintains that this provision mandates she be provided a remedy against her former husband in the instant case. This section, however, does not mandate a specific form of remedy be provided plaintiff but only expresses the philosophy that some remedy be provided. (Sullivan v. Midlothian Park District, 51 Ill.2d 274, 277 (1972); Mier v. Staley, 28 Ill. App.3d 373, 381 (1975).) While true that courts have power to fashion remedies to alleviate injuries or wrongs (see People v. Warr, 54 Ill.2d 487, 493 (1973); People v. Brown, 27 Ill. App.3d 891, 896 (1975)), still this power is limited.
1 In response to a similar argument advanced in Heckendorn, the supreme court stated that section 19 of article II of the 1870 Illinois Constitution (now article I, section 12, of the 1970 Illinois Constitution) enunciated a basic policy of jurisprudence serving to preserve the rights recognized by the common law and to permit the fashioning of new remedies to meet changing conditions. This policy expression, however, does not authorize courts to create a cause of action unknown to the common law in the face of an express statutory prohibition. Heckendorn v. First National Bank, 19 Ill.2d 190, 194 (1960).
Plaintiff next argues that the statute in question denies her equal protection of the law as guaranteed by article I, sections 2 and 18, of the 1970 Illinois Constitution. Although the legislature may, in certain instances, classify persons for the purposes of legislative regulation or control (Youhas v. Ice, 56 Ill.2d 497, 500 (1974)), the Act does not present us with the question of whether the classification of married women is constitutionally permissible. Its purpose was not to control or otherwise abridge the rights of married women but, rather, to allow rights denied under the common law and elevate married women to a legal parity with married men.
2 As to section 18, the bar against tort actions between spouses during coverture applies equally to male and female and cannot therefore be said to discriminate by denying or ...