APPEAL from the Circuit Court of Lake County; the Hon.
LAWRENCE D. INGLIS, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
We have allowed this appeal from an interlocutory order which was certified to this court by the trial court pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308). The question raised is whether inter-spousal tort immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001) precludes a third-party action for statutory contribution (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) where the third-party defendant sought to be joined was married to the plaintiff at the time the cause of action arose and the plaintiff's original action is based on a common law tort. The trial court denied the third-party defendant-spouse's motion to dismiss the third-party complaint based upon inter-spousal tort immunity and further found that the order involved a question of law as to which there is a substantial ground for a difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation.
The complaint alleged that on March 21, 1980, Melody Wirth, plaintiff, was a tenant in a building "owned, operated, managed, maintained and controlled" by the defendant, City of Highland Park (city); that on that date plaintiff slipped and fell down a stairway in said building; that the city was guilty of one or more acts of negligence; and that as a proximate result of that negligence, she sustained serious injury. The city filed an answer admitting ownership of the building and generally denying the other material allegations of the complaint. It then filed a third-party complaint against Daniel Wirth, third-party defendant, which alleged that on March 21, 1980, he "operated, managed, maintained and controlled the premises"; that if plaintiff was injured by someone other than herself, it was a result of the negligence of Daniel Wirth; and that it has a right of contribution from Daniel Wirth pursuant to section 1(a) of "An Act in relation to contributions among joint tort-feasors" (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)). Daniel Wirth moved to dismiss the third-party complaint against him based upon the statutory defense of inter-spousal tort immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001), and attached to the motion an affidavit stating that Melody Wirth was the spouse of Daniel Wirth on March 21, 1980, and they remained husband and wife. The trial court denied the motion to dismiss and this interlocutory appeal ensued.
At issue is an interpretation of the interplay between two statutes, namely, that providing for inter-spousal tort immunity (Ill. Rev. Stat. 1979, ch. 40, par. 1001) and that allowing a third-party action for contribution (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)), which respectively provide as follows:
"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." Ill. Rev. Stat. 1979, ch. 40, par. 1001.
"Right of Contribution. (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them." (Ill. Rev. Stat. 1979, ch. 70, par. 302(a).)
A brief historical review is necessary.
At common law, husband and wife were merged into one legal entity — that of the husband. Blackstone wrote that "[b]y marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband." (Note, Domestic Relations — Abrogation of Inter-spousal Immunity — An Analytical Approach, 19 DePaul L. Rev. 590, 591 n. 4 (1970), quoting 1 Blackstone, Commentaries 442 (1768).) The Illinois legislature provided for the legal emancipation of women by enacting the Married Women's Act of 1874 (now codified at Ill. Rev. Stat. 1979, ch. 40, pars. 1001-1021). (See Brandt v. Keller (1952), 413 Ill. 503, 507, 109 N.E.2d 729.) This act provided, in substance:
"* * * 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." Brandt v. Keller (1952), 413 Ill. 503, 507, 109 N.E.2d 729.
In Brandt v. Keller (1952), 413 Ill. 503, 109 N.E.2d 729, the Illinois Supreme Court construed the phrase "in all cases" in the Married Women's Act of 1874 (Ill. Rev. Stat. 1951, ch. 68, par. 1, now at Ill. Rev. Stat. 1979, ch. 40, par. 1001). The phrase referred to a married woman maintaining an action in tort. The court determined that the phrase must be interpreted to include any actions by or against a married woman. 413 Ill. 503, 512, 109 N.E.2d 729.) This included tort actions against her husband. 413 Ill. 503, 513, 109 N.E.2d 729.) The court rejected the public policy argument that domestic tranquility demanded a continuation of the inter-spousal tort immunity, stating that "when one spouse assails another or brings suit, there is not much domestic tranquility left to disrupt." 413 Ill. 503, 511, 109 N.E.2d 729.) In 1953, the Illinois legislature amended the Married Women's Act of 1874 to provide that "neither husband nor wife may sue the other for a tort to the person committed during coverture." (Now codified at Ill. Rev. Stat. 1979, ch. 40, par. 1001.) The effect of the amendment was to re-establish what had been the common law rule of inter-spousal tort immunity. A succession of Illinois opinions thereafter construed the amendment as a substantive bar to personal injury litigation between spouses. (See Wartell v. Formusa (1966), 34 Ill.2d 57, 60, 213 N.E.2d 544; Heckendorn v. First National Bank (1960), 19 Ill.2d 190, 193, 166 N.E.2d 571.) In Heckendorn, the court found that the intent of the amendment was to "prevent a cause of action" for torts committed during coverture "from coming into being." 19 Ill.2d 190, 193, 166 N.E.2d 571.
Recently, the Illinois Supreme Court held that a third-party insurance company cannot raise the inter-spousal tort immunity as a defense to an action brought by one spouse seeking to recover for injuries under an uninsured motorist provision. (Allstate Insurance Co. v. Elkins (1979), 77 Ill.2d 384, 396 N.E.2d 528.) The court stated that "* * * the effect of the 1953 amendment was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse." (77 Ill.2d 384, 390, 396 N.E.2d 528.) The immunity is thus seen now as a procedural, not a substantive, bar to actions between spouses.
With respect to the doctrine of contribution among joint tortfeasors, the rule at common law was that contribution was not permitted. While traditionally joint tortfeasors have been jointly and severally liable to a plaintiff, contribution, which only affects the rights of defendants between themselves, has been denied. The rule denying contribution historically evolved from an unwillingness to grant relief to intentional wrongdoers for the consequences of their wrongful acts. (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 7-9, 374 N.E.2d 437, modified (1978), 70 Ill.2d 16.) Until the Skinner decision, Illinois courts> attempted to expand the implied indemnity concept, based upon active-passive negligence in order to ameliorate the harsh effects of the bar to contribution. (See, e.g., Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445, 322 N.E.2d 58; Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630; Chicago & Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill.2d 600, 208 N.E.2d 573.) Finally, our supreme court concluded in Skinner that they would judicially abolish this unsound and unjust doctrine which was judicially created, and held:
"We are of the opinion that there is no valid reason for the continued existence of the no-contribution rule and many compelling arguments against it. We agree with Dean Prosser that `[t]here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff's whim or spite, or his collusion with the other wrongdoer, while the latter goes scot free.' Prosser, Torts sec. 50, at 307 (4th ed. 1971)." (70 Ill.2d 1, 13, 374 N.E.2d 437.)
Soon thereafter, the Illinois General Assembly enacted legislation approved on September 14, 1979, and applicable to all causes of action arising on or after March 1, 1978, establishing legislatively a right of ...