Appeal from the Circuit Court of Rock Island County; the Hon.
Jay M. Hanson, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
On December 3, 1980, Frances Williams, the plaintiff, sued her husband, William Williams, the defendant, for negligence. On July 7, 1979, Mrs. Williams was a passenger in a car operated by Mr. Williams. Allegedly, he drove his car carelessly over the center line of Koloa Springs Road in Rock Island County, crashing into an oncoming vehicle. Due to the collision, Mrs. Williams suffered serious personal injuries. Mr. Williams did not answer the complaint but, through counsel furnished by his insurance carrier, filed a motion to dismiss it. (Ill. Rev. Stat. 1979, ch. 110, par. 48.) The trial judge granted the motion, certifying his order for immediate appeal. (73 Ill.2d R. 304(a).) Mrs. Williams now seeks review.
Plaintiff has cloaked the issue of this appeal in a procedural guise, maintaining the trial judge erred in granting defendant's motion to dismiss her complaint. She contends a dispute exists between Mr. Williams and his insurer as to whether her husband personally chose to assert the defense of inter-spousal immunity. She claims that the defense of inter-spousal immunity is one that is personal to the husband; that it cannot be asserted in his behalf by his legal counsel, who was hired by his insurance carrier to represent him. To underscore this point, the husband, himself, has, at the appellate level, retained separate and personal counsel who has intervened in this appeal so as to advise this court beyond peradventure that the husband not only has no objection to being sued by his wife but that he positively welcomes it. Notwithstanding his purchase of insurance to defend him in court and to pay judgments entered against him, he abjures this too successful defense which resulted in the dismissal of the claim. What he is saying, in effect, is that he doesn't want the claim defended; he wants it paid! The husband's insurance carrier and counsel retained by it to defend the husband understandably have a different view.
This lawsuit, thus, has all the earmarks of a collusive undertaking. Black's Law Dictionary defines collusion as a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right.
• 1 The wife and husband in concert are attempting to define the issue in this case so as to avoid the operation of the rights-of-married-women act (Ill. Rev. Stat. 1979, ch. 40, par. 1001 et seq.), which bars a personal injury action between spouses for torts occurring during their marriage. To sidestep this law, they assert that the defense is purely personal to the husband; that it cannot be asserted in his behalf by hired insurance counsel. Such assertion is a sham issue. It might equally be argued that the statute of limitations, release and satisfaction and lack of personal jurisdiction are personal defenses. Defenses they are. Personal they are not. When the husband contracted to purchase liability insurance for the purpose of defending and paying claims, he bound himself to cooperate in the defense of litigation against him. His assertion in this appeal would appear to violate the cooperation clause of his insurance contract.
The only real issue in this case is whether the rights-of-married-women act bars a personal injury action between spouses for torts occurring during their marriage. Because it does, the trial court is affirmed.
At common law a wife had no independent legal status apart from her husband. She could not sue or be sued in her own name since she had no separate legal persona. (Love v. Moynehan (1855), 16 Ill. 277.) Because of this feudal conception of a wife's status before the law, a husband was held to be immune from suit. This immunity did not merely arise from the fact the wife had no remedy against her husband for a wrong the latter committed against her. Because marriage was conceived as a unit, and for the most part the husband was the unit, whatever rights of action the wife did possess were only enforcible by her husband. Thus, the immunity evolved from the fact of the marriage relationship. The upshot being that a husband could not sue himself. Welch v. Davis (1951), 410 Ill. 130, 132-33.
This common law view had an abbreviated history in Illinois. In 1861, the Illinois legislature passed the married woman's act. (Ill. Laws 1861, par. 143, sec. 1.) In sum, this legislation provided that a married woman could own, acquire, and convey property in her own name and do whatever necessary to protect such property. This included maintaining lawsuits against others concerning such property. By enacting the husband-and-wife act in 1874, these rights were broadened considerably. (Ill. Rev. Stat. 1874, ch. 68, par. 1 et seq.) Thus, a wife could: make contracts and incur liabilities to the same extent as an unmarried woman; commit and be solely responsible for tortious acts apart from her husband; and, sue her husband where he wrongfully converted her own separate property. (E.g., Johnson v. Johnson (1926), 239 Ill. App. 417.) This act, however, was mum on whether a married woman could sue her husband for torts committed against her by her husband during their marriage.
Marjorie Brandt brought that very question before the Illinois Supreme Court. (Brandt v. Keller (1952), 413 Ill. 503.) Mrs. Brandt and her husband, Joseph Keller, were estranged. They met to discuss divorce arrangements. While a passenger in Mr. Keller's automobile, Mr. Keller collided with another automobile. Mrs. Brandt suffered serious injuries. She filed a complaint against Mr. Keller, claiming his operation of the car was done in a wilful and wanton manner so as to injure her. Mr. Keller's motion to dismiss his wife's complaint was granted, the court holding he was immune from suit by his wife.
Although acknowledging the absence of any legislative authority for their action, the supreme court (over dissent) reversed. Essentially, it was held the husband-and-wife act of 1874 abrogated a husband's common law immunity from suit. Opting for what was perceived as the judicial trend, the supreme court felt the statute implied the right for women to institute any type of legal proceeding against anybody including their husbands. A liberal construction was fashioned to "effectuate the manifest intention of the legislature" which was "to establish the separate identity of a married woman in all litigation." (Brandt v. Keller (1952), 413 Ill. 503, 513.) Hence, a cause of action was judicially created, as a matter of statutory construction, so a wife could sue her spouse for torts he committed against her during their marriage.
The General Assembly's reaction to Brandt was swift, total, and opposite. The very next session it amended the 1874 act by adding the proviso that "neither husband nor wife may sue the other for a tort to the person committed during coverture." (Ill. Rev. Stat. 1953, ch. 68, par 1.) No committee hearings on this amendment appear in the legal literature. It might be argued that such revision was designed to reinstate the common law rule which Brandt sought to put to rest. It is quite obvious from the plain language of the amendment that it was intended to abolish any belief that a wife could sue her husband for personal torts committed during their marriage.
In Heckendorn v. First National Bank (1960), 19 Ill.2d 190, the amended version of the statute was scrutinized. Mrs. Heckendorn sued the administrator of her deceased husband's estate for personal injuries resulting from the alleged wilful misconduct of her husband during their marriage. After examining the common law, the husband-and-wife act, Brandt, and the amendment, the supreme court declared:
"The legislature created a statutory disability during the lifetime of the parties. Its intent was to prevent a cause of action from coming into being. If a cause of action could not exist in favor of the wife and against the tort-feasor husband, it could not survive his death. We find nothing in the language of the proviso to justify the anomalous conclusion that the existence of a cause of action between husband and wife is entirely dependent on the fortuitous event of the death of the spouse. We therefore conclude that the proviso of 1953 was intended to bar the present action." (19 Ill.2d 190, 193.)
The supreme court went on to uphold the statute under the Illinois Constitution, as well as a challenge on Federal due process grounds. (Compare with Tyrken v. Tyrken (1978), 63 Ill. App.3d 199, 202-03 (1970 Illinois Constitution), and Steffa v. Stanley (1976), 39 Ill. App.3d 915, 917-18 (Illinois and Federal equal protection clauses).) The supreme court concluded the Brandt holding which supplanted the common law rule was superseded when the Illinois legislature enacted the 1953 amendment. (Heckendorn v. First National Bank (1960), 19 Ill.2d 190, 195.) This holding has been consistently followed. (Wartell v. Formusa (1966), 34 Ill.2d 57, 60; accord, Herget National Bank v. Berardi (1976), 64 Ill.2d 467, 471.) All these cases make clear that a cause of action does not exist between spouses for personal torts they commit against one another during their marriage.
Plaintiff says her complaint should not be dismissed since her husband, not the insurer, is entitled to assert the personal defense of inter-spousal immunity. She claims she has a cause of action and is thus entitled to a remedy. Allstate Insurance Co. v. Elkins (1979), 77 Ill.2d 384.
• 2 The issue in Elkins was whether an insured wife, who could not recover damages from her tortfeasor husband because of inter-spousal immunity, was still "* * * legally entitled to recover * * *" (e.g., Ill. Rev. Stat. 1979, ch. 73, par. 755a) from him under the uninsured motorist contract of her husband's insurance policy. But such an action is not the same cause which Mrs. Williams seeks to litigate. (Annot., 73 A.L.R.3d 632, 649-56 (1976).) In Elkins, inter-spousal immunity was held not to extinguish Mrs. Elkins' claim since her recovery was premised on the uninsured motorist contract in the insurance policy. Contrariwise, our supreme court has stated unequivocally that our rights-of-married-women act enables inter-spousal immunity to prevent a cause of action from coming into being where a spouse sues another for personal torts during the marriage. (Heckendorn v. First National Bank (1960), 19 Ill.2d 190, 193.) Thus, inter-spousal immunity is not merely a defense, but a statutory disability. And, such does not merely address the enforceability of a remedy, but denotes that a wife or a husband, as the case may be, is not entitled to prosecute a cause of action against the other for personal torts committed between them during the marriage. (See Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App.3d 894, 900; Note, Uninsured Motorist Coverage and Inter-spousal Immunity, 57 Chi. — Kent L. Rev. 297 (1981).) Consequently, the rationale in Elkins is not applicable to the cause at bar. It is significant that in Elkins the majority opinion neither addresses nor overrules Heckendorn and its progeny.
• 3 Various reasons sound from different quarters for discarding the notion of inter-spousal immunity. (Prosser, Torts sec. 122, at 859-64 (4th ed. 1971); Annot., 92 A.L.R.3d 901, 906, 910 (1979); Note, Inter-spousal Immunity — Time for a Reappraisal, 27 Ohio St. L.J. 550 (1966).) The common law notion of the marital unity of husband and wife is a concept at odds with our present statutory view of marriage, which, as judically interpreted, incorporates a partnership theory of marriage. (In re Marriage of Komnick (1981), 84 Ill.2d 89, 94.) On the other hand, a persuasive argument can be advanced that the concept of inter-spousal immunity prevents collusive litigation between spouses to bilk insurance companies. The debate continues. In view of our statute, it is not our job to evaluate the merits or shortcomings of these competing arguments. The fact remains that inter-spousal immunity is a constitutional enactment of our State's public policy. (Heckendorn v. First National Bank (1960), 19 Ill.2d 190, 195.) As such, it is for the Illinois General Assembly, not us, to determine whether such immunity retains continuing vitality and significance for Illinois citizens. We have no authority to amend the statute by judicial fiat.
Mrs. Williams' complaint was properly dismissed. The defendant's insurer can invoke Mr. Williams' statutory immunity from suit for plaintiff's claim for damages. Mrs. Williams' cause of action does not arise.
For the reasons stated, the order of the Rock Island circuit court dismissing plaintiff's claim with ...