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03/23/88 Stephen Nelson, Special v. Linda F. Hix (Arthur R.

March 23, 1988

NELSON, APPELLEE

v.

LINDA F. HIX (ARTHUR R. NELSON, APPELLANT)



SUPREME COURT OF ILLINOIS

STEPHEN NELSON, Special Adm'r of the Estate of Marjorie

522 N.E.2d 1214, 122 Ill. 2d 343, 119 Ill. Dec. 355 1988.IL.400

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. Richard Lucas, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

On August 11, 1980, Marjorie Nelson was a passenger in an automobile being driven by her husband, Arthur. The automobile had been rented by the Nelsons from a car-rental company at O'Hare International Airport. The Nelsons, who were residents and citizens of Ontario, Canada, were visiting relatives in Illinois. The automobile was involved in a collision in Glendale Heights, Illinois, with a vehicle being driven by Linda Hix. Both Marjorie and Arthur sustained serious injuries as a result of the accident.

Marjorie and Arthur Nelson subsequently filed suit against Linda Hix in the circuit court of DuPage County. After filing suit, Arthur settled his claim against Hix for $15,000 and Arthur's suit against Hix was dismissed.

On July 30, 1982, after Arthur dismissed his suit against Hix, Marjorie Nelson filed an amended complaint in which she named her husband, Arthur, an additional defendant and amended her complaint against Hix. Count I of the amended complaint alleged various acts of negligence by Linda Hix. Count II alleged various acts of negligence by Arthur.

After filing the amended complaint, Marjorie died of causes unrelated to the accident. Stephen Nelson, her son, was named special administrator of Marjorie's estate and was substituted as plaintiff in the lawsuit.

Arthur then filed a motion to dismiss count II of the amended complaint on the ground that the suit against him was barred by the interspousal tort immunity statute in effect in Illinois at the time of the accident. (Ill. Rev. Stat. 1983, ch. 40, par. 1001.) The trial Judge found that Illinois law, which barred the suit, rather than Canadian law, which would have permitted the suit, applied and dismissed Arthur as a defendant.

Following various motions not relevant to this appeal, directed to plaintiff's second and third amended complaints, the plaintiff, Stephen Nelson, filed a fourth amended complaint on behalf of Marjorie's estate. The first two counts were brought under the Survival Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6) against Hix and Arthur Nelson, respectively. The third and fourth counts were brought under the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, pars. 1 through 2.2) again against Hix and Nelson, respectively.

On Arthur's motion, the trial Judge dismissed count II against Arthur, and allowed the plaintiff to voluntarily dismiss count IV, the remaining count against Arthur. The trial Judge also allowed the plaintiff's motion to voluntary dismiss counts I and III of the amended complaint against Linda Hix, and Hix was dismissed from the lawsuit without prejudice to further action.

The plaintiff appealed the trial court's dismissal of count II against Arthur. On appeal, the appellate court found that Marjorie had been married to Arthur at the time of the accident, and that the Nelsons resided in Ontario, Canada. The appellate court noted that at the time of the accident an Illinois statute prohibited spouses from suing one another for a tort to the person committed during coverture (Ill. Rev. Stat. 1979, ch. 40, par. 1001), but that the law of Ontario, Canada, permitted such suits (Family Law Reform Act, Ont. Rev. Stat., ch. 152, 65(3)(a) (1980)). Relying upon Wartell v. Formusa (1966), 34 Ill. 2d 57, the appellate court held that the law of the marital domicile applied in resolving the question of whether one spouse can maintain an action in tort against the other and, based on the law of Ontario that allowed such suits, reversed the judgment of the trial court. (146 Ill. App. 3d 486.) We allowed Arthur's petition for leave to appeal. 107 Ill. 2d R. 315(a).

The defendant, Arthur Nelson, argues that Illinois' conflict of law rules require the application of Illinois law, rather than the law of the marital domicile, in resolving the question of whether or not the spouse can maintain an action in tort against the other in Illinois. The defendant also argues that under the doctrine of comity, the law of Canada that allowed inter-spousal suits is not binding upon Illinois courts. He further contends that the Canadian law that allowed interspousal suits violated the public policy of Illinois at the time of the accident, and that Illinois courts should, therefore, refuse to follow it. The defendant finally asserts that the ...


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