Opinion
March 7, 1962 —
April 3, 1962.
APPEAL from an order of the circuit court for Rock county: ARTHUR L. LUEBKE, Circuit Judge. Affirmed.
For the appellants there were briefs by Wickhem Consigny, attorneys, and Gilbert D. Sedor of counsel, all of Janesville, and oral argument by Mr. John C. Wickhem and Mr. Sedor.
For the respondent there was a brief by Berg Berg of Janesville, and oral argument by Roy E. Berg.
This is an action by Adaline Haynie and others against Kenneth Hanson and his insurance carrier, Heritage Mutual Insurance Company, to recover for personal injuries sustained as a result of a motor vehicle accident which occurred while Mrs. Haynie was a passenger in an automobile owned by her husband, Robert Haynie. Mr. and Mrs. Haynie are residents of the state of Illinois. The accident occurred near Janesville in Rock county, Wisconsin.
The defendants impleaded Allstate Insurance Company, which carried insurance on the automobile of Robert Haynie, alleging in the cross complaint that Allstate would be liable for contribution because of Mr. Haynie's negligence. In its answer Allstate denied that Mr. Haynie was negligent, and further pleaded as an affirmative defense the fact that Mr. and Mrs. Haynie are residents of Illinois and that the law of Illinois prohibits a wife's action in tort against her husband.
Upon Allstate's motion for summary judgment the circuit court for Rock county entered an order dismissing the cross complaint of the defendants against Allstate. The appeal is from that order.
In Haumschild v. Continental Casualty Co. (1959), 7 Wis.2d 130, 95 N.W.2d 814, it was determined that Wisconsin would apply the law of the state of domicile when a conflict-of-laws question was presented involving the capacity of one spouse to sue the other in tort. We are asked to modify our ruling in Haumschild so as to permit an Illinois husband, and his automobile insurance carrier, to be held liable in Wisconsin for his wife's injuries arising out of an accident in Wisconsin.
In support of their contention the appellants adopt two principal lines of argument. The first is that there are factual variances between the case at bar and the Haumschild Case and, secondly, that public policy and substantial justice require the application of Wisconsin law in the case at bar.
In Haumschild, Wisconsin was the domicile of the parties and the place of the action. The tort occurred in California, and it was a one-car accident. In the case at bar, Wisconsin is the situs of both the tort and the action; the domicile of the spouses involved is in Illinois, and it was a two-car accident. In our opinion, these factual variances do not warrant a different rule in the case at bar from that reached in Haumschild. In the latter case at page 138 the rule was broadly stated as follows:
"After most careful deliberation, it is our considered judgment that this court should adopt the rule that, whenever the courts of this state are confronted with a conflict-of-laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile."
One of the cases expressly overruled in reaching the Haumschild decision was Forbes v. Forbes (1938), 226 Wis. 477, 277 N.W. 112, which involved a tort committed in Wisconsin. We said at page 139 of the Haumschild Case:
"The Forbes Case is the only one of the eight where the place of wrong was Wisconsin. The parties were nonresidents domiciled in Illinois. For the reasons hereinbefore set forth, it is apparent that Illinois rather than Wisconsin was the state most concerned with the policy considerations of whether the plaintiff wife had capacity to sue her husband."
It is thus apparent that this court was fully mindful of the prospective application of the Haumschild rule to litigation arising from torts committed in this state. Whether the accident was a one-car accident or a two-car accident would seem to have no bearing on the proper rule to be applied.
The questions of public policy and substantial justice which have been raised by the appellants were fully considered in the Haumschild Case, and we find no compelling basis for retreat. If the appellants' position were adopted it would mean that Mrs. Haynie could not sue her husband in her own state of Illinois, but she could do so in Wisconsin. It is the law of the domicile which should be applied to resolve the issue of immunities from suit which are based upon family relationships.
By the Court. — Order affirmed.
FAIRCHILD, J., dissents.