*1 1971]
HOSKO v. HOSKO 1. Statutes —Married Women —Disabilities—Action. Language of providing may statute brought by that “actions against and a married woman as if she were unmarried” clearly removes provided protections heretofore and dis- abilities of a married woman inherent in the married state (MOLA 600.2001). Wipe Torts—Interspousal 2. Husband and — Tort Action —Stat- utes. The Revised abrogated Judicature Act of 1961 has the doctrine interspousal immunity insofar as women are concerned and an action is guardian maintainable of a wife, who was injured passenger while a a car driven her husband and alleging negligence gross negligence by and the husband against him; suit conversely, in brought by a suit a husband against wife, the action would also be maintainable in accord- ance with the language clear provides of the statute which may “actions against and a married woman as (MCLA she were unmarried” 600.2001).
Dissenting Opinion . T. E. Wipe Torts—Interspousal 3. Husband and — Tort Action —Com- mon Law. Interspousal merely tort procedural bar; is not it is a substantive rule the commonlaw. por References Points in Headnotes [1, 2d, 41 Am Jur Husband 2] and Wife 518. §§ Right spouse one against [1-9] to maintain action other for personal injury. 43 ALR2d 632. [2,4] 2d, 41 Am Jur Husband Wife 524-526. §§ [3, 2d, 41 Am Jur 5] Husband Wife §§ [6, 2d, 41 Am Jur 7] Wife Husband 5-9. §§ [8, 2d, 1 Am 55,56. Jur Actions §§ Mich and Wife —Torts— Statute —Husband 4. Statutes —Procedural Interspousal Law. Action —Disabilities—Common Tort providing “ac- women’s act An amendment brought by a married woman as *2 tions give procedure and, the with to unmarried” deals she were personal tort, not spouses right it is each other a sue for merely give remedy against the enough a that the statute one necessary expressly it such a other, it that but is confer goes merely disability action, since the common-law of 600.2001). (MCLA remedy to the but to the cause of Wipe Torts—Interspousal Tort Action —Com- Husband and — 5. mon Law. liability between rule tort The common-law from of upon policy, as reasons is based sound husband and wife marriage perceived and it is the is foundation of life money damages seeking spouses, real between lawsuits for incompatible mar- injuries, and with harmonious are fancied riage. and Wife —Consortium. 6. Husband unity in the married state is still The man and woman legal marriage imposes reality, the duties contract itself gives legal rights spouses, the term “consortium” both rights resulting parties is total the sum the status relationship. from Law —Liabilities. 7. Husband Wife —Common subject The duties husband and never been wife though liability; was entitled common-law husband bring services, assumpsit he could not their recover wife’s her; though support and, value was entitled to wife from husband, gave remedy common law no civil as from money damages. she had no cause to him sue for Torts—Intraspousal 8. Husband and Wife — Tort Action —Liabil- ity Insurance. intraspousal inescapable quo is that the conclusion sine non of litigation liability damage civil insurance. Torts—Intraspousal 9. Husband and Tort Wife — Action —Ad- versary Litigation Liability —Joint Venture — Insurance. Intraspousal litigation hardly adversary; tort can be called joint more like venture to collect com- insurance from pany. Hosko v. Division Appeals, 1, Court Le- from Appeal H. and Danhoff, and J. Gillis JJ., C. sinski, J., E. George Bowles, Submitted reversing Wayne, Term Docket (No. April No. 1971. April 7, June Decided 52,695.)
20 Mich reversed. App Elea- as Hosko, Alice Complaint by guardian Steve Hosko, incompetent, mental nor from an automobile for injuries resulting for summary Motion defendant collision. appealed denied. Defendant judgment accelerated Plaintiff ap- Reversed. Appeals. Court to the Reversed. peals. *3 & Millender, Goodman Robb,
Goodman, Eden, for Bedrosian, plaintiff. Lehman David J. (by Miller & Lucow,
Garan, for defendant. Cooper), in a passenger was Eleanor Hosko
Per Curiam. Hosko. Steve husband, driven by car in 1965, July 6, an accident on in was involved car brain including injury, serious she suffered which incompe- a mental declared been She has damage. tent. for Hosko, guardian Alice brought by
Suit was negli- and gross negligence Hosko, alleging Eleanor Steve Hosko and Eleanor defendant. by gence filed motion Defendant married. are still suit the arguing judgment summary for immunity. interspousal doctrine by barred denied E. Bowles George Judge Court Circuit The Court rehearing. a motion for and also motion application defendant’s of Appeals granted 385 Mich reversed, Judge Chief appeal leave Lesinski App 416.) Mich We leave (20 granted dissenting. (383 804.) to appeal. of the challenges continuing
Plaintiff validity doctrine and cites the amend- interspousal immunity former act1 at the time of judicature ment of the Act of 1961, of the Revised Judicature adoption as of legislative indicative 1,1963, effective January interspousal immunity. common law intent to abolish Ann 1962 600.9911 Rev 600.2001, (MCLA [Stat §§ 27A.9911]). 27A.2001, §§ of interspousal the common law doctrine
Whether
statute
first con
had been affected
was
by
Court
sidered
this
Bandfield
statute at that time read:
“In the courts decisions many conferring statutes States, notwithstanding her separate woman over a married rights upon law, the common not at possessed property incorrectly brief, to the appellate plaintiff’s In his counsel refers legislative as a 1963 married women’s amendment revision seq. 1948, et 168, being 557.1 PA No CL act. That act is § seq.). formerly Ann et It contained a (Stat 1957 Rev 26.161 § concerning relating her a married woman to actions Although expressly repealed in property. The Judica- sole language superseded ture Act of by 3 was reenacted and *4 chapter 1948, 12 1915 CL 612.5 of act and became § § 27.657). expressly repealed (Stat Ann This in the section was § 1961, 236, 99, being Revised 1961. See PA No ch Judicature Act of (Stat 27A.9901). HOLA Ann 1962 Rev 600.9901 The Judicature § § 1948, Act of 1915 added a new section which became CL 612.6 (Stat 27.658), reading Ann as follows: to, “Whenever a cause of action shall accrue or arise any woman, may married in she sue or be sued the same manner as if she were sole.” repealed by This section was also 1961. the Revised Judicature Act of Hosko v. right denied exception, without far, thus com- wrongs husband for personal to sue her wife No such is conferred right coverture. during mitted implication. unless it be by our statute manner in no uncertain speak should legislature when plain long-estab- abrogate seeks common law. Courts should not rules of the lished sustain innova- left to such bold construction tions.” Harvey (1927),
In
Harvey
v.
out
made, plaintiff pointing
was
argument
again
in
had been
the statute discussed
read
amended in the meantime to
as follows:
or
of action
accrue to,
a cause
shall
“Whenever
she
sue
woman,
arise against
if she
sole.”
sued
the same manner as
were
(p 146):
This Court said
out the
points
“This
unsoundness
graphically
the wife
to sue
that,
right
the assertion
granting
sole,
her a
as though
gives
right
femme
the legislature,
not accorded the husband.
in
Surely
did not confer
sue,
conferring equality
right
husband or wife
possessed
action never
at common law.
married women’s acts
While
differ
in phraseology
the various
somewhat
States
are
alike in
and effect.”
they
quite
purpose
In Riser Riser
In Mich this Court was a matter to follow asked, comity, as had her law- Colorado law since, plaintiff suit the situs she would Colorado, tort, been This Court allowed sue husband. *5 39 op Opinion the Court recognize comity “to in do so because declined public the policy contravene this instance would forum.” this must concluded: cases, it be
From the above has immunity That doctrine interspousal the in prevailed Michigan, Court up considered this by
2. That no statute of altering the effect time has had present to the doctrine. that inter- Mich 532, Carney Mosier
In in certain held to maintainable suits were be spousal limited areas. lan changed the legislature in
Effective Harvey, to read: considered in statute, guage a married against “Actions may (MCLA 600- § if she were unmarried.” woman as ).2 .2001 Ann 1962 §Rev [Stat 27A.2001] that all MCLA It is the contention defendant (Stat 27A.2001) Ann 1962 Rev does 600.2001 in It a form. former statute shorter to restate the of the former language should be noted a cause statute conditional —“whenever clearly language accrue the new whereas, shall to” — dis- protections or provided removes heretofore in married a woman inherent abilities of married and against brought by state —“actions may as if unmarried.” woman she were the Revised Judicature It must be concluded that of inter- 1961 has doctrine abrogated Act of concerned insofar as women are spousal in case is maintainable and that the action this hus- in brought by a suit Conversely, plaintiff. 2 Mosier, dissenting supra pointed at one of the Justices In suggested in language appearing section 600.2001 both the new to that purpose legislative change effected in judicial previous views recorded intent sufficient to overcome Harvey, considered Riser and Kircher cases. The causes prior effective date of the Revised Mosier arose course Act, part. 600.2001 is a Judicature of which section v. Dissenting Opinion T. E. would wife, tbe action also be main- band language witb clear accordance tbe of tbe tainable statute. *6 Appeals appel-
Tbe Court is reversed. Costs to lant. M. C. and T. J.,
T. G. Kavanagh, Black, Adams, and JJ., concurred. Kavanagh, Swainson, Williams, (dissenting). agree T. E. J. I cannot Brennan, opinion witb tbe submitted for tbe Court. Interspousal procedural merely is not a is bar; it a substantive rule of tbe common law. Tbe 1963amendment to tbe married women’s acts, quoted opinion procedure. in tbe Court’s witb deals give spouses right
To tbe each to sue other for personal enough merely it is not tort, that tbe statute give remedy against one a tbe but it is neces- other, sary right expressly it action, that confer such goes merely disability since tbe common-law not remedy tbe but 41 Am to tbe cause of action. Jur p 2d, Husband Wife, §526, and many many “In courts decisions tbe tbe notwithstanding conferring States, tbe statutes rights upon separate a married woman over her property possessed thus law, not at tbe common have exception, right far, without denied tbe of wife to personal wrongs sue her husband for committed during by our coverture. No such conferred is implication. legislature statute unless it be should Tbe speak seeks no uncertain manner when it abrogate plain long-established tbe rules tbe to con- common law. not left Courts should struction to Tbe rule sustain such innovations. bold 4), 245: I ‘Statute,’ thus stated in Bac. Abr. tit. “ expres- ‘In all doubtful tbe where matters, general sion inis such to recieve terms, statutes are 385 Dissenting Opinion by T. E. tbe rules of agreeable construction as nature; for statutes law in cases that
tbe common
make
alteration in the com-
presumed
are
than the
law,
expressly
farther
otherwise
act
mon
Therefore,
all
matters the law
general
declares.
make any
did not intend to
altera-
presumes the act
they
had had that
; for,
design,
tion
the parliament
”
act.’
expressed
in the
would
Bandfield
Another The of man persists. unity reason The a reality. woman in the state is still itself duties marriage imposes legal contract come legal to both We have gives rights spouses. of sum total speak “consortium” as the from parties resulting status rights relationship. been
The of husband and wife never duties subject Though of common-law liability. he could services, husband was entitled the wife’s assumpsit to recover their value from bring from her. wife entitled Though support was remedy. her common law no husband, gave civil could criminal could She invoke sanctions. She has the court of no cause petition She equity. him for sue money damages.
“Personal
her
her the
wrongs
upon
inflicted
give
to a
from her
decree of
divorce
separation or
husband,
the court
and our
have given
statutes
v. Dissenting Opinion by
T. B.
jurisdiction
exclusive
chancery
subject.
over
This
clothed with
broad
court,
powers
equity,
can do
to her for the
her
justice
wrongs
husband,
far
can
so
as courts
justice, and,
providing
do
will
her such amount
her,
give
of her husband’s
as the
will
property
justify,
circumstances
both
in so
and,
doing,
take into account
the cruel
him,
conduct
inflicted
her
outrageous
upon
and its effect
her health and
to labor.”
upon
ability
Band
The wisdom the common-law abides. policy To what end would wife hire a lawyer —on an one-third fee basis —to contingent bring for damages husband?
If the insurance, husband has no liability pro- cedure is an exercise in futility. is sine non inescapable qua conclusion that the civil intraspousal damage litigation liability
insurance.
The economic wife are interests husband and closely entwined. The husband his pays usually wife’s medical bills; joins as to recover plaintiff them from third Each spouse tortfeasors. party has action for of consortium. derivative loss Even without these patent obvious interests, that a plaintiff success will spouse’s litigation have substantial effect on the finances. litigation tort can be called
Intraspousal hardly It is more like a to collect adversary. joint venture from the insurance company. *8 from wrongdoer profits his own act. wrongful
That doesn’t seem like to reduce way a very good the toll of human likes to injuries. True, nobody get hurt. As don’t general rule, people injure themselves their But purpose. loved ones on accidents do reflect a happen, and frequently they Dissenting Opinion E. T. of human emotions too urges cross-current of us perceive. for most subtle do pans, So fists pots, often fly. Married tempers will no and caresses longer worse. Apologies In at Michigan least, balm. be the available only donnybrook ending can well envision we agent, insurance calling the husband his with visions entertaining and both lawyer wife calling of better ahead. days