Hosko v. Hosko

187 N.W.2d 236, 385 Mich. 39, 1971 Mich. LEXIS 173

• Court: Michigan Supreme Court
• Decided: June 2, 1971
• Docket: 6 April Term 1971, Docket No. 52,695
• Status: Published

Opinions

Per Curiam.

Eleanor Hosko was a passenger in a car driven by her husband, Steve Hosko. The car was involved in an accident on July 6, 1965, in which she suffered serious injury, including brain damage. She has been declared a mental incompetent.

Suit was brought by Alice Hosko, guardian for Eleanor Hosko, alleging negligence and gross negligence by defendant. Eleanor Hosko and Steve Hosko are still married. Defendant filed motion for summary judgment arguing that the suit is barred by the doctrine of interspousal immunity. Circuit Court Judge George E. Bowles denied the motion and also a motion for rehearing. The Court of Appeals granted defendant’s application for leave to appeal and reversed, Chief Judge Lesinski dissenting. (20 Mich App 416.) We granted leave to appeal. (383 Mich 804.)

Plaintiff challenges the continuing validity of the interspousal immunity doctrine and cites the amendment of the former judicature act¹ at the time of adoption of the Revised Judicature Act of 1961, effective January 1,1963, as indicative of legislative intent to abolish common law interspousal immunity. (MCLA §§ 600.2001, 600.9911 [Stat Ann 1962 Rev §§ 27A.2001, 27A.9911]).

Whether the common law doctrine of interspousal immunity had been affected by statute was first considered by this Court in Bandfield v. Bandfield (1898), 117 Mich 80. The statute at that time read:

“Actions may he brought by and against a married woman in relation to her sole property, in the same manner as if she were unmarried * * * .”

This Court said (p 82):

“In many decisions the courts of many of the States, notwithstanding the statutes conferring rights upon a married woman over her separate property not possessed at the common law, have thus far, without exception, denied the right of a wife to sue her husband for personal wrongs committed during coverture. No such right is conferred by our statute unless it be by implication. The legislature should speak in no uncertain manner when it seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sustain such bold innovations.”

In Harvey v. Harvey (1927), 239 Mich 142, the argument was again made, plaintiff pointing out that the statute discussed in Bandfield had been amended in the meantime to read as follows:

“Whenever a cause of action shall accrue to, or arise against any married woman, she may sue or be sued in the same manner as if she were sole.”

This Court said (p 146):

“This graphically points out the unsoundness of the assertion that, granting the wife right to sue as though a femme sole, gives her a right of action not accorded the husband. Surely the legislature, in conferring equality of right to sue, did not confer a right of action never possessed by husband or wife at common law. While married women’s acts of the various States differ somewhat in phraseology they are quite alike in purpose and effect.”

In Riser v. Riser (1927), 240 Mich 402, this Court held that a wife cannot sue her husband for damages occasioned by his negligent act and thus cannot sue someone vicariously responsible for the husband’s act.

In Kircher v. Kircher (1939), 288 Mich 669, this Court was asked, as a matter of comity, to follow Colorado law since, if plaintiff had brought her lawsuit in Colorado, the situs of the tort, she would have been allowed to sue her husband. This Court declined to do so because “to recognize comity in this instance would contravene the public policy of this forum.”

From the above cases, it must be concluded:

1. That the doctrine of interspousal immunity has prevailed in Michigan, and

2. That no statute considered by this Court up to the present time has had the effect of altering that doctrine.

In Mosier v. Carney (1965), 376 Mich 532, inter-spousal suits were held to be maintainable in certain limited areas.

Effective in 1963, the legislature changed the language of the statute, considered in Harvey, to read: “Actions may be brought by and against a married woman as if she were unmarried.” (MCLA § 600-.2001 [Stat Ann 1962 Rev § 27A.2001]).²

It is the contention of defendant that all MCLA § 600.2001 (Stat Ann 1962 Rev § 27A.2001) does is to restate the former statute in a shorter form. It should be noted that the language of the former statute is conditional — “whenever a cause of action shall accrue to” — whereas, the new language clearly removes any heretofore provided protections or disabilities of a married woman inherent in the married state — “actions may be brought by and against a married woman as if she were unmarried.”

It must be concluded that the Revised Judicature Act of 1961 has abrogated the doctrine of inter-spousal immunity insofar as women are concerned and that the action in this case is maintainable by plaintiff. Conversely, in a suit brought by a husband against a wife, tbe action would also be maintainable in accordance witb tbe clear language of tbe statute.

Tbe Court of Appeals is reversed. Costs to appellant.

T. M. Kavanagh, C. J., and Black, Adams, T. G. Kavanagh, Swainson, and Williams, JJ., concurred.

1 In his appellate brief, plaintiff’s counsel refers incorrectly to the legislative amendment as a 1963 revision of the married women’s act. That act is PA 1855, No 168, being CL 1948, § 557.1 et seq. (Stat Ann 1957 Rev § 26.161 et seq.). It formerly contained a § 3 relating to actions by and against a married woman concerning her sole property. Although not expressly repealed in The Judicature Act of 1915, the language of § 3 was reenacted and superseded by § 5 of chapter 12 of the 1915 act and became CL 1948, § 612.5 (Stat Ann § 27.657). This section was expressly repealed in the Revised Judicature Act of 1961. See PA 1961, No 236, ch 99, being HOLA § 600.9901 (Stat Ann 1962 Rev § 27A.9901). The Judicature Act of 1915 added a new section which became CL 1948, § 612.6 (Stat Ann § 27.658), reading as follows:

“Whenever a cause of action shall accrue to, or arise against any married woman, she may sue or be sued in the same manner as if she were sole.”

This section was also repealed by the Revised Judicature Act of 1961.

2 In Mosier, supra at 591, one of the Justices dissenting pointed to the new language appearing in section 600.2001 and suggested that it may have effected a change both of purpose and legislative intent sufficient to overcome the previous judicial views recorded in the Harvey, Riser and Kircher cases. The causes considered in Mosier arose of course prior to the effective date of the Revised Judicature Act, of which section 600.2001 is a part.