INTRODUCTION
In resolving the rights of parties involved in a tort action where
there is a conflict-of-laws problem present, a decision must be made as
to which procedural and which substantive law will govern. The Lex
Foriz, the law of the forum where the action is brought, controls the
remedies of the parties and determines what procedural law is applicable.
1 The Lex Loci Delicti, the law of the place where the tort was
committed, governs generally the substantive rights of parties.2 In the
last few years there has been a trend toward application of the Lex
Domicilii, the law of the domicile of the parties, in place of the lex loci.
To date the use of lex domicilii has been limited strictly to the issue of
the capacity of family members to sue one another in tort for personal
injury. Which "conflict-of-laws" rule the forum state will apply becomes
important when the state of domicile and the state where the
tort occurred have different substantive law. It will be the purpose of
this paper to explore the various ramifications of this problem.
THE EXTENT OF APPLICATION OF LEX DOMIClLII
In 1959 the Wisconsin Supreme Court held in Haumschild v. Continental
Casualty Co.3 that henceforth in tort actions, the law of domicile
would be applied in determining any incapacity to sue based on a
family relationship. In this case, the plaintiff was injured in an automobile
accident due to the negligence of her husband while both were
traveling in California. Both parties were domiciliaries of Wisconsin.
Prior to this decision, the question of capacity to sue would have been
decided by resort to the substantive law of California,4 but the court
overruled six cases and partially overruled two others in holding that
Wisconsin substantive law would control this issue.-