Fitzpatrick v. Owens

Decision Date29 May 1916
Docket Number(No. 19.)
Citation186 S.W. 832
PartiesFITZPATRICK et al. v. OWENS.
CourtArkansas Supreme Court

Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge.

Action by C. S. Fitzpatrick, administrator, and others, against F. M. Owens. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Bevens & Mundt, of Helena, and Hughes & Hughes, of Memphis, Tenn., for appellants. Moore, Vineyard & Satterfield, Andrews & Burke, and Fink & Dinning, all of Helena, for appellee.

McCULLOCH, C. J.

According to the allegations of the complaint, plaintiffs' intestate, Henrietta Owens, was the wife of the defendant, F. M. Owens, and said parties had, by a decree of the chancery court of Phillips county, Ark., been divorced from bed and board, but not from the bonds of matrimony, that, while the said relation subsisted, the defendant made a felonious assault upon said Henrietta Owens and killed her, and that by reason of said wrongful act of defendant the estate of said decedent and her next of kin suffered injury which entitled them to recover damages in the large sum named in the complaint. The court sustained a demurrer to the complaint and dismissed the action on the ground that a right of action on the part of either the administrator or next of kin was not set forth. In testing the sufficiency of the complaint, we must, of course, accept as true all the allegations set forth.

The action is based on the statute which provides as follows:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony." Kirby's Digest, § 6289.

This court construed that statute, not as a continuation of the right of action which the deceased had in his lifetime, but as arising by the preservation of the cause of action which was in the deceased, and that, if the latter never had a cause of action, none accrues to his representative or next of kin. Davis v. Railway, 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283.

The question, then, for determination is the one stated by appellant in the brief, whether or not a married woman, under the statute now in force in Arkansas, may maintain against her husband an action to recover damages for tort committed by him. The cause of action, if any exists, arose since the enactment of a statute by the General Assembly of 1915 entitled "An act to remove the disabilities of married women in the state of Arkansas," and reads as follows:

"Section 1. That from and after the passage of this act, every married woman and every woman who may in the future become married, shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this state, as though she were a feme sole." Acts 1915, p. 684.

It is difficult to find authority bearing precisely upon the construction of this statute; for there are no statutes in other states in precisely the same language, or enacted under the same circumstances as this statute was passed. The disposition of all the courts in the construction of statutes relating to the rights of married women is to hold tenaciously to the rule that statutes in derogation of the common law must be strictly construed. This court has announced that rule in many cases, and has given it effect in confining within the narrowest possible limits statutes passed by the Legislature to emancipate married women from their common-law disabilities. There are many cases cited on the brief construing statutes of this kind, and in most of the decisions the statutes were held not to give a married woman the right to maintain an action against her husband for tort. But, as before stated, none of the statutes are similar to ours, nor were they passed under the same circumstances. One of the leading cases on the subject is that of Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921, where the court decided that the statute of the District of Columbia declaring that married women "shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue separately upon their contracts, and also to sue separately for the recovery, security or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried," did not confer upon the wife the right to sue her husband for damages on account of tort committed by him. In reaching that conclusion the court said that "it is apparent that its purposes, among others, were to enable a married woman to engage in business and to make contracts free from the intervention and control of the husband, and to maintain actions separately for the recovery, security, and protection of her property," and to sue separately for torts as freely as if she were not a married woman, but that the statute "was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which at common law must be brought in the joint names of herself and husband." The case was decided by a divided court; there being a dissenting opinion by Mr. Justice Harlan, in which Justices Holmes and Hughes concurred. The statute then under consideration was not as strong in the enlargement of the rights of married women as the one passed in this state, but the opinion of the court undoubtedly shows the tendency of the court, at least at that time, to restrict as far as possible those statutes, and to only follow the legislative will as expressed in the most irresistible language in enlarging the rights of married women.

There are statutes in many states enlarging the rights of married women to contract and to maintain suits both upon contract and for tort the same as that given by law to the husband, and those statutes have uniformly been construed to give no greater rights than the husband had, and therefore the right to maintain an action for tort was not conferred, for the reason that the husband had no such right. Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387; Schultz v. Christopher, 65 Wash. 496, 118 Pac. 629, 38 L. R. A. (N. S.) 780; Drum v. Drum, 69 N. J. Law, 567, 55 Atl. 86; Rogers v. Rogers (Mo.) 177 S. W. 382.

In other states where there are statutes authorizing the wife to contract, either with her husband or with others, and providing that she may sue or be sued alone, the courts have construed those statutes to refer solely to contractual rights, and to provide a remedy merely for the enforcement of those rights. Peters v. Peters, 156 Cal. 32, 103 Pac. 219, 23 L. R. A. (N. S.) 699; Main v. Main, 46 Ill. App. 106; Bandfield v. Bandfield, 117 Mich. 80, 75 N. W. 287, 40 L. R. A. 758, 72 Am. St. Rep. 550.

In still other states statutes somewhat similar are held merely to give the right to sue upon causes of action which existed at common law, and not to otherwise enlarge the common-law rights of a married woman. Peters v. Peters, 42 Iowa, 182; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Freethy v. Freethy, 42 Barb. (N. Y.) 641.

Counsel for appellee rely, with much apparent confidence, on the decision of the Supreme Court of Tennessee in the case of Lillienkamp v. Rippetoe (Tenn.) 179 S. W. 628, L. R. A. 1916B, 881, but we think that decision has little, if any, bearing in the construction of the statute now before us. In that case the court construed a recent enactment of the Tennessee Legislature declaring that married women "are hereby fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effects on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married," and that "every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married," and the court decided that the statute did not confer the right on the wife to sue the husband for tort. In disposing of the matter ...

To continue reading

Request your trial
4 cases
  • Fitzpatrick v. Owens
    • United States
    • Arkansas Supreme Court
    • May 29, 1916
  • Gowin v. Gowin
    • United States
    • Texas Supreme Court
    • March 23, 1927
    ...permitting recoveries for torts committed by the husband. Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A. L. R. 1031; Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772; Brown v. Brown, 88 Conn. 42, 89 A. 889, 52 L. R. A. (N. S.) 18......
  • Comstock v. Comstock
    • United States
    • Arkansas Supreme Court
    • November 29, 1920
    ... ... 36, has ... changed entirely the status of married women and has removed ... all their common-law and statutory disabilities. See ... Fitzpatrick v. Owens, 124 Ark. 167, 186 ... S.W. 832. These statutes would by necessary implication ... repeal the old statute and render husband and wife ... ...
  • Bourland v. Baker
    • United States
    • Arkansas Supreme Court
    • December 15, 1919
    ...All these cases are based on the law prior to 1912. The act of 1915 strikes down every reason for the ruling that the husband was liable. 124 Ark. 167; 145 N.Y.S. 708; 65 Ill. 129. See 94 P. 36; 37 S.W. 138; 99 N.W. 818; 44 P. 833; 21 Cyc. 1352, note 86; 65 N.E. 770; 140 P. 1022; 49 A. 889.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT