Bourland v. Baker

• Decision Date: 15 December 1919
• Docket Number: 6
• Citation: 216 S.W. 707,141 Ark. 280
• Parties: BOURLAND v. BAKER
• Court: Arkansas Supreme Court

216 S.W. 707

141 Ark. 280

BOURLAND v. BAKER

No. 6

Supreme Court of Arkansas

December 15, 1919

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; reversed in part.

Judgment affirmed as to Queen Bourland, reversed and cause dismissed as to James Bourland.

James B. McDonough, for appellants; J. Sam Wood, of counsel.

1. James Bourland, the husband, is not liable for the torts of his wife committed in his absence. Since the married woman's act of 1915, the husband is no longer liable. 102 Ark. 351; 64 Id. 381; 44 Id. 401. 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 also 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. The reason of the rule having ceased, the liability also ceased. 104 La 496; 118 Miss. 58; 120 Mass. 89; 41 Mich. 214.

2. The court erred in its instructions, as there is no evidence to support them. 69 Ark. 130; 87 Id. 243; 89 Id. 147; 82 Id. 243; 82 Id. 547; 41 Id. 382; 63 Id. 177; 4 Crawford's Digest, 4997-9; 168 S.W. 129.

3. It was especially error to give No. 7, as it does not clearly point out the obligations and duties of pedestrians and drivers of motor cars on the streets. 143 P. 743, par. 10; 183 Id. 358; 152 Id. 319.

4. It was error to admit the evidence of Dr. Rose, detailing the statements of James Bourland.

5. It was error to refuse No. 12 for defendants. 104 A. 749.

Edwin Hiner, for appellee.

1. The husband is still liable, as he is not released by the act of 1915. 64 Ark. 381; 92 Id. 486; 102 Id. 351. If the act had been intended to relieve the husband of liability, it would have said so, but it did not, and the husband is still liable.

2. There is no error in the instructions given or refused; they correctly state the law.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellants in the Sebastian Circuit Court, Fort Smith District, to recover $ 11,000, on account of an injury received by him through the alleged negligent operation of an automobile by appellant, Queen Bourland, wife of appellant, James Bourland. The allegations of negligence in the complaint consisted, first, in driving the car at a high and dangerous rate of speed; second, in driving it on the left, instead of the right-hand, side of the street, in violation of a city ordinance; third, in driving it without giving the proper warning or keeping the proper lookout when approaching appellant.

Appellants filed answer, denying the material allegations in the complaint, and pleading the negligence of appellee as the proximate cause of the injury.

The cause was submitted to a jury, upon the pleadings and evidence, and a verdict and judgment rendered in favor of appellee for $ 2,000, from which an appeal has been duly prosecuted to this court.

Appellee was injured by an automobile driven by appellant, Queen Bourland. When the injury occurred, he was walking south on the east side of North 13th street, about midway between the suburban railway and North O street. Queen Bourland was on the front, and her little boy and infant on the back seat of the chummy roadster she was driving. She was on the same side of the street and going the same direction appellee was walking. The street is straight, between the suburban railway and O street, and the distance between the two points about 200 yards. Appellee was near the curbing on the east side of the street. When struck, his legs were thrown under the car and his body on the outside, with his head lying very near the curbing. The car stopped just as the hind wheel reached him. He was severely injured, and, as no question is made in regard to the amount of damages recovered, it is unnecessary to set out the nature of the injury.

The evidence on behalf of appellee tended to show that the car was being rapidly driven and approached and struck him suddenly, without signal or warning, about two o'clock in the afternoon of September 17, 1918; that he heard the car, stepped to the east, giving almost the entire street, and did not look back because he expected it to pass around and not strike him; that the place where there should have been a sidewalk was rough and grown up in weeds; that the street was paved and that he had chosen the east side of the street near the curbing upon which to travel, because automobiles usually traveled on the right-hand or west side of the street.

The evidence of appellants tended to show that, at the time of the injury, appellant, Queen Bourland, was driving her car at a slow rate of speed; that when she reached and crossed the suburban, she looked in front and saw nothing; that she then looked back at the baby and told her boy to sit down; that she again glanced to the front and observed appellee immediately in front of her; that he had stepped in front of the car suddenly; that she did not see him at all until he stepped in front of the car; that she instantly shut off the engine, put on the brakes with both feet and stopped the car; that the front wheel ran over appellee, but that the hind wheel stopped just as it reached him.

It is first insisted by appellants that there is no foundation in the allegations and evidence justifying the rendition of a judgment against appellant, James Bourland, the husband of Queen Bourland. The verdict was returned and judgment rendered against James Bourland on the sole ground that a husband in this State is responsible for his wife's torts. At the common law, a husband was liable for the torts of his wife committed in his absence. That rule of liability is still in force in Arkansas, unless abrogated by Act 159, Acts of the Legislature of 1915, known as the Married Woman's Act. The reason existing for the rule at common law was the legal unity incident to the marriage relationship. It was reasoned that, on account of the unity, the husband could absolutely control his wife in and out of his presence. It followed that, because of this control, he could prevent his wife from committing a tort on another, even in his absence. The Married Woman's Act of 1915, as construed in the case of Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, had the effect of absolutely and completely destroying the legal unity founded upon the nuptial contract. The act has effectually severed the legal unity between husband and wife in this State. In holding that the emancipation of the wife was so complete that the wife might sue the husband for a tort committed by him on her person, this court said, in the case of Fitzpatrick v. Owens, supra, that: "These enactments (referring to the Married Woman's Act antedating the Act of 1915) left but little in the way of restrictions upon the rights of married women, but the Legislature deemed it proper to provide further legislation to completely emancipate her, and they did so by this statute (referring to the Married Woman's Act of 1915) which declares its purpose in the broadest terms to 'remove the disabilities of married women. ' An analysis of the language of the statute shows that the Legislature meant to complete the work of emancipation and to give married women all the rights and remedies possessed by unmarried women. The words 'to sue and be sued', when considered by themselves, merely enlarge the remedies of a married woman and do not...