Fitzpatrick v. Owens

• Decision Date: 10 July 1916
• Docket Number: (No. 141.)
• Citation: 187 S.W. 460
• Court: Arkansas Supreme Court
• Parties: FITZPATRICK v. OWENS.

187 S.W. 460

FITZPATRICK v. OWENS.

(No. 141.)

Supreme Court of Arkansas.

July 10, 1916.

Dissenting opinion.

For majority opinion, see 186 S. W. 832.

HART, J.

I do not think the construction placed upon the act under consideration is justified by its language, and it seems to me that the construction is opposed to the trend of our former decision relating to the question. In the case of Kies v. Young, 64 Ark. 381, 42 S. W. 669, 62 Am. St. Rep. 198, the court expressly recognizes the rule in the construction of married women acts to be that, where the Legislature does not, by express words or by clear implication, express an intention to repeal the existing law in regard to married women, the presumption is that they intended the rule should remain.

The court said that the common-law unity of husband and wife still exists in this state except so far as the legislative purpose to change it has been expressed by statute. The statute under consideration is 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.

Reliance seems to be placed in the decision of the majority in the dissenting opinion of Judge Harlan in 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. A statute governing the District of Columbia was under consideration in that case, and it specially provided that married women might sue for torts committed against them as fully and freely as if they were unmarried; and Judge Harlan's dissent was based upon this special provision of the statute. I think that an examination of his dissenting opinion will lead to the conclusion that, had it not been for this special provision, he would not have dissented from the majority opinion.

The first part of our act, providing that married women shall have all rights to contract and be contracted with, to sue and be sued, I think gives her the right to make contracts with her husband as well as with third persons, and to sue or be sued by him as well as others in regard to such contracts. Before the passage of the act, by the common law, a husband and wife were deemed to be one person and no suit at law of any character could be maintained by one against the other in this state. Suits between a husband and wife, however, have long been permitted in equity.

It seems to me that the object of the statute was the placing of the husband and wife upon an equal footing in regard...