O'Grady v. Potts

Decision Date07 November 1964
Docket NumberNo. 43809,43809
Citation396 P.2d 285,193 Kan. 644
PartiesA. R. O'GRADY, Appellee, v. Richard D. POTTS, Appellant, and Kenneth Layton, by and through Earl L. Layton, his father and next friend, Defendant.
CourtKansas Supreme Court

Syllabus by the Court

1. A woman may, after becoming the wife of the defendant, continue to maintain an action against her husband for an alleged tortious act under the guest statute which occurred prior to the marriage.

2. General statutes in derogation of the common law shall be liberally construed to promote their object. The provisions of G.S.1949, 23-201 are in derogation of the common law with respect to the property rights of a married woman and are entitled to a liberal construction.

3. A chose in action is personal property, and where a chose in action accrues to the benefit of a woman prior to her marriage it becomes vested in her and shall remain her sole and separate property from that day forward.

Gerald Sawatzky, Wichita, argued the cause, and George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Donald L. Cordes, Robert L. Howard, Charles J. Woodin, Mikel L. Stout, Ronald D. Badger and Benjamin C. Langel, Wichita, were with him on the brief for appellant.

John C. Frank, Wichita, argued the cause, and Patrick F. Kelly and James P. Johnston, Wichita, were with him on the brief for appellee.

SCHROEDER, Justice.

The question of law presented by this appeal is whether a plaintiff may, after becoming the wife of the defendant, continue to maintain an action against her husband for an alleged tortious act under the guest statute which occurred before the marriage.

The foregoing issue is crystallized by the pleadings of the respective parties.

It is immaterial to relate in detail the varrious pleadings of the parties, except to state that this is an action by Miss A. R. O'Grady (plaintiff-appellee) seeking to recover damages under the guest statute for gross and wanton negligence against Richard D. Potts (defendant-appellant), and for ordinary negligence against the driver of another automobile, one Kenneth Layton, a minor, who is not involved in this appeal.

The sequence of events established by the pleadings shows that the accident occurred on October 21, 1961; and that thereafter O'Grady filed her action against Potts. Subsequent to the filing of the action O'Grady and Potts were married, presenting the issue heretofore stated. $The appellant Potts contends that the appellee, as his wife, by reason of the marriage is prohibited from proceeding against him.

In January, 1952, this court had occasion to consider whether a married woman may maintain an action in tort for injuries to her person against her husband in Sink v. Sink, 172 Kan. 217, 239 P.2d 933. There the plaintiff wife was a passenger suing her husband, who was the driver. At the time the accident occurred the parties were husband and wife. The court, court, after reciting the common law and considering the Married Women's Act, held that neither spouse may maintain an action in tort for damages against the other. In the numerous authorities cited the court noted that recovery in such cases was almost uniformly denied, unless there was a specific statute of the state which authorized recovery. It thereupon adhered to the common law and affirmed the reason normally given by courts for a refusal to permit such an action--that it would be contrary to public policy and tend to disrupt the marital relation.

The appellant contends Sink v. Sink, supra, controls the decision herein. On the facts, however, there is a distinction. In that case the parties were husband and wife at the time the accident occurred, while in the instant case the parties were not married at the time the accident occurred, and the action was filed by the plaintiff prior to the marriage of the parties.

At common law neither spouse may maintain an action sounding in tort against the other. This rule applies to injuries both to person and to property.

Furthermore, at common law neither spouse may maintain an action against the other for a tort committed before marriage. As the rule is usually stated, at common law marriage extinguishes the right of action for a personal tort committed by one spouse against the other before marriage, as, for example, where the woman who sustains the injury subsequently marries the tortfeasor, even though they were living apart at the time the action was commenced. (41 C.J.S. Husband and Wife § 396, p. 877; and 27 Am.Jur., Husband and Wife, § 589, p. 191.)

Hundreds of cases have been decided on the subject, many of them very recently. Treatises and articles without number had delved into every phase of the question. Sink v. Sink, supra, cites many of the texts, annotations and cases. Since that time, a more recent annotation entitled 'Right of one spouse to maintain action against other for personal injury' (43 A.L.R.2d 632) has collected recent cases, which are brought up to date in the A.L.R.2d Supplement Service. The writers there state:

'The courts in a majority of jurisdictions have adhered to the common-law rule that one spouse has no right of action against the other to recover damages for personal injuries caused by the other.' (43 A.L.R.2d 636.)

'In jurisdictions denying a spouse the right to sue the other spouse for personal injuries, it is generally held that the disability obtains notwithstanding that the wrong for which recovery is sought occurred prior to the marriage of the parties.' (43 A.L.R.2d 642.)

In other words, in those jurisdictions having no statute modifying the common law rule, which denied one spouse the right to maintain a tort action against the other, the common law prohibits the maintenance of such suits, regardless of when the alleged tort itself occurred. Inasmuch as every phase of this problem has been discussed at great length in scores of judicial decisions and by many eminent textwriters, discussing the weight of authority pro and con, a repetition of what has been well done would serve no useful purpose.

We shall now turn to our statutes to see whether the common law rule has been modified with respect to the factual situation presently before the court.

The Constitution of the state of Kansas, adopted July 29, 1859, in Article 15, Section 6, provides:

'The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.'

In 1868 the legislature pursuant to the foregoing provision of the Constitution adopted a statute which now appears as G.S.1949, 77-109. It reads:

'The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object.'

Justice Burch, in speaking of the foregoing statute in Clark v. Allaman, 71 Kan. 206, 80 P. 571, 70 L.R.A. 971, said:

'* * * Rules of law have their birth, growth, and decay, like generations of men; and in order to meet the expanding needs of the inhabitants of the young commonwealth, the Legislature enacted the statute of 1868 continuing in force the common law only as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people.' (71 Kan. p. 230, 80 P. p. 579.)

It is clear when a Kansas statute has been enacted which reasonably covers a common law subject matter, such statute will prevail, it being entitled to a liberal construction.

Under the Married Women's Act, G.S.1949, 23-201, enacted in 1868, provides:

'The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts.' (Emphasis added.) G.S.1949, 23-203, enacted in 1968, provides:

'A woman may, while married, sue and be sued, in the same manner as if sh...

To continue reading

Request your trial
17 cases
  • Nocktonick v. Nocktonick, 50495
    • United States
    • Kansas Supreme Court
    • May 10, 1980
    ...that interspousal litigation would disrupt family harmony. We have repeatedly affirmed that policy decision in O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964); Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965); and Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978). We have not accepted......
  • Guffy, By and through Reeves v. Guffy
    • United States
    • Kansas Supreme Court
    • July 17, 1981
    ...Following Sink this court has continued to recognize and apply interspousal immunity in all cases coming before it. In O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964), the holding in Sink was approved. However, the court held that a woman could continue to maintain an action against a m......
  • State v. Roat
    • United States
    • Kansas Supreme Court
    • June 19, 2020
    ...Apodaca v. Willmore , 306 Kan. 103, 392 P.3d 529 (2017) ; Vorhees v. Baltazar , 283 Kan. 389, 153 P.3d 1227 (2007) ; O'Grady v. Potts , 193 Kan. 644, 396 P.2d 285 (1964) ; Vaughn v. Kansas City N.W.R. Co ., 65 Kan. 685, 70 P. 602 (1902). Dismissing Roat's appeal, therefore, creates a bar to......
  • Shook v. Crabb
    • United States
    • Iowa Supreme Court
    • July 25, 1979
    ...v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1975); Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972); O'Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964); Brown v. Gosser, 262 S.W.2d 480 (Ky.1953); Moulton v. Moulton, Me., 309 A.2d 224 (1973); Lusby v. Lusby, 283 Md. 334, 390 A......
  • Request a trial to view additional results

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