Katzenberg v. Katzenberg, s. 247, 252.

• Citation: 37 S.W.2d 696
• Decision Date: 13 April 1931
• Docket Number: Nos. 247, 252.,s. 247, 252.
• Parties: KATZENBERG v. KATZENBERG.
• Court: Supreme Court of Arkansas

37 S.W.2d 696

KATZENBERG v. KATZENBERG.

Nos. 247, 252.

Supreme Court of Arkansas.

April 13, 1931.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by Bertha Katzenberg against William Katzenberg. Judgment of dismissal, and plaintiff appeals.

Reversed and remanded.

Partain & Agee, of Van Buren, and G. L. Grant, of Ft. Smith, for appellant.

Fred S. Armstrong, of Ft. Smith, for appellee.

HUMPHREYS, J.

This appeal involves the single question of whether a married woman may sue her husband for an injury received through his negligence. The complainant alleges that appellant was riding in an automobile being driven by appellee, her husband, and through negligent operation thereof, he drove it off the highway, turned it over, and pinned appellant underneath it, thereby seriously and permanently injuring and damaging her.

Appellee filed a demurrer to the complaint upon the ground that appellant was without capacity to sue and that the facts stated in the complaint failed to constitute a cause of action.

The demurrer was sustained and the complaint dismissed over appellant's objection and exception.

The statute relied upon by appellant as a basis for her action is Act 159, p. 684, of the Acts of the General Assembly of 1915, entitled "An Act to remove the disabilities of married women in the State of Arkansas," as amended by Acts 1919, No. 66, p. 36, section 5577 of Crawford & Moses' Digest, which reads as follows: "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 femme sole; provided, it is expressly declared to be the intention of this act to remove all statutory disabilities of married women as well as common law disabilities, such as the disability to act as executrix or administratrix as provided by § 6 of Kirby's Digest, and all other statutory disabilities."

This court ruled in the case of Fitzpatrick, Administrator, v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772, following the construction of the Supreme Courts of Connecticut and Oklahoma of statutes not so broad and comprehensive as our statute of 1915, that the purpose and intent of Act 159 of the Acts of the General Assembly of 1915 was to complete the work of emancipation of married women so that they might enjoy all the rights in law and equity accorded a feme sole and that in respect to those rights they may even sue their husbands for torts. The Fitzpatrick Case was cited with approval by the North Carolina and Wisconsin Supreme Courts in construing their respective statutes removing statutory and common-law restrictions imposed upon married women. Roberts v. Roberts, 185 N. C. 566, 118 S. E. 9, 29 A. L. R. 1479; Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, 210 N. W. 822, 48 A. L. R. 276. Appellee argues that in the Fitzpatrick Case the rule applies to willful torts only, but no such distinction appears in the decision or the statute construed. If an inference could be drawn that under the statute of 1915 and the rule announced in the Fitzpatrick Case, supra, that a married woman could not sue her husband for damages resulting from involuntary acts of negligence, certainly it cannot be said any statutory or common-law restrictions prevent her from bringing such a suit after the amendatory act of 1919 (Acts 1919, No. 66, p. 36) emancipating a married woman from all disabilities was passed. Under both the act of 1915 and 1919, married women became wholly independent of the doctrine of marital unity. They can now enter into marriage contracts without fear of their property or personal rights being lawfully abridged by an antagonistic public policy.

On account of the error indicated, the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

HART, C. J., and BUTTER, J., dissent.

HART, C. J. (dissenting).

Judge BUTLER and I think that basing the majority opinion on Fitzpatrick, Adm'r, v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772, is an apt illustration of the adage that reasoning by analogy is oftentimes dangerous. By the common law the husband and wife...