Leach v. Leach

300 S.W.2d 15, 227 Ark. 599, 1957 Ark. LEXIS 365

• Court: Supreme Court of Arkansas
• Decided: March 25, 1957
• Docket: 5-1235
• Status: Published

Opinions

George Rose Smith, J.

This case presents a question that is novel in this state and very nearly so in the United States: Can a husband maintain a suit against his wife for damages due to her negligence? The appellant’s complaint, as supplemented by a stipulation, alleges that on August 9, 1956, he was the owner of a pick-up truck and a Ford sedan. As Leach was driving the truck on a county road he collided with his wife, who was driving the sedan in the opposite direction. It is asserted that Mrs. Leach was driving on the wrong side of the road and at an excessive speed. The trial court sustained a demurrer to the complaint and dismissed the action.

At common law neither spouse could maintain a tort action against the other. In the various states there is a decided difference of opinion about the extent to which the common law rule has been affected by statutes removing the disabilities of married women. The question has usually been considered in the converse situation, where the wife seeks to sue her husband. By a dwindling majority which now stands at about two to one the American courts hold that she cannot maintain the action. Prosser on Torts (2d Ed.), § 101; Sanford, Personal Torts Within the Family, 9 Vanderbilt L. Bev. 823. The courts following the majority view construe the emancipation acts strictly, as being in derogation of the common law, and usually suggest that recognition of suits between spouses would adversely affect harmony within the home. Prosser’s criticism of the majority rule typifies the position generally taken by legal writers: ‘ ‘ The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy — and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.” Prosser, loe. cit.

This reasoning has never appealed to us. With respect to a wife’s suit against her husband we adopted the minority view more than forty years ago and have adhered to it. Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772; Katzenberg v. Katzenberg, 183 Ark. 626, 37 S. W. 2d 696. In the Fitzpatrick case we considered and rejected both the usual arguments, that the statute is to be interpreted narrowly and that the majority view tends to preserve marital harmony. If these arguments are without merit when the wife sues the husband, they are obviously equally ineffective when the situation is reversed.

As Sanford correctly points out in the article cited above, the problem is primarily one of statutory construction. Our emancipation act is far more sweeping in its language than are most statutes on the subject: “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 the 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.” Ark. Stats. 1947, § 55-401.

We do not perceive that the explicit language of the statute leaves any doubt about the legislative intention. The appellee’s suggestion that the act was meant only to broaden the rights of married women, and not to curtail the protection afforded them at common law, is rebutted by the unequivocal and unrestricted declaration that married women may “sue and be sued.” This clause was the basis for our holding that a wife may sue her husband in tort. There can be no sound basis for a different conclusion when the shoe is on the other foot, for in the same breath the legislature abolished her disability to sue and her immunity from being sued.

On the question now presented the decisions elsewhere do not support the appellee’s contention that we can with consistency adopt one rule for the wife and another for the husband. As might be expected, those courts which hold that a wife cannot sue her husband for a personal tort also hold that he cannot assert a similar cause of action against her. In jurisdictions adhering, as we do, to the minority view, the converse situation has arisen only twice, and it happens that both cases denied the husband’s right to sue his wife. Scholtens v. Scholtens, 230 N. C. 149, 52 S. E. 2d 350; Fehr v. General Accident, etc., Corp., 246 Wis. 228, 16 N. W. 2d 787, 160 A. L. R. 1402. But in each case the court was construing a statute which expressly conferred upon a married woman the right to sue but did not mention the correlative matter of her liability to being sued. The problem, as we have said, is one of statutory construction; so we cannot be guided by decisions based upon statutes that differ from ours upon the very point that is controlling.

Reversed, the demurrer to be overruled.

Harris, C. J., and Holt, J., dissent.