# Fitzpatrick v. Owens > Supreme Court of Arkansas · May 29, 1916 · 124 Ark. 167 URL: https://www.frixlaw.com/law-library/cases/7808279 ## Case - **Full name:** Fitzpatrick, Administrator v. Owens - **Court:** Supreme Court of Arkansas - **Decided:** May 29, 1916 - **Citations:** 124 Ark. 167; 186 S.W. 832; 1916 Ark. LEXIS 25 - **Precedential status:** Published - **Opinion:** Dissent by Hart - **Judges:** Hart, McCulloch, Wood - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7808279 ## Opinion text Hart, J. (dissenting). 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 decisions relating to the question. In the case of Kies v. Young, 64 Ark. 381 , the court expressly recognizes the rule in the construction of married women acts to be that where the Legislature does not toy 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 femme sole.” 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 . 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 othér 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 to the making of contracts and ascertaining their rights thereunder. Under the common law the husband did not have the right to sue the wife for a tort. I do not think the language- of the present statute indicates a legislative intent, “to make a departure from the common law so radical and so opposed to its general policy, as the authorization of a suit by the husband or wife against the other for injuries to the person or character.” See Peters v. Peters, 23 L. R. A. (N. S.) 699. In the case of Jackson v. Williams, 92 Ark. 486 , it was held that a husband was liable for a tort of the wife not committed in his presence and the ruling was based upon the unity of person in husband and wife. But it is said that no force can be given to the latter part of the section unless the construction placed upon the act by the majority opinion is adopted. It can be said with equal force that .all the language preceding that is useless if the opinion of the majority is adopted because if the language of the latter part of the section is broad enough to include suits by the wife against the husband for personal torts, it is certainly broad enough to include suits by her against him on contracts, and it was entirely useless to have embodied the language used in the first part of the section in the statute. It is our duty to give force and effect to every part of the statute if we can do so without -doing violence to its language. I think the first part of the section gives the wife the right to contract and be contracted with by her husband and that the words sue and be sued have relation to such contracts ; and that the latter part of the section which provides that “in law and equity shall enjoy all the rights and be subject to the laws of this State as though a femme sole” were intended to remove the rigor of our former rule in regard to making the husband liable for torts of his wife not committed in his presence, and other matters of that kind. I believe, however, it was the intention of the law-makers to still preserve the legal unity of husband and wife, and that marriage still. ‘ ‘ acts as a perpetually operating' discharge of ¡all wrongs. between man and wife, committed by one upon the other. ’ ’ In other words, if the Legislature had intended such a radical departure from the rule as it now exists as indicated by the majority opinion, it would have said so in. plain terms. Many cases might be cited to show that statutes broader than ours have not conferred upon husband and wife the right to sue each other for personal tort. But my dissent is based upon what I believe to, be an adherence to the principles of law heretofore decided by this court. I have no regret that, by: judicial construction, the rules of the common law on this subject “have gone to that bourne from which'no traveler returns, where they must rest undistinguished by a single tear shed f.or their departure.” Mr. Justice Wood concurs in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7808279. Public record. Not legal advice.