Judge BUTLER and I think that basing the majority opinion on Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, is an apt illustration of the adage that reasoning by analogy is oftentimes dangerous. By the common-law the 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. Countz v. Markling, 30 Ark. 17; and Peters v. Peters,156 Cal. 32, 103 P. 219; 23 L.R.A. (N.S.) 699.
The husband, however, was liable in equity in certain cases to the wife where he was attempting to defraud her in her property right; and he was also liable to punishment criminally for a felonious assault up on her.
In Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832, the question presented was as to the liability of the husband for a felonious assault upon his wife, resulting in her death. The husband was held liable on the ground that our Married Woman's Act gave her the right in a civil action to damages, since she already had the right to have her husband punished criminally. In other words, at the time the statute was enacted, it was illegal for a husband to assault his wife; and the Married Woman's Act gave her a remedy to sue at law where before her only remedy was to have her husband arrested and punished criminally. His act was just as illegal before as after the passage of the act; and the act gave her a civil remedy where she had none before.
We do not think the act, as construed in that case, is broad enough to allow the wife the right to maintain an action against the husband for negligence merely. As said in Newton v. Weber, 194 N.Y.S. 113, the maintenance of an action of this character, unless the sole purpose be a raid upon an insurance company, would not add to conjugal happiness and unison, which it is the policy of the law to further and to promote. That this view is in accord with the weight of authority may be seen from reference to 6 A.L.R. 1038; 29 A.L.R. at 1492, and 33 A.L.R. at 1406. *Page 629
The common-law incidents of marriage are swept away by express statutes only; and the common-law unity of husband and wife still exists in this State except in so far as expressly changed by statute. Kies v. Young,64 Ark. 381, 42 S.W. 669, 62 Am. St. Rep. 198; and Parrish v. Parrish, 151 Ark. 161, 235 S.W. 792. Broad as our statute is, as already construed, we do not think that it was the intention of the Legislature, as expressed in the Married Woman's Act, to give her the right to sue her husband with whom she is living in lawful wedlock for a negligent tort committed by him, such as the one under consideration in this case. Therefore, we respectfully dissent.