{ "id": 1592926, "name": "Bourland v. Baker", "name_abbreviation": "Bourland v. Baker", "decision_date": "1919-12-15", "docket_number": "", "first_page": "280", "last_page": "287", "citations": [ { "type": "official", "cite": "141 Ark. 280" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "64 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907443 ], "weight": 3, "pin_cites": [ { "page": "486" } ], "opinion_index": -1, "case_paths": [ "/ark/64/0381-01" ] }, { "cite": "104 Atl. 749", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "143 Pac. 743", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "168 S. W. 129", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "69 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720287 ], "weight": 4, "pin_cites": [ { "page": "243" }, { "page": "147" }, { "page": "243" } ], "opinion_index": -1, "case_paths": [ "/ark/69/0130-01" ] }, { "cite": "41 Mich. 214", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1414556 ], "opinion_index": -1, "case_paths": [ "/mich/41/0214-01" ] }, { "cite": "118 Miss. 58", "category": "reporters:state", "reporter": "Miss.", "opinion_index": -1 }, { "cite": "104 La. 496", "category": "reporters:state", "reporter": "La.", "case_ids": [ 304964 ], "opinion_index": -1, "case_paths": [ "/la/104/0496-01" ] }, { "cite": "49 Atl. 889", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "140 Pac. 1022", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8880781 ], "opinion_index": -1, "case_paths": [ "/okla/42/0124-01" ] }, { "cite": "65 N. E. 770", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "99 N. W. 818", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "37 S. W. 138", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "94 Pae. 36", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 2243836 ], "opinion_index": -1, "case_paths": [ "/or/51/0583-01" ] }, { "cite": "145 N. Y. S. 708", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3286495 ], "opinion_index": -1, "case_paths": [ "/nys/145/0708-01" ] }, { "cite": "124 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1554909 ], "opinion_index": -1, "case_paths": [ "/ark/124/0167-01" ] }, { "cite": "02 Ark. 351", "category": "reporters:state", "reporter": "Ark.", "weight": 3, "pin_cites": [ { "page": "381" }, { "page": "401" } ], "opinion_index": -1 }, { "cite": "124 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1554909 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/124/0167-01" ] } ], "analysis": { "cardinality": 745, "char_count": 14666, "ocr_confidence": 0.5, "pagerank": { "raw": 2.3807794738896633e-07, "percentile": 0.7967949096646175 }, "sha256": "fafb904d6a235006f3ec13d0cac1c046c2882acca1e6db687d4bcebf204a699b", "simhash": "1:e625a2e9b7b10630", "word_count": 2547 }, "last_updated": "2023-07-14T20:31:57.096047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bourland v. Baker." ], "opinions": [ { "text": "Humphreys, J.\nAppellee instituted suit agaist appellants in the Sebastian Circuit Court, Port Snbh District, to recover $11,000, on account of an injury 'eceived by him through the alleged negligent operalon of an automobile by appellant, Queen Bourland, wiffof appellant, James Bourland. The allegations of negligence in the complaint consisted, first, in driving theaar at a high and dangerous rate of speed; second, in driing it on the left, instead of the right-hand, side of the street, in violation of a city ordinance; third, in drivi;g\u00b0 it without giving the proper warning or keeping the pupor lookout when approaching appellant..\nAppellants filed answer, denying the material allegations in the complaint, and pleading the negligerce of appellee as the proximate cause of the injury.\nThe cause was submitted to a jury, upon the pleadings and evidence, and a verdict and judgment rendered in favor of appellee for $2,000, from which an appeal has been duly prosecuted to this court.\nAppellee was injured by an automobile driven by appellant, Queen Bourland. When the injury occurred, he was walking south on the east side of North 13th street, about midway between the suburban railway and North 0 street. Queen Bourland was on the front, and her little boy and infant on the back seat of the chummy roadster she was driving. She was on the same side of the street and going the same direction appellee was walking. The street is straight, between the suburban railway and 0 street, and the distance between the two points about 200 yards. Appellee was near the curbing on the east side of the street. When struck, his legs were thrown under the car and his body on the outside, with his head dying very near the curbing. The car stopped just as the hind wheel reached him. He was severely injured, and, as no question is made in regard to the amount of damages recovered, it is unnecessary to set out the lature of the injury.\nThe evidence on behalf of appellee tended to show bat the car was being rapidly driven and approached ad struck him suddenly, without signal or warning, bout two o \u2019clock in the afternoon of September 17,1918; tat he heard the car, stepped to the east, giving almost tb entire street, and did not look back because he ex-peled it to pass around and not strike him; that the pitee where there should have been a sidewalk was rough anc grown up in weeds; that the street was paved and tha. he had chosen the east side of the street near the curling upon which to travel, because automobiles usually traveled on the right-hand or west side of the street.\nThe evidence of appellants tended to show that, at the timebf the injury, appellant, Queen Bourland, was driving h>r car at a slow rate of speed; that when she reached and (Tossed the suburban, she looked in front and saw nothing; that she then looked back at the baby and told her bey to sit down; that she again glanced to the front and observed appellee immediately in front of her; that lie had stepped in front of the car suddenly; that she did not see him at all until he stepped in front of the car; that she instantly shut off the engine, put on the brakes with both feet and stopped the car; that the front wheel ran over appellee, but that the hind wheel stopped just as it reached him.-\nIt is first insisted by appellants that there is no foundation in the allegations and evidence justifying the rendition of a judgment against appellant, James Bourland, the husband of Queen Bourland. The verdict was returned and judgment rendered against James Bourland on the sole ground that a husband in this State is responsible for his wife\u2019s torts. At the common law, a husband was liable for the torts of his wife committed in his absence. That rule of liability is still in force in Arkansas, unless abrogated by Act 159, Acts of the Legslature of 1915, known as the Married Woman\u2019s Act. The reason existing for the rule at common law was the legal unity incident to the marriage relationship. It was reasonec' that, on account of the unity, the husband could absolutely control his wife in and out of his presence. It followe. that, because of this control, he could prevent his wif from committing a tort on another, even in his abseno The Married Woman\u2019s Act of 1915, as construed in tt case of Fitzpatrick v. Owens, 124 Ark. 167, had the <- feet of absolutely and completely destroying the leM unity founded upon the nuptial contract. The act hs effectually severed the legal unity between husband nd wife in this State. In holding that the emancipatin' of the wife was so complete that the wife might sue the ms-band for a tort committed by him on her person,this court said, in the case of Fitzpatrick v. Owens, supra, that: \u201cThese enactments (referring to the Marries Woman\u2019s Act antedating the Act of 1915) left but little .n the way of restrictions upon the rights of married women, but the Legislature deemed it proper to provide firther legislation to completely emancipate her, and tiny did so by this statute (referring to the Married Womai\u2019s Act of 1915) which declares its purpose in the broadesl terms to \u2018 remove the disabilities of married women. \u2019 An analysis of the language of the statute shows that the Legislature meant to complete the work of emancipation and to give married women all the rights and remedies possessed by unmarried women. The words \u2018 to sue and be-sued\u2019, when considered by themselves, merely enlarge the remedies of a married woman and do not enlarge her rights, but in considering the significance of those words we must do so in connection with the words which precede and which follow, and undoubtedly the use of those words serves to give a remedy for all the rights found to have been enlarged by the preceding words and those which follow. Now, the preceding words confer, in unqualified terms, the right of the married woman \u2018to contract and be contracted wdth,\u2019 and the words which follow declare in the very broadest terms her right \u2018in law and equity\u2019 to \u2018enjoy all rights and be subjected to all the laws of the State as though she were a feme sole.\u2019 If this language be given any effect at all in the light of preceding statutes enlarging the rights of the married woman, it necessarily means that a married woman is to enjoy in law and equity all the rights which she would enjoy if she still remained a single woman, and that with respect to those rights she may sue and be sued. * * * It was evidently meant to confer upon her the enjoyment of those rights and remedies, even against her husband, the same as if she were unmarried.\u201d\nThe legal unity, which was the reason of the rule fixing liability on the husband for his wife\u2019s torts, having been swept away by the act, the liability is swept away. The reason being dissolved, the rule can not exist. It was therefore error to refuse to instruct the jury peremptorily to return a verdict for appellant James BourL~nd.\nIt is insisted that the court erred in giving instruction No. 4. The instruction is as follows: \u201cTherefore, if you find from the evidence that the defendant, Queen Bourland, operated her car in a negligent manner at the time the plaintiff was injured, as charged in plaintiff\u2019s complaint, and that his injuries were the result of said negligence, you must find for the plaintiff, unless it affirmatively appears from the evidence that the plaintiff was at the time of his injury himself guilty of negligence contributing to the injury.\u201d\nThe instruction is assailed because, according to appellant\u2019s interpretation thereof, it submitted all the allegations of negligence set up in the complaint to the jury for consideration, whether supported by evidence or not. It is true evidence was not introduced in support of every allegation of negligence in the complaint. The trend of the evidence, however, limited the issues to whether the injury resulted from fast driving, failure to give a signal of warning, failure to keep a proper lookout, or whether aue to appellee\u2019s own negligence; and, in the absence of specific objections to the general terms in which the allegations of negligence were submitted, it will be presumed that the jury considered-only such grounds of negligence as were supported by the evidence. No specific objections were made to the instructions. Again,, appellant, Queen Bourland, requested and obtained instructions submitting separately each allegation of negligence contained in the complaint, so said appellant is in no position to complain. ,\nThe instruction is also assailed on the ground that it imposed an extraordinary degree of care upon said appellant to prevent. the injury. It is contended the instruction must be read in connection with the allegation of the complaint to the effect that appellant, Queen Bourland, injured appellee \u201cby her failure to keep a vigilant and constant lookout for persons lawfully upon the streets.\u201d This is only an allegation in an exaggerated form of a lack of ordinary care, and can not be treated as an instruction imposing an extraordinary degree of care upon said appellant. No such inference could have been indulged by the jury in the face of positive instructions to the contrary. Instructions Nos. 2 and 7 necessarily enlightened the jury in this regard. The instructions referred to were as follows:\n\u201cNegligence, as defined and used in these instructions, is a failure to exercise ordinary care. Ordinary care is such care as a reasonably prudent and careful person would be expected to exercise under the same or like circumstances.\u201d\n\u201cThe rights of pedestrians and drivers of motor cars and other vehicles have equal rights to the use of the streets of the city. It is the duty of the one to use ordinary care and caution to prevent injury to another. It is likewise the duty of the other to use ordinary care and caution to avoid being injured.\u201d\nIt is also contended by appellant, Queen Bourland, that the court erred in refusing to give instruction No. 11, requested by her. That instruction exempted Queen Bourland from liability if she temporarily took her eyes off the street in front to give attention to her children while driving along. Such,an act on her part might, or might not, have been negligent, dependent upon all the circumstances in the case. The instruction was properly refused.\nIt is also contended that the case was erroneously submitted upon the theory that appellant, Queen Bourland, was liable for the injury if driving on the left-hand side of the street. It was alleged in the complaint that she was driving on the left-hand side of the street, contrary to an ordinance of the city. No such proof was made, and, under our interpretation of instruction No. 4, no such issue was submitted to the jury.\nThe judgment is affirmed as to Queen Bourland, but is reversed and the cause dismissed as to James Bourland.", "type": "majority", "author": "Humphreys, J." } ], "attorneys": [ "James B. McDonough, for appellants; J. Sam Wood, of cims el.", "Edwin Hiner, for appellee." ], "corrections": "", "head_matter": "Bourland v. Baker.\nOpinion delivered December 15, 1919.\n1. Husband and wife \u2014 wife\u2019s torts \u2014 husband's liability. \u2014 The common law rule that the husband is liable for the wife\u2019s torts has been abrogated by the married woman\u2019s act (Acts 1915, page 684).\n2. Appeal and error \u2014 negligence \u2014 instruction. \u2014 Where there was no evidence to support some of the allegations of negligence in a personal injury action, an instruction to find for plaintiff if you find from the evidence that plaintiff was injured as a result of defendant\u2019s negligence as charged in the complaint, was not objectionable as authorizing the jury to find negligence as charged though not established by the evidence.\n3. Appeal and error \u2014 invited error. \u2014 One who requests and obtains instructions submitting separately each allegation of negligence is in no position to complain of an instruction that submitted all of the allegations of negligence, whether supported by evidence or not.\n4. Trial \u2014 construction op instructions as a whole. \u2014 An instruestruction on the negligence of an automobile driver held not to impose an extraordinary degree of care on such driver, when considered in connection with other instructions.\n5. Municipal corporations \u2014 collision with pedestrian \u2014 instruction. \u2014 An instruction exempting an automobile driver from liability for injuries to a pedestrian if she temporarily took her eyes i off the street in front to give attention to her children in the \\ automobile was properly refused since such act might or might \\ not have been negligent.\nMunicipal corporations \u2014 driving on wrong- side op street\u2014 instruction.: \u2014 An instruction to the effect that if the jury found from the evidence that defendant operated her automobile in a negligent manner upon the street' as charged in the complaint, and plaintiff\u2019s injuries were the result of such negligence, they should find for plaintiff, was not objectionable as submitting the '.issue as to liability of defendant if she was driving on the wrong iside of the street where there was no evidence that she was driving on the wrong side.\nAppeal from Sebastian Circuit Court, Fort Smith Bisect; Paul Little, Judge;\nreversed in part.\nJames B. McDonough, for appellants; J. Sam Wood, of cims el.\ni. James Bourland, the husband, is not liable for the torts; of his wife committed in his absence. Since the marked woman\u2019s act of 1915, the husband is no longer liable. ^02 Ark. 351; 64 Id. 381; 44 Id. 401. All these cases are\u2019 tksed on the law prior to 1912. The act of 1915 strike; down every reason for the ruling that the husband tas liable. 124 Ark. 167; 145 N. Y. S. 708; 65 111. 129. |ee also 94 Pae. 36; 37 S. W. 138; 99 N. W. 818; 44 Paq 833; 21 Cyc. 1352, note 86; 65 N. E. 770; 140 Pac. 1022; 49 Atl. 889. The reason of the rule having ceased, the liability -also ceased. 104 La. 496; 118 Miss. 58; 120 Mass. &9; 41 Mich. 214.\n2. The court erred in its instructions, as there is no evidence to support them. 69 Ark. 130; 87 Id. 243; 89 Id. 147; 82 Id. 243; i82 Id. 547; 41 Id. 382; 63 Id. 177; 4 Craw'ford\u2019s Digest, 4997-9; 168 S. W. 129.\n3. It was especially error to give No. 7, as it does not clearly point out the obligations and duties of pedestrians and drivers of motor cars on the streets. 143 Pac. 743, par. 10; 183 Id. 358; 152 Id. 319.\n4. It was error to admit the evidence of Dr. Bose, detailing the statements of James Bourland.\n5. It was error to refuse No. 12 for defendants. 104 Atl. 749.\nEdwin Hiner, for appellee.\n1. The husband is still liable, as he is not released by the act of 1915. 64 Ark. 381; 92 Id. 486; 102 Id. 351 If the act had been intended to relieve the husband of lia bility, it would have said so, but it did not, and the hen band is still liable.\n2. There is no error in the instructions given c refused; they correctly state the law." }, "file_name": "0280-01", "first_page_order": 304, "last_page_order": 311 }