accident free from contributory negligence [citing many cases]. The evidence of the eyewitnesses tended very strongly to refute this. presumption, and to show that as a matter of fact Fleenor did not look or listen," etc. While it does not appear from a reading of the above decision that an instruction similar to that under consideration here was given, and while the statement quoted may have been obiter dictum, yet, with eyewitnesses actually testifying, this court said such presumption existed in that case. It will be noted that, in the instruction complained of, there is the qualification that this presumption arises or continues until the contrary is proven. While this instruction probably should not have been given, since there were eyewitnesses to the accident, still the jury were expressly cautioned therein that the presumption did not exist when the contrary was proven, that it was not conclusive, and that it was limited in its application to the issue of contributory negligence on the part of Packard. There was no attempt, at any stage of the proceedings, to prove contributory negligence on the part of either party. There was a square-cut issue as to which of these two men caused the vehicles to collide. One or the other, under the evidence, was entirely blameless. If Packard was driving his motorcycle on his right side of the road, and continued to do so as the vehicles approached, it is inevitable that appellant must, by turning his automobile over to the wrong side of the road, have been the only one guilty of negligence. If the converse of these facts is true, Packard alone was responsible. There was nothing that either of these parties did which caused or contributed to the collision, except that one or the other swerved from his proper side of the road and drove his vehicle structions-ab- into the other. No sence of error. prejudicial error was committed by the court in giving this instruction. Appeal-in Finally, appellant urges that the court erred in refusing to strike certain testimony, and in not, by proper instructions, taking from the consideration of the jury the question of the alleged failure of appellant to render aid and assistance to the injured man after the accident. It is contended that the parties had stipulated during the trial that Packard died as a direct result of the injuries received in the accident, irrespective of what happened thereafter. The stipulation referred to is contained in the following statements of counsel: "Mr. Hawley: Will you stipulate that as a result of the injuries received at the collision that Mr. Packard died on the 25th day of April, 1925? "Mr. Driscoll: Yes; but not admitting any liability or responsibility. "Mr. Hawley: I am not asking that. "Mr. Driscoll: I am simply admitting that as a result of the acci dent he died." Later, this stipulation was brought into question, and its meaning discussed by court and counsel. An examination of the record, and a fair interpretation of the wording. of the agreement, make it apparent that there was no intention evidenced therein to Trial-refusal to from jury. eliminate the charge take question of negligence predicated upon the failure of appellant to render assistance to the injured man. The court did not err in denying the motion to strike, nor in refusing the requested instruction covering this phase of the case. No prejudicial error having occurred during the trial, and the verdict being supported by substantial and competent evidence, we recommend that the judgment be affirmed, and that respondents recover their costs. The foregoing is approved as the opinion of the court. The judgment and order overruling defendant's motion for a new trial are affirmed; costs to respondents. (- Idaho, -> 262 Pac. 881.) Wm. E. Lee, Ch. J., and Givens and T. Bailey Lee, JJ., concur. Budge and Taylor, JJ., did not sit at the hearing, and took no part in the decision. ANNOTATION. Constitutionality and effect of statute relating to civil liability of person Most of the cases dealing with violations of statutes against driving an automobile by a person under the influence of liquor are criminal cases. See the annotations in 42 A.L.R. 1498 [Automobiles, § 101], and 49 A.L.R. 1392, treating of driving an automobile while intoxicated as a substantial criminal offense, and the annotations in 16 A.L.R. 914; 27 A.L.R. 1182; 30 A.L.R. 66; 41 A.L.R. 725; 42 A.L.R. 1120; 46 A.L.R. 1060, and 49 A.L.R. 608 [Assault and Battery, § 25; Homicide, § 11], discussing manslaughter or assault in connection with the use of an automobile for an unlawful purpose or in violation of law. It is negligence per se to violate a statute making it a misdemeanor to drive a motor vehicle while in an intoxicated condition (Wise v. Schneider (1921) 205 Ala. 537, 88 So. 662; Lincoln Taxicab Co. v. Smith (1914) 88 Misc. 9, 150 N. Y. Supp. 86), but there is no civil liability under a statute of that kind, unless the violation of the statute is the proximate cause of the injury for which suit is brought (Wise v. Schneider (Ala.) supra). In the reported case (PACKARD V. O'NEIL, ante, 317) it is held to be within the police power of a state legislature to create a conclusive presumption of negligence on the part of one driving an automobile while in a state of intoxication. Such a statute is considered to create a conclusive presumption of negligence, not as a principle of evidence, but for the purpose of creating, defining, and regulating rights on highways. The constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, is the subject of the annotation in 51 A.L.R. 1139. And see at pp. 1149 et seq. of that annotation, illustrative cases as to conclusive presumption. W. S. R. Husband and wife, § 132 - master and servant, § 419 recovery against husband's employer. 1. The statutes of this state enabling a married woman to sue do not permit a recovery against the husband's employer for damages caused by the husband's negligence, where the husband is liable to the employer. [See annotation on this question beginning on page 331.] Husband and wife, § 153 suit by wife against husband. 2. The statutes of this state enabling a married woman to sue do not Headnotes by RAIT, Dist. J. authorize a suit by the wife against the husband to recover damages for injuries to the person. [See 13 R. C. L. 1396; 3 R. C. L. 1 Supp. 143; 4 R. C. L. Supp. 859; 5 R. C. L. Supp. 735; 6 R. C. L. Supp. 786; 7 R. C. L. Supp. 443. See also annotations in 29 A.L.R. 1482; 33 A.L.R. 1406; 44 A.L.R. 794; 48 A.L.R. 293.] (Good, J., dissents.) APPEAL by plaintiff from a judgment of the District Court for Dodge County (Button, J.) dismissing an action brought to recover damages for personal injuries alleged to have been caused by her husband's negligent driving of defendant's automobile. Affirmed. The facts are stated in the opinion of the court. Messrs. Abbott & Dunlap for appellant. Mr. J. C. Cook, for appellee: The common-law disabilities of a wife, except as removed by statute, remain, and she cannot maintain an action against her husband. Strom v. Strom, 98 Minn. 427, 6 L.R.A. (N.S.) 192, 116 Am. St. Rep. 387, 107 N. W. 1047; Peters v. Peters, 42 Iowa, 182; Freethy v. Freethy, 42 Barb. 641; Longendyke v. Longendyke, 44 Barb. 367; Bandfield v. Bandfield, 117 Mich. 80, 40 L.R.A. 757, 72 Am. St. Rep. 550, 75 N. W. 287; Abbe v. Abbe, 22 App. Div. 483, 48 N. Y. Supp. 25; Main v. Main, 46 Ill. App. 106; Nickerson v. Nickerson, 65 Tex. 281; Peters v. Peters, 156 Cal. 32, 23 L.R.A. (N.S.) 699, 103 Pac. 219; Lillienkamp v. Rippetoe, 133 Tenn. 57, L.R.A.1916B, 881, 179 S. W. 628, Ann. Cas. 1917C, 901; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Schultz v. Christopher, 65 Wash. 496, 38 L.R.A.(N.S.) 780, 118 Pac. 629; Austin v. Austin, 136 Miss. 61, 33 A.L.R. 1388, 100 So. 591; Woltman v. Woltman, 153 Minn. 217, 189 N. W. 1022, 22 N. C. C. A. 418; Smith v. Smith, 29 Pa. Dist. R. 10; Perlman v. Brooklyn City R. Co. 117 Misc. 353, 191 N. Y. Supp. 891 (affirmed in 202 App. Div. 822, 194 N. Y. Supp. 971); Oken v. Oken, 44 R. I. 291, 117 Atl. 357; Newton v. Weber, 119 Misc. 240, 196 N. Y. Supp. 113; Godfrey v. Megahan, 38 Neb. 748, 57 N. W. 284; Aultman v. Obermeyer, 6 Neb. 260. Rait, Dist. J., delivered the opinion of the court: On rehearing of an affirmance, entered without opinion, of an appeal from dismissal by trial court following order sustaining demurrer to petition. The petition states that the plaintiff was injured through the negligent driving by her husband of an automobile; that the automobile was the property of the defendant and was being operated in the conduct of its business by her husband as an employee and agent of defendant, and that defendant knew that she was accompanying her husband and consented thereto. The question presented is whether an employer is liable to the wife, where the negligence of the husband and employee was the cause of her injuries. This question is new in this state, but has been presented on many occasions in other courts and involves always the construction of local legislation respecting the purpose and scope of statutes granting new rights to or removing the commonlaw disabilities from married women. While purely a question of local law, the statutes of all the states have some similarity in language and clearly have a common object in the removal of the disabilities married women and the placing of both sexes in equality respecting their rights and the manner of enforcing them. of The Nebraska statutes are as follows (Comp. Stat. 1922): Section 8529: "A woman may while married sue and be sued, in the same manner as if she were unmarried." Section 8530: "If a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also." Section 1241: "And any married woman may devise and dispose of any real or personal property held by her, or to which she is entitled in her own right, by her last will and (— Neb. — 216 N. W. 297.) testament, in writing, and may alter or revoke the same in like manner that a person under no disability may do, and subject to the same restrictions." Section 1509: "The property, real and personal, which any woman in the state may own at the time of her marriage, and the rents, issues, profits, or proceeds thereof, and any real, personal, or mixed property, which shall come to her by descent, devise, or the gift of any person except her husband, husband, or which she shall acquire by purchase or otherwise, shall remain her sole and separate property, notwithstanding her marriage, and shall not be subject to the disposal of her husband, or liable for his debts: Provided, all property of a married woman not exempt by law from sale on execution or attachment, shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against the husband for such indebtedness has been returned unsatisfied for want of goods and chattels, lands and tenements whereon to levy and make the same." Section 1510: "A married woman, while the marriage relation subsists, may bargain, sell and convey her real and personal property, and enter into any contract with reference to the same in the same manner, to the same extent, and with like effect as a married man may in relation to his real and personal property." Section 1511: "Any married woman may carry on trade or business, and perform any labor or services on her sole and separate account; and the earnings of any married woman, from her trade, business, labor, or services, shall be her sole and separate property, and may be used and invested by her in her own name." Section 1512: "Any woman who shall have been married out of this state, shall, if her husband afterwards becomes a resident of this state, enjoy all the rights as to prop erty which she may have acquired by the laws of any other state, territory, or country, or which she may have acquired by virtue of any marriage contract or settlement made out of this state." Section 8837: "The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other, but they may in all criminal prosecutions be witnesses for each other: Provided, however, the wife shall be a competent witness against the husband in all prosecutions arising under section thirty-nine of the Criminal Code [9584]." These statutes have been interpreted by this court in the following, cases: Aultman v. Obermeyer, 6 Neb. 260; Dayton Spice-Mills Co. v. Sloan, 49 Neb. 622, 68 N. W. 1040; First Nat. Bank v. Havlik, 51 Neb. 668, 71 N. W. 291; Studebaker Bros. Mfg. Co. v. Welch, 51 Neb. 228, 70 N. W. 920; Godfrey v. Megahan, 38 Neb. 748, 57 N. W. 284; Trayer v. Setzer, 72 Neb. 845, 101 N. W. 989; Bohner v. Bohner, 46 Neb. 204, 64 N. W. 700; Dunn v. Bozarth, 59 Neb. 244, 80 N. W. 811; Re Cormick, 100 Neb. 669, L.R.A. 1917D, 265, 160 N. W. 989; Greene v. Greene, 42 Neb. 634, 47 Am. St. Rep. 724, 60 N. W. 937; Stenger Benev. Asso. v. Stenger, 54 Neb. 427, 74 N. W. 846; Kerner v. McDonald, 60 Neb. 663, 83 Am. St. Rep. 550, 84 N. W. 92; Smith v. Dean, 15 Neb. 432, 19 N. W. 642; Goken v. Dallugge, 72 Neb. 16, 99 N. W. 818, 101 N. W. 244, 103 N. W. 287, 9 Ann. Cas. 1222, 16 Am. Neg. Rep. 479. In other jurisdictions statutes somewhat similar have been construed: Strom v. Strom, 98 Minn. 427, 6 L.R.A. (N.S.) 192, 116 Am. St. Rep. 387, 107 N. W. 1047; Peters v. Peters, 42 Iowa, 182; Freethy v. Freethy, 42 Barb. 641; Longendyke v. Longendyke, 44 Barb. 366; Bandfield v. Bandfield, 117 Mich. 80, 40 L.R.A. 757, 72 Am. St. Rep. 550, 75 N. W. 287; Main v. Main, 46 Ill. App. 106; Nickerson v. Nickerson, 65 Tex. 281; Peters v. Peters, 156 Cal. 32, 23 L.R.A. (N.S.) 699, 103 Pac. 219; Thompson v. Thompson, 218 U. S. 611, 54 L. ed. 1180, 30 L.R.A. (N.S.) 1153, 31 Sup. Ct. Rep. 111, 21 Ann. Cas. 921; Lillienkamp v. Rippetoe, 133 Tenn. 57, L.R.A. 1916B, 881, 179 S. W. 628, Ann. Cas. 1917C, 901; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Schultz v. Christopher, 65 Wash. 496, 38 L.R.A. (N.S.) 780, 118 Pac. 629; Keister v. Keister, 123 Va. 157, 1 A.L.R. 439, 96 S. E. 315; Austin v. Austin, 136 Miss. 61, 33 A.L.R. 1388, 100 So. 591; Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25; Woltman v. Woltman, 153 Minn. 217, 189 N. W. 1022, 22 N. C. C. A. 418; Oken v. Oken, 44 R. I. 291, 117 Atl. 357; Brown v. Brown, 88 Conn. 42, 52 L.R.A. (N.S.) 185, 89 Atl. 889, Ann. Cas. 1915D, 70; Mathewson V. Mathewson, 79 Conn. 23, 5 L.R.A. (N.S.) 611, 63 Atl. 285, 6 Ann. Cas. 1027; Muller v. Witte, 78 Conn. 495, 62 Atl. 756; Fiedler v. Fiedler, 42 Okla. 124, 52 L.R.A. (N.S.) 189, 140 Pac. 1022; Gilman v. Gilman, 78 N. H. 4, L.R.A.1916B, 907, 95 Atl. 657; Sykes v. Speer, Tex. Civ. App. 112 S. W. 422; Maine v. James Maine & Sons Co. 198 Iowa, 1278, 37 A.L.R. 161, 201 N. W. 20; Perlman v. Brooklyn City R. Co. 117 Misc. 353, 191 N. Y. Supp. 891; Harvey v. Harvey, 239 Mich. 142, 214 N. W. 305; Wait v. Pierce, 191 Wis. 202, 48 A.L.R. 276, 209 N. W. 475, 210 N. W. 822; Prosser v. Prosser, 114 S. C. 45, 102 S. E. 787; Crowell v. Crowell, 181 N. C. 66, 106 S. E. 149; Johnson v. Johnson, 201 Ala. 41, 6 A.L.R. 1031, 77 So. 335. An examination of the decisions of other jurisdictions discloses a great weight of opinion opposed to opening a field of litigation between spouses in tort actions by means of judicial interpretation and without unmistakable legislative action. The procedural difficulties, the dangers of disrupting the secrecy and serenity of marital relations, the avenue for fraud, the startling innovation new in permitting such controversies, and the lack of clear legislative indorsement have all been assigned as ample reasons for the refusal of the courts to sanction, by supplying statutory interpretation, a form of litigation manifestly requiring unequivocal legislation for its existence. An illustration of this reluctance is found in Thompson v. Thompson, 218 U. S. 611, 54 L. ed. 1180, 30 L.R.A. (N.S.) 1153, 31 Sup. Ct. Rep. 111, 21 Ann. Cas. 921, where the statutes under consideration come close to an authorization. The opinions cited from other jurisdictions give all the reasons that may well be urged from either viewpoint and need not be repeated here. The Nebraska decisions are confined to contract actions and such other actions as are expressly authorized by statute. The legislation of this state apparently was designed to remove disabilities from married women, so as to place the sexes in equal position before the law. This was fully attained. The husband may not sue the wife for wife-suit by tort. Both spouses wife against have the same disability and the equality is complete. If this situation is to be disturbed, the change should come by legislation. Husband and husband. Although the statutes authorize suits against third persons, the question now arises whether they may be maintained in cases where they are grounded upon the negligence of the husband when employed by the third person. The employee is liable to the employer for his negligence. In Doremus v. Root, 23 Wash. 710, 54 L.R.A. 649, 63 Pac. 572, it is said: "The act of an employee, even in legal intendment, is not the act of his employer, unless the employer either previously directs the act to be done or subsequently ratifies it. For injuries caused by the negligent act of an employee not directed or ratified by the employer, the employee is liable because he |