Alexander v. Alexander, Civ. A. No. 1649.

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtHolcombe & Bomar, Spartanburg, S. C., Price & Poag, Greenville, S. C., for defendant
Citation140 F. Supp. 925
PartiesVerna Cook ALEXANDER, Plaintiff, v. Alonzo B. ALEXANDER, Defendant.
Decision Date20 April 1956
Docket NumberCiv. A. No. 1649.

140 F. Supp. 925

Verna Cook ALEXANDER, Plaintiff,
v.
Alonzo B. ALEXANDER, Defendant.

Civ. A. No. 1649.

United States District Court W. D. South Carolina, Spartanburg Division.

April 20, 1956.


140 F. Supp. 926

Sam R. Watt, Kerr & Evins, Spartanburg, S. C., Redfearn & Ferrell, Miami, Fla., for plaintiff.

Holcombe & Bomar, Spartanburg, S. C., Price & Poag, Greenville, S. C., for defendant.

WYCHE, Chief Judge.

This matter is now before me upon the following motions of defendant:

"Defendant moves the Court to enter judgment on the pleadings in favor of the Defendant herein on the ground that Defendant is entitled to judgment as a matter of law on the undisputed fact appearing in the pleadings in that the Plaintiff and Defendant were husband and wife at the time of the commission in the State of Florida of the alleged tort upon which the Complaint is based, and under the law of the State of Florida, which
140 F. Supp. 927
is the governing law in this case, a wife cannot maintain an action against her husband on account of his alleged tortious acts.
"Failing in the above motion, Defendant moves the Court for leave to amend his Answer, by setting up as a separate and distinct defense the following: Defendant alleges that at the time of the commission of the alleged acts set out in the Complaint the Plaintiff and Defendant were husband and wife, and under the law of the State of Florida, in which State the alleged acts were committed, a wife cannot maintain an action against her husband on account of such alleged tortious acts."

Notice of the motions was served on plaintiff's attorneys on March 21, 1956, and, by agreement, the matter was heard before me on March 30, 1956.

The motion for judgment on the pleadings was made under Rule 12(c), Federal Rules of Civil Procedure, 28 U.S. C.A., but at the time the motion was argued it was apparent that the record and proceedings in the former trial of the issues in the case were essential to the determination of the motion, and at my suggestion, and by agreement of counsel, the motion was heard as a motion for summary judgment under Rule 56, Federal Rules of Civil Procedure.

This case was tried before me and a jury during the October, 1954, term of court at Spartanburg, South Carolina. The case took approximately four days to try and after all testimony was in the defendant moved for a directed verdict in his favor on the ground that the testimony and evidence introduced were insufficient to warrant a verdict by the jury against him. This motion was granted as to the causes of action alleged in the complaint for (a) false arrest; (b) false imprisonment; and (c) abuse of process, but was denied as to the cause of action for malicious prosecution. The jury returned a verdict for the plaintiff for $175,000, actual damages, and $75,000, punitive damages, upon which judgment was entered.

Defendant thereafter moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. I granted the motion for a new trial unless plaintiff remitted of record the sum of $87,500, actual damages, which was done within the time prescribed in the order. D.C., 131 F.Supp. 605.

Plaintiff appealed from the judgment and the United States Court of Appeals for the Fourth Circuit held that the testimony and evidence of the plaintiff were sufficient to create a jury issue but reversed the judgment solely on the ground of the admissibility of evidence. Alexander v. Alexander, 229 F.2d 111.

Defendants' motion for a directed verdict in his favor upon the grounds of lack of sufficiency of proof included every matter that was considered or should have been considered as necessarily involved in the motion. Implicit in the motion is the ground that plaintiff could not maintain the action under the laws of Florida, the lex loci delicti. I held that the testimony and evidence were sufficient to create a jury issue and the United States Court of Appeals reached the same conclusion. This is now the law of the case and is res judicata as to this feature of the case. Cato v. Atlanta & C. A. L. Railway Co., 164 S.C., 123, 162 S.E. 239, 252; Long v. Carolina Baking Co., 193 S.C. 225, 8 S.E.2d 326.

The substantive rights of the parties are controlled by the laws of Florida, the lex loci delicti. It is contended by defendant that Florida adopted the common law of England, which is now in effect, and that under the common law, one spouse cannot sue another in tort upon the legal fiction of unity of persons in that no one can sue himself, and cites the cases of Webster v. Snyder, 103 Fla. 1131, 138 So. 755; Corren v. Corren, Fla., 47 So.2d 774; Ripley v. Ewell, Fla., 61 So.2d 420; Sullivan v. Sessions, Fla., 80 So.2d 706; and Shiver v. Sessions, Fla., 80 So.2d 905.

140 F. Supp. 928

In 1829, the Legislative Council of the Territory of Florida adopted the common and statute laws of England which were of a general and not of a local nature. This adopting statute has been brought forward in the various compilations of the statutes of Florida and it now appears in the 1955 Florida Statutes, F.S. A. §...

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11 practice notes
  • United States v. City of Jackson, Mississippi, No. 3247.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • April 26, 1962
    ...v. Kansas City, D. C., 43 F.Supp. 739; Wong Wing v. U. S., 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140; Alexander v. Alexander, D.C., 140 F. Supp. 925; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; McGhee v. Sipes, 334 U.S. 1, 68 S.Ct. 836, 92 L. Ed. 1161; and United States v. C......
  • Karczewski v. Baltimore and Ohio Railroad Company, No. 66 C 2074.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 27, 1967
    ...to the same protection of the law as other individuals regardless of ancient provisions of the common law." Alexander v. Alexander, 140 F.Supp. 925, 928 (W.D.S.C.1956). That women cannot sue for loss of consortium is not excusable because based upon an historical legal doctrine which viewed......
  • Bencomo v. Bencomo, No. 35678
    • United States
    • United States State Supreme Court of Florida
    • May 31, 1967
    ...121 So.2d 805; and see 43 A.L.R.2d 632. In reaching this decision we have not overlooked the case of Alexander v. Alexander, D.C., 140 F.Supp. 925. In that case the United States District Court in another state undertook to construe and apply the Florida law on this subject and reached a de......
  • Robinson v. Trousdale County
    • United States
    • Supreme Court of Tennessee
    • November 18, 1974
    ...to the same protection of the laws as other individuals regardless of ancient provisions of the common law. Alexander v. Alexander, 140 F.Supp. 925 My research indicates that the first decision of the Supreme Court of the United States to invalidate a sex discriminatory law was Reed v. Reed......
  • Request a trial to view additional results
11 cases
  • United States v. City of Jackson, Mississippi, No. 3247.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • April 26, 1962
    ...v. Kansas City, D. C., 43 F.Supp. 739; Wong Wing v. U. S., 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140; Alexander v. Alexander, D.C., 140 F. Supp. 925; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; McGhee v. Sipes, 334 U.S. 1, 68 S.Ct. 836, 92 L. Ed. 1161; and United States v. C......
  • Karczewski v. Baltimore and Ohio Railroad Company, No. 66 C 2074.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 27, 1967
    ...to the same protection of the law as other individuals regardless of ancient provisions of the common law." Alexander v. Alexander, 140 F.Supp. 925, 928 (W.D.S.C.1956). That women cannot sue for loss of consortium is not excusable because based upon an historical legal doctrine which viewed......
  • Bencomo v. Bencomo, No. 35678
    • United States
    • United States State Supreme Court of Florida
    • May 31, 1967
    ...121 So.2d 805; and see 43 A.L.R.2d 632. In reaching this decision we have not overlooked the case of Alexander v. Alexander, D.C., 140 F.Supp. 925. In that case the United States District Court in another state undertook to construe and apply the Florida law on this subject and reached a de......
  • Robinson v. Trousdale County
    • United States
    • Supreme Court of Tennessee
    • November 18, 1974
    ...to the same protection of the laws as other individuals regardless of ancient provisions of the common law. Alexander v. Alexander, 140 F.Supp. 925 My research indicates that the first decision of the Supreme Court of the United States to invalidate a sex discriminatory law was Reed v. Reed......
  • Request a trial to view additional results

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