Amendola v. Amendola
| Decision Date | 17 February 1960 |
| Parties | Jeanne Burkette AMENDOLA, Appellant, v. Thomas M. AMENDOLA, Appellee. |
| Court | Florida Supreme Court |
J. B. Patterson, Ronald B. Sladon, R. T. Shankweiler and John Huskins, Fort Lauderdale, for appellant.
Reece & Murray, Miami, for appellee.
By stipulation pending appeal here, the parties agreed that the cause be remanded to the Circuit Court 'for hearing and specific rulings as to the Constitutional issues raised in the cause.'
We thereupon remanded the cause to the Circuit Court 'for a hearing and specific rulings as to the constitutional issues raised in the cause * * *'
The trial judge thereupon held a hearing pursuant to the mandate. He construed our order 'to mean constitutional issues to be raised by counsel at the instant hearing, inasmuch as the matter of constitutional issues was never before presented in this court and the first mention of same apparently occurred in the assignment of errors filed by appellant after final judgment had been entered below.'
Pursuant to this construction of our mandate the trial judge then proceeded to consider and pass upon various constitutional questions which the parties now return to us for consideration on direct appeal.
The language of the stipulation and the language of our order following it was unfortunately selected. By the use of the words 'issues raised' it was our understanding that they were to comprehend issues previously presented and considered by the trial judge but not specifically passed upon in his final decree. State v. Bruno, Fla., 104 So.2d 588; 107 So.2d 9. It was certainly never intended to restore the cause to the docket of the trial court in order to enable the parties to generate new issues and thereby belatedly establish a jurisdictional foundation for direct appeal here. While perhaps the language of our order justified the construction given it by the trial judge, we must hold that he fully complied with our mandate when he announced that 'the matter of constitutional issues was never before presented in this court * * *' This finding in effect eliminated any jurisdictional basis for our consideration of the matter on direct appeal.
The appeal having been improvidently taken to this court, all papers including the notice of appeal shall be transferred to the District Court of Appeal, Second District, within five days from the date of entry of this order. Rule 2.1, subd. a(5)(d), Florida Appellate Rules, 31 F.S.A.
It is so ordered.
I concur in the majority opinion because it is clear that this Court has never had jurisdiction in this case. However, I wish to state that if the question attempted to be presented were properly before us I would agree with the able opinion prepared by Mr. Justice ROBERTS.
The sole issue on this appeal is whether the common-law rule that a cause of action for tort abates upon the marriage of the female who was injured to the person alleged to have caused the injury, should be judicially declared to be of no force and effect in this state. The trial judge declined to so construe the provisions of the state and federal constitutions and statutory law of this state relied upon by plaintiff in support of this contention and dismissed her complaint for damages for injuries allegedly sustained by reason of the negligent act of defendant committed some two and one-half months prior to their marriage, the suit being filed after the marriage.
This court has not heretofore been called upon to decide the exact question presented here. In Webster v. Snyder, 1932, 103 Fla. 1131, 138 So. 755, it was held that the common-law rule referred to above did not operate to abate a suit against the employer of the tortfeasor for injuries sustained by the plaintiff prior to her marriage to the tortfeasor allegedly due to a negligent act committed by him in the course of his employment. This court said:
(Emphasis added.) $It will have been noted that the husband-tortfeasor was not named as a party defendant in the Webster cae, since at the time that suit was filed the common-law fiction of the unity or identity of the husband and wife still obtained in this state. This fiction, plus the inability of a person to sue himself, precluded suits at common in the Webster case, since at the cause of action arising out of a tort committed against her prior to the marriage. See Brown v. Gosser, Ky.1953, 262 S.W.2d 480, 43 A.L.R.2d 626. It should also be noted that the decision in the Webster case permitted the wife to do indirectly that which she could not do directly--that is, hold the husband accountable for his tort committed against her prior to the marriage--since the court expressly pointed out that the marriage did not affect the husband's liability over to the defendant, his employer.
The Florida Married Women's Emancipation Act of 1943, §§ 708.08 and 708.09, Fla.Stat., F.S.A., enacted subsequent to the decision of this court in the Webster case, supra, has State v. Herndon, 1946, 158 Fla. 115, 27 So.2d 833, 834. A married woman is now empowered 'to take charge of, and manage and control her separate property * * * to sue and be sued * * * without restraint * * * in all respects as fully as if she were unmarried.' She has and may exercise 'all rights and powers with respect to her separate property * * * to the same extent and in like manner as if she were unmarried.'
Despite the mandate of § 2.01, Fla.Stat., F.S.A., adopting the English common law as the law of this state except where 'inconsistent' with the constitution and laws of this state, this court has not hesitated to apply the 'rule of reason' expressed by the maxim cessante ratione cessat et ipsa lex in over-ruling a common-law rule previously followed by this court, see Abraham v. Baldwin, 1906, 52 Fla. 151, 42 So. 591, 10 L.R.A.,N.S., 1051, or in holding originally that a common-law rule was not applicable in this state 'because contrary to our customs, institutions, or intendments of our statutes on other subjects.' Waller v. First Savings & Trust Co., 1931, 103 Fla. 1025, 138 So. 780, 784. See also State v. Herndon, supra, 27 So.2d 833. The maxim that 'When the reason for any rule of law ceases, the rule should be discarded' is also a part of the common law of this state. Ripley v. Ewell, Fla.1952, 61 So.2d 420, 421, involving the right of a wife to sue a third party tortfeasor for the loss of consortium of her husband--a right denied at common law. And, as there stated,
'If, therefore, the inability of the wife to recover in a case of this kind is due to some reason of the common law which has disappeared, the rule denying her the right to maintain the action may have disappeared with it.'
There can be no doubt that the principal reason for the inability of the wife to sue her husband after marriage, or to prosecute to completion a suit begun before marriage, on a cause of action accruing prior thereto--the common-law fiction of the...
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Smith v. State
...by the maxim cessante ratione cessat et ipsa lex in over-ruling a common-law rule previously followed by this court." Amendola v. Amendola , 118 So.2d 13, 16 (Fla. 1960) (J. Roberts dissenting) (citing Abraham v. Baldwin , 52 Fla. 151, 42 So. 591 (1906) ).For example, in Zellers v. State , ......
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Gaston v. Pittman, 38217
...maintain an action against her former husband for a tort committed by him prior to their marriage.' This Court considered Amendola v. Amendola (Fla.1960), 118 So.2d 13, on appeal from the Circuit Court. The Court determined that the appeal was improvidently taken and transferred the cause t......