Ballenger v. Mark
| Decision Date | 26 May 1934 |
| Parties | BALLENGER et al. v. MARK et ux. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Duval County; De Witt T. Gray, Judge.
Action by Lillie Ballenger and husband against David L. Mark and wife. To review a judgment in favor of the defendant Clara Mark, on her demurrer to the amended declaration, the plaintiffs bring error.
Judgment reversed, and case remanded in
COUNSEL Marks, Marks, Holt, Gray & Yates, of Jacksonville, for plaintiffs in error.
John E Matthews, of Jacksonville, for defendant in error.
In this case a majority of the court have reached the conclusion that in consonance with the salutary principles of common right and justice stated by the Supreme Court of the United States in Funk v. United States, 290 U.S. 371, 54 S.Ct 212, 78 L.Ed. 369 (opinion filed December 11, 1933), changed conditions of a modern era brought about by the voluntary activities of married women in assuming the status of recognizable factors in the business and industrial world require the courts of this state to take judicial notice of the fact that the ancient legal fiction of identity of husband and wife, heretofore supporting the doctrine of married women's liability first announced by this court in Graham v. Tucker, 56 Fla. 307, 47 So 563, 19 L. R. A. (N. S.) 531, 131 Am. St. Rep. 124, to the effect that a married woman is not to be held liable for her torts, no longer exists in a practical sense, and therefore consistent with our system of American constitutional law which recognizes and enforces the doctrine of equal protection of the laws for all with special privileges to none, the case of Graham v. Tucker, supra, should no longer be held to control the decision of an action on the case wherein plaintiff seeks recovery of damages for a tort alleged to have been committed by a married woman in connection with the use or employment of her separate property in a business, trade, or occupation under circumstances wherein she would be held liable for her said tort but for her coverture.
The rule stated in the case of Graham v. Tucker, supra, is accordingly modified and restricted for future application to those only wherein married women are sued for torts not arising out of the use of their separate property for business, commercial, industrial, profit, or income producing purposes.
It follows that the judgment rendered for defendant married woman on her demurrer to the plaintiff's amended declaration below should be reversed, and the case remanded for further proceedings not inconsistent with this opinion and it is so ordered.
Reversed and remanded.
BROWN, J., not participating.
In this case the husband is made a party defendant with his wife, but the action is predicated upon a charge of negligence of the wife resulting in an injury to the plaintiff. It is in substance alleged that the defendant wife owned and operated an apartment or rooming house, and in connection therewith, and as a part thereof, maintained under her exclusive control a stairway for the use of those using the apartment or rooming house; and that she negligently permitted the stairway to become defective with a resulting injury to the plaintiff.
No ground of the demurrer to the declaration asserts an entire absence of liability of the defendant married woman as matter of law because of her coverture.
Assuming that, under the ancient common law of England, the married woman, because of her common-law disabilities, is not liable in damages to the plaintiff for the negligence alleged, the question argued is whether that common-law rule of nonliability of the married woman is now applicable in this state, in view of existing organic and statutory provisions enacted since the adoption in 1829, as a part of the law of this jurisdiction, of the common law of England, which is 'not inconsistent with' constitutional and statutory law. Act of Nov. 6, 1829, § 87(71), C. G. L.
During the ancient period when the common law of England was being developed, the husband and not the wife had control over her property and its uses; and injuries caused by the negligent use of her property were redressed in actions against him for damages, she being not liable because she had no part in the management, control, or operation of her property; the rule of law being that those who operate property are liable for injuries caused by negligent operation.
The rules and principles of the common law are not in force in this state, except in so far as they are not inconsistent with organic or statutory provisions.
Since the adoption of the common law in this jurisdiction, fundamental changes in living and business conditions have prompted the enactment of numerous organic and statutory provisions that are inconsistent with the rules and principles of the common law regulating the rights, duties, and liabilities of married women with reference to the ownership, management, and control of their separate property and to their earnings from employments by them separate from their husbands; and where such enactments are inconsistent with rules or principles of the common law, which prior thereto governed the same subjects, the enactments control and the common law is thereby abrogated or modified to the extent of the inconsistency. See S., F. & W. R. v. Geiger, 21 Fla. 669, 58 Am. Rep. 697; Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 10 L. R. A. (N. S.) 1051, 10 Ann. Cas. 1148; Broward v. Broward, 96 Fla. 131, 117 So. 691, headnote 9; Banfield et ux. v. Addington et ux., 104 Fla. 661, 140 So. 893; Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793; Flesh v. Lindsay, 115 Mo. 1, 21 S.W. 907, 37 Am. St. Rep. 374; Hanriot v. Sherwood, 82 Va. 1.
In Quilty v. Battie, 135 N.Y. 201, 32 N.E. 47, 17 L. R. A. 521, and other similar cases, the statutes may be more comprehensive in changing the common law, but the effect upon the common law of inconsistent statutes is elucidated. Merrill v. City of St. Louis, 83 Mo. 244, 53 Am. Rep. 576.
It is not necessary for a statute to repeal a rule or principle of the common law. If a statute is inconsistent with the common law, the statute controls, and the common law is abrogated or modified to the extent of the inconsistency.
Without becoming a free dealer in this state, a married woman may engage in an employment separate from her husband, and the earnings therefrom are her separate property. The law may justly entail a duty and liability commensurate with rights conferred, in order that there be no discrimination in rights and liabilities between married women and other persons enjoying similar rights.
In this case the coverture does not affect the right of the wife under the statute to engage in the employment of operating an apartment or rooming house and of maintaining a stairway therein under her exclusive control; and her liability results from injuries proximately caused by her negligent maintenance and control of such stairway, which maintenance and control she has by virtue of statutes and not of the common law. Therefore a rule of law imposing liability upon her accords with the effect of the written laws of the state upon the common-law rule of nonliability of a married woman for negligence of her husband or his agents in managing and controlling her property.
I adhere to my concurrence in the opinion written by Mr. Justice BUFORD in this case in which he concluded that the judgment should be affirmed.
The case is before this court on a writ of error taken to a judgment for the defendants David L. Mark and his wife, Clara Mark, on a demurrer to a declaration in which the plaintiff Lillie Ballenger and her husband sought damages for personal injuries sustained by Lillie Ballenger in walking down a stairway leading from an apartment which she occupied in a dwelling house owned by Clara Mark, who placed Mrs. Ballenger in possession of the apartment. The declaration alleges that 'a step' of the stairway tilted which caused Mrs. Ballenger to fall and injure herself. It is alleged that Mrs. Mark negligently allowed the 'stairway and said step to be weak, loose, defective and insecure and that she knew, or by the exercise of ordinary and reasonable care, could have known of the condition of said steps.'
The alleged cause of action thus appears to rest, not upon an affirmative tortious act of Mrs. Mark, not in any sense a pure tort, but upon the failure of a duty which by reason of her contract with Mrs. Ballenger she owed to her to keep the staircase free of the defect which it is alleged caused the accident.
The case of Banfield v. Addington, 104 Fla. 661, 140 So 893, 899, is not authority for the position assumed by the plaintiff in error in this case, because in that case the court held that the act of Mrs. Addington in administering the treatment for a 'permanent wave' to Mrs. Banfield was a 'positive act of negligence.' The opinion stated that the 'effect of our statute authorizing married women to engage in employments separate from their husbands is to confer upon them the right to assume the position of master and servant, with all the rights and liabilities which necessarily go with that relation; that it thereby makes a married woman liable for any act of a servant, employed by her, for which act she would be liable if she had committed the act personally, and not through her servant.' On that principle the decision held Mrs. Addington to be liable in damages for the...
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Stanley v. Powers
...85 Fla. 248, 95 So. 670; Greene v. Miller, 102 Fla. 767, 136 So. 532; Banfield v. Addington, 104 Fla. 661, 140 So. 893; Ballenger v. Mark, 115 Fla. 95, 155 So. 106. So, must hold that the power existed in the court on proper pleadings and under proper proof to enter judgment against a marri......
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Stanley v. Powers
... ... in competition with others and for profit. To that extent the ... common-law rule has been modified. Ballenger v ... Mark, 115 Fla. 95, 155 So. 106; Banfield v ... Addington, 104 Fla. 661, 140 So. 893; Green v ... Miller, 102 Fla. 767, 136 So. 532. In a ... ...