Banfield v. Addington

Decision Date05 April 1932
Citation140 So. 893,104 Fla. 661
PartiesBANFIELD et ux. v. ADDINGTON et ux.
CourtFlorida Supreme Court

En Banc.

Error to Circuit Court, Pinellas County; John U. Bird, Judge.

Suit by J. W. Banfield and wife against Addison S. Addington and wife. Judgment for defendants, and plaintiffs bring error.

Reversed and remanded.

ELLIS and BROWN, JJ., dissenting.


J. Carl Lambdin, of St. Petersburg, for plaintiffs in error.

Bivens & Huggins, of Tampa, for defendants in error.



Norma E. Banfield, joined by her husband, J. W. Banfield, sued Addison S. Addington and Daisy T. Addington, his wife, for a tort alleged to have been committed by Mrs. Addington in the conduct and operation of a permanent wave apparatus in her beauty shop. The court sustained a demurrer to the declaration on the ground that a married woman owning and operating a beauty shop could not become liable for a tort committed by a servant in that shop, and entered final judgment for the defendant married woman. Writ of error was taken to this judgment.

It seems to me that the declaration states a good cause of action. It alleges that Daisy T. Addington, a married woman owned and operated an establishment known as a permanent wave and beauty shop at No. 218-220 Fourth Street North, in the city of St. Petersburg, where the public was invited to enter; that at said time said defendant Daisy T. Addington employed certain employees and servants to assist her in the conduct and operation of said beauty shop; that on or about June 7, 1928, the plaintiff Norma E. Banfield lawfully entered the establishment of the defendant Daisy T Addington, for the purpose of securing a permanent wave for her hair; that one of the aforesaid employees of the defendant Daisy T. Addington undertook to give to said plaintiff's hair the permanent wave that she desired, and for that purpose attached to plaintiff's head and hair a machine or apparatus designed to give the hair a permanent wave; that said machine or apparatus contained live steam or other similar heating element which came into close proximity to plaintiff's scalp and head, thereby making said machine or apparatus dangerous to operate; that although plaintiff was at all times in the exercise of due care, the defendant Daisy T. Addington, by her said employee, operated her machine or apparatus so carelessly and negligently and with such disregard of the due care owed to plaintiff, that live steam was allowed to escape from the apparatus and to come into direct contact with plaintiff's scalp and head, whereby plaintiff's scalp and head were painfully burned and blistered and caused to be badly torn and lacerated in several places and the hair on plaintiff's scalp was totally destroyed, thus permanently scarring and disfiguring plaintiff, by reason of which she sustained damages in the sum of $4,000.

At common law a married woman was, as a general rule, liable civilly for her pure torts, not committed under the coercion of her husband, and not growing out of or founded on, or directly connected with or a part of, or the means of effecting, a contract which she had undertaken to make. Meeks v. Johnston, 85 Fla. 248, 95 So. 670; Graham v. Tucker, 56 Fla. 307, 47 So. 563, 19 L. R. A. (N. S.) 531, 131 Am. St. Rep. 124; Prentiss v. Paisley, 25 Fla. 927, 7 So. 56, 7 L. R. A. 640.

It is argued that Daisy T. Addington, being a married woman, was incapable in law of entering into a contract to give the plaintiff, another married woman, a permanent wave of her hair, and that therefore no legal liability could have accrued against her, because the acts complained of amounted to a mere breach of her contract for giving a permanent wave, or, if tortious, are for a tort growing out of, or founded on, her contract, for which she would not be liable. It is also argued that, since Daisy T. Addington was a married woman, she was incapable of making a contract for the employment of servants in the conduct of her permanent wave and beauty shop which she undertook to operate, and that therefore no liability against her in an action of tort could have accrued against her under the doctrine of respondeat superior. Graham v. Tucker, supra, is relied on to support both these propositions.

I am unable to see that the case of Graham v. Tucker is in point or controlling with regard to the situation here presented. All that was held in Graham v. Tucker, supra, is that a married woman is not liable in an action on the case for negligence arising out of her acts of nonfeasance merely.[1]

Assuming therefore that the transaction complained of in the declaration had its origin in an agreement between the plaintiff and the married woman operator of the beauty parlor to give plaintiff a permanent wave for a certain consideration to be paid by her therefor, it by no means follows that the resultant damages, by way of negligence, to the plaintiff's head, through defendant's failure to operate the hair waving machine in a proper manner, constitutes solely a right of action for breach of the alleged contract. The law is well settled to the contrary, and many illustrations of its application to that effect may be made.

Thus in Gill and wife v. Middleton, 105 Mass. 477, 7 Am. Rep. 548, the court says:

'It is well settled, that, for an injury occasioned by want of due care and skill, in doing what one has promised to do, an action may be maintained against him in favor of the party relying on such promise and injured by the breach of it, although there was no consideration for the promise. Benden v. Manning, 2 N. H. 289; Thorne v. Deas, 4 Johns. [N. Y.] 84; Elsee v. Gatward, 5 T. R. 143; Shiells v. Blackburne, 1 H. Bl. 158; Balfe v. West, 22 Eng. Law & Eq. 506.'

And in Mobile Life Ins. Co. v. Randall, 74 Ala. 170, it was held by the Supreme Court of Alabama that for the breach of an ordinary contract which involves no element of tort, an action of assumpsit is the proper remedy and an action on the case will not lie; but when a duty is imposed by the contract, or grows out of it by legal implication, and injury results from the violation or disregard of that duty, an action on the case will lie to recover damages, although an action of assumpsit might also be maintained for the breach of duty. In discussing this proposition, the Supreme Court of Alabama, in the case just cited, said:

'Wherever there is carelessness, recklessness, want of reasonable skill, or the violation or disregard of a duty which the law implies from the conditions or attendant circumstances, and individual injury results therefrom, an action on the case lies in favor of the party injured; and if the transaction had its origin in a contract, which places the parties in such relation as that, in performing or attempting to perform the service promised, the tort or wrong is committed, then the breach of the contract is not the gravamen of the suit. There may be no technical breach of the letter of the contract. The contract, in such case, is mere inducement, and should be so stated in pleading. It induces, causes, creates the conditions or state of things, which furnishes the occasion of the tort. The wrongful act, outside of the letter of the contract, is the gravamen of the complaint; and in all such cases, the remedy is an action on the case.'

'The difference between assumpsit which is an action directly on the contract, and case which is collateral to it,' says the Supreme Court of Pennsylvania in Zell v. Arnold, 2 Pen. & W., text 294, 'is shown by the pleadings, the general issue in the first being non assumpsit, and in the second, not guilty. These are sometimes concurrent remedies; as in an action against a carrier who may be made to respond either immediately on the contract which affords a specific right of action, or on the custom which raises a duty to carry the goods safely; and as the one or the other form is adopted, so may the count be joined with other counts sounding in contract or tort: Law of Carriers 117. In all cases where the action is not on the contract, but for the breach of a collateral duty, the gist is a personal tort; as where a smith pricks a horse in shoeing, or a farrier kills him by bad medicines or neglect; and it is emphatically the gravamen in an action against a barber for barbering his customer negligenter et inartificialiter: 2 Bulstr. 333. That the defendant's liability arose remotely out of a contract, therefore, is by no means decisive of the question.'

In every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care. Street's Foundations of Legal Liability, vol. 1 page 92. And even 'where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is acting for reward, in other words, under a contract, and may be liable on the contract. The two duties are distinct, except so far that the same party cannot be compensated twice over for the same facts, once for the breach of contract and again for the wrong.' Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506, 12 L. R. A. (N. S.) text 933.

'One who enters on the doing of anything attended with risk to the...

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