Corren v. Corren

• Citation: 43 A.L.R.2d 632,47 So.2d 774
• Parties: CORREN v. CORREN.
• Decision Date: 01 August 1950
• Court: United States State Supreme Court of Florida

Page 774

47 So.2d 774

CORREN v. CORREN.

Supreme Court of Florida, en Banc.

Aug. 1, 1950.

Rehearing Denied Sept. 12, 1950.

Rush & Pierce and George A. Pierce, Jacksonville, for appellant.

Marks, Gray, Yates & Conroy, Jacksonville, for appellee.

THOMAS, Justice.

In this case the appellant sued her husband for damages alleged to have resulted from the negligent operation of an automobile by the daughter of both parties to whom the husband had entrusted the car.

The circuit judge held the view that one spouse could not sue the other because, under the common law, they were one person and this fiction had not been changed either by Section 708.08 or 708.09, Florida Statutes, 1941, and F.S.A. So he sustained the demurrer to the declaration and entered a judgment for the defendant.

This situation is the foundation for the sole question here, whether the wife may recover from her husband for negligent injury to her person.

Counsel for appellant has faithfully traced the history of the development of married women's rights since the enactment in 1829 of what now appears as Section 2.01, Florida Statutes, 1941, and F.S.A., declaring the common and statute laws of England, in effect July 4, 1776, to be in force in this state where consistent with the Constitution and laws of the United States and the acts of the legislature of this state, through the laws, constitutional provisions, and judicial decisions of this state until the passage of the laws of 1943, to which we shall eventually refer, in his effort to convince us that there has been a definite trend in the emancipation of the wife to the point where now she may sue her husband for injuries inflicted upon her by the driver of his car.

We see no occasion to digest the provisions of Section 1 of Article XI of the Constitution, F.S.A., or any of the statutes on the subject now collected in Chapter 708, Florida Statutes, 1941, and F.S.A., except two of these, 708.08 and 708.09, the sections which the circuit judge thought had not changed the common law status of the man and the wife, for in 1932 when the court decided the case of Webster v. Snyder, 103 Fla. 1131, 138 So. 755, these statutes, and of course the constitutional provisions, were in effect, and it was held that the action of a young woman against a person who was alleged to have injured her while serving as the agent of another should be abated upon her marriage to the one causing the injury. We interpret this decision as holding in effect that at that time the common law adopted by Section 2.01, supra, had not been so altered that a woman could sue her husband, or rather, continue a suit against a person who, subsequent to the alleged injury and the institution of the suit, had become her husband.

The appellant regards Chapter 21932, supra, as having destroyed the 'unity of the marriage association' as it theretofore existed and reasons that if the wife may enter into agreements, as is provided in Section 2 of the act, and may 'sue and be sued,' as is provided in Section 1, it follows that she, being empowered to sue her husband in case of a breach of their agreement may also sue him for a tort committed upon her. But we cannot follow the appellant to this conclusion. 'Under the common law', we said in Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 880, 'the woman and the man became one person upon marriage, and that person was the husband. * * * This unity, or more accurately, merger, has been called the foundation for the rights, duties, and disabilities of marriage.'

We have not found in our examination of the legislative enactment any plain provision extending a married woman's rights to include a suit against her husband for tort. It seems to us that the trend toward giving a married woman more freedom has largely been with regard to her separate property and her dealings with persons other than her husband.

Counsel has leaned rather heavily on the decision in State v. Herndon, 158 Fla. 115, 27 So.2d 833, where this court held that a husband could be charged with larceny of the separate property of his wife, but we think that opinion cannot be said to have declared unequivocally that for all purposes the common law fiction had been abrogated in this state by the passage of the above act or that there was any necessity so to hold, for, after all, that was a controversy between the state and the husband to punish him for the theft of property belonging to her, and all seem agreed that the identity of her individual holdings has long been established. Even so, as we said in Rogers v. Newby, Fla., 41 So.2d 451, 452, 'Mr. Justice Terrell, writing for the court, * * * was at pains to add' that this was true "insofar as it...