Graham v. Tucker

Citation47 So. 563,56 Fla. 307
PartiesGRAHAM v. TUCKER et al.
Decision Date31 October 1908
CourtUnited States State Supreme Court of Florida

Headnotes Filed December 8, 1908.

In Banc. Error to Circuit Court, Hillsborough County; Joseph B Wall, Judge.

Action for personal injuries by Frank T. Graham against Virginia Tucker and James F. Tucker, her husband. Judgment for defendants, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

A married woman, the owner of statutory separate real estate upon which is located a swimming pool and bathhouses conducted by the husband and wife as a public resort, is sued jointly with her husband for damages in tort by a party who was injured while lawfully using said premises, by his feet slipping and falling on his left leg upon the projecting points of planks alleged to have been negligently left uneven. Held, that under the Constitution and laws of Florida, under the circumstances stated, the married woman is not liable in an action of tort.

COUNSEL H. S. Hampton and W. T. Martin, for plaintiff in error.

Thomas Palmer, for defendants in error.

OPINION

HOCKER J.

In July, 1907, the plaintiff in error, hereinafter called the plaintiff, filed an amended declaration against the defendants in error in the circuit court of Hillsborough county in the following language:

'Frank T. Graham, by his attorneys, W. T. Martin and Davis & Hampton, files this his amended declaration, by leave of the court first had and obtained, and sues Virginia Tucker and James F. Tucker, her husband, in an action of case, damages $3,000, for that whereas, heretofore, to wit, on or about the 14th day of July, A. D. 1906, the said Virginia Tucker was the owner of certain premises, situated in the county of Hillsborough and state of Florida, on which were located a certain swimming pool and bathhouses, the said property being the separate statutory property of the defendant Virginia Tucker, a married woman, whose husband is James F. Tucker, the defendant herein; that on said premises on said date the said defendants were conducting a certain swimming pool, or public bathing place, where the public were invited to enter and for certain hire and reward were allowed to bathe in said pool, the same being a public resort. And plaintiff avers that while conducting the said public bathing resort the said defendants, in fitting up the said premises for the use of the public, disregarding their duty to provide safe premises by law, so negligently and carelessly constructed and equipped said premises that divers planks, the flooring of the walkway surrounding said pool, were uneven, and the ends of the same were allowed to project over the side of said pool, the same constituting a dangerous projection to persons using said pool in the ordinary way or walking along said walkway, and the condition of said premises was known to the said defendants, or could have been known by the exercise of ordinary care, but was unknown to the plaintiff.
'Plaintiff avers that on said date, while he was lawfully using the said premises and walking along said walk around said pool provided for the public, and without negligence on his part, his feet slipped on the wet flooring of said walkway and he was precipitated in said pool; that in falling his left leg came in contact with one of the projecting points of said planks, which were uneven and had been allowed to project over said bath pool, and from the effect of which his left leg was then and there bruised, cut, and wounded, by means of which he became sick and sore, and from thence for a period of several months was confined to his bed from said injuries. The plaintiff avers that he has been compelled to pay out a large sum of money for physicians' services and for medicine in an effort to rid himself of the injury caused by the negligence of the defendant, and in addition thereto was compelled to submit to two surgical operations in order to effect a cure of the injury above set forth. Wherefore plaintiff says he has been injured and sustained damages to the sum of $3,000, and therefore brings his suit.'

This amended declaration was demurred to, and the substantial matters to be argued were, among others, that, first, the declaration does not state a cause of action; second, that a married woman cannot be sued at common law for a tort such as that complained of; third, that under the Constitution and laws of Florida a married woman's property cannot be subjected to a judgment such as that sought for; fourth, that under the laws of Florida the husband has the sole control of her real property, and is alone responsible for torts committed thereby.

The demurrer was sustained, and a judgment entered for the defendants. To review this judgment a writ of error was sued out. The assignments of error here are, first, that the court erred in sustaining the demurrer; and, second, that it erred in entering judgment for the defendants.

The sole question presented and urged here by the plaintiff is whether a married woman is liable under the Constitution and laws of Florida in an action for a tort such as is described in the declaration. The only decision of this court cited to sustain the contention that she is so liable is the case of Prentiss v. Paisley, 25 Fla. 927, 7 So. 56, 7 L. R. A. 640. In this case this court held that 'a married woman is personally liable for her wrongful civil acts or actual torts (italics ours), including frauds, not growing out of or founded upon, or directly connected with, or a part of, or the means of effecting, a contract which she has undertaken to make; and she may be sued jointly with the husband in respect to such acts, or separately if she survives him. His liability for her torts is a result of the mere fact that by the common-law rules a suit cannot be maintained against the wife alone during her coverture. If before or pending the action she dies, the right of action against him fails. Whenever her coverture avoids the contract, it is likewise a bar to a personal recovery for the fraud and this cannot be overcome by suing ex delicto.' One of the cases cited in support of this view is the case of Liverpool A. L. Association v. Fhirhirst, 9 Excheq. 422, which seems to be generally treated as a leading case. In Prentiss v. Paisley there is not the slightest intimation that the liability of a married woman for her torts is in any way enlarged or affected by the Constitution or laws of Florida, changing the common law as to her ownership of a separate legal estate and giving her power to make certain specified contracts with reference thereto, and making the same liable in invitum in equity to certain specified debts. It is uniformly held by this court that these constitutional and statutory changes do not make her liable to a personal judgment or decree, unless it may be that the statute allowing her to be made a free dealer would have that effect. Prentiss v. Paisley, supra; First Nat. Bank of Pensacola v. Hirschkowitz, 46 Fla. 588, 35 So. 22; 2 Bishop on Law of Married Women, § 265. This court, in the case of Mercantile Exchange Bank v. Taylor, 51 Fla. 473, 41 So. 22, undertook to distinguish between those contracts of sale, transfer, and conveyance which a married woman may make under our statutes, and which may be enforced against her, and those obligations which a court of equity is authorized by the Constitution to enforce in invitum against her separate legal estate. It has never been held by this court that the effect of our constitutional provisions and statutes is to place a married woman in the position of a feme sole, but, on the contrary, that her commonlaw status remains, except to the extent it has been modified by those provisions and statutes. Micou v. MCdonald (Fla.) 46 So. 291.

In the case of Liverpool A. L. Association v. Fhirhirst, supra, it was held that 'a feme covert is responsible for all torts committed by her during coverture, and the husband must be joined as a defendant, and consequently they are liable for frauds committed by her as for other personal wrongs; but when the fraud is directly connected with the contract with the wife, or is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it together with the wife.'

In Head v. Briscoe, 5 Car. & P. 484,...

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