Graham v. Tucker
Citation | 47 So. 563,56 Fla. 307 |
Parties | GRAHAM v. TUCKER et al. |
Decision Date | 31 October 1908 |
Court | United 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
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.
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:
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 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.'
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