May v. Palm Beach Chemical Co.

• Decision Date: 21 January 1955
• Citation: 77 So.2d 468
• Parties: Katherine MAY, Appellant, v. PALM BEACH CHEMICAL COMPANY, Inc., a Florida corporation, Appellee.
• Court: Florida Supreme Court

Page 468

77 So.2d 468

Katherine MAY, Appellant, v. PALM BEACH CHEMICAL COMPANY, Inc., a Florida corporation, Appellee.

Supreme Court of Florida, Special Division A.

Jan. 21, 1955.

H. Irwin Levy, West Palm Beach, for appellant.

Earnest, Lewis, Smith & Jones, West Palm Beach, for appellee.

SEBRING, Justice.

Palm Beach Chemical Company, Inc., lent its automobile to William Charles May, an employee, to be used by him on a purely personal mission. While driving the car on the highway, with the knowledge and consent of the owner, May wrecked the vehicle, and his wife, a passenger, was injured. Mrs. May instituted suit against the owner of the car to recover damages for injuries resulting from the accident. The trial court dismissed the cause, on motion of the defendant, on the ground that to allow the wife to sue the owner for the negligence of her husband would be contrary to public policy. The plaintiff has appealed from this ruling.

Assuming that the allegations of the complaint in the case are sufficient to show gross negligence-a point we do not decide because it was not ruled on in the court below-the question on the appeal is whether or not the plaintiff, who otherwise would have had a claim against the defendant, as the owner of the automobile, is precluded from maintaining the suit by reason of the fact that at the time of the accident the car was being operated by her husband.

We have no decisions in this state that are directly controlling on the issue, and in other jurisdictions the holdings are in conflict.

Maine v. James Maine & Sons Co., 198 Iowa 1278, 201 N.W. 20, 22, 37 A.L.R. 161, decided in 1924, is a case wherein an employee of the defendant negligently operated the defendant's automobile and injured a passenger therein, his wife. It is shown by the opinion that at the time of the accident the driver was engaged in the business of the defendant and was acting within the scope of his employment. It is also shown that the passenger was riding in the car with the knowledge and consent of the defendant company. On these facts it was held, in a suit by the injured wife to obtain damages from the defendant, that the employer was not liable for personal injuries negligently inflicted by an employee upon the employee's wife, because under the law of Iowa the wife had no righ to action against her husband for such injuries. In reaching its conclusion the court stated: 'Where the driver is not liable, whether his freedom from liability arises from a want of negligence on his part, or from the existence of such a relation between himself and the person injured as to preclude any liability on his part for the injury, the statute does not, we think, create an independent liability on the part of the owner. * * * the statute * * * does not more than to impose upon the owner who consents to the use of his car a liability measured by the liability of the user himself; and that, where, for whatever reason, no liability exists on the part of the driver, none is imposed on the owner.'

Under a similar set of facts, but for a different reason, it was held, in Emerson v. Western Seed & Irrigation Co., 116 Neb. 180, 216 N.W. 297, 299, 56 A.L.R. 327, decided in 1927, that a wife who was injured by the negligent operation of an automobile being driven by her husband upon his employer's business could not maintain a suit against the employer. As reasons for the conclusion reached the court assigned the following: "The act of an employee, even in legal intendment, is not the act of his employer, unless the employer either previously directs the act to be done or subsequently ratifies it. For injuries caused by the negligent act of an employee not directed or ratified by the employer, the employee is liable because he committed the act which caused the injury, while the employer is liable not as if the act was done by himself, but because of the doctrine of respondeat superior, the rule of law which holds the master responsible for the negligent act of his servant, committed while the servant is acting within the general scope of his employment and engaged in his master's business. The primary liability to answer for such an act, therefore, rests upon the employee, and when the employer is compelled to answer in damages therefor he can recover over against the employee.' * * * If recovery may be had by the wife against the employer, and he in turn may recover from the husband-employee, then the family wealth remains the same save as diminished by the expenses of the litigation. It would seem that to permit a recovery against the employer results simply in countenancing an encircling movement where a frontal attack upon the husband is inhibited.'

In Schubert v. August Schubert Wagon Company, 249 N.Y. 253, 164 N.E. 42, 64 A.L.R. 293, a contrary conclusion was reached upon an essentially similar set of facts, the court saying: 'An employer commits a trespass by the hand of his servant upon the person of another. The act, let it be assumed, is within the scope either of an express mandate or of an implied one. In either event, if the trespass is not justified, he is brought under a distinct and independent liability, a liability all his own. The statement sometimes made that it is derivative and secondary * * * means this, and nothing more: That at times the fault of the actor will fix the quality of the act. Illegality established, liability ensues. The defendant, to make out a defense, is thus driven to maintain that the act, however negligent, was none the less lawful because committed by a husband upon the person of his wife. This is to pervert the meaning and effect of the disability that has its origin in marital identity.

'A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of this immunity. The trespass may be a crime for which even a husband may be punished, but, whether criminal or not, unlawful it remains. * * *

'We are told that in the long run the consequences of upholding an action against the master may be to cast the burden on the husband, since the master, if not personally at fault, has a remedy over. * * *

'We find no collision between the principle of liability established in this case and the principle of exemption established in action against a husband. If such collision, however, could be found, with the result that one or other principle must yield, we agree with Hubbs, P. J., writing in the court below, that the exemption would have to give way as an exception, more or less anomalous, to a responsibility which to-day must be accepted as the general rule.'

Chase v. New Haven Waste Material Corporation, 1930, 111 Conn. 377, 150 A. 107, 68 A.L.R. 1497, involved a situation wherein the driver of a car negligently struck and injured his minor child while acting in the service of his employer. The right of the infant to recover from the employer for the negligent act of the servant was placed upon the following ground: 'The rule of respondeat superior makes not responsible for the act...