Ripley v. Ewell

CourtUnited States State Supreme Court of Florida
Writing for the CourtTAYLOR; SEBRING; TERRELL
Citation61 So.2d 420
Decision Date14 November 1952
PartiesRIPLEY et al. v. EWELL.

Page 420

61 So.2d 420
RIPLEY et al.
v.
EWELL.
Supreme Court of Florida, en Banc.
Nov. 14, 1952.

Page 421

Ray Selden, Daytona Beach, for appellant.

Hull, Landis, Graham & French and J. Compton French, De Land, for appellee.

TAYLOR, Associate Justice.

Appellant, as plaintiff in the Circuit Court, sued appellee for loss of consortium of her husband who is alleged to have been injured as a result of appellee's negligence. Demurrer to the declaration was sustained.

A decision in this case must turn upon the answer to a single question: May the wife of a man injured, but not killed, by the negligent act of a third person maintain an action against the tort-frasor for her damages flowing from the loss of the consortium of the husband?

Apparently this question has never been presented to this Court, although we frequently have before us cases involving the clearly recognized right of a husband to recover when the situation is reversed.

Appellant frankly admits that at common law the wife could not maintain such an action and that this rule has been followed by most American Courts which have had occasion to consider the problem. A Comprehensive discussion of these decisions can be found in the annotation in 23 A.L.R.2d, beginning on page 1378.

It is the statute law of this State that:

'The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the constitution and laws of the United States and the acts of the legislature of this state.' F.S.A. § 2.01.

We are bound by this Statute. But that does not fully answer the question. We have held that 'When the reason for any rule of law ceases, the rule should be discarded.' Randolph v. Randolph, 146 Fla. 491, 1 So.2d 480, 481. This is a part of the common law which was adopted by the statute above quoted. If, therefore, the inability of the wife to recover in a case of this kind is due to some reason of the common law which has disappeared, the rule denying her the right to maintain the action may have disappeared with it.

It will also be noted that the statute preserves the common law only in those cases where it is 'not inconsistent' with the acts of the Legislature. It is not necessary that a statute be in direct conflict with the common law before the latter may be superseded, inconsistency being sufficient.

We must examine the common law and attempt to determine the reason for, the underlying philosophy supporting, the rule that allowed a recovery by the husband for loss of the wife's consortium and denied the wife a recovery for the loss of the husband's consortium. Strangely enough, the writers on this subject do not seem to be in agreement.

Some take the view that at common law the wife had the lawful right to the consortium of the husband, that an injury to the husband which impaired the capacities of the husband was a violation of the wife's rights, but that because her identity was merged into that of the husband she could not maintain any action for the recovery of the damages to which she was otherwise entitled. They conclude that the only impediment to the maintenance of the action at common law was the wife's inability to sue. We do not find adequate support for this view in the common law.

Others take the view that consortium was at common law considered an incident or component part of the husband's common-law right to the services of the wife and inseparable therefrom. Under this view the wife had no cause of action as distinguished from a lack of remedy due to her incapacity to sue.

A better perspective of the common-law rule can be obtained by recognizing that marriage was only one of several relationships

Page 422

in which one person was regarded as having a special property interest in the services, if not the person, of another. A father has a legal property interest in the services of his child. He still does. A master had a form of legal property interest in the services of his servant. This relationship in ths common law form has largely disappeared at the present time. At common law the father or master could recover, in appropriate cases, for injuries to the child or servant resulting in a loss of these services. Frequently recovery was allowed far in excess of the monetary damages; the classic example being the recovery permitted to the father for the seduction of his daughter.

Blackstone, generally considered the most reliable authority on the common law, explains the reason for the rule as applied to these relationships as follows:

'We may observe that in these relative injuries notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relationship itself, or at least the advantage accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this; that the inferior has no kind of property in the company, case or assistance of the superior, as the superior is held to have in those of the inferior,...

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53 practice notes
  • Novak v. Kansas City Transit, Inc., No. 49233
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1963
    ...S. F. Ry. Co. (1958), 50 Cal.2d 664, 328 P.2d 449; Franzen v. Zimmerman (1953), 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell (1952), Fla., 61 So.2d 420; Brown v. Kistleman (1912), 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236; Cravens v. Louisville & N. R. Co. (1922), 195 Ky. 257, 242 S.W.......
  • Dini v. Naiditch, Nos. 35466
    • United States
    • Supreme Court of Illinois
    • September 30, 1960
    ...denying the wife's action for loss of consortium in all cases where her husband has been negligently injured. Ripley v. Ewell, Fla.1952, 61 So.2d 420; LaEace v. Cincinnati, Newport & Covington Ry. Co., Ky.1952, 249 S.W.2d 534; Larocca v. American Chain & Cable Co., 1952, 23 N.J.Super. 195, ......
  • Troue v. Marker, No. 468A59
    • United States
    • Indiana Court of Appeals of Indiana
    • July 15, 1969
    ...that the remedy lies with the legislature. Deshotel v. Atchison, Topeka & Santa Fe R. Co., 328 P.2d at page 452; Ripley v. Ewell (Fla.) 61 So.2d 420; Ash v. S. S. Mullen, Inc. (43 Wash.2d 345), 261 P.2d 118; Garrett v. Reno Oil Co. (Tex.Civ.App.), 271 S.W.2d 764. We disagree. Inasmuch as th......
  • Thill v. Modern Erecting Company, No. 41337
    • United States
    • Supreme Court of Minnesota (US)
    • September 19, 1969
    ...Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723; Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell (Fla.), 61 So.2d 420; Miller v. Sparks, 139 Ind.App. 148, 189 N.E.2d 720; Hoffman v. Dautel, 192 Kan. 406, 388 P.2d 615; Baird v. Cincinnati, N.O. and Tex. P.R.C. ......
  • Request a trial to view additional results
53 cases
  • Novak v. Kansas City Transit, Inc., No. 49233
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1963
    ...S. F. Ry. Co. (1958), 50 Cal.2d 664, 328 P.2d 449; Franzen v. Zimmerman (1953), 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell (1952), Fla., 61 So.2d 420; Brown v. Kistleman (1912), 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236; Cravens v. Louisville & N. R. Co. (1922), 195 Ky. 257, 242 S.W.......
  • Dini v. Naiditch, Nos. 35466
    • United States
    • Supreme Court of Illinois
    • September 30, 1960
    ...denying the wife's action for loss of consortium in all cases where her husband has been negligently injured. Ripley v. Ewell, Fla.1952, 61 So.2d 420; LaEace v. Cincinnati, Newport & Covington Ry. Co., Ky.1952, 249 S.W.2d 534; Larocca v. American Chain & Cable Co., 1952, 23 N.J.Super. 195, ......
  • Troue v. Marker, No. 468A59
    • United States
    • Indiana Court of Appeals of Indiana
    • July 15, 1969
    ...that the remedy lies with the legislature. Deshotel v. Atchison, Topeka & Santa Fe R. Co., 328 P.2d at page 452; Ripley v. Ewell (Fla.) 61 So.2d 420; Ash v. S. S. Mullen, Inc. (43 Wash.2d 345), 261 P.2d 118; Garrett v. Reno Oil Co. (Tex.Civ.App.), 271 S.W.2d 764. We disagree. Inasmuch as th......
  • Thill v. Modern Erecting Company, No. 41337
    • United States
    • Supreme Court of Minnesota (US)
    • September 19, 1969
    ...Jeune v. Del E. Webb Const. Co., 77 Ariz. 226, 269 P.2d 723; Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell (Fla.), 61 So.2d 420; Miller v. Sparks, 139 Ind.App. 148, 189 N.E.2d 720; Hoffman v. Dautel, 192 Kan. 406, 388 P.2d 615; Baird v. Cincinnati, N.O. and Tex. P.R.C. ......
  • Request a trial to view additional results

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