Ripley v. Ewell

Decision Date14 November 1952
Citation61 So.2d 420
PartiesRIPLEY et al. v. EWELL.
CourtFlorida Supreme Court

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 It is not necessary that a statute be in direct conflict with the common law before the latter may be superseded, inconsistency being sufficient.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 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, and therefore the inferior can suffer no loss or injury'. 3 Blackstones Commentaries, 143.

From the present viewpoint we would not hesitate to say that, insofar as measurable pecuniary damages are concerned, a greater loss is sustained by a child whose father is completely incapacitated than is sustained by a father whose child is seriously injured. The child loses far more than the financial assistance which the father might otherwise provide. The companionship, society, love, counsel and all the elements that go to make up the consortium of the marriage relationship except sex relations may be lost to the child. But the common law did not, nor does modern law, give the child, so long as the father survives, any cause of action against the stranger who negligently injures the father.

The underlying process of thinking that evolved the common-law rule seems to be that the law would allow a recovery by one person having a special property interest in the services of another when such other was injured by the wrongful act of a stranger.

Under the common law the husband had many rights with respect to the property, services and person of the wife which would be considered barbaric today. Many, in fact most, of these have been eliminated by the Constitution and various statutes, but it is significant that we must look to the Constitution and statutes for these changes. The Courts have liberally construed statutes relieving the disabilities of coverture, but have consistently recognized that when the common law was adopted as the law of this State it was done with full knowledge that the common law included the disabilities of coverture as they then existed. They thus become a part of the law of this State, subject to change by, but only by, the Legislature department of Government. Many changes have been made in this way.

The same may be said of the common law relative to torts. For example, the common law recognized no cause of action for wrongful death. This and other provisions of the common law found to be inconsistent with our present day conceptions of justice have been done away with or modified by statute.

The subject of women's rights and torts has been so frequently before the Legislature, and the common laws relative thereto have been so frequently modified, that we must assume that those remnants of the common law not changed...

To continue reading

Request your trial
54 cases
  • Deshotel v. Atchison, T. & S.F. Ry. Co.
    • United States
    • California Supreme Court
    • 31 juillet 1958
    ...Franzen v. Zimmerman, 1953, 127 Colo, 381, 256 P.2d 897; Giggey v. Gallagher Transp. Co., 1937, 101 Colo. 258, 72 P.2d 1100; Ripley v. Ewell, Fla.1952, 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. 2......
  • Thill v. Modern Erecting Company, 41337
    • United States
    • Minnesota Supreme Court
    • 19 septembre 1969
    ...122 So.2d 153; 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. a......
  • Moran v. Quality Aluminum Casting Co.
    • United States
    • Wisconsin Supreme Court
    • 28 avril 1967
    ...v. Del E. Webb Const. Co. (1954), 77 Ariz. 226, 269 P.2d 723; Franzen v. Zimmerman (1953), 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell (Fla.1952), 61 So.2d 420; Burk v. Anderson (1952), 232 Ind. 77, 109 N.E.2d 407; La Eace v. Cincinnati, Newport & Covington Ry. Co. (Ky.1952), 249 S.W.2d 53......
  • Hoffman v. Dautel
    • United States
    • Kansas Supreme Court
    • 25 janvier 1964
    ...on the question since 1952 denying the wife's recovery are: Franzen v. Zimmerman [1953] 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell [Fla.1952] 61 So.2d 420; Coastal Tank Lines, Inc. v. Canoles [1955] 207 Md. 37, 113 A.2d 82; Hartman v. Cold Spring Granite Co. [1956] 247 Minn. 515, 77 N.W.2......
  • Request a trial to view additional results
1 books & journal articles
  • Possible tax consequences under Florida durable powers of attorney.
    • United States
    • Florida Bar Journal Vol. 80 No. 2, February 2006
    • 1 février 2006
    ...the common law duty to obtain the principal's consent with self-dealing transfers). In such a situation, cases such as Ripley v. Ewell, 61 So.2d 420 (1952), and Wax v. Wilson, 101 So.2d 54 (Fla. 3d DCA 1958), indicate that the existence of an inconsistency is a sufficient reason to support ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT