Shiver v. Sessions

• Decision Date: 01 June 1955
• Citation: 80 So.2d 905
• Parties: Robin Clyde SHIVER et al., Appellants, v. Lewis B. SESSIONS, as Administrator of the Estate of John Cabble Sessions, Sr., deceased, Appellee.
• Court: Florida Supreme Court

Page 905

80 So.2d 905

Robin Clyde SHIVER et al., Appellants, v. Lewis B. SESSIONS, as Administrator of the Estate of John Cabble Sessions, Sr., deceased, Appellee.

Supreme Court of Florida, Division A.

June 1, 1955.

Rehearing Denied June 28, 1955.

A. K. Black and J. B. Hodges, Lake City, for appellants.

John E. Norris, Mayo, for appellee.

ROBERTS, Justice.

The plaintiffs are the four surviving minor children of Martha Dona Sessions, deceased, who was shot and killed by her husband (the children's stepfather), who then killed himself. The present action was instituted by them to recover against the estate of their stepfather under the Wrongful Death Act, Sections 768.01 and 768.02, Fla.Stat.1953, F.S.A., for the damages sustained by them by reason of their mother's death. The trial judge dismissed their complaint upon motion of the defendant, and this appeal followed.

In our Wrongful Death Act, Section 768.01, as in those of many other states, it is provided as a condition of suit that the wrongful act or negligence resulting in death must be such 'as would, if the death had not ensued, have entitled the party injured thereby to maintain an action * * * and to recover damages in respect thereof * * *.' The trial judge was of the opinion that this provision was a bar to the instant suit, since the plaintiffs' stepfather could not have been sued by their mother during her lifetime on account of his tortious act, and he dismissed the complaint for this reason. So the only question here is whether the plaintiffs' action is barred by the quoted provision of our Wrongful Death Act.

The rule that a husband is immune from liability for torts committed by him against his wife came down to us from the common law, as adopted in this state in 1829, Section 2.01, Fla.Stat.1953, F.S.A., and it has not been changed by the socalled Married Women's Emancipation Act of 1943, Sections 708.08 and 708.09, Fla.Stat.1953, F.S.A. Corren v. Corren, Fla. 1950, 47 So.2d 774. The development of the rule at common law is said to have been required by the common-law disability of the wife to own separate property and her lack of capacity to maintain a legal action independently of her husband, so that any recovery on behalf of the wife in a suit against her husband would immediately have become his property and, since he alone could enforce a right of his wife, he would be, in effect, suing himself. See Welch v. Davis, 1951, 410 Ill. 130, 101 N.E.2d 547, 28 A.L.R.2d 656. Even though such common-law disabilities of married women have now been removed in many states, as in Florida, by 'Emancipation Acts' such as ours, it is generally held that the rule should still be adhered to, either on the ground that the Emancipation Act in question did not completely destroy the common-law fiction of the unity of husband and wife, or on the ground that domestic tranquillity is fostered by the prohibition of actions by a wife against her husband for his torts against her. See the cases collected in the annotations in 89 A.L.R. 118 and 160 A.L.R. 1406. It was apparently the latter ground which was the basis for our decision in the Corren case, supra.

While the impact of the common-law rule of immunity on an action under the Wrongful Death Act has not heretofore been considered by this court, we have had occasion recently to consider it in another context. Thus, in May v. Palm Beach Chemical Company, Inc., Fla.1955, 77 So.2d 468, the question was whether the husband's immunity from suit by the wife for his tort would bar a suit by the wife against the husband's employer under circumstances where the employer was legally responsible for the husband's tort. In holding that the husband's personal immunity from suit could not be pleaded by the employer as a defense to the suit, this court quoted from Schubert v. August Schubert Wagon Company, 249 N.Y. 253, 164 N.E. 42, 43, 64 A.L.R. 293, as follows:

'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 his immunity. * * *.'

There is a conflict among the courts of other jurisdictions on the particular question we are here considering. See the cases collected in the annotation in 28 A.L.R.2d page 662 et seq. However the author of the annotation says at page 666, and we agree, that 'It appears to be the recent and well-reasoned trend of the courts to allow recovery against a husband or his estate, in an action by or for the benefit of children for damages sustained by reason of the unlawful killing of their mother.'

Thus, in Welch v. Davis, 1951, 410 Ill. 130, 101 N.E.2d 547, 549, 28 A.L.R.2d 656, under facts almost identical with those in the case at bar and under a provision of the Illinois Act very similar to that of the Florida Wrongful Death Act, quoted above, it was held that the husband's immunity could not be pleaded as a defense to a suit by the surviving minor child of the parties against the administrator of the husband's estate. The court said that 'An immunity based upon the preservation of marital harmony can have no pertinence in this case, for here the marriage has been terminated, husband and wife are both dead, and the action is brought for the benefit of a third person.' The court interpreted the particular provision of the Illinois Wrongful Death Act in question as having to do with the 'quality of the conduct' giving rise to a cause of action, and not with a personal immunity which would have barred a suit by the wife against the husband during their lives.

A similar conclusion was reached by the Pennsylvania Supreme Court in Rodney v. Staman, 1952, 371 Pa. 1, 89 A.2d 313, 315, 32 A.L.R.2d 976, where the court was required to interpret the Ohio Wrongful Death Act, which contained a provision almost identical with that of the...