Shiver v. Sessions

• Court: United States State Supreme Court of Florida
• Writing for the Court: ROBERTS; DREW
• 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.
• Decision Date: 01 June 1955

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

Page 906

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...