56 Fla. 307 | Fla. | 1908
In July, 1907, the plaintiff in error, herein after called the plaintiff, filed an amended declaration against the defendants in error in the Circuit Court of Hillsborough County in the following language: “Frank T. Graham, by his attorneys W. T. Martin and Davis & Hampton, files this his 'amended declaration by leave of the court first had and obtained, and sues Virginia Tucker and James F. Tucker, her husband, in an action of case, damages $3,000.00, for that whereas heretofore, to-wit: on or about the 14th day of July, A. D., 1906, the said Virginia Tucker was the owner of certain premises situated in the county of Hillsborough and State of Florida, on which were located a certain swimming pool and bath houses, the said property being the separate statutory .property of the defendant, Virginia Tucker, a married woman, whose husband is James F.'
Plaintiff avers that on said elate while he was lawfully using the said premises and walking along- said walk around said pool provided for the public, and without negligence on his part, his feet slipped on the wet flooring of said walk-way and he was precipitated in said pool; that in falling his lefit leg came in contact with one of the projecting- points of said planks which were uneven and had been allowed to project over said bath-pool,' and from the effect of which his left leg was then and there bruised, cut and wounded by means of which he became sick and sore, and from thence for a period of several months was confined to his bed from said injuries; the plaintiff avers that he has been compelled to pay out a large sum of money for physicians’ services and for medicine in an effort to rid himself of the injury caused by the negligence of the defendant, and in ad
This amended declaration was demurred to and the substantial matters to be argued were among others, that, fh;st, the declaration does not state a cause of action; second, that a married woman cannot be sued' at common law for a.tort such as that complained of; third, that under the constitution and laws of Florida a married woman’s property cannot be subjected to a judgment such as that sought for; fourth, that under the laws of Florida the husband has the sole control of her real property, and is alone responsible for torts committed thereby.
The demurrer was sustained and a judgment entered for the defendants. To review this judgment a writ of error was sued out. The assignments of error here are, first, that the court erred in sustaining' the demurrer, and, second, that it erred in entering judgment for the defendants. ■ •
The sole question presented and urged here by the plaintiff is whether a married woman is liable under the constitution and laws of Florida in an action for a tort such as is described in the declaration. The only decision of this court cited to sustain the contention that she is so liable is the case of Prentiss v. Paisley, 25 Fla. 927, 7 South. Rep. 56. In this case this court held that a married woman is personally liable for her wrongful civil acts or actual torts (italics ours) including frauds, not growing out of or founded upon, or directly connected with, or a part of, or the means of effecting a contract which she has undertaken to make; and she mav be sued jointly with the husband in respect to such ac<"\ or separately if she survives him. His liability for her
In the case of Liverpool A. L. Association v. Fhirhirst, supra, it was .held that a feme covert is responsible for all torts committed by her during coverture, and the husband must be j oined as a defendant; and consequently they are liable for frauds committed by her as for other personal wrongs; but when the fraud"is directly connected with the contract with the wife or is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, and the husband be sued for it together with the wife.”
In Head v. Briscoe, 5 Car. & P. 484, it was held that a husband was liable for a slander perpetrated by his wife though he was living apart from her.
In the case of Woodward & Perkins v. Barnes & Wife, 46 Vt. 332, it is held that husband and wife are not jointly liable for these torts of the wife wihich are founded on her contracts, and it is said: “The general principle, that for the torts or frauds of the wife, an action may be sustained against her and her husband, applies only to torts simpliciier, or cases of pure, simple tort, and not where the substantive basis of the tort is the contract of the wife.” See 1 Bishop on Law of Married Women, § 905; 2 Id. § 261; Schouler’s Domestic Relations, (5th ed.) § 76; Henley v. Wilson, 137 Cal. 273, 70 Pac. Rep. 21, 92 Am. St. Rep. 160, and note.
In the case of Simpson v. Bowden, 33 Me. 549, it is held that the law will not imply a contract in a case where the parties cannot legally make an express contract.
In the case of Chase v. Second Avenue R. R. Co., 97 N. Y. 384, it is held that “an implied contract is one which the law infers from the facts and circumstances o f the case; but it will not be inferred so far as I can con
It may be doubtful whether this statement of the law is entirely correct. Bishop treats it under the title of “Contracts created by law.” He says “when the law lays on one a duty to another, it creates a promise from the former to the latter to discharge the duty. The limit of the doctrine is, that where from the nature of the case, not merely from inability of the party, there could rfbt be a contract in fact, the law does not undertake to create the impossible.” Bishop on Contracts (2nd. ed.) § § 182 to 186 inclusive. So he shows that though the contract of a minor or insane person for necessaries on agreed terms would not be binding, yet the party who furnishes the goods may recover of the one liable in law to pay, not what the contract provides though it may be looked to, but what they were reasonably worth. Id. § 188.
In the case of Marye v. Root, 27 Fla. 453, 8 South. Rep. 636, this court had occasion to critically examine the constitutional and statutory provisions then and now existing conferring upon married women certain property rights which she did not have at common law. The result of that decision* is that the statute providing the property of a wife shall remain in the care and management of the husband, that he shall not charge for the management, nor shall the wife be entitled to sue her husband for the rent, hire, issues, proceeds or profits of her said property, is not in conflict with the constitutional provision that all property both real and personal' of the wife owned by her before marriage or acquired afterward by gift, devise, descent or purchase shall be her separate property and not liable for the debits of her husband. The present constitutional provision, section I, Article XI, constitution of 1885, modifies the former (that of 1868)
We have noticed two cases in which it is held that, under the common law, as well as under the statutes which authorize a married woman to own and control property, she is liable for a tort committed in the management of such property. One is the case of Mayhew v. Burns, 103 Ind. 328, 2 N. E. Rep. 793, and the other is the case of Flesh v. Lindsay, 115 Mo. 1, 21 S. W. Rep. 907, 37 Am. St. Rep. 374. In the first case the tort consisted in making an excavation causing a pitfall into which the plaintiff fell. The maxim sic utere etc. is applied and it is said she was liable at common law as well as under the statute. In the second case the tort grew out of the negligent repairing of a party wall between the property of a married woman and another. It was held that she was liable both under the statute and at common law. But as a married woman could not own, control and manage a separate legal estate at common law, we cannot understand the conclusions of these courts which are unsupported by any authority directly in point. The erection and maintenance of a party wall is a matter of contract unless required by statute (22 Am. & Eng. Ency. Law, 2nd ed. 240), and we have seen no authority holding a married woman liahR fm- n tort based on a contract. Our court as we have seen has decided the contrary. Prentiss v. Paisley, supra. There is an analogy between the common law disability of a married woman and that of an infant, and while both are liable for pure torts we have seen no case which holds either liable for an injury due to lack of skill and experience. 22 Cyc. 621.
We find no authority holding a married woman liable
The judgment of the Circuit Court is affirmed.