Ballenger v. Mark

155 So. 106, 115 Fla. 95

Opinions

In this case a majority of the Court have reached the conclusion that in consonance with the salutary principles of common right and justice stated by the Supreme Court of the United States in Funk v. United States, 290 U.S. 371,54 Sup. Ct. Rep. 212, 78 L. Ed. 231 (opinion filed December 11, 1933), changed conditions of a modern era brought about by the voluntary activities of married women in assuming the status of recognizable factors in the business and industrial world, require the Courts of this State to take judicial notice of the fact that the ancient legal fiction of identity of husband and wife, heretofore supporting the doctrine of married women's liability first announced by this Court in Graham v. Tucker, 56 Fla. 307, 47 Sou. Rep. 563, to the effect that a married woman is not to be held liable for her torts, no longer exists in a practical sense, and therefore, consistent with our system of American constitutional law which recognizes and enforces the doctrine of equal protection of the laws for all with special privileges to none, the case of Graham v. Tucker, supra, should no longer be held to control the decision of an action on the case wherein plaintiff seeks recovery of damages for a tort alleged to have been committed by a married woman in connection with the use or employment of her separate property in a business, trade or occupation under circumstances wherein she would be held liable for her said tort but for her coverture.

The rule stated in the case of Graham v. Tucker,supra, is accordingly modified and restricted for future application to those only wherein married women are sued for torts not arising out of the use of their separate property for business, commercial, industrial, profit or income-producing purposes.

It follows that the judgment rendered for defendant married woman on her demurrer to the plaintiff's amended declaration below should be reversed, and the case remanded for further proceedings not inconsistent with this opinion, and it is so ordered.

Reversed and remanded.

DAVIS, C. J., and WHITFIELD and TERRELL, J. J., concur.

ELLIS and BUFORD, J. J., dissent.

BROWN, J., not participating.