Webster v. Sneider

138 So. 755, 103 Fla. 1131

Opinions

Whitfield, J.

The plaintiff married the defendant’s son who is alleged to have negligently injured the plaintiff while acting as the defendant’s servant, so as to render the defendant liable in damages under the doctrine of respondeat superior; but such marriage does not affect the cause of action which the plaintiff has against both the defendant and her son acting as defendant’s servant, for damages because of the negligent injury. The marriage of the plaintiff to the defendant’s son and servant abates the plaintiff’s right of action against the servant whom she married, though the marriage does not create a relation between the plaintiff and the defendant that suspends or abates the plaintiff’s right of action against the defendant; nor does the marriage affect the servant’s liability to his principal who is the defendant below.

If the defendant’s son and servant had been duly adjudged not guilty of the alleged negligent injury to the plaintiff, the defendant would not be liable, for the reason that if the servant was not negligent his principal is not liable under the doctrine of respondeat superior. Williams v. Hines, 80 Fla. 690, 86 So. 695.

The marriage of the plaintiff to the defendant’s servant does not determine or affect the alleged negligence of the servant in injuring the plaintiff, so the cause of action and the right' of action of the plaintiff against the defendant for her servant's alleged negligent injury to the plaintiff remains until the action is terminated.

There was judgment for defendant on the pleadings and stipulation. The plaintiff took writ of error.

Reversed.

Ellis, Beown and Davis, J.J., concur.

Buford, C.J., and Terrell, J., dissent.