Stampfl, Robert J.

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Agency -- Respondeat Superior -- Husband\u27s Negligent Driving Renders Car Owner Liable to Wife

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review10-1-1955Agency -- Respondeat Superior -- Husband'sNegligent Driving Renders Car Owner Liable toWifeRobert J. StampflFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationRobert J. Stampfl, Agency -- Respondeat Superior -- Husband's Negligent Driving Renders Car Owner Liable to Wife, 10 U. Miami L. Rev.105 (1955)Available at: http://repository.law.miami.edu/umlr/vol10/iss1/12CASES NOTEDAGENCY-RESPONDEAT SUPERIOR-HUSBAND'SNEGLIGENT DRIVING RENDERS CAR OWNERLIABLE TO WIFEPlaintiff wife brought suit against her husband's employer for personalinjuries resulting from an automobile accident. The plaintiff was apassenger in the employer's car, driven by her husband on a purely personalmission with the consent of the owner. From a dismissal of the complaint,based on grounds of public policy, the plaintiff appeals. Held, reversed,the immunity of the husband from liability does not extend to the ownerof the automobile, whose liability is based upon the doctrine of respondeatsuperior arising fron the principal and agent relationship implied in law.May v. Palm Beach Chemical Company, Inc., 77 So.2d 468 (Fla. 1955). 1Under the doctrine of respondeat superior, a master is liable for theinjuries caused by the tortious acts of his servants acting within the scopeof their employment? In some jurisdictions," a notable exception to thisgeneral rule exists. This exception arises when the negligent servant isthe husband of the plaintiff, the rationale being that the master shouldnot be liable where his servant is not liable. 4 The reason given for thisexception is that at common law husband and wife are in legal contenpla-tion but one person, and the husband is that person.5  Neither can, inthe absence of statute, maintain an action in tort against the other.6The common law identity of the husband and wife and the consequentdisabilities of the wife remained until the advent of the various MarriedWomen's (Property) Acts 7 which allowed the wife to sue in her own1. The plaintiff must prove her husband was grossly negligent in order torecover under Iorida's Guest Statute: FLA. SrAT. 320.59 (1953).2. RSrATEME1-Wr, AG;ENCY § 219 (1)(1933); 2 Am. Jur. Agency §§ 359, 360(1936); 3 C.J.S. Agency § 255 (1936).3. Maine v. J. Maine & Sons Co., 198 Iowa 1278, 201 N.W. 20 (1924); Sacknoffv. Sacknoff, 131 Me. 280, 161 Atl. 669 (1932); Riser v. Riser, 240 Mich. 402, 215 NW.290 (1927); Emerson v. Vestern Seed and Irrigation Co., 116 Neb. 180, 216 N.W.297 (1927).4. See note 3 supra. In Maine v. J. Maine & Sons Co., the court refused toallow the wife to recover from her husband's employer in spite of iowA Con. § 5026,(1924), which provided that where damage is done by a car driven with the consentof the owner, by reason of the negligence of the driver, the owner shall be liable.5. 41 C.J.S. Husband and Wife, § 5 (1944).6. 30 C.J., Husband and Wife, § 317 (1923).7. Ti'hree representative statutes have been chosen for comparison. Note thatDistrict of Columbia and Florida Statutes remove many disabilities although theunqualified right for either spouse to sue the court is not given. I).C. CODE, § 1155(1901) entitled "Power of Wife to Trade and Sue and Be Sted.".. .and or torts committed against them, as filly and freely as if theywere unmarried; contracts may also be made with them, and they mayalso be sued separately on their contracts, whether made before or duringmarriage, and for wrong independent of contract committed by them before105MIAMI LAW QUARTERLYname under certain conditions. In Thompson v. Thompson,' a Federalcourt gave such a statute a narrow construction and refused to allow thewife to sue her husband in a tort action for assault and battery.9 On theother hand, Connecticut has liberally interpreted", its statute1' and allowedthe wife to maintain a suit for a personal tort'against her husband, usingthe revolutionary change wrought by the statute as the basis for itsdecision.' 2  However, the majority"5 and Florida' 4 view comes within theThompson doctrine.When a wife seeks recover), from her husband's employer under thedoctrine of respondeat superior, the legal liabilities of the parties are mostsimply15 described by the Restatement of Agency.'0  That is, in jurisdictionswhere the husband and wife cannot sue each other for personal tort,or during marriage as if they were fully unmarried, and upon judgments ...as if they were unmarried ....FLA. STAT. 708.08 (1953) entitled "Married Women's Rights"; separate property:Every married woman is hereby empowered to take charge of, andmanage and control her separate property, to contract and be contractedwith, to sue and be sued, and to sell . . .without restraint, without joinderof her husband, in all respects as fully as if she were unmarried ...; ;provided, however, that no deed, mortgage .. .conveying or encumberingreal property owned by a married woman shall be valid without the joinderof her husband; provided further, that any claim against a married womanshall not be a claim or lien against such married woman's right of dowerin her husband's separate property.The law in New York is clear: N.Y. I)oMEs-rc RELATtoNs LAw § 57 (1937)entitled "Right of Action by or Against Married Woman, and by Husband or WVifeAgainst the Other, for Torts" provides:A married woman has a right of action for an injury to her person.property or character or for an injury arising out of the marital relation,as if unmarried. She is liable for her wrongful or tortious acts; herhusband is not liable for such acts unless they were done by his actualcoercion or instigation; and such coercion or instigation shall not bepresumed, but must be proved. A married woman has a right of actionagainst her husband for his wrongful or tortious acts resulting to her inany personal injury as defined in section thirty-seven-a of the general con-struction law, or resulting in injury to her property, as if unmarried, andshe is liable to her husband for her wrongful or tortious acts resulting inany such personal injury to her husband or to his property, as if theywere unmarried.8. 218 U.S. 611 (1910).9. A strong dissent in the Thompson case, note 8 supra, argued that the statutegave the wife the right to maintain an action for a personal tort against her husband,10. Brown v. Brown, 88 Conn. 42, 89 Atl. 889 (1914); accord, in Bushnell v.Bushnell, 103 Conn. 583, 131 At]. 432 (1925). For similar holdings see Roberts v.Roberts, 185 N.C. 566, 118 S.E. 9 (1923); TWait v. Pierce, 191 Vis. 202, 209 N.W.475 (1926).11. CONNECTICUT MARRIED WOMEN'S ACT C. 114 (1877).12. See note 10 supra.13. Rogers v. Rogers, 265 Mo. 200, 177 S.W. 382 (1915); Woltman v. Woltman,153 Minn. 217, 189 N.W. 1022 (1922); Austin v. Austin, 130 Miss. 61, 100 So. 591(1924); Harvey v. Harvey, 239 Mich 142, 214 N.W. 305 (1927); Thompson v.Thompson, note 8 supra; see note 3 supra.14. Corren v. Corren, 47 So.2d 774 (Fla. 1950).15. Some terms used to describe the theory of the master's liability: derivately,theory of subrogation, imported, vicarious, constructive, imputed, imposed. See 6N.Y.U.L. REV. 53, 55 (1928).16. RESTATEMENT, AGENCY § 217(2)(1933):(2)A master or other principal is not liable for facts of a servant or otheragent which the agent is privileged to do although the principal himselfwould not be so privileged; but he may be liable for an at to which theCASENOTESan immunity exists which may' 7 or may not' s extend to the employer.Where the immunity is extended, the reason given by the courts is thata spouse should not be allowed to do indirectly what cannot be donedirectly, i.e., sue the employer who would in turn sue the tort feasorhusband. 1 In jurisdictions where immunity is not extended, the maximQui facit per alium facit per se governs, 201 the unity of the husband andwife being disregarded if recovery may be had over against the husband.The conflicting legal principles of the two opposing views were resolvedby Cardozo, C.J. in Schubert v. A. Schubert Wagon C0.20% in these words:We find no collision between the principle of liability [basedon respondeat superior] established in this case and the principleof exemption established in actions against a husband. If such acollision, however, could be found, with the result that one orthe other principle must yield, we agree with Hubbs, P.J., writingin the court below, that the exemption would have to give wayas an exception, more or less anomalous, to a responsibility whichtoday must be accepted as a general rule.agent has a personal immunity frorn suit. (emphasis supplied)Comment: b. If a principal has a personal privilege which cannot be sharedby another, he cannot of course confer this privilege upon an agent so asto escape liability for the agent's act. Thus, if a master has a privilegeof personally entering a clubhouse, he may become liable for the entrytherein by his servant upon his business. Likewise, if an agent has animmunity from liability as distinguished from a privilege of acting, theprincipal does not share the immunity. Thus, if a servant, while actingwithin the scope of employment, negligently injures his wife, the masteris subject to liability (emphasis supplied)17. See note 3 supra.18. The reader is referred to the following cases which held that a wife couldrecover from her husband's employer for injuries she received as a result of her husband'snegligent driving of his employer's automobile within the scope of employment: 1'ittsleyv. David, 298 Mass. 552, I1 N.E.2d 461 (1937); McLaurin v. McLaurin FurnitureCo., 166 Miss. 180, 146 So. 877 (1933). But the husband was held not the alter egoof the employer when the wife was riding for her own pleasure with the husbandon a business trip; Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.&W.2d645 (1936); Miltimore v. Milford Motor Co., 89 N.H. 272, 197 AtI. 330 (1938);Cerruti v. Simone, 13 N.J. Misc. 466, 179 Atl. 257 (1935); Schubert v. A. SchubertWagon Co., 249 N.Y. 253, 164 N.E. 42 (1928); Metropolitan Life Ins. Co. v. Huff,48 Ohio App. 412, 194 N.E. 429 (1933), Rev'd on another grounds, 128 Ohio St. 469,191 N.E. 761 (1934); Koontz v. Messer, 320 Pa. 487, 181 Atl. 792 (1935); Ponlinv. Graham, 102 Vt. 307, 147 Ati. 698 (1929); Hensel v. Hensel Yellow Cab Co., 209Wis. 489, 245 N.W. 159 (1932) (governed by the law of Ohio); LeSage v. LeSage,224 Wis. 57, 271 N.W. 369 (1937).19. Since an agent is personally liable for the torts he commits, 3 C.J.S., Agency§ 220 (1936). Other reasons based on public policy are as follows:1. Pointless extra litigation will be required. See Seaboard Airline Ry.Co. v. American District Protective Co., 106 Fla. 330, 143 So. 316(1932);Losito v. Kruse, 136 Ohio St. 183, 24 N.E. 2d 705(1940).2. Domestic collusion and fraud will be encouraged. See note 3 supra.3. A legislative enactment should be the basis of recovery. See Welch v.Davis, 410 Ill. 130, 101 N.E. 2d 547(1951). Zinman v. Newman, 51N.Y.S. 2d 132(1942); aff'd 265 App. Div. 1052, 41 N.Y.S.2d 193 (1943);General Accident, Fire & Life Assurance Corp. v. Morgan, 33 F. Supp.190(D.C.N.Y. 1940).20. "He who acts through another acts himself." [i.e., the acts of an agent arethe acts of the principal] BLACK's LAw DICTIONARY (1941).20a. Supra note 18.MIAMI LAW QUARTERLYThe Florida Supreme Court first came to grips with an issue similarto the May case ini ebster v. Sn'der.*' In that case the plaintiff suedthe owner of an automobile and the driver-servant for injuries receivedthrough its negligent operation while driven within the scope of employ-mcnt. The plaintiff married the driver (the owner's son) after the suithad started but before it came to judgment. The court abated the actionagainst the driver (now husband) on the theory of the common lawidentity of husband and wife but allowed the action against the ownerto continue. As the liability of the parties was fixed at the time of theaccident when the plaintiff and the driver were not married, the issue inthe May case did not arise.An additional difficulty in the May case is that the husband's activitywas without the scope of his employment,22 as the tort occurred on apurely personal mission. To bridge this hiatus, the court invoked the well-established Florida Dangerous Instrumentality Doctrine as applied to auto-mobiles."3  Although the doctrine was founded by judicial decision, 24 legis-lative approval might be implied.2The May decision has two principal effects: first, it brings Florida lawinto accord with the Restatement of Agency (and majority) view in holdingthe employer liable to the employee's spouse for torts of his employee.Secondly, it reaffirms and extends the application of the Florida DangerousInstrumentality Doctrine as applied to Automobiles.ROBERT J. STAMPFL21. 103 Fla. 1131, 138 So. 755 (1932).22. RESTATEMENT, AGENCY § 219 (2) (1933): "A master is not liable for thetortious conduct of servants acting outside the scope of employment."23. Other jurisdictions have imposed liability on the car owner by statute: CAL.VEHICLE CooE § 402 (1937):Every owner of a motor vehicle is liable and responsible for the deathof or injury to person or property resulting from negligence in the operationof such motor vehicle, in the business of such owner or otherwise, by anyperson using or operating the same with the permission, express or implied,of such owner, and the negligence of such person shall be imputed tothe owner for all purposes of civil damages ....N. V. Vehicle and Traffic Law § 59 (1941):Negligence of operator other than owner attributable to owner.Every owner of a motor vehicle or motor cycle operated upon a publichighway shall be liable and responsible for death or injuries to person orproperty resnlting from the negligence in the operation of such motorvehicle or motor cycle, in the business of such owner or otherwise, by anyperson legally using or operating the same with the permission, express orimplied, of such owner ....24. Southern Cotton Oil Co. v. Anderson, 80 Fta. 441, 86 So, 629 (1920); lerrv. Butler, 101 Fla. 1125, 132 So. 815 (1931); Englenian v. Traeger, 102 FIa. 756, 136So. 527 (1931). For complete analysis see 5 FLA. LAw. Rnv. 412 (1952), this doctrinemakes. the driver of the car the owner's agent if the owner's consent to its use hasbeen obtained.25. FLA. SrAT. 51.12 (1953).

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Agency -- Respondeat Superior -- Husband\u27s Negligent Driving Renders Car Owner Liable to Wife

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