Banfield Et Ux. v. Addington Et Ux. , 104 Fla. 661 ( 1932 )

The declaration in substance alleges that a married woman owned and operated a beauty shop where the public was invited to enter for hair dressing purposes; that such married woman employed servants to assist her in the conduct and operation of said establishment; that one of said employees undertook to give to plaintiff's hair the permanent wave plaintiff desired, and for that purpose attached to plaintiff's head and hair a machine containing live steam or other similar heating element, which was so carelessly and negligently operated by defendant's employee that plaintiff's scalp and head were grievously and painfully burned. A demurrer to the declaration was sustained, and plaintiffs declining to plead further, judgment for defendants was rendered, to which a writ of error was taken.

The statutes of the State contain the following:

"A married woman's wages and earnings acquired by her in any employment separate from her husband shall be her separate property and subject to her own disposal, and she shall be entitled to sue for and recover the same as though she were a single woman." Sec. 5871 (3952) C. G. L. 1927.

"(c) BEAUTY PARLORS. — Each person operating a Beauty Parlor shall pay a license tax of Ten ($10.00) Dollars." Sec. 7, Ch. 14491, Acts of 1929.

One of the meanings of employment is "occupation." Synonyms are: work, business, vocation, calling, office, service, commission, trade, profession," Webster's New International Dictionary.

To the extent that Section 5871 (3952) Compiled General Laws, 1927, is inconsistent with the rule of the common law that a married woman cannot enter into contractual relations in employments, the common law rule is modified or abrogated. Section 87 (71) Compiled General Laws, 1927.

Where a married woman is not liable for her torts that are predicated upon contract relation because of her inability to contract at common law, if the disability to contract be removed by the statute, the basis and reason of the common law rule is thereby abrogated and liability of the married woman for such torts results by implication of law.

While at common law a married woman is incompetent to make a valid contract and is likewise incompetent to employ an agent to act for her where she is incompetent to act for herself, yet where a statute recognizes a right of a married woman to engage "in any employment separate from her husband," and "employment" includes "occupation," a married woman may employ or designate another to perform any act or function that a statute has enabled her to perform in person, when there is not involved a trust or confidence or a special function required to be performed by her. The power to choose an agent or to act through an agent is implied from the power conferred upon her to do the act herself. See Reinhard on Agency, Sections 35 et seq.

The second statutory provision above quoted does not exclude married women from the right to procure a license to operate a beauty parlor.

As the defendant married woman was under the law operating a beauty parlor "separate from her husband," the earnings to be her separate property, by rendering in person or through employees personal service to patrons, such married woman is liable for active affirmative torts committed by her or by her employees upon the persons of patrons while performing the service undertaken. The statutes by enabling the married woman to engage in the employment or occupation "separate from her husband," to that extent removed her common law disability of coverture and render her liable as though she were not married for torts committed in the conduct of such employment or occupation. See Gillies v. Lent, 2 Abbotts' Pr. (NS) N.Y. 455. See also Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473; 1 Cooley on Torts (4 Ed.) page 216.

In Graham v. Tucker, 56 Fla. 307, 47 So. 563, 19 L.R.A. (NS) 531; 131 Am. State Rep., 124, the defendants, husband andwife, conducted on the separate property of the wife, a swimming pool for public bathing purposes; and it was held that under the circumstances there alleged, the wife was not liable in an action of tort for the particular negligence of nonfeasance charged against husband and wife.

BUFORD, C.J., AND TERRELL AND DAVIS, J.J., concur.