JEANNE BURKETTE AMENDOLA, APPELLANT
v.
THOMAS M. AMENDOLA, APPELLEE
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A wife sued her husband for personal injuries caused by his negligence that occurred before their marriage. The trial court granted the husband's motion for summary judgment based on the doctrine of interspousal immunity. The appellate court affirmed, holding that marriage abates the wife's right to sue her husband for a prenuptial tort.
A wife has no right to sue her husband for a prenuptial tort. Although the cause of action was not cancelled by the marriage, the right to sue was abated or suspended by the marital relationship, depriving the wife of capacity to sue her husband for personal injury.
“it affirmatively appears that this suit was commenced by the wife against the husband after their marriage for personal injuries occurring prior to their marriage due to the defendant's negligence”
Establishes the procedural posture: wife suing husband post-marriage for pre-marital injury
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Join FLexlaw to unlock all legal intelligenceJeanne Burkette Amendola sustained injuries on March 16, 1957, due to Thomas M. Amendola's negligence. She married Thomas on June 8, 1957, nearly thre…
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Jeanne Burkette Amendola, the appellant-plaintiff, filed her Complaint on June 17, 1958, against Thomas M. Amendola, the defendant, in the Circuit Court. The Complaint was brought by the plaintiff for injuries sustained by her due to the defendant’s negligence on March 16, 1957. The parties are husband and wife; they were married to each other on June 8, 1957. Therefore, it affirmatively appears that this suit was commenced by the wife against the husband after their marriage for personal injuries occurring prior to their marriage due to the defendant’s negligence.
To the Amended Complaint, the defendant made his Motion For Summary Judgment with an accompanying Affidavit attached setting forth the fact of the parties’ marriage each to the other. This fact is not disputed. Based on the Motion For Summary Judgment with the Affidavit attached thereto, the Court below granted the defendant’s Motion For Summary Judgment, adjudging that the plaintiff take nothing by her suit, and that the defendant go hence without day.
From this final judgment the plaintiff perfected this appeal. Plaintiff’s single assignment of error is that the court erred in entering its summary final judgment against the plaintiff. We find the assignment not well founded and affirm.
Appellant in support of her assignment of error argues that the dismissal of her action deprives her of her constitutional right to sue her husband for a personal injury due to the husband’s negligence which injury occurred before marriage. Her position is that before marriage she had a right of action and marriage to the tortfeasor did not deprive her of the right to sue her husband for the prenuptial tort. The cause of action was not can-celled or purged by the marriage but the right of action i. e. the right to sue her husband on this cause was abated or suspended by the marriage. The wife was without capacity to sue her husband for personal injury because he is her husband. Webster v. Snyder, 103 Fla. 1131, 138 So. 755; Corren v. Corren, Fla., 47 So.2d 774, 43 A.L.R.2d 632.
Affirmed.
ALLEN, C. J., and ICANNER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Carmela Bencomo v. Bencomo, 200 So. 2d 171 (Fla. 1967)…of the other during coverture. * * * The divorce cannot in itself create a cause of action in favor of the wife upon which she may sue, where it was not a cause of action before the divorce. * * *." Also compare Amendola v. Amendola, Fla. App.1960, 121 So. 2d 805; and see 43 A.L.R.2d 632. In reaching this decision we have not overlooked the case of Alexander v. Alexander, D.C., 140 F.Supp. 925. In that case the United States District Court in another state undertook to construe and apply the Florida law on…1 / 2
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Gaston v. Pittman, 224 So. 2d 326 (Fla. 1969)…ed and applied by Florida courts, Bencomo v. Bencomo, Fla.1967, 200 So. 2d 171. Accordingly, the Court entered a summary final judgment in favor of the defendant and dismissed the complaint. - “Plaintiff, citing Amendola v. Amen-dola, Fla.App.1960, 121 So. 2d 805 as authority for her position, argues that her ‘cause of action,’ the substantive right, was vested and therefore unaffected by her marriage to the defendant, and further, that her ‘right of action,’ the procedural right, though barred during cove-t…
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Douglas v. Hackney, 133 So. 2d 301 (Fla. 1961)…a position of peril and that the defendant should have reasonably discov [*304] ered this fact when he was in a position that he could have by the use of ordinary care avoided the accident, would be to authorize a verdict entirely upon conjecture.” [121 So. 2d 805.] Although an apparent effort was made to fill the gap representing this factual element essential to the application of the last clear chance rule, the district court properly described it as a mere “possibility” that would permit “a verdict entir…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Corren v. Corren, 47 So. 2d 774 (Fla. 1950)
- Webster v. Cora M. Snyder, 103 Fla. 1131 (Fla. 1932)