SHELLEY P. SULLIVAN, AS ADMINISTRATRIX OF THE ESTATE OF MARTHA DONA SESSIONS, DECEASED, APPELLANT,
v.
LEWIS B. SESSIONS, AS ADMINISTRATOR OF THE ESTATE OF JOHN CABBLE SESSIONS, SR., DECEASED, APPELLEE
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In this companion case to Shiver v. Sessions, the Florida Supreme Court held that an administratrix of a murdered wife's estate cannot maintain an action under the Survival Statute against the administrator of the husband's estate, because the wife had no right of action against her husband during her lifetime due to the common-law spousal immunity rule.
An action cannot be maintained under the Survival Statute under these circumstances because the wife had no right of action against her husband during her lifetime due to common-law spousal immunity, and the personal representative cannot have greater rights than the deceased would have possessed.
“here, we are concerned with precisely the same right of action, brought 'in the name of the personal representative of the deceased,' Section 45.11, to recover 'the damages which deceased could have recovered had he lived and maintained the action.'”
Establishes that under the Survival Statute, the personal representative can only recover what the deceased could have recovered, making spousal immunity fatal to the claim.
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Join FLexlaw to unlock all legal intelligenceMartha Dona Sessions was murdered by her husband, John Cabbie Sessions, Sr., who subsequently committed suicide. The administratrix of Martha's estate…
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ROBERTS, Justice.
This is a companion case to Shiver v. Sessions, Fla., 80 So. 2d 905, arising out of the same tragedy, that is, the murder of Martha Dona Sessions by her husband, John Cabbie Sessions, Sr., followed by the suicide of the husband. The instant suit was filed by the administratrix of the estate of Martha Dona Sessions against the administrator of the estate of John Cabbie Sessions, Sr., under the Survival Statute, Section 45.11, Fla.Stats. 1953, F.S.A. The complaint was dismissed upon motion of the defendant, and this appeal followed.
The sole question argued here is whether an action may be maintained under the Survival Statute under the circumstances here present. For reasons hereinafter stated, we hold that it cannot be maintained.
In the companion case, Shiver v. Sessions, supra, we discussed the common-law rule respecting the husband’s immunity from suit for his torts'against his wife and held that the rule could not be applied to defeat an action for the wrongful death of the wife filed by her surviving minor children against the deceased husband’s estate. Our reasons for so holding, as stated therein, have no application here. There, we were concerned with a suit based on a right of action entirely distinct from that which the wife could have maintained during her lifetime, except for her disability to suit her husband; -here, we are concerned with precisely the same right of action, brought “in the name of the personal representative of the deceased,” Section 45.11, to recover “the damages which deceased could have recovered had he lived and maintained the action.” Ake v. Birnbaum, 156 Fla. 735, 25 So. 2d 213, 220. See also Ellis v. Brown, Fla. 1955, 77 So. 2d 845. The wife during her lifetime would have no right of action against her husband on account of his tortious act, under the common-law rule referred to above; her personal representative simply “stands in her shoes” and can have no greater rights than she would have had during her lifetime. The action cannot, therefore, be maintained.
Affirmed.
DREW, C. J.,' and TERRELL and SE-BRING, JJ., concur.
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Kluger v. Bernadette White & Manchester Ins. & Indem. Co., 281 So. 2d 1 (Fla. 1973)…ns of a special law. . 237 So. 2d 142 (Fla.1970). . Id. at 145. See, e. g., Bencomo v. Bencomo, 200 So. 2d 171 (Fla.), cert. denied, 389 U.S. 970, 88 S.Ct. 466, 19 L.Ed.2d (1967); Shiver v. Sessions, 80 So. 2d 905 (Fla.1955); Sullivan v. Sessions, 80 So. 2d 706 (Fla.1955); Corren v. Corren, 47 So. 2d 774 (Fla.1950). . 160 Fla. 736, 36 So. 2d 419 (1948). . Section 320.59, Florida Statutes, 1971—repealed by § 1, ch. 72-1, Laws of Florida. . 149 Fla. 334, 5 So. 2d 867 (1942). . Chapter 440, Florida Statut…
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Sinclair Ref. Co. v. Butler, 190 So. 2d 313 (Fla. 1965)…and property on account of the tortious act of the defendant. See Ake v. Birnbaum, 156 Fla. 735, 25 So. 2d 213; Epps v. Railway Express Agency, Fla. 1949, 40 So. 2d 131; Ellis v. Brown, Fla. 1955, 77 So. 2d 845; cf. Sullivan v. Sessions, Fla. 1955, 80 So. 2d 706. As stated in Ake v. Birnbaum, supra, the damages recoverable in a survival action are only those “which deceased could have recovered had he lived and maintained the action.” Common logic dictates that a tortfeasor should be held answerable to som…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Forrest H. AKE and Mittie AKE v. Birnbaum, 156 Fla. 735 (Fla. 1945)
- Shiver v. Sessions, 80 So. 2d 905 (Fla. 1955)
- Ellis v. Brown, 77 So. 2d 845 (Fla. 1955)