In this case writ of error is to a judgment of the circuit court in favor of defendant.
The plaintiff sued the defendant, a married woman joined by her husband, for damages occasioned by a defective step on a stairway of an apartment and rooming house operated and conducted by the defendant.
The judgment should be affirmed on authority of the opinion and judgment in the case of Graham v. Tucker, 56 Fla. 307,47 So. 563.
This case is to be distinguished from Banfield, et ux., v. *Page 102 Addington, et ux., 104 Fla. 661, 140 So. 893, in that in the Banfield case the injury was alleged to be the result of a positive act perpetrated by the servant of the married woman. In this case the injury is alleged to have been caused not by the affirmative act but by the failure to perform an act which the declaration alleges it was the duty of defendant to perform. It is true the amended declaration says: "That she (the defendant) so carelessly and negligently operated said rooming or apartment house that she carelessly and negligently allowed and permitted said stairway and said step to be weak, loose, defective and insecure," etc. But this language is not sufficient to show a positive tortious conduct on the part of the defendant, a married woman, to warrant recovery. It at most alleges only the non-performance of a duty the performance of which rested upon the married woman defendant, and further, that this non-performance of duty resulted in the injury to the plaintiff. For such injuries recovery cannot be had against married women. The law in this regard is ably discussed in Graham v. Tucker, supra, and the same conclusion was reached there which we reaffirm here. For further discussion of this phase of the law applicable to this case see the dissenting opinion of Mr. Justice ELLIS in the case of Banfield v. Addington, supra.
Judgment affirmed.
ELLIS, J., concurs.