Mrs. Daisy Addington, a married woman, owned a Beauty Shop in St. Petersburg. Such places have become so generally known and patronized by *Page 680 the feminine branch of our population the Court may well take judicial notice that the service sought to be performed to that part of the population in such places is to increase by artificial means the pulchritude of the fair sex, by appropriate treatment of the hair and facial features, in which they already excel. Apparatus-tonsorii, aside from shears, adhesive plaster, and other accessories, are used sometimes with disappointing and not infrequently painful results.
Mrs. Banfield, another married woman, seeking service in such an establishment for a "permanent wave" sustained painful injuries to her scalp by the inexpert application of "live steam" to her hair through one of the implements used in the shop by an employee of Mrs. Addington.
Mrs. Banfield and her husband sought redress against Mrs. Addington and her husband in the sum of four thousand dollars for the injury to Mrs. Banfield's scalp perpetrated upon her by the inexpert service of Mrs. Addington's employee which Mrs. Banfield alleges seriously interfered with her earning capacity of fifteen dollars per week besides causing her to suffer great physical and mental anguish and producing many "disorders and derangements" which are "permanent and incurable" in their nature.
The declaration contains five counts of several hundred words each and describes a condition of suffering and anguish which has come upon the lady in her lawful effort to improve her personal appearance by the inexpert and negligent work of Mrs. Addington's employee.
Mrs. Addington and her husband demurred to the declaration. Among the grounds enumerated were that a married woman may not be required in law to respond in damages for such a tort; that her property may not be subjected to a judgment at law sought to be obtained in such a case; that the injury, if any, resulted from the act of an employee of Mrs. Addington who is by reason of her *Page 681 status as a married woman incapable of making a contract of employment with any servant or agent and that the alleged tort grows out of a contract with Mrs. Addington, who is incapable of entering into a contract.
The demurrer was sustained and Mr. and Mrs. Banfield took a writ of error and seek a reversal of the judgment of Judge Bird before whom the action was sought to be maintained.
The majority opinion concedes the proposition that at common law Mrs. Addington is not liable for a tort growing out, founded upon or directly connected with a contract. Graham v. Tucker, 56 Fla. 307, 47 South. Rep. 563; Meeks v. Johnston,85 Fla. 248, 95 South. Rep. 670.
That the wrong alleged to have been committed grew out of a contract made between two married women through the inexpert treatment of Mrs. Banfield's hair by another person under another contract for her services with Mrs. Addington is clearly stated by the declaration.
There is no allegation that the alleged tort was the joint act of husband and wife nor that she acted under his coercion. The action rests purely upon nonfeasance and is an action on the case for negligence of an employee not in relation to any property of the married woman nor injury to adjoining property in the repair of her own but solely for the negligence of an employee in rendering personal service to another and may be sustained if at all only upon the theory of respondeat superior.
The duty which Mrs. Addington owed to Mrs. Banfield grew out of, was founded upon and directly connected with, a contract between her and Mrs. Addington to perform the service of furnishing a "permanent wave" to Mrs. Banfield. By reason of that contract Mrs. Addington owed to Mrs. Banfield the duty of performing the work in a workmanlike manner. It is not the contract that is the gravamen of the offense but that the alleged negligent act grew out of a contract relation, was founded upon and directly *Page 682 connected with a contract. The mere fact that Mrs. Banfield entered the establishment of the defendant and sought for a consideration to be paid to the latter the service she desired established a contractual relation between the parties. Whether the contract constitutes he gravamen of the action or is mere inducement the alleged tortious act consisted in a failure to properly and expertly perform a duty which flowed from it.
The majority opinion assumes that the act of Mrs. Addington through her employee in injuring the scalp of Mrs. Banfield was the "positive tortious act" of Mrs. Addington. The language is a misuse of terms. The word in the connection in which it is used in the majority opinion means "affirmative" as opposed to "negative."
The reasoning of the opinion is: A married woman is liable in damages civilly for her "positive," "affirmative" or "pure" torts. The act of Mrs. Addington's employee in failing to use due care in treating the hair of Mrs. Banfield was a "positive," "affirmative," "pure" tort of Mrs. Addington, therefore she is liable civilly in damages to Mrs. Banfield.
The case cannot be stated except by the use of negatives. The declaration charges the act complained of to be the result of carelessness, negligence and want of due care in the operation of a certain apparatus by an employee. There is no similarity between the statement of the case in the declaration and one in which a person is charged with a pure, or affirmative tort like trespass on real estate, assault and battery, libel, slander and malicious prosecution. 13 R. C. L. 1221.
The authority for the majority opinion is not found in the common law nor is there any constitutional or statutory regulation concerning ownership of property by married women as separate statutory property from which the inference may be drawn that she may be held civilly liable in action for damages for her failure to discharge a duty *Page 683 to another which duty in anywise rested upon or is connected with a contract.
The case of Graham v. Tucker, supra, discussed the question fully. The reasoning is clear and sound and referring to the case of Prentiss v. Paisley, 25 Fla. 927, 7 South. Rep. 56, the court said: "there is not the slightest intimation that the liability of a married woman for her torts is in anyway enlarged or affected by the constitution or laws of Florida changing the common law as to her ownership of a separate legal estate and giving her power to make certain specified contracts with reference thereto, and making the same liable in invitum in equity to certain specified debts."
The law as it was by this Court declared to exist in Graham v. Tucker, supra, has not been changed by constitution or statute. The theory of torts as expounded in the majority opinion and as affecting persons sui juris was the law when the Graham-Tucker case was written and is the law to-day. The theory is not a new one. It was known to lawyers of other generations long prior to this one but no theory has ever existed under which a married woman's failure to discharge a duty to another which she owed because of a contractual relation with that other has ever been translated into an "affirmative," positive, pure tort.
I think, therefore, that the judgment should be affirmed.
BROWN, J., concurs.