In this case the husband is made a party defendant with his wife, but the action is predicated upon a charge of negligence of the wife resulting in an injury to the plaintiff. It is in substance alleged that the defendant wife owned and operated an apartment or rooming house, and in connection therewith, and as a part thereof, maintained under her exclusive control a stairway for the use of those using the apartment or rooming house; and that she negligently permitted the stairway to become defective with a resulting injury to the plaintiff.
No ground of the demurrer to the declaration asserts an entire absence of liability of the defendant married woman as matter of law because of her coverture.
Assuming that under the ancient law of England, the married woman, because of her common-law disabilities, is not liable in damages to the plaintiff for the negligence alleged, the question argued is whether that common-law rule of non-liability of the married woman is now applicable in this State in view of existing organic and statutory provisions enacted since the adoption in 1829 as a part of the law of this jurisdiction, the common law of England which is "not inconsistent with" constitutional and statutory law. Act of Nov. 6, 1829, Sec. 87 (71) C. G. L.
During the ancient period when the common law of England was being developed, the husband and not the wife had control over her property and its uses; and injuries caused by the negligent use of her property were redressed in actions against him for damages, she being not liable because she had no part in the management, control or operation of her property, the rule of law being that those who operate property are liable for injuries caused by negligent operation. *Page 98
The rules and principles of the common law are not in force in this State except in so far as they are not inconsistent with organic or statutory provisions.
Since the adoption of the common law in this jurisdiction, fundamental changes in living and business conditions have promoted the enactment of numerous organic and statutory provisions that are inconsistent with the rules and principles of the common law regulating the rights, duties and liabilities of married women with reference to the ownership, management and control of their separate property and to their earnings from employments by them separate from their husbands; and where such enactments are inconsistent with rules or principles of the common law, which prior thereto governed the same subjects, the enactments control and the common law is thereby abrogated or modified to the extent of the inconsistency. See S. F. W. R. v. Geiger, 21 Fla. 669, 58 Am. St. Rep. 697; Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 10 Ann. Cas. 1148, 10 L.R.A. (N.S.) 1051; Broward v. Broward, 96 Fla. 131,117 So. 691, H. N. 9; Banfield, et ux., v. Addington, et ux.,104 Fla. 661, 140 So. 893; Mayhew v. Burns, 103 Ind. 328,2 N.E. 793; Flish v. Lindsay, 115 Mo. 1, 21 S.W. 907, 37 Am. St. Rep. 374; Hanriot v. Sherwood, 82 Va. 1.
In Quiltz v. Batter, 135 N.Y. 201, 32 N.E. 47, 17 L.R.A. 521, and other similar cases, the statutes may be more comprehensive in changing the common law, but the effect upon the common law of inconsistent statutes is elucidated. Merrill v. City of St. Louis, 83 Mo. 244, 53 Am. Rep. 576.
It is not necessary for a statute to repeal a rule or principle of the common law. If a statute is inconsistent with the common law, the statute controls, and the common law is abrogated or modified to the extent of the inconsistency.
Without becoming a free dealer in this State, a married *Page 99 woman may engage in an employment separate from her husband, and the earnings therefrom are her separate property. The law may justly entail a duty and liability commensurate with rights conferred, in order that there be no discrimination in rights and liabilities between married women and other persons enjoying similar rights.
In this case the coverture does not affect the right of the wife under the statute to engage in the employment of operating an apartment or rooming house and of maintaining a stairway therein under her exclusive control; and her liability results from injuries proximately caused by her negligent maintenance and control of such stairway, which maintenance and control she has by virtue of statutes and not of the common law. Therefore, a rule of law imposing liability upon her accords with the effect of the written laws of the State upon the common-law rule on non-liability of a married woman for negligence of her husband or his agents in managing and controlling her property.
DAVIS, C. J., and TERRELL, J., concur.