a step" of the stairway tilted which caused Mrs. Ballenger to fall and injure herself. It is alleged that Mrs. Mark negligently allowed the "stairway *Page 100 and said step to be weak, loose, defective and insecure and that she knew, or by the exercise of ordinary and reasonable care, could have known of the condition of said "steps."

The alleged cause of action thus appears to rest not upon an affirmative tortious act of Mrs. Mark, not in any sense a pure tort, but upon the failure of a duty which by reason of her contract with Mrs. Ballenger she owed to her to keep the staircase free from the defect which it is alleged caused the accident.

The case of Banfield v. Addington, 104 Fla. 661,140 South. Rep. 893, is not authority for the position assumed by the plaintiff in error in this case, because in that case the Court held that the act of Mrs. Addington in administering the treatment for a "permanent wave" to Mrs. Banfield was a "positive act of negligence." The opinion stated that the "effect of our statute authorizing married women to engage in employments separate from their husbands is to confer upon them the right to assume the position of master and servant, with all the rights and liabilities which necessarily go with that relation; that it thereby makes a married woman liable for any act of a servant employed by her, for which act she would be liable if she had committed the act personally, and not through her servant." On that principle the decision held Mrs. Addington to be liable in damages for the negligent act of her servant in administering the treatment.

I am still of the opinion that the argument in that case is fallacious and can be supported by no authority except court-made law, if such is of any value in our system of jurisprudence. It is the function of the Court to declare what the law is, not what it should be. When the judicial power is sought to be extended into the realm of the lawmaking power upon the assumption that legislators do not *Page 101 move fast enough to keep pace with so-called altered social conditions and complex relations now existing and rapidly changing, the effort sets up a doctrine of Pharisaical justice which disparages the efficiency of the legislative branch of the Government by proclaiming its own superior alertness and wisdom which would be more becomingly left to the judgment of the sovereign people in constitutional convention represented.

The case of Funk v. United States of America, decided by the Supreme Court of the United States, December 11, 1933, has no bearing whatsoever upon the case at bar. That case relates solely to the competency of a wife to testify as a witness in behalf of her husband. It has no relation whatsoever to the policy of a State as expressed by legislative enactment restricting the powers of a married woman as to contractual capacity. It is for the Legislature to lift that handicap, if it be one, not for the Court.

In the case at bar the duty, if any, which Mrs. Mark owed to Mrs. Ballenger grew out of a contractual relation and was in no degree an affirmative or pure tort, and no liability attaches to her on account of the accident except as it may result from judicial fiat unconstitutionally asserted.

So I think the judgment should be affirmed.

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