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Heaton v. Heaton , 304 So. 2d 516 ( 1974 )


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  • 304 So. 2d 516 (1974)

    Patricia G. HEATON, Appellant,
    v.
    James D. HEATON and State Farm Fire and Casualty Company, Appellees.

    No. 73-1432.

    District Court of Appeal of Florida, Fourth District.

    November 29, 1974.
    Rehearing Denied January 8, 1975.

    Larry Klein of Cone, Wagner, Nugent, Johnson & McKeown, P.A., West Palm Beach, for appellant.

    Frank W. Weathers, Jr. and Burton G. Sharff of Weathers & Narkier, P.A., West Palm Beach, for appellees.

    OWEN, Chief Judge.

    On the authority of Bencomo v. Bencomo, Fla. 1967, 200 So. 2d 171, appellant suffered dismissal with prejudice of her complaint against her divorced former husband and his liability insurance carrier, which complaint alleged that during coverture the defendant husband had negligently caused bodily injury to the plaintiff wife.

    With admirable candor, appellant's counsel concedes that the trial court ruling was correct on the basis of the present status of the law in Florida as reflected in the decisions in Bencomo v. Bencomo, supra, and Gaston v. Pittman, Fla. 1969, 224 So. 2d 326,[1] but urges that we now abolish or discard the doctrine of interspousal immunity, either completely, or at least in those cases (such as the case at bar) where the parties are no longer married to one another. In support thereof, appellant points out that subsequent to the decision in the Bencomo case, the majority of the jurisdictions in this country have abolished interspousal immunity, either by statute or court decision, and thus Florida is now in the minority.

    While appellant's argument is not without some degree of persuasiveness, we conceive our proper appellate function to apply to each case the law as we understand it to be. We do not enjoy the advocate's *517 prerogative of stating what the law ought to be. The judgment is affirmed.

    Affirmed.

    WALDEN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

    NOTES

    [1] See also, Mims v. Mims, Fourth District Court of Appeal, 305 So. 2d 787; Amendola v. Amendola, Fla.App. 1960, 121 So. 2d 805; and Corren v. Corren, Fla. 1950, 47 So. 2d 774.