PATRICIA G. HEATON, APPELLANT,
v.
JAMES D. HEATON AND STATE FARM FIRE AND CASUALTY COMPANY, APPELLEES
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The court held that the doctrine of interspousal immunity, as established by prior Florida law, barred the plaintiff's claim for injuries sustained during coverture.
The plaintiff sued her former husband and his insurer for injuries allegedly caused by the husband's negligence during their marriage. The trial court…
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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 prerogative of stating what the law ought to be. The judgment is affirmed.
Affirmed.
WALDEN, J., and SCHWARTZ, ALAN R., Associate Judge, concur. . 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.
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Raisen v. Raisen, 379 So. 2d 352 (Fla. 1979)…nuing validity of this doctrine has also been recognized by.a number of recent [*355] decisions of the district courts of appeal. Vinci v. Gensler, 269 So. 2d 20 (Fla. 2d DCA 1972); Mims v. Mims, 305 So. 2d 787 (Fla. 4th DCA 1974); Heaton v. Heaton, 304 So. 2d 516 (Fla. 4th DCA 1975); Blanton v. Blanton, 354 So. 2d 430 (Fla. 4th DCA 1978); Horton v. Unigard Insurance Co., 355 So. 2d 154 (Fla. 4th DCA 1978), cert. dismissed, 373 So. 2d 459 (Fla.1979). There is a reciprocal and often antagonistic relationship…
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Paoli v. Shor, 345 So. 2d 789 (Fla. 4th DCA 1977)…ld otherwise exist under Section 768.31, Florida Statutes. The trial court held that it does; I agree and would affirm. The doctrine of interspousal immunity has not been abolished and is still a part of the common law of Florida. Heaton v. Heaton, 304 So. 2d 516 (Fla. 4th DCA 1974). Mr. Shor cannot assert a claim against his wife. Mrs. Shor and Mr. Paoli therefore are not joint tort feasors because they have no common liability to Mr. Shor. Since common liability is lacking, Mr. Paoli has no right of contri…
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de Guido v. de Guido, 308 So. 2d 609 (Fla. 3d DCA 1975)…ion in which she alleged that Joseph De Guido was at fault. The trial court, upon discovery of the fact of the marriage, entered a judgment upon the pleadings for the defendant. See the recent Fourth District case of Heaton v. Heaton, Fla. App.1974, 304 So. 2d 516 (released November 29, 1974) and the cases cited therein. We hold that the judgment on the pleadings was error for two reasons. First, matters outside the pleadings may not be considered upon a motion for judgment upon the pleadings.1 Reinhard v. B…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carmela Bencomo v. Bencomo, 200 So. 2d 171 (Fla. 1967)
- Corren v. Corren, 47 So. 2d 774 (Fla. 1950)
- Gaston v. Pittman, 224 So. 2d 326 (Fla. 1969)
- Ocean Mile Galleries, Inc. v. Huguenor, 305 So. 2d 787 (Fla. 4th DCA 1974)
- Amendola v. Amendola, 121 So. 2d 805 (Fla. 2d DCA 1960)
- Mims v. Mims, 305 So. 2d 787 (Fla. 4th DCA 1974)