text:
    William R. SMITH and Richard C. Smith, as co-personal representatives of the Estate of Olive O. Smith, Deceased, Appellants, v. Dorothy L. LUSK and the Hanover Insurance Company, as a National Corporation, Appellees.
    No. 77-1923.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    William E. Lowe of Lowe, Ferrell & Huie, P. A., Bradenton, for appellants.
    Douglas P. Lawless and A. C. Shields, III, of Dart, Dickinson, O’Riorden, Gibbons & Quale, P. A., Sarasota, for appellees.
   RYDER, Judge.

Mrs. Olive 0. Smith was allegedly injured on October 17, 1975 when her automobile was struck by a vehicle driven by Mrs. Dorothy L. Lusk. Mrs. Smith was hospitalized immediately thereafter and progressed to a point where she was discharged to a convalescent home. Approximately two weeks later, she returned' to the hospital and died on December 20, 1975.

Her sons, appellants captioned above, as the personal representatives of Mrs. Smith, filed a two-count complaint against appel-lees Lusk and Hanover Insurance Company. Count I was an action pursuant to Section 46.021, Florida Statutes (1975), commonly referred to as “The Survival Statute”, for personal injuries and pain and suffering of Mrs. Smith until her death resulting from causes allegedly unrelated to the negligence of Lusk.

In the alternative, Count II was brought pursuant to Sections 768.16-768.27, Florida Statutes (1975), “The Wrongful Death Act”, which, unlike Count I, alleged that Mrs. Smith’s death was caused directly by the negligence of appellee Lusk. In Count II, appellants sought damages for their mental anguish by reason of the death of their mother, medical and funeral expenses, and diminished value of the estate.

Thereafter, appellees moved to dismiss Count I on the ground that Section 46.021 was impliedly abolished by the enactment of Section 768.16, et seq. Appellants filed an objection to the motion to dismiss stating that the evidence would show that the decedent’s cause of death was leukemia and not as a result of the negligence of appel-lees and, thus, argued that the wrongful death act had not impliedly abolished the survival statute as applied to these facts.

After a hearing, the trial court entered an order of dismissal finding that the survival statute was impliedly abolished by enactment of the wrongful death act and dismissed Count I of the complaint without leave to amend. Appellants’ motion for rehearing was denied. Appellants filed this appeal in the Supreme Court which transferred it here.

Section 46.021, Florida Statutes (1975), provides in part: “Actions; surviving death of party. — No cause of action dies with the person. All causes of action survive and may be commenced ... in the name of the person prescribed by law.”

Section 768.19, Florida Statutes (1975), reads in part: “When the death of a person is caused by the wrongful act, negligence . of any person . . . and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person . . that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, . . . ” (Emphasis added)

Section 768.20, Florida Statutes (1975), also provides in part: “The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in his death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” (Emphasis added)

Appellees apparently attempt to find refuge in the last sentence of Section 768.20, supra, urging that the legislature provided that when an injury causes death no action for personal injury shall survive and any such action pending at the time of death shall abate and, thus, this language impliedly abolishes Section 46.021. To bolster their argument, appellees urge upon us Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975), wherein the Supreme Court wrote: “The claim for pain and suffering of the decedent from the date of the injury to the date of the death was eliminated. Substituted therefore was the claim for pain and suffering of close relatives, the clear purpose being that any recovery should be for the living and not for the dead.” 314 So.2d at 769.

We thoroughly agree with Martin but note that it is distinguishable from the case sub judice because in Martin the personal injury to the decedent resulted in his death. Also, we note that the Martin court, in its wisdom, observed in footnote 18 at page 770: “However, the survival statute is still applicable to preserve other actions which the decedent may have brought or was bringing prior to his death.”

Alternative pleading is a time honored practice. Appellants’ complaint classically sets up inconsistent and alternative pleadings; Count I for pain and suffering, for injuries not resulting in plaintiff’s death; and in Count II, for those elements of damages allowed by the legislature where the injury resulted in one’s death.

Obviously, in Martin, the Supreme Court wished to continue one’s right to maintain an action for damages where death was not the result of injuries sustained. Considering the language of Martin in conjunction with the clear language of the legislature in Sections 768.16, et seq., we are led to but one unmistakable conclusion which is, the legislature did not, in fact, impliedly abolish the survival statute by enacting the wrongful death act. A finding to the contrary is error and, therefore, we reverse, order Count I of appellants’ complaint reinstated and remand for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

GRIMES, Acting C. J., and DANAHY, J., concur.


source: Caselaw Access Project

author: HUBBART, Judge.

license: Public Domain

text:
    In re Tom HOLLAND.
    No. 78-259.
    District Court of Appeal of Florida, Third District.
    March 31, 1978.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

This is a motion to review an order denying supersedeas bail for a person who has been involuntarily hospitalized by the circuit court under the Baker Act and who appeals the order of commitment. The question raised by the motion is whether a circuit court has the authority to admit such a mental incompetent to supersedeas bail. We hold that the trial court lacks the authority to admit to supersedeas bail a person who appeals an order of involuntary hospitalization under the Baker Act. [Section 394.467, Florida Statutes (1975)]. Accordingly, we deny the motion to review.

It appears without dispute that on January 12, 1978, a petition to involuntarily hospitalize the appellant Tom Holland pursuant to Section 394.467, Florida Statutes (1975), was filed in the Circuit Court for the Eleventh Judicial Circuit of Florida. On January 19,1978, the petition came on for a full evidentiary hearing before the said circuit court in which the state was represented by the state attorney and the appellant was represented by the public defender. Testimony was received from three witnesses at the conclusion of which the trial court entered a written order committing the appellant to a mental treatment facility not to exceed six months. Specifically, the trial court found as follows:

“On this record, the [c]ourt is convinced that there is clear and competent evidence that the patient is mentally ill, dangerous to himself, lacks sufficient sustained insight and judgment to seek responsible medical care and treatment on his own behalf and that there are no viable alternatives less restrictive in nature by which he can be successfully treated and maintained other than through long term involuntary hospitalization.”

The public defender at the conclusion of the hearing orally requested that a superse-deas bail be set pending an appeal to this court of the involuntary hospitalization commitment. The trial court at first set a $1,000 supersedeas bond, but upon further reflection entered a written order setting aside the previous order and denying the application for supersedeas bail. This motion to review that order follows.

The trial court in its order denying super-sedeas bail accurately observes that “[a] study of chapter 394, Florida Statutes, fails to disclose or evince a [legislative plan for the stay of the performance or execution of commitment orders under the so-called Baker .Act.” Although the Baker Act sets out in comprehensive detail the rights of the patients at Section 394.459, Florida Statutes (1975), no mention is made of any right of the patient to bail either before or after the entry of an order of involuntary hospitalization. The very absence of such a provision in such a comprehensive catalog of rights is strong evidence to us that the legislature had no intent to grant such a right to patients.

In fact, the Baker Act contains detailed procedures for the admission and retention of patients pending emergency examination and court-ordered evaluation, Section 394.-463(1), (2), Florida Statutes (1975), as well as pending proceedings for involuntary hospitalization. Section 394.467(2), Florida Statutes (1975). Post-commitment proceedings further mandate involuntary hospitalization up to a maximum of six months. Section 394.467(2), Florida Statutes (1975). Such statutory provisions reflect an overall legislative purpose that patients be retained at treatment facilities both pending and subsequent to a hospitalization commitment. To allow a patient to remain at liberty prior to a hearing on involuntary hospitalization or subsequent to a final order of commitment runs counter to the purpose of the Baker Act as stated in Section 394.453, Florida Statutes (1975), which is to treat the mentally ill and to do so on a compulsory basis when the patient represents a threat to himself or society. Such a purpose cannot be carried out if the patient is not hospitalized.

The Florida Supreme Court in Varholy v. Sweat, 153 Fla. 571, 15 So.2d 267 (1943), has held that a patient confined under a quarantine order for treatment of a communicable venereal disease is not entitled to bail. The court concluded that to grant release on bail to persons isolated and retained on a quarantine order because they have a contagious disease would make them dangerous to others, or to the public in general, and would render quarantine laws and regulations nugatory and of no avail. A similar result can be reached with respect to the Baker Act. To grant release on bail to persons who are adjudicated mentally ill and a danger to themselves or others, is not in the public interest and would render the Baker Act nugatory and of no avail.

In the instant case, the trial court has concluded that there is clear and competent evidence that the appellant Tom Holland is mentally ill, dangerous to himself, and lacks sufficient sustained insight and judgment to seek responsible medical care and treatment on his own behalf. The court has further concluded that there are no viable alternatives less restrictive in nature in which he can be successfully treated and maintained other than through long term involuntary hospitalization. To allow a person so adjudicated to remain at liberty pending an appellate review of such order would defeat purposes of the Baker Act by permitting a prima facie mentally dangerous person to injure, if not kill himself.

We are equally unpersuaded, in the absence of a specific statute to the contrary, that a trial judge may under certain circumstances grant a supersedeas bail as in a criminal case to an adjudicated mental incompetent. See Younghans v. State, 90 So.2d 308 (Fla.1956); Fla.R.Crim.P. 3.691; Fla.App. Rule 6.15 (1962). If a person is subject to commitment under the Baker Act as being likely to injure himself or others, or in need of care or treatment but lacking sufficient capacity to make a responsible application on his own behalf, Section 394.-467(1), Florida Statutes (1975), it would be a gross contradiction and distortion of the Baker Act to release such a person on bail pending appeal. On the other hand, a person who qualifies for release on appeal under Younghans or some other similar test and who is not a mentally dangerous person should not be committed under the Baker Act in the first place. In short, involuntary hospitalization and bail pending appellate review thereof are two mutually exclusive concepts which cannot co-exist with one another without inflicting serious damage to the entire legislative scheme as provided in the Baker Act.

We fully recognize that involuntary hospitalization is a massive deprivation of liberty which the state cannot accomplish without due process of law. Shuman v. State (Fla.1978) (case no. 50,675, opinion filed February 23, 1978). The required due process safeguards are spelled out in the Baker Act as interpreted in In re Beverly, 342 So.2d 481 (Fla.1977), and in the state and federal constitutions as interpreted in O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), and Shuman v. State, supra. These constitutional safeguards, however, do not contemplate a right to bail in involuntary hospitalization proceedings.

In the event that the appellant herein no longer needs treatment in a mental facility, he has a right to petition the circuit court for habeas corpus relief pursuant to Section 394.459(10). If it is determined that the appellant no longer qualifies for involuntary hospitalization under the Baker Act, he is entitled to immediate release. This may be accomplished during the pendency of this appeal upon a temporary relinquishment of jurisdiction by this court to the circuit court. Also the appellant may seek an expedited appeal in this court from the original order of commitment. We believe these procedures accord with required due process safeguards.

Motion to review the denial of supersede-as bail is denied.


author: RYDER, Judge.

text:
    William W. BEARD, Appellant, v. Doris E. BEARD, Appellee.
    No. 77-923.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.

      James H. McAnly, Arcadia, for appellant.
   RYDER, Judge.

Mr. Beard appeals the award to his wife of the real property and certain of the personal property of the parties, the amount of permanent alimony awarded to her, and the requirement that he pay certain debts, a portion of his wife’s attorney’s fees, and court costs in connection with the dissolution of the parties’ marriage. Except with respect to the award to the wife of all personal property located in, on and around the marital home, we find no error or abuse of judicial discretion.

The wife claimed and proved a special equity in the marital home. She also sought the award of certain specified pieces of personal property — certain automobiles and an insurance policy — which she was awarded by stipulation and which are not in issue on this appeal. However, there was no plea for the personal property in and around the marital home in either the husband’s petition for dissolution or in the wife’s counterpetition. Further, there was no evidence or testimony offered regarding this property at the final hearing.

A trial court may not dispose of property belonging to the parties as an incident to a divorce in the absence of an agreement between the parties or an appropriate pleading for such relief. Helsel v. Helsel, 138 So.2d 99 (Fla. 3d DCA 1962). There being no such agreement or pleading here, that portion of the final judgment of dissolution awarding the personal property in, on and around the marital home to the wife must be reversed. In all other respects, the final judgment is affirmed.

BOARDMAN, C. J., and GRIMES, J., concur.


author: PER CURIAM.

text:
    Reely Ruben WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1648.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephannie DaCosta, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we agree with appellant that there is an imperfection in the order withholding adjudication and placing appellant on probation. The order states that appellant entered a plea of guilty whereas the record demonstrates that appellant pled nolo contendere. Therefore we remand the case for correction of the order, and appellant need not be present at that time.

OTT, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Stanley TURNER, D. C., Petitioner, v. FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS, Respondent.
    No. 77-1424.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Charles F. Broome, Titusville, for petitioner.
    Robert L. Shevin, Atty. Gen., and Charles S. Ruberg, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petitioner’s license to practice chiropractic was revoked by the Florida State Board of Chiropractic Examiners despite findings of the Hearing Examiner that the petitioner was innocent of the particular charges contained in the complaint and a recommendation that the petitioner suffer only a public reprimand.

We find that the Board altered the Hearing Officer’s findings of fact without stating with particularity why certain findings were modified as required by Section 120.-57(l)(b)(9), Florida Statutes (1975). See Moore v. Florida Construction Industry Licensing Board, 356 So.2d 19, 510 (Fla. 4th DCA, Case No. 77-2083, opinion filed February 21, 1978).

Accordingly the petition for writ of cer-tiorari is granted, the Final Order is quashed, and upon remand the Board should either adopt the Hearing Officer’s findings of fact or, if it wishes to alter these findings, it should, as required by Section 120.57(l)(b)(9), state with particularity why the findings are modified.

ALDERMAN, C. J., and CROSS and DAUKSCH, JJ., concur.


text:
    McDEVITT & STREET COMPANY, Appellant, v. MARTIN, JOHNSON & WALLS, INC., a Florida Corporation, et al., Appellees.
    No. 75-1950.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      Elmo R. Hoffman of Hoffman, Hendry, Parker & Smith, Orlando, for appellant.
    Linton S. Waterhouse, Orlando, for appel-lee-Martin, Johnson & Walls, Inc.
    Janis M. Halker, Orlando, Lippincott & Halker, Winter Park, and Gurney, Gurney & Handley, Orlando, for appellee-Fidelity and Deposit Co. of Maryland.
   PER CURIAM.

Two lawsuits involving the same parties and arising out of the same transaction were consolidated for trial. The plaintiff in one of the lawsuits was a general contractor who was suing a subcontractor and the subcontractor’s surety for the alleged breach of two subcontracts and for the alleged wrongful filing of a mechanic’s lien by the subcontractor. The subcontractor counterclaimed, alleging that the contractor had breached the subcontracts, and sought enforcement of its claim. In the other lawsuit the subcontractor sued the contractor, seeking to recover possession of a trailer and other personal property that had been left at the construction site and for damages, alleging that its property had been wrongfully detained by the contractor. The consolidated cases were tried by jury and verdicts were returned in favor of the subcontractor and against the contractor.

In the breach of contract action we find no reversible error. However, the replevin action must be reversed and remanded for a new trial on the issue of damages. Although the subcontractor would be entitled to some award for the wrongful detention of its property, there was no competent evidence to support the $8,325 award by the jury.

AFFIRMED in part, REVERSED in part, and remanded for a new trial in the replevin action on the issue of damages.

ALDERMAN, C. J., CROSS, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.


author: HASTINGS, ALCEE L„ Associate Judge.

text:
    Charles COOPER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-878.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler and Charles D. Peters, Asst. Public Defenders, and Marc R. Goldstein, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   HASTINGS, ALCEE L„ Associate Judge.

Charles Cooper was informed against for robbery. On May 8,1975, the jury returned a verdict of guilty. Subsequently, the court pronounced judgment and sentence and this appeal followed.

Several matters have been assigned as error, but this court deals with the assignment questioning the trial court’s failure to grant the judgment of acquittal where the totality of the evidence was insufficient to justify the case going to the jury for determination. Reflecting on the entire record below, and comparing it with the well founded principles established in a long line of cases in Florida, it appears the verdict must be set aside.

On March 6, 1975, pursuant to a bolo regarding a robbery an officer gave chase to a vehicle fitting the description of the bolo. The information contained in the bolo apparently came from an anonymous tipster.

Testimony elicited during the trial established that a lady, on the same day, was knocked down by an assailant and her purse was snatched. The lady did not testify that she saw the assailant get into any vehicle at all. Further, she gave a description of her assailant as being a young black male, wearing a T-shirt, blue jeans and tennis shoes. She was unable to identify any person in a line-up as the assailant.

The officer testified that while he was chasing the car “something” came out on the passenger’s side of the vehicle. Further, the testimony showed that the officer stopped the vehicle and two persons were in it. The appellant was one of the persons. Both were arrested and searched. It turns out they both had money but the denominations were not the same, nor the amount, as that taken from the lady.

Subsequently the lady’s purse was retrieved in the vicinity where the officer saw the object fly from the vehicle in which the appellant was apprehended.

The ultimate question on appeal was whether the above stated facts are sufficient to prove the defendant guilty of robbery. We hold that they are not and that the trial court erred in not granting the defendant’s motion for judgment of acquittal.

REVERSED and REMANDED with instructions that the defendant be discharged.

ALDERMAN, C. J., and LETTS, J., concur.


author: MOORE, Judge.

text:
    COOLAIRE NORDIC INTERNATIONAL CORPORATION, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Leroy Green, Respondents.
    No. 76-2332.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for petitioner.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and James R. Parks, Miami, for respondent-Florida Dept, of Commerce.
   MOORE, Judge.

In this petition for writ of certiorari to review an order of the Florida Industrial Relations Commission, the Petitioner-employer seeks to set aside the Commission’s order granting unemployment compensation benefits to the Respondent-employee, Leroy Green.

The Respondent was employed by Petitioner from 1969 to August 1975 at which time he resigned, claiming that his resignation was with good cause attributable to his employer. In 1973, the employer was located in Perrine, Florida which was in the area of Respondent’s residence. Due to a merger, the employer decided to move its plant to Hollywood, Florida, some distance from Respondent’s residence. In doing so the employer notified all employees, including the Respondent, that it would provide transportation from Perrine to Hollywood at company expense for all employees who wished it for a period of six months. In early November 1974, more than six months later, the employer notified all employees that free transportation would be terminated on November 30, 1974 and all employees were requested to make their own transportation arrangements.

Upon termination of company transportation in November 1974, the Respondent rode to work in a private car pool and thereafter made arrangements for transportation with another employee who had the benefit of an employer-owned automobile. In August 1975, the employer took back its owned automobile whereupon the Respondent advised his supervisor that he was quitting because he had no transportation. The supervisor requested him to seek transportation and advised that his job would be kept open for two weeks while Respondent was attempting to do so. Thereupon, Respondent left his employment and subsequently filed this claim. The Respondent acknowledges receipt of the original notice which provided for company transportation for six months only, and receipt of the November 1974 notice of discontinuance of such transportation.

Upon this basis a Claims Examiner determined that Respondent was eligible for benefits without disqualification. This decision was made without the benefit of receiving evidence or testimony and thereafter an Appeals Referee, who received evidence and testimony, reversed the Examiner, holding that Respondent was not entitled to benefits because he had voluntarily left his employment without good cause attributable to his employer. On review the Industrial Relations Commission (IRC) reversed, holding that the employer had broken a condition of the employment, to wit: depriving Respondent of transportation without providing adequate notice thereof. Thus, IRC found that Respondent left his employment with good cause attributable to his employer. The Industrial Relations Commission found:

“The claimant arranged for his own transportation from November 1974 until May 1975, then in May the employer furnished to claimant and the co-worker transportation which continued until the separation date. The provision, by employer, of this transportation in May was an alteration of the contract of claimant’s employment and this condition was broken by the employer when it suddenly deprived him of his means of transportation. ...”

There is no support in the record for these findings. To the contrary, Respondent acknowledged that he knew he would have to find his own transportation since November 1974 and, in fact, did so. He rode in a car pool with other employees until May 1975 and then rode in a company ear with a co-worker who was the only one supposed to use it as admitted by Respondent. For two or three days a week he also drove his cousin’s car. The employer never furnished an automobile to Respondent. Accordingly, the decision of the Industrial Relations Commission must be reversed.

We have not been asked, nor do we offer, to render an opinion as to whether or not an employee, under the facts here presented, would be entitled to benefits because his employer moved its operations to a distant location.

Certiorari is granted and the order of the Florida Industrial Relations Commission is quashed, and this cause remanded with instructions to enter an order consistent with this opinion.

Certiorari granted, with directions.

ALDERMAN, C. J., and DOWNEY, J., concur.


author: ALDERMAN, Chief Judge.

text:
    Mary E. HYOTLAINE, Appellant, v. William K. HYOTLAINE, Appellee.
    No. 76-2580.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      Charles H. Warwick, III, of Warwick, Campbell, Dickenson & Hewitt, Palm Beach, for appellant.
    Richard B. Burk of Scott, Burk, Royce, Harris & Loucks, P. A., Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

In this dissolution of marriage case the wife appeals, contending that the trial court erred in finding that certain payments to her provided for in an agreement entered into by the parties and subsequently incorporated into the divorce judgment, were alimony and subject to modification. She further contends that, if the payments are alimony, the trial court erred in reducing the payments. She also argues that the trial court erred in reducing the amount of a security escrow required by the agreement. We find that the payments, at least in part, are alimony and as such are subject to modification. We hold that the trial court did not abuse its discretion in reducing the amount of the payments, but we conclude that the trial court did err in reducing the amount of the security escrow.

Section 8 of the agreement, entitled “Support of Wife,” provides that the husband shall pay to the wife $32,000 a year, and that upon the death of the wife’s mother the payments shall be reduced to $28,000 a year. At the time of the hearing the wife’s mother was still living. The agreement further provides that in the event the wife remarries the payments are to be reduced to $10,000 a year. The trial court modified the final judgment by reducing the husband’s payments from $32,000 to $24,000 a year, with the further provision that upon the death of the wife’s mother the payments would be reduced to $20,000 a year.

In reference to the payments, if they are for support, maintenance or alimony, either party may apply for a judgment decreasing or increasing the amount provided for in the agreement. Section 61.14, Florida Statutes (1975). On the other hand, if the payments are part of a true property settlement agreement they are not subject to modification. Salomon v. Salomon, 196 So.2d 111 (Fla.1967). We find paragraph 8 to be, at least in part, an agreement for the payment of alimony. We reach this conclusion based upon a reading of the entire agreement, but we particularly note the introductory language which recites that “property rights of the parties as well as questions of alimony payment have been placed in issue by both parties” and that “the parties desire to settle all questions regarding property rights, support and maintenance and other rights and obligations growing out of the marriage relation.” We also note that paragraph 8 provides: “all payments provided in this paragraph shall be taxable to the wife and deductible by the husband.” Such tax treatment would be allowable only if the payments were alimony and not part of a property settlement agreement.

Having determined that the payments are subject to modification, we now turn to the wife’s argument that the trial court abused its discretion in reducing the payments. Although the evidence was in conflict and would have supported a different conclusion, we cannot substitute our judgment for that of the trial court where, as in this case, there is competent substantial evidence to support the trial court’s findings that the circumstances of the parties and the financial ability of the husband have substantially changed. We cannot say, under the facts of this case, that the trial court abused its discretion in decreasing the amount of the wife’s alimony.

A different situation, however, is presented by the trial court’s reduction of the security escrow. Under the terms of the agreement the husband was required to assign to an escrow agent collateral in the amount of $200,000. Income from this collateral is to be deposited in an interest bearing account from which payments to the wife are to be made in the event he defaults. He has the right to substitute collateral providing it is acceptable to her and of comparable value to the collateral released. In the event she predeceases him, the collateral in escrow, to the extent it is not required to satisfy any existing default on his part, is to be returned to him. But if he predeceases her, all the collateral in escrow becomes her property. In that event his estate is entitled to a credit for any amount she receives from escrow against any sums she may be entitled to receive from his estate. This is related to another provision of the agreement by which he agreed to make her the beneficiary of his estate, or in the event he remarries and remains married at the time of his death, to bequeath to her 50% of his estate.

We conclude that the escrow provision is more than just a security for the alimony payments. It is an integral part of a contract in which the husband agreed that the wife should have all of his estate, if at the time of his death he is unmarried, or if he remarries and remains married at his death to provide her with at least 50% of his estate. This contract between the parties is not subject to modification under the provisions of Section 61.14, and the trial court erred in ordering a reduction of the amount of the escrow.

AFFIRMED in part, REVERSED in part, and REMANDED.

LETTS and MOORE, JJ., concur.

      . In this appeal it is not necessary for us to decide whether the extra $4,000 a year that the husband agreed to pay until the death of the wife’s mother and $10,000 a year that he agreed to pay in the event she remarried is alimony.


text:
    CLIFFORD RAGSDALE, INC. d/b/a Commercial Electric Company, a Florida Corporation, Appellant, v. MORGANTI, INC., Morganti, South Inc., Wolff & Munier, Inc., Federal Insurance Company, jointly and severally, Appellees.
    No. 76-2581.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      Larry A. Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellant.
    Michael B. Davis of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellees.
   MOORE, Judge.

Appellant/plaintiff contends that the trial court erred in dismissing its cause and entering final judgment with prejudice. We disagree and affirm.

The time sequence is important and it is repeated as follows:

November 18, 1975 — Defendants filed a motion to dismiss for failure to state a cause of action.
November 18, 1975 — Defendants filed a motion to abate for failure of the plaintiff to comply with the “fictitious name statute,” Section 865.09, Florida Statutes (1975).
February 13, 1976 — Trial court dismissed plaintiff’s complaint and granted plaintiff until March 15, 1976 to amend. Trial court also granted defendants’ motion to abate.
July 28, 1976 — Defendants filed a motion for final judgment dismissing complaint with prejudice.
September 3, 1976 — Plaintiff’s new counsel filed a notice of appearance, motion in opposition to motion for final judgment dismissing complaint with prejudice and an amended complaint.
November 5, 1976 — Defendants filed motion to strike plaintiff’s amended complaint because leave of court had neither been sought nor granted.
November 10, 1976 — Final judgment entered dismissing with prejudice plaintiff’s action.

Pursuant to the last entry indicated above, this appeal was instituted.

The record does not reflect any attempt on the part of the plaintiff to comply with the “fictitious name statute” which caused the “abatement” of the action below. Both parties, however, are deemed to have waived non-compliance by reason of their participation in further proceedings. See, Cor-Gal Builders, Inc. v. Southard, 136 So.2d 244 (Fla. 3d DCA 1962).

In a scholarly opinion, Judge Wigginton traced the history of the rules of procedure in situations such as that before us through the year 1963. Hardee v. Gordon Thompson Chevrolet, Inc., 154 So.2d 174 (Fla. 1st DCA 1963). Prior to the adoption of modern rules of civil procedure in the early 1950’s, the test to determine whether or not a dismissal acted as an adjudication on the merits involved the factual allegations. If that which caused the dismissal was an insufficiency relating to the failure of the complaint to allege necessary facts to state a cause of action, a judgment of dismissal was held not to be an adjudication on the merits. Conversely, if the insufficiency related to an inherent defect in the case shown by those facts which were alleged, a resulted judgment of dismissal was considered to be an adjudication on the merits. Subsequently, Rule 1.35(b), 1954 Florida Rules of Civil Procedure was adopted providing that any dismissal not provided for in said rule would act as an adjudication upon the merits unless the court’s order specified otherwise. This provision was eliminated, effective September 30, 1962, in an amendment to said rule. It has now been reinstated in Fla.R.Civ.P. 1.420(b). The dismissal in the instant case falls within the parameter of the present rule.

In the absence of an abuse of discretion, the trial court’s dismissal with prejudice will not be disturbed. E & E Electric Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3d DCA 1970); and Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So.2d 69 (Fla. 3d DCA 1972). See also, Lutheran Senior Citizens’ Foundation, Inc. v. B. F. Schumacher, 355 So.2d 861 (Fla. 3d DCA 1978). In full recognition of the harshness of the sanctions imposed by the trial court, we cannot say that he abused his discretion under the facts of this case. Appellant was allowed approximately one month to amend his complaint and comply with the “fictitious name statute.” He did nothing for a period of 203 days and then only after appellees had filed their motion for final judgment.

Accordingly, the final judgment of dismissal with prejudice is

AFFIRMED.

ALDERMAN, C. J., and CROSS, J., concur.

      . “(b) Involuntary Dismissal: Any party may move for dismissal of an action or of any claim against him for failure of an adverse party to comply with these rules or any order of court. Notice of hearing on the motion shall be served as required under Rule 1.090(d) . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.” (Emphasis added).


text:
    Nancy D. W. WAKEMAN, Appellant, v. Jos. D. FARISH, Jos. D. Farish, Jr., d/b/a Farish & Farish, Appellees.
    No. 77-813.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      John S. Call, Jr., of Stewart, Van der Hulse, Call & Byrd, Palm Beach, for appellant.
    Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, for appellees.
   MOORE, Judge.

This appeal concerns the sufficiency of service of process upon the defendant-appellant who was sued by the plaintiff-appel-lee for recovery of fees for services rendered. In order to obtain service of process, appellee obtained an order appointing an elisor who was an employee of appellee’s law firm on a fulltime basis as an investigator.

Service of process was attempted three times, the first two of which were pursuant to Section 48.031, Florida Statutes (1975) by serving the appellant’s butler and caretaker at appellant’s usual place of abode. Section 48.031; Florida Statutes (1975) reads as follows:

“Service of original process is made by delivering a copy thereof to the person to be served with a copy of the complaint, pétition or other initial pleading or paper or by leaving such copies at his usual place of abode with some person of the family over fifteen years of age and informing such person of their contents.”

We hold that a servant, living in servant’s quarters, employed by an individual is not a “person of the family,” and the attempted, substituted service upon the butler and the caretaker was therefore inef-' fective. Although decided on the peculiar facts attendant to that situation, the Supreme Court in McIntosh v. Wibbeler, 106 So.2d 195 (Fla.1958), stated:

“In the particular factual situation, i. e., appellant residing alone with a servant and without any member of her family in the household, service in this case could have been effected only by delivery to her in person . . .

We recognize that the Second and Third District Courts of Appeal have determined that the phrase “person of the family” does not require one to be related by blood or marriage. Couts v. Maryland Casualty Company, 306 So.2d 594 (Fla. 2d DCA 1975), Speer v. Wooddell, 340 So.2d 524 (Fla. 3d DCA 1976). Nevertheless, statutes governing substituted service of process must be strictly construed. Hauser v. Schiff, 341 So.2d 531 (Fla. 3d DCA 1977). In Speer, supra, the court was dealing with a substitute individual who permanently resided in the same abode as the defendant and had so resided for approximately one year prior to the date of service. In Couts, supra, the court held that a mother-in-law, visiting for a few days, was not a “person of the family.”

The legislature must have intended someone other than an employee when it used the phrase “person of the family” unlike the federal rule which allows substituted service of process upon any individual residing with the defendant. See, Fed.R.Civ.P. 4.

We find merit in appellant’s contention that the appointment of an employee of the plaintiff as elisor is contrary to Fla. R.Civ.P. 1.070(b). This rule allows the court to appoint a competent person who is “not interested in the action.” We have been unable to discover any law directly on point. Nevertheless, we hold that an employee of the plaintiff is “interested in the action” and therefore ineligible to be appointed to serve process. Even .though any benefit the employee may derive from the plaintiff’s ultimate success in the litigation may be uncertain and indirect, he is his employer’s agent and his interest must be equated with that of his employer.

Plaintiff’s third attempted service of process upon the defendant was by the same elisor who attempted to serve the defendant personally in the Bahamas. In view of our holding that the elisor was an interested person, we do not reach a determination as to the validity of the service of process under Bahamian law.

The trial court’s denial of the motion to quash the attempted service of process is REVERSED and REMANDED with instructions to proceed in accordance with this opinion.

DAUKSCH and LETTS, JJ., concur.


text:
    William Charles LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1303.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Steadman S. Stahl, Jr., of Varón, Stahl, Kay & Roderman, Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

This is an appeal from a conviction for resisting arrest with violence, contrary to Section 843.01, Florida Statutes (1975). The determinative issue is whether the defendant had the right to forcefully resist an allegedly unlawful arrest by a law enforcement officer. We hold that he did not and affirm.

Defendant has gone to great lengths to demonstrate that his warrantless arrest was not lawful because: (1) the misdemeanor for which he was arrested was not committed in the officer’s presence; and (2) the arresting officer was outside of his jurisdiction. This argument misses the point. It matters not whether the arrest was lawful or unlawful because in this case the defendant resisted arrest with violence.

Had defendant resisted arrest without violence, then the legality of his arrest would be a factor since in Florida, the common-law rule that one can resist without violence an unlawful arrest remains in effect. Marshall v. State, 354 So.2d 107 (Fla. 2d DCA 1978). Until recently, Florida law even permitted the use of force to resist an unlawful arrest. E. g. State v. Saunders, 339 So.2d 641, 642, n. 2 (Fla.1976). However, in 1974 the legislature modified the common-law rule by enacting Section 776.-051, Florida Statutes (1975) (effective July 1, 1975). This statute provides that a person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

Thus, after July 1, 1975, Section 843.01 must be read in pari materia with Section 776.051; the end result being that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful notwithstanding the technical illegality of the arrest. Marshall, supra; K. G. v. State, 338 So.2d 72 (Fla. 3d DCA 1976). And since it has not been alleged that the officer in this case used unlawful force in effectuating the arrest, it has not been necessary for us to consider the question of a defendant’s right to use force in defense of his person under Section 776.012.

The incident giving rise to the charge of resisting arrest with violence occurred on October 17, 1976, well after the effective date of Section 776.051. Therefore, defendant’s reliance on case law applying the old common-law rule is misplaced. Under our present law, except for passive nonviolent resistance, the place to contest the legality of an arrest is in court and not on the streets. The defendant had no right to resist arrest by the use of force.

AFFIRMED.

LETTS and MOORE, JJ., concur.

      . In deciding this case it is not necessary for us to actually determine the legality or illegality of the arrest.


author: DAUKSCH, Judge.

text:
    In re the ESTATE of Grace ZALOUDEK, Deceased.
    No. 77-1606.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Robert M. Curtis, of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellants.
    John V. Russell, Fort Lauderdale, for ap-pellee-Richard M. Sauls.
    Robert A. Ware, of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee-Landmark First Nat. Bank of Fort Lauder-dale.
   DAUKSCH, Judge.

Appellants bring for our review an order of the trial court which quashed a subpoena duces tecum. They have designated their appeal as being an interlocutory appeal and we recognize it as such. We derive our authority for interlocutory review from Fla. App. Rule 4.2. In this probate matter Fla. Probate and Guardianship Rule 5.100 also defines the right of appeal. In neither rule does a party have the right to interlocutory appeal from a non-final order in a probate action. In re Estate of Baker, 327 So.2d 205 (Fla.1976); Tyler v. Huggins, 175 So.2d 239 (Fla. 2 DCA 1965); In re Estate of Leterman, 238 So.2d 695 (Fla. 3 DCA 1970); Johnson v. General Motors Corp., 350 So.2d 1119 (Fla. 4 DCA 1977).

Appeal DISMISSED.

ALDERMAN, C. J., and MOORE, J., concur.


text:
    Terry L. BUCKHANN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1676.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant appeals after having been convicted of possession of heroin. Four points have been raised, three of which have merit.

Firstly, we hold that the trial court erred in denying defendant’s motion to suppress his confession. A hearing out of the presence of the jury was held on the day of trial. The only witness to testify at the suppression hearing was Sergeant McCann of the Broward County Sheriff’s office. His testimony in its entirety is set out below:

Q. (By the trial court) State your name for me, please.
A. Phillip G. McCann.
Q. What is your occupation?
A. Deputy Sheriff, Broward County.
Q. Did you have an occasion to arrest Terry Lee Buckhann on the 17th of March of this year?
A. Yes, sir, I did.
Q. Tell me about it.
A. We went to the apartment building located at 2550 N.W. 8th Street, Fort Lauderdale. It is an unincorporated area.
As we drove up, myself and Deputy Thomas, in an unmarked car in the west portion of the building, as we were exiting the vehicle, we observed the defendant coming down from the second story outside staircase onto the sidewalk area. As we were exiting the vehicle, I observed a tinfoil packet fall from the hand of the defendant.
Deputy Thomas was directed to detain the subject. I retrieved the tinfoil packet. The packet contained a light brown powder substance that I suspected to be heroin.
I then placed the subject under arrest.
Q. Then what did you do?
A. Advised him of his rights and transported him to the Sheriff’s Department for booking procedure.
Q. Did you have any conversation with him?
A. Yes, sir, I did. I had conversation with him at the place of arrest, a short period, and went into further detail at my office, the Sheriff’s Department.
Q. Was that before or after you advised him of his rights?
A. It was after, sir.
Q. What was the extent of the conversation?
A. I was attempting to find out where he had purchased the heroin. The defendant indicated he purchased it from one of the upstairs apartments at the building complex and that he purchased heroin for his cousin, who lives in Pompano.

Based solely upon this testimony the trial court found “that the statement (made by defendant) was freely and voluntarily made after being advised of his rights as per Miranda.” Over the defendant’s objection, the court subsequently permitted Sergeant McCann’s testimony concerning the defendant’s statement to be considered by the jury.

The testimony quoted above is not sufficient to support the trial court’s conclusion. Sergeant McCann said that he advised the defendant of his rights. What rights? Sergeant McCann said nothing about advising the defendant of his rights per Miranda. Also there is nothing in the transcript of the suppression hearing about the circumstances under which the defendant’s statement was made other than the fact that Sergeant McCann had a conversation with the defendant at the place of arrest and another conversation in further detail at the Sheriff’s office. The testimony is insufficient to support the trial court’s finding that the defendant’s statement was freely and voluntarily made.

Secondly, the defendant contends that the trial court erred in allowing the prosecutor, over defendant’s objections, to make the following remarks to the jury during his closing argument:

Let us set one thing straight right now. Phil McCann is not on trial here today. Terry Lee Buckhann (Defendant) is on trial and he has come into Court and said that he is not guilty of the charges; but don’t you think for one second that the State of Florida does not believe that Terry Lee Buckhann is guilty; or we would not be here. Don’t you think for one second that the State of Florida does not believe Sgt. Phil McCann, a fourteen-year veteran with the Broward Sheriff’s Office.
The State of Florida believes him and that is why we are here and I ask you to believe him, because it is a one on one situation. (Emphasis supplied.)

Such argument was improper and should not have been allowed. Reed v. State, 333 So.2d 524 (Fla. 1st DCA 1976); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975); Price v. State, 267 So.2d 39 (Fla. 4th DCA 1972).

Finally we hold that the trial court committed reversible error in allowing the prosecutor, over defendant’s objection, to elicit the following testimony from Sergeant McCann:

Q. All right, how many narcotics related arrests have you made in this particular neighborhood (where the defendant was arrested) since you have been in that outfit (the Broward County Sheriff’s Office)?
A. (By Sgt. McCann) This whole neighborhood, or just this complex?
Q. (By the prosecutor) That particular complex (where the defendant was arrested).
A. I would say a couple hundred just near this complex.

Such testimony was not relevant and could only serve to prejudice the jury against the defendant. Beneby v. State, 354 So.2d 98 (Fla. 4th DCA 1978).

REVERSED and REMANDED for a new trial.

CROSS, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Cecil Calvert CAMPER, Appellee.
    No. 77-1899.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Maurice J. Hall, Asst. State’s Atty., West Palm Beach, for appellant.
    Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   MOORE, Judge.

The State appeals the granting of appel-lee’s motion for discharge pursuant to Fla. R.Crim.P. 3.191(a)(1). In Eaddy v. State, 352 So.2d 98 (Fla. 4th DCA 1977) this court held that the speedy trial time does not begin to run in favor of an individual who is incarcerated in another jurisdiction and against whom a detainer has been lodged until the authority which filed the detainer obtains custody of the individual. It is unfortunate that the learned trial judge was without the benefit of Eaddy, supra, at the time of his decision. Accordingly, the trial court’s order discharging the appellee is REVERSED and this cause REMANDED with instructions to reinstate the charges against the appellee.

REVERSED and REMANDED.

ALDERMAN, C. J., and DAUKSCH, J., concur.


author: LETTS, Judge.

text:
    WESTINGHOUSE CREDIT CORPORATION, a foreign corporation, Appellant, v. STEVEN LAKE MASONRY, INC., Steven A. Lake and Dolores Lake, Appellees.
    No. 77-2172.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      James E. Foster of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.
    John W. Bowen of Rowland, Petrucka & Bowen, Orlando, for appellees.
   LETTS, Judge.

This case involves the trial court’s setting aside of a final judgment entered after default. We find no excusable neglect and reverse.

The problem presented is a veritable mine field for trial judges, for it appears that whatever they do, the appellate court reverses. We agree that in such situations the trier of the fact should have wide discretion, which must be grossly abused to deserve reversal. This theory is further buttressed by the long standing policy of liberality towards the vacation of defaults, so that the merits of a cause may be reached, North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977).

Yet there are two areas where the courts have consistently upheld defaults and both are factors in this case.

First, failure of the attorney to act with no good reason given, Sun Finance Corp. v. Friend, 139 So.2d 484 (Fla. 3rd DCA 1962).

Second, failure to immediately react upon learning of the default. In Re Aston, 245 So.2d 674 (Fla. 4th DCA 1971).

In this case the defendants below turned over the served complaint to a lawyer who inexplicably failed to do anything and justified his inaction by reporting a “disappearance” of the pleadings. Upon learning of this bizarre conduct, some four weeks after three copies of the complaint were served, the defendants waited a further 7 weeks before attempting to vacate, which was also some 30 days after receipt of a copy of the final judgment.

This case is analogous to Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977) in which the defendant labored under the misapprehension that his insurer would defend him and additionally did nothing for over 50 days after notice of default. Notwithstanding the court held that failure of the insurer to defend was not “supportive of any theory of excusable neglect” and further that the defendant did not proceed with all possible dispatch upon becoming aware of the default.

Similar results have been reached in Bailey v. Deebold, 351 So.2d 355 (Fla. 2nd DCA 1977) and Sun Finance Corp. v. Friend, 139 So.2d 484 (Fla. 3rd DCA 1962).

The message is clear. Negligence by a litigant’s representative may be grounds for an independent suit, but it will not support the setting aside of a default judgment save under exceptional circumstance.

Moreover, swift action must be taken upon first receiving knowledge of any default. Further delay in excess of the time reasonably necessary to prepare and file a notice to vacate should prove fatal, absent some exceptional circumstance.

In the case at bar, we find the attorney’s inaction unacceptable and the delay, after learning of the default, unexceptional. As such, there exists no excusable neglect under Fla.R. of Civ.P. 1.540(b).

REVERSED WITH INSTRUCTIONS TO REINSTATE THE FINAL JUDGMENT.

ALDERMAN, C. J., and CROSS, J., concur.

      . The law firm representing appellees before this court, did not represent them at this juncture.


text:
    Wayne KREMSER, Frank Kremser, and Frank J. Kremser, Jr., Appellants, v. Hadigher TONOKABONI, Appellee.
    No. 76-1889.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Clark & Livingstone, South Miami, for appellants.
    Matt Weinstein, South Miami, for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This appeal is taken by appellants/plaintiffs from a final order of dismissal entered pursuant to appellee/defendant’s motion for involuntary dismissal in an action to foreclose a mortgage. In entering the above order, the chancellor found that (1) the mortgage sought to be foreclosed, executed by appellee to her niece’s husband and assigned by the latter to appellants, lacked any consideration and was thus unenforceable, and that (2) by virtue of certain facts surrounding the transaction, appellants, as assignees, either knew or should have known of the lack of consideration and were therefore neither holders in due course nor bona fide purchasers of the instruments.

Briefly stated, the facts reveal that ap-pellee’s niece’s husband, one David Stewart, sought financial help from appellee for the purchase of appellants’ radiator business. Desirous of aiding Stewart and at his urging, appellee, a foreign born and educated woman with little or no business training or experience, attempted to borrow the necessary funds needed to purchase the business from local banks.

After various unsuccessful attempts to borrow the money, a plan was suggested, by either Stewart or appellants, whereby ap-pellee would execute a note and mortgage on her home in favor of Stewart, in the sum of $20,000.00. The note and mortgage would then be assigned to appellants as security for the purchase of the business and would act in lieu of a cash down payment.

The actual execution of the documents by appellee occurred sometime later and under highly questionable circumstances. While on her way to the airport for a European vacation, appellee was driven by her niece to appellants’ office. Within a period of less than five minutes, appellee was shown, for the first time, certain documents drawn by appellants’ counsel. She was told to sign the documents, which were not explained to her but later identified as a note payable to Stewart in the sum of $20,000.00 secured by a mortgage on appellee’s home, and was reassured by appellants that an attorney’s presence was not needed.

The record clearly establishes the fact that appellee was neither aware of the kind of instrument she had signed nor knew of the legal effect of her signature on said documents. Rather, it was appellee’s belief and understanding that her sole involvement in the transaction was to aid Stewart in establishing credit to purchase the business. At no time did appellee believe in the possibility that her signature on the note and mortgage would jeopardize her home through foreclosure proceedings.

Needless to say, Stewart failed to make payments on his obligation to appellants; the business was returned to appellants; and the latter instituted a foreclosure proceeding on appellee’s home. At the conclusion of appellants’ presentation of their case before the chancellor, upon motion, an involuntary dismissal against appellants was granted. As set forth at the outset, the chancellor was of the view that appellants had failed to establish a bona fide consideration for the mortgage and note at the inception and, having participated in the scheme, could not clothe themselves with bona fide purchaser or holder in due course status. A final order of dismissal was subsequently entered by the chancellor and this appeal follows.

The sole issue for our determination is whether there was consideration given for the note and mortgage as between appellee and Stewart. After carefully reviewing the record in light of the applicable principles of law, it is our opinion that no consideration was present.

As a general principle of law, a mortgage is not valid and binding unless founded upon a bona fide and sufficient consideration. Chaykin v. Kant, 327 So.2d 793 (Fla.3d DCA 1976); 22 Fla.Jur. Mortgages, § 63 (1958). If at the mortgagor’s request, any detriment or loss is sustained by the mortgagee, or any advantage or benefit accrues to the mortgagor, there is sufficient consideration to support the mortgage. 55 Am.Jur.2d Mortgages, § 100 (1971). Sub judice, the mortgagee (Stewart) never suffered a detriment of any kind in that no funds were ever advanced to appellee, as mortgagor. Likewise, appellee did not receive a benefit from Stewart. In more palatable terms, the transaction suffered from a lack of consideration for the reason that, as between appellee (mortgagor) and Stewart (mortgagee) there was never a debt to be secured by the mortgage. There being no debt or obligation upon which the mortgage could rest, the mortgage could not have been foreclosed by Stewart and was thus unenforceable by him. Nelson v. Stockton Mortgage Company, 100 Fla. 1191, 130 So. 764 (1930); Schenck v. Taylor, 188 So.2d 356 (Fla.1st DCA 1966); Boyer, Florida Real Estate Transactions, § 32.08 (1977).

In addition, as found by the chancellor and clearly evidenced by the record, appellants were an integral part of the transaction and as such, could not be blessed with the virtues of “holder in due course” or “bona fide purchaser” status. Therefore, as assignees with knowledge (actual or imputed), appellants received only those rights and benefits available to their assignor, Stewart. Chandler v. Davis, 139 Fla. 469, 190 So. 873 (1939); Penn-Mar-Florida Corporation v. Deis, 118 Fla. 766, 160 So. 191 (1935); United of Florida, Inc. v. Illini Federal Savings & Loan Association, 341 So.2d 793 (Fla.2d DCA 1977); see also Marucci v. Linder, 177 So.2d 237 (Fla.2d DCA 1965) and Coplan Pipe and Supply Company v. Ben-Frieda Corporation, 256 So.2d 218 (Fla.3d DCA 1972). In that Stewart could not have enforced the note and mortgage, appellants, as assignees, were likewise barred from enforcement.

Notwithstanding the above, appellants, relying heavily upon the case of Layne v. Brown, 117 Fla. 87, 157 So. 185 (1934), contend that there was in fact consideration for the note and mortgage executed by appellee. In that case, a bank depositor transferred bank credit from her account to the account of an indebted bank president, receiving in return a mortgage given by the president’s mother to the depositor as security. The Florida Supreme Court held that the transfer of bank credit was sufficient consideration for the mortgage.

While at first reading, the similarity of facts between the case at bar and Layne v. Brown, supra, might lead one to believe that the latter controls, however, after a careful analysis, several distinguishing features are present. First, in Layne, the mortgagor-mother received a “benefit” from the mortgagee-depositor, while the mortgagee-depositor was saddled with a detriment, to-wit: credit given to the mortgagor’s son (benefit) and the parting of credit by the mortgagee (detriment). Second, the mortgage there was executed by the mortgagor directly to the mortgagee for the specific and knowing purpose of securing a loan. (Obviously, the court followed the general rule that consideration for a mortgage need not always move from the mortgagee to the mortgagor, but can be given to a third person at the direction of the mortgagor. See 22 Fla.Jur. Mortgages, § 63 [1958]).

Sub judice, however, as has been mentioned, appellee/mortgagor received no benefit from the mortgagee, nor did the mortgagee (Stewart) sustain a detriment. Unlike in Layne, no debt ever existed between the mortgagor and mortgagee. It is arguable that had appellee executed the note and mortgage directly to appellants, consideration for the instruments would have then existed, as a debt (detriment) would have then been created thereby; i. e., transfer of the business to appellee’s nephew-in-law. Nevertheless, even assuming for the sake of argument that the note and mortgage had been executed directly in favor of appellants, given the facts of this case, we would still affirm the chancellor on the basis of the misrepresentations and unusual circumstances surrounding the transaction. McClure v. American Nat. Bank of Pensacola, 67 Fla. 32, 64 So. 427 (1914); see also Harrison v. Consumers Mortgage Company, 154 So.2d 194 (Fla.1st DCA 1963).

Accordingly, after carefully reviewing the record, briefs and argument of counsel, it is our opinion that the order of dismissal must be, and is hereby, affirmed.

Affirmed.


text:
    John E. ANDREWS, Jr., Appellant, v. Patricia A. ANDREWS, Appellee.
    No. 77-261.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.

      Lane & Lane, Miami, for appellant.
    Franklin, Ullman, Kimler & Entin, North Miami Beach, for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

The trial court erred in awarding lump sum alimony to the wife where such alimony was not asked for in the wife’s complaint and the record is devoid of evidence establishing her need. Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). Therefore, upon motion of either party, the trial court shall conduct an evi-dentiary hearing regarding the property rights of the parties as well as any award of alimony. See Florida Rule of Civil Procedure 1.190(b).

Reversed.


author: HENDRY, Judge.

text:
    Robert BURNS, Appellant, v. Dean RICCARDI, Appellee.
    No. 77-363.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Burns & Arnovitz and Jerold H. Reichler, Miami Beach, for appellant.
    Abbott, Frumkes & Alhadeff, Miami Beach, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

Appellant, co-defendant and third party plaintiff below, appeals from an “order on defendant’s motion to consolidate.” Said order denied appellant’s motion to consolidate a third party claim previously severed by the trial judge.

Pursuant to Fla.R.Civ.P. 1.270(a) and (b), the consolidation and severance of third party claims are within the sound judicial discretion of the trial judge. Brody Construction, Inc. v. Fabri-Buiit Structures, Inc., 322 So .2d 61 (Fla. 4th DCA 1975); Compañía Dominicana de Aviación v. Knapp, 251 So.2d 18 (Fla. 3d DCA 1971).

After carefully reviewing the record and briefs, it is our opinion that appellant has failed to demonstrate an abuse of the trial judge’s discretion. Accordingly, the order appealed from is hereby affirmed.

Affirmed.


text:
    Charles MacKOVER and Dora MacKover, his wife, Appellants, v. Joseph ROSE d/b/a Royal Palm Hotel et al., Appellees.
    Nos. 77-418 and 77-419.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and Bradford, Swing, Daniels & Hicks and Mark Hicks, P. J. Carroll & Associates, Miami, for appel-lees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In this action for damages for personal injuries, the plaintiffs below appeal from a summary judgment entered for defendants. On consideration thereof on the record and briefs we find error, and reverse. With trial to follow we refrain from making statement of the facts as disclosed. There were genuine issues of material fact bearing on questions as to negligence of the several parties and as to proximate cause not properly to be resolved on summary judgment.

Judgment reversed, and cause remanded for further proceedings.


text:
    Morton SILLS, f/u/b/o Reliance Insurance Company, Appellants, v. BOSTON OLD COLONY INSURANCE COMPANY, a Foreign Corporation, et al., Appellees.
    Nos. 77-544, 77-545, 77-546 and 77-547.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.

      Gladson, Knecht & Sullivan and David A. Crowley, Coral Gables, for appellants.
    Smathers & Thompson and Mercer K. Clarke, Miami, for appellees.
    Before HAVERPIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Morton Sills, for use and benefit of his insurer, Reliance Insurance Company, filed this action against Underwood Marine Corporation and Boston Old Colony Insurance Company (Old Colony).

By an amended complaint it was alleged that plaintiff purchased a vessel from Underwood and obtained a policy from Reliance Insurance Company insuring against loss of the vessel; that following loss thereof Reliance had paid plaintiff and was sub-rogated; that Underwood was insured by Old Colony; that while the vessel was in custody of Underwood for correction of deficiencies in painting and equipment it was stolen from Underwood’s marina. In separate counts the plaintiff sought damages for breach of contract, and for negligence proximately causing the loss of the vessel.

The defendant, Old Colony, moved for summary judgment on the ground it was not liable for the loss of the vessel, based on certain exclusionary provisions in its policy, including the following:

“8 PERILS EXCLUDED: This policy does not insure against loss or damage caused by or resulting from: . Misappropriation, secretion, conversion, infidelity or any dishonest act on the part of the Assured or his or their employees or others to whom the property may be entrusted (carriers for hire excepted) whether or not such act or acts occurred during the regular hours of employment

The loss of the vessel was occasioned by theft, accomplished by an official and an employee of Underwood acting in concert with certain other persons not agents or employees of Underwood.

The court granted the summary judgment in favor of Old Colony by the following judgment, from which plaintiff appealed, viz.:

“The court finds that there is no coverage under the policy of insurance between Boston Old Colony Insurance Company and Underwood Marine for the alleged theft of the 34-foot Tradewinds Cruiser as set forth in the complaint. Accordingly, the court partially grants defendant Boston Old Colony Insurance Company’s motion for summary judgment on the grounds that there is no coverage.
“The court will grant, however, plaintiff’s ore tenus motion to amend its responses to affirmative defenses to include waiver by the insurance company of its right to deny coverage and reserves ruling as to whether the insurance company’s right to deny coverage was waived.”

We find to be without merit the argument of the appellant that the above policy exclusion is not applicable because the theft of the vessel was by and pursuant to a conspiracy in which persons unconnected with Underwood were involved. The evidence showed employees of Underwood were involved in and took part in the theft of the vessel. We hold no reversible error has been shown.

Affirmed.


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    Mildred DANIELS, Appellant, v. Priscilla OWENS, Nellie Yarde and State Farm Mutual Automobile Insurance Company, a Foreign Insurer, jointly and severally, Appellees.
    No. 77-629.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Horton, Perse & Ginsberg, Miami, Bernard H. Butts, Hialeah, for appellant.
    Walton, Lantaff, Sehroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See: Freeman v. Bandlow, 143 So.2d 547 (Fla.2d DCA 1962); Bailey v. Sympson, 148 So.2d 729 (Fla.3d DCA 1963); Ingle v. Cochran, 151 So.2d 63 (Fla.1st DCA 1963); Shaw v. Puleo, 159 So.2d 641 (Fla.1964); Miller v. James, 187 So.2d 901 (Fla.2d DCA 1966); Merritt v. Williams, 295 So.2d 310 (Fla.1st DCA 1974); Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977); Sweeney v. Wiggins, 350 So.2d 536 (Fla.3d DCA 1977).


text:
    Carlos PADRON, Appellant, v. LONG ISLAND INSURANCE COMPANY, Appellee.
    No. 77-844.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.

      E. W. Frank, Miami, for appellant.
    Michael P. Weisberg, Jeanne Heyward, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

This is an action by an insured motorist to recover personal injury protection benefits under the Florida Automobile Reparations Reform Act filed before the Circuit Court for the Eleventh Judicial Circuit of Florida. Final summary judgment was entered for the insurance carrier on the basis of no coverage and the insured appeals.

The issue presented for review is whether an injury sustained by an insured while alighting from an insured motor vehicle is a “bodily injury . . . arising out of the ownership, maintenance, or use of a motor vehicle” to which the insured is entitled to personal injury protection benefits under Section 627.736(1), Florida Statutes (Supp. 1976), of the Florida Automobile Reparations Reform Act. We hold that such an injury arises out of the use of such a motor vehicle for which the insured is entitled to personal injury protection benefits under Section 627.736(1), Florida Statutes (Supp. 1976), and reverse.

The facts of this case are undisputed. On December 15, 1974, the plaintiff Carlos Pa-drón was driving his automobile which was insured by the defendant Long Island Insurance Co. in the vicinity of Flagler Street and 117 Avenue in Dade County, Florida. He pulled the car off the road on a grassy area intending to play some ball, parked the car and turned off the engine. As he opened the car door on the driver’s side and put his left leg on the ground, his left food slid for some undetermined reason causing his right leg to hit the bottom part of the car door and break his leg. The plaintiff did not slide out of the car, but injured himself on the car door threshold as he was alighting therefrom.

The plaintiff filed suit against the defendant insurance carrier upon the latter’s refusal upon demand to pay the plaintiff personal injury protection benefits under the Florida Automobile Reparations Reform Act. The defendant denied coverage and moved for summary judgment based upon the above facts as established by the plaintiff’s deposition. The trial court granted the motion and entered a final summary judgment against the plaintiff. This appeal follows.

The law is well-settled that an insurance policy providing coverage for an insured for injuries sustained from an accident “arising out of the ownership, maintenance or use of a motor vehicle” is ordinarily understood to mean those accidental injuries which originate from, are incident to, or have some connection with the use of the insured motorist vehicle. This does not require a showing of proximate cause between the accident and the use of the car, but there must be a causal connection or relation between the two for liability to exist. Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976); St Paul Fire & Marine Insurance Co v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973); National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971).

It has therefore been held that coverage exists under such an aforementioned policy where a watchdog bit the plaintiff when the two were left in the insured’s car while temporarily parked by the insured’s son en route to the insured’s place of business, National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971), or where a beer mug was thrown out of an insured automobile while travelling at a high rate of speed striking and killing the plaintiff’s decedent, Valdes v. Smalley, 303 So.2d 342 (Fla. 3d DCA 1974). On the other hand, coverage has been denied under such a policy where a small child was accidentally injured while trick-or-treating on Halloween night when she struck a protruding bolt on a bracket attached to the insured motor vehicle parked in a yard, O’Dwyer v. Manchester Insurance Co., 303 So.2d 347 (Fla. 3d DCA 1974), or where the plaintiff’s decedent was accidentally killed by a pistol when he was removing it from his father’s insured automobile following an accident so that the automobile could be taken to the garage for repairs, Watson v. Watson, 326 So.2d 48 (Fla. 2d DCA 1976), or where the plaintiff was struck on the head with a lead pipe by an overprotective father while the plaintiff was in the process of opening the passenger door of the insured motor vehicle to let the father’s daughter out of the ear, Feltner v. Hartford Accident & Indemnity Co., 336 So.2d 142 (Fla. 2d DCA 1976), or where a pedestrian was struck by an oncoming motor vehicle whose driver was distracted by the flashing lights of the insured police vehicle which a police officer had parked while investigating an automobile accident, Hartford Accident & Indemnity Co. v. Wilson, 356 So.2d 24 (Fla. 3d DCA 1978) (case no. 77-44, opinion filed February 21, 1978).

In the instant case, the plaintiff insured was injured while attempting an egress from the motor vehicle which was insured by the defendant insurance carrier. The insured was injured on the car door threshold while alighting therefrom. In our view, both ingress and egress from an insured motor vehicle is an integral part of the use of such a motor vehicle and any injuries sustained as a result thereof must be considered as arising out of the use of such vehicle. Cagle v. Playland Amusement, Inc., 202 So.2d 396, 401 (La.Ct.App.1967). Such an injury originates from, is incident to, and has some connection with the use of the insured motor vehicle as opposed to being unconnected therewith. Accordingly, the plaintiff under the above facts was entitled to personal injury protection benefits under the Florida Automobile Reparations Reform Act.

The summary final judgment entered herein is reversed and the cause remanded for further proceedings consistent with this opinion.


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    Gardenia DeARMAS et al., Appellants, v. Nathan BLONSTEIN and Allstate Insurance Company, Appellees.
    No. 77-1022.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.

      H. C. Starkweather, Miami, for appellants.
    Petersen & Feder, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the plaintiffs below from an order dismissing an action filed by them on April 28, 1976 for damages for personal injuries received by appellant, Gardenia DeArmas, as a result of an automobile accident alleged to have been caused by the defendant, Nathan Blonstein, against whom, with his indemnity liability insurer, the action was brought.

The defendant-insurer filed an answer denying coverage. On September 14, 1976, the attorneys for the defendant-insurer filed a suggestion of death, stating that the said Nathan Blonstein had died prior to the filing of the complaint. He had died in January of 1976, some three months prior to the filing of the action.

On February 1, 1977, the defendant-insurer filed a motion to dismiss. There was no substitution of parties. See: Fla.R. Civ.P. 1.260(a)(1) and (2). The motion was granted by an order wherein the court stated: “and judgment be and is hereby entered in favor of the Defendant and against the Plaintiffs, with costs to be hereafter taxed, and the Plaintiff shall go hence without day”.

Appealing therefrom, appellant contends the dismissal of the action was error. We hold no error was thereby committed, but amend the dismissal order to be one without prejudice.

Judgment affirmed as amended.


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    Marvin BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1185.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, John C. Moppert and Ronald A. Dion, Asst. Attys. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Miles v. State, 160 Fla. 523, 36 So.2d 182, 183 (1948); Miller v. State, 328 So.2d 544 (Fla. 3d DCA 1976); Bell v. State, 354 So.2d 1266 (Fla. 3d DCA 1978); White v. State, 324 So.2d 115 (Fla. 3d DCA 1975); Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967).


text:
    Herman HANNAH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1225.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.

      Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., Edwin D. Davis, II, Legal Intern, for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant below appeals his conviction of robbery on a jury trial, upon which he was sentenced to imprisonment for a term of ten years with three years probation to follow. Appellant contends he was denied a fair trial by reason of the ruling of the court allowing testimony by a witness of a prior crime of the defendant “not related in time or place or other relevant details to the one for which the defendant was charged”.

The defendant presented evidence in support of a claimed alibi. In rebuttal of testimony submitted on behalf of the defendant that he was out of the State during a certain material time or period, the State presented a witness who, over objection of the defendant, testified that the defendant was one of two men who had robbed his store here on a date within said period.

We hold no reversible error was committed by that ruling, on authority of Williams v. State, 110 So.2d 654 (Fla.1959). In that case, in discussing the effect of evidence of other crimes, the court' held that relevancy was the test and stated: “If found to be relevant for any purpose save that of showing bad character or propensity, then it should be admitted”. Here it was relevant to the defense issue as bearing on the whereabouts of defendant at a material time.

Judgment affirmed.

KEHOE, J., dissents.


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    Ernesto Felix BOEYKENS and Leonilda Maria Dellanoce Boeykens, his wife, Appellants, v. Bert R. SLOCUM and Louise Slocum d/b/a Quality Birds Co., Appellees.
    No. 77-1646.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.

      Stephen A. Freeman and Robert E. Ven-ney, Miami, for appellants.
    Major & Haber, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiffs, residents of Florida, filed an ex contractu action for damages against defendants, residents of Argentina, So. America. Incident thereto plaintiffs caused to be issued a writ of garnishment before judgment, against a local bank in which the non-resident defendants maintained an account. The garnishee filed an answer. Thus, in absence of jurisdiction, over the persons of the defendants, the action would be one limited to in rem recovery.

The defendants, based on lack of personal jurisdiction over them, filed a special appearance motion by which they sought to contest the validity of the writ of garnishment. The motion was denied.

Appealing therefrom, the defendants contend the court committed error by holding that they did not have standing to challenge the writ of garnishment because they were aliens not personally within the United States. The short answer to that contention is that the court did not so hold. What the court held, in the order denying the motion, was that the defendants could not be heard on the merits of such matter by a motion filed as a special appearance relying on the absence of jurisdiction over them. We hold no error was committed by the court in making that ruling. In the procedural circumstances of this case we need not and do not express opinion on the validity or invalidity of the garnishment writ. If, following remand, the defendants shall elect to submit to the jurisdiction of the court and thereupon challenge the validity of the garnishment order, within such time as the trial court shall fix and allow therefor, they should be entitled to do so. Otherwise the cause may proceed as an action in rem.

The order appealed from is affirmed, and the cause remanded for further proceedings.

      . See: Ray Lein Construction, Inc. v. Wainwright, 346 So.2d 1029 (Fla.1977).


author: PEARSON, Judge.

text:
    Delida HERNANDEZ and Matias Hernandez, Appellants, v. TRAVELERS INSURANCE COMPANY et al, Appellees.
    No. 77-1796.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.

      Stabinski, Funt, Tucker & Levine, Miami, for appellants.
    Adams, George, Schulte & Ward and Amy Shield Levine, Ratiner & Glinn, Friedman & Lipcon, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

This appeal concerns the right of an insurance company, which may be liable to several persons because of the negligence of its insured, to file an action in the nature of a bill of interpleader. We hold that such an action may not be maintained in Florida. See Manchester Insurance & Indemnity Co. v. Mathews, 312 So.2d 777 (Fla.2d DCA 1975). Because the appellee, Travelers Insurance Company, urges that the authority cited is not applicable, we must briefly set out the factual background.

On August 27, 1975, Juana Serra Castro was involved in an automobile accident while driving a vehicle, insured by Travelers, with the insured’s permission. As a result of this accident, Travelers received claims against its policy for personal injury damages and was a named defendant in several lawsuits as well as receiving notice of a potential claim from another passenger in the insured’s vehicle.

Since Travelers was unable to determine the respective amounts to be paid from the aforesaid policy, it instituted an interpleader action pursuant to Fla.R.Civ.P. 1.240. The complaint prayed that (1) the parties who had instituted actions be required to interplead and litigate between themselves on the respective rights to the proceeds of the insurance policy, (2) the plaintiff be discharged from all future liability under the insurance policy to the claimants named as defendants in the interpleader action, (3) these aforesaid defendants be restrained from instituting and proceeding with any action against the plaintiff for recovery of the proceeds of the insurance policy, and finally prayed for (4) a judgment for attorneys’ fees and costs incurred.

The Hernandezes moved to dismiss upon the grounds that the pleading filed by the plaintiff was not a complaint for inter-pleader as alleged, that the action was in the nature of a bill of interpleader rather than one of strict interpleader filing, and that no such cause of action existed in Florida. The court denied defendants’ motion to dismiss.

In Paul v. Harold Davis, Inc., 155 Fla. 538, 20 So.2d 795 (1945), the Supreme Court was faced with the issue of whether interpleader was appropriate under the circumstances presented. In that case, an employer was seeking the remedy of inter-pleader because it owed one of two employees a commission from a sale. In the course of holding that the case was inappropriate for interpleader because the employer was not a mere disinterested stakeholder, the Court stated that an essential prerequisite to an interpleader is that the stakeholder “should actually be liable to only one of the claimants.” 20 So.2d at 796. The court further stated that the purpose of an inter-pleader is not to prevent the risk of two recoveries being made but rather to prevent the vexation of two suits.

We hold that Manchester Insurance & Indemnity Co. v. Mathews, 312 So.2d 777 (Fla.2d DCA 1975) is controlling because when an individual (in this case an insurance company) has potential liabilities in varying amounts to several other individuals, the reason for interpleader does not exist. The individual having the liability may be convenienced but the prospective claimants will not be so convenienced because the claimants are deprived of the right to pursue their own claims and are forced into antagonistic positions with the other claimants. The courts may well find it more convenient to try the claims separately than to deal with the hodgepodge that the enjoining of separate suits might create.

The plaintiff insurance company has only the derivative liability from its insured. One of its liabilities is to defend its insured in the courts. It may not discharge that liability by depositing a sum of money and saying to the courts, “divide it up.” If the defendants were all claiming the proceeds of a single fund and liability could exist as to only one of the claimants, an interpleader would be appropriate. In the present cause, one action cannot determine the entire controversy and liability may exist as to more than one claimant.

The trial court erred in denying the motion to dismiss. In our view, the appellants’ second point also presents reversible error in that the order appealed granted plaintiffs’ claimed relief without giving the defendants an opportunity to answer the complaint. Accordingly, the order denying defendant’s motion to dismiss is reversed and the cause remanded with directions to dismiss the complaint.

Reversed and remanded.

      . “1. That the Defendants’ Motion to Dismiss be and the same is hereby denied.
      “2. That the Interpleader filed by TRAVELERS INSURANCE COMPANY is hereby validated and affirmed by this Court.
      “3. That within forty-five (45) days of the date of this Order, TRAVELERS INSURANCE COMPANY shall deposit THIRTY THOUSAND AND NO/100 ($30,000.00) DOLLARS in the registry of the Court."