author: BOOTH, Judge.

text:
    Sue G. CAPUTO and Warren J. Caputo, her husband, Appellants, v. J. Champneys TAYLOR, Appellee.
    No. SS-404.
    District Court of Appeal of Florida, First District.
    Sept. 4, 1981.
    Rehearing Denied Oct. 2, 1981.
    Thomas M. Baumer and Dana G. Bradford, II, of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
    James E. Cobb and Mary Bland Love, of Matthews, Osborne, Ehrlich, McNatt, Go-belman & Cobb, Jacksonville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a judgment entered on a jury verdict for the defendant in a suit for personal injury allegedly resulting from the negligence of the defendant in failing to diagnose and treat cancer. On appeal to this court, plaintiffs contend that the trial court erred in failing to give certain requested jury instructions and in refusing to allow an expert witness, Dr. John Feegel, to testify concerning the standard of care applicable in the case.

The facts are that, in August, 1976, plaintiff Sue Caputo had a scheduled appointment with defendant Taylor for a gynecological examination. Mrs. Caputo testified that, at the time of the examination, she advised defendant of the presence of a lump or growth in her right breast and requested that he examine it. She testified that defendant did examine the growth in 1976 but specifically advised her that it was not malignant and no treatment was needed. Mrs. Caputo further testified that, at her next annual examination on September 19, 1977, she again advised defendant of the growth, that defendant examined it, but that this time he made arrangements for further testing and referred her to a surgeon. The tests determined that the growth was malignant and that it had metastasized or spread to the lymphatic system. A modified radical mastectomy was performed on September 26, 1977, followed by radiation therapy and surgical procedure for breast reconstruction.

The complaint alleged negligence of the physician in (1) failing to diagnose the malignancy; (2) failing to recommend or perform further tests to determine the nature of the growth or to follow its development; and (3) failing to treat so as to remove or arrest spread of the growth. The complaint alleged the following:

9. As a direct and proximate result of the defendant’s negligence, plaintiff Sue G. Caputo took no further action with respect to the growth until her subsequent visit to the defendant on September 19, 1977 for her annual gynecological examination, as a result of which the malignant growth was permitted to further spread unchecked throughout the breast area, and into adjacent tissue in the chest area, and in addition into the lymphatic system, necessitating the extensive surgical procedures for its treatment and removal occasioned by such spread.
10. As a result of the defendant’s negligence, and the consequences thereof, plaintiff, Sue G. Caputo suffered extensive pain, incurred medical expense in the treatment of the illnesses and/or injuries resulting therefrom, suffered physical handicap and her working ability was impaired; the injuries are either permanent or continuing in nature and plaintiff Sue G. Caputo will suffer the losses and impairment in the future.

In addition, plaintiff’s counsel was permitted to argue without objection that plaintiff suffered “loss of chance” for early treatment and reduced life expectancy.

Defendant denied that plaintiff had advised him of any abnormality with respect to her breast in August, 1976, and denied that any growth or lump was present in 1976. He relied on his patient record of the 1976 examination. Defendant’s testimony was supported by two nurses, one of whom was present during Mrs. Caputo’s examination. Both nurses testified Mrs. Caputo told them in September of 1977 that she had had the lump in her breast for three to four months. Further, the testimony of the nurse of Dr. Williams, the surgeon who diagnosed plaintiff’s malignancy in 1977, as to her conversation with Mrs. Caputo, would support a jury finding that, although plaintiff discovered the lump in 1976, she failed to tell her doctor for over a year because she feared possible breast removal and resulting detriment to her marriage.

Mrs. Caputo’s version of the facts as to existence of the lump in 1976 was supported by the testimony of her husband, her twin sister and her husband’s former wife, all of whom stated that they felt the lump, approximately one inch long, in 1976 prior to her visit to the doctor. The doctors who examined Mrs. Caputo a year later in 1977 testified the lump was one inch (2.5 centimeters) long.

The case was tried to the jury in September, 1979. Plaintiff’s expert and her operating physician, Dr. Phillips, testified that there was no way to tell within reasonable medical probability whether the malignancy he encountered in the operation of 1977 had been present for one year prior to the operation; that he could not tell at what point in time the cancer cells spread from the breast area to the lymph nodes; and that, although the growth had probably been malignant from the beginning, there was no way to determine at what point it metastasized since what he found in the 1977 operation was consistent with a growth that had started either three months before the operation or a year before the operation. This testimony was essentially the same as that given by all other experts who testified. Dr. Williams, a surgeon specializing in cancer surgery, testified for the plaintiff that the lump “could have been there 10 years; it could have been there 10 weeks.” He further testified:

[T]here is a great variation in the growth rate of breast cancers. It [the lump] certainly could have come within a year without any trouble at all. Some of them can come explosively within a matter of several weeks, inflammatory-type breast cancers. So there is nothing contradictory about it. It could have been nothing a year ago and could have been what I found within that time.

All experts testifying, including the defendant, were unanimous in their testimony concerning the standard of care required for the treatment of unknown lumps or growths in the breast and the importance of prompt diagnosis and treatment.

Dr. Feegel, a board-certified pathologist, was not allowed to testify as to the standard of care in treating potential breast cancer patients. He was allowed, however, to testify to various other matters. Dr. Feegel gave his opinion that the lump in question existed in 1976, but he admitted on cross-examination that this testimony was based on the fact that Mrs. Caputo said she felt it then. The most Dr. Feegel was willing to state as to the existence of the lump a year before its removal was: “I think it’s — there are some bases for an opinion that it [the lump] was probably palpable a year earlier based on its microscopic appearance and its size.” He further testified, however:

Q Based upon reasonable medical probability, Doctor, in your experience and practice and what you have told us today as to the effects of early care and treatment of the patient, would your prognosis for Mrs. Caputo be different had the mass been removed a year earlier than it was removed?
A Well, the difficulty with an answer for that is that it really depends on whether that early removal includes some statement as to the degree of spread at that time.
Q Do you know what the degree of spread was in 1976?
A No.
Q There is no way you can look at those nodes in those slides in front of you and tell whether or not on August 12, ’76, they were cancerous or not?
A That’s correct.

Our review of the testimony and record shows that the jury, in resolving the conflict in the evidence and weighing the credibility of the witnesses, could have based its verdict on a determination that the defendant and his witnesses were more credible and that there was, in August, 1976, no lump or mass in the plaintiff’s breast or, if there was a lump in 1976, it was not mentioned by the patient, and defendant was not negligent in failing to discover it. Beyond these bases for support of the verdict, there also appears a lack of evidence that the damages claimed were caused by the negligent failure of the defendant to detect the malignancy if it did exist prior to September, 1977. This evi-dentiary failure is largely due to the lack of medical knowledge as to the origin, rate of growth and spread of cancer. There is no claim that defendant was responsible for the origin of the cancer.

The damages sought, quoted supra, are those claimed to have resulted from the year of nondiagnosis and nontreatment and are predicated on the assumption that during that year the malignancy spread. No witness, however, was able to testify in support of that assumption. Although all experts agreed that early diagnosis and treatment are of utmost importance in cancer cases, none was able to say with reasonable medical probability that the spread of plaintiff’s cancer occurred after August, 1976, when defendant allegedly failed to diagnose it. There was no testimony that the operation and treatment of plaintiff’s malignancy or the affect on her life expectancy were different in 1977 than they would have been had the lump been discovered in 1976.

Plaintiffs contend that the trial court should have given the Florida Standard Jury Instruction on contributing cause and on aggravation of a preexisting disease. We find no error in failing to give these requested charges because, as previously explained, there was no evidence that defendant’s actions or inactions, even if negligent as alleged, contributed to or aggravated Mrs. Caputo’s condition.

We also find no error in the trial court’s ruling that Dr. John R. Feegel, Pathologist, was not qualified to testify as to the standard of proper care and treatment of potential breast cancer patients. Section 768.45(2)(c), Florida Statutes, provides that a doctor may testify as to the expected standard of care for a given health care provider if he is a similar health care provider or if it is established to the satisfaction of the court that he possesses sufficient training, experience and knowledge to provide such expert testimony as to the acceptable standard of care in a given case. Dr. Feegel is not a “similar health care provider” since he is not a gynecologist. The question then became one for the trial court as to whether the witness had sufficient training and knowledge to allow him to testify as to an acceptable standard even though he is not a similar health care provider. We have reviewed the record on this point and find that the trial court did not abuse its discretion in refusing to allow Dr. Feegel to testify to an acceptable standard. It is difficult to see that the plaintiff was harmed, in any event, by the trial court’s ruling on Dr. Feegel since all experts who testified for both parties, including the defendant, agreed on the acceptable standard of care, the same standard that Dr. Feegel would have testified to, and this was not an issue in the case.

The judgment below is, accordingly, AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and SHAW, J., concur.

      .On this state of the evidence, a jury determination of causation could only be based on speculation, and a directed verdict for the defendant could properly have been granted.

      . Fla.Std.Jury Instr. (Civ.) 5.1(b).

      . Fla.Std.Jury Instr. (Civ.) 6.2(b).


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Chief Judge.

license: Public Domain

text:
    Lamar BEAUCHAMP, Appellant/Cross-Appellee, v. YAZOO VALLEY OIL AND MILLING CO., INC. and Bell Dryer, Inc., Appellees/Cross-Appellants.
    No. VV-285.
    District Court of Appeal of Florida, First District.
    Sept. 4, 1981.
    Rehearing Denied Sept. 29, 1981.

      Ernest A. Sellers and Andrew J. Decker, III of Airth, Sellers & Lewis, Live Oak, for appellant/eross-appellee.
    Robert Wilhelm of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appel-lees/cross-appellants.
   ROBERT P. SMITH, Jr., Chief Judge.

In this action against a feed supplier for damage to a cattle herd in which appellant Beauchamp had a security interest, the trial court charged Beauchamp with vicarious responsibility for the owner’s contributory negligence and correspondingly reduced Beauchamp’s recovery from $83,500, the total damages assessed by the jury, to $12,-525. We find there is no basis for attributing the owner’s contributory negligence to Beauchamp, so we reinstate the full jury award. We affirm the points raised on the feed supplier’s cross-appeal.

In the early 1970s, Beauchamp launched brothers Joseph and Marvin Folsom in the dairy business by selling them more than a thousand head of cattle on credit. He secured his debt by six standard Uniform Commercial Code Article 9 security agreements, maintaining an interest in the cattle as collateral. In October 1974, when $340,-000 of the debt remained unpaid, the Folsom cattle, fed a new cottonseed meal the previous evening, suddenly began to die. During the next week 125 cows died, and 277 finally survived.

Suing the appellee suppliers of the cottonseed meal on theories of negligence and strict liability, Beauchamp and the Folsoms contended that the cottonseed meal contained paraquat which poisoned the cattle. Appellees maintained in defense that the Folsoms negligently starved their cattle and then allowed them to eat too much, bringing on a condition called rumen or stomach compartment overload. By special verdict, the jury found for Beauchamp on both the negligence and strict liability theories, holding Yazoo 15 percent negligent and the Folsoms 85 percent negligent. In its final judgment, however, the trial court reduced the jury’s award to $12,525 by attributing the Folsoms’ 85 percent negligence to Beau-champ.

Appellees contend the reduction was proper because Beauchamp was vicariously liable for the Folsom’s negligence based on either his agency or creditor relationship with them. We agree with Beauchamp that there is simply no evidence in the record to support argument that the Fol-soms were his agents or employees in the operation of their dairy business. In fact, testimony clearly indicates that someone else was Beauchamp’s agent for cattle and farming operations in that area.

We also decline to impose vicarious liability on the basis of the creditor-debtor relationship between Beauchamp and the Folsoms. Beauchamp’s rights to require the Folsoms to keep the cattle in good condition, to inspect the collateral, and to recover the collateral in the event of default, spelled out on form security agreements, established an ordinary secured party and debtor relationship. Beauchamp did not, as appellees suggest, have any enhanced rights to control the Folsoms’ treatment of their cattle. Where the relationship is an ordinary one between secured party and debtor, the better rule is that the debtor’s negligence should not be imputed to the secured party when the collateral is damaged by the combined negligence of the debtor and an unrelated third party. When the secured party lacks control over the debtor’s actions, it would be unfair to give the negligent third party a windfall at the expense of an innocent secured party. See Forcier, The Negligent Damage or Destruction of Collateral—Remedies including Insurance Subrogation, 52 Minn.L.Rev. 1001, 1010 (1968). Therefore, we reverse the judgment reducing the jury award, reinstate the damages award of $83,500, and remand for entry of an appropriate judgment for Beauchamp.

On Yazoo’s cross-appeal, we find the evidence sufficiently supports the jury’s determination that the cottonseed meal was defective at the time it left manufacturer Yazoo’s possession, and that it did not undergo any subsequent adulteration; and there is evidence supporting a jury calculation of Beauchamp’s damages for the impairment of his security interest.

On the question of liability the judgment for Beauchamp is AFFIRMED; the judgment for reduced damages is REVERSED and the case is REMANDED for entry of judgment for all the damages found to have been sustained.

JOANOS and THOMPSON, JJ., concur.


text:
    Craig H. SALLEY; Arthur Lee Campbell; Campbell, Salley & Associates, Architects, Inc., Appellants, v. CHARLES R. PERRY CONSTRUCTION, INC., et al., Appellees.
    No. ZZ-193.
    District Court of Appeal of Florida, First District.
    Sept. 4, 1981.
    Rehearing Denied Oct. 7, 1981.

      Stephen A. Rappenecker, P.A., Gaines-ville and Edwin C. Cluster of Ayres, Cluster, Curry, McCall & Briggs, P.A., Ocala, for appellants.
    Charles B. Carter, Jr. of Jones & Lang-don, P.A., Gainesville, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

Architect Salley and his associates appeal from an order dismissing their amended cross-claim for contribution under Section 768.31, Fla.Stat. (1979), against Perry, the general contractor for the office building Salley designed. We reverse the order because the cross-claim adequately states a claim for contribution from a joint tort-feasor by alleging that Perry negligently participated in installing defective glass in the building’s windows.

In the principal action below, the assign-ee of the building owner’s rights initially sued both the architect and the contractor for negligent design of the windows and specification of “solarbronze” glass for them. The owner’s assignee, Florida Farm Bureau Federation, alleged that the glass in some of the windows cracked and fell out during the winter because the specified so-larbronze glass could not withstand thermal stresses caused by cold weather and the uneven distribution of sun and shade on the windows caused by partial shading under Salley’s design by vertical fins. After the contractor pointed out that the Farm Bureau complaint did not specifically allege any breach of duty on the contractor’s part, the trial court dismissed the Farm Bureau action against Perry, the contractor. Later, the court dismissed Salley’s amended cross-claim against Perry for contribution.

We think dismissal of the cross-claim was error. Fairly read, the cross-claim alleges that the contractor negligently substituted a type of glass, other than solarbronze, which the contractor or its agents should have known through testing or experience was not comparable to solar-bronze. The cross-claim further alleges that the contractor or its agents were negligent in installing the glass. We agree with the architect that there is a sufficient statement of ultimate facts to withstand a motion to dismiss.

We also reject appellees’ argument that the cross-claim was properly dismissed because there was no showing of common liability by the architect and contractor establishing a right of contribution. The two were engaged in the common enterprise of designing and constructing a single building, with duties to the Farm Bureau that were intertwined in both time and substance. In this respect they can be contrasted to the parties in the cases cited to us by appellees: VTN Consolidated, Inc. v. Coastal Engineering Associates, Inc., 341 So.2d 226 (Fla. 2d DCA 1976), cert. den., 345 So.2d 428 (Fla.1977); and Touche Ross & Co. v. Sun Bank of Riverside, 366 So.2d 465 (Fla. 3d DCA 1979), cert. den., 378 So.2d 350 (Fla.1979).

In VTN, the Second District found no basis for a third-party complaint by a surveyor, being sued by a developer for faulty topographical maps, for contribution from an engineer who used the maps to design road and drainage systems. The surveyor alleged the engineer misused the maps, apparently by failing to note that the survey- or marked them accurate except for areas where the ground was obscured by vegetation. Unlike the surveyor in VTN, whose duty to the developer apparently ended once the surveyor furnished topographical maps, the architect’s duty to Farm Bureau did not end by specifying materials to implement its design. The architect assumed a duty of reasonable care in carrying out its contractual duties to the building owner, specifically including periodic visits to the building site to determine whether the work was proceeding in accord with specifications. The architect also had a full-time project representative at the job site providing construction administration.

Thus at the time the contractor allegedly substituted defective glass for the specified solarbronze, the architect and contractor were engaged in a common effort to erect a building meeting specifications. There is no indication that at the time the VTN engineer designed the street and drainage systems using the surveyor’s maps — some two years after the maps were prepared — the surveyor had any continuing relationship with either the developer or the engineer. In contrast, here it is alleged that in a series of related transactions at the same location, the architect negligently designed the windows, the contractor negligently altered the materials specified for the design or negligently installed the glass, and the architect then negligently failed to inspect the substituted glass and its installation job.

Touche Ross is even farther afield. In that case, a hospital sued its independent accountants, who had a duty to notify the hospital of problems found through audits, for their failure to discover an embezzlement by one of the hospital’s executives. The accountants sought contribution from the hospital’s banks on grounds that they had caused the hospital’s loss by honoring the checks drawn by the executive. The Third District affirmed dismissal of the contribution claim, finding the duties owed the hospital by the accountants and by the banks were totally separate and unrelated. Here, as is readily reflected by the prime contract’s specification of the respective responsibilities of architect and general contractor, the architect’s and contractor’s duties to the building owner were closely related, given the very nature of a construction project.

Accordingly, the order dismissing appellants’ cross-claim is REVERSED.

JOANOS and THOMPSON, JJ., concur.


author: NESBITT, Judge.

text:
    EAGLE FAMILY DISCOUNT STORES, INC., f/u/b/o Employers Insurance of Wausau, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 80-1151.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.

      Dolan, Fertig & Curtis and Luke S. Brown and David W. Boone, Fort Lauder-dale, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The present controversy had its genesis in 1976 when a warehouse, leased to Eagle Family Discount Stores (Eagle) by Dade County, was destroyed by fire. Dade County’s liability carrier, United States Liability Insurance Company (USLIC), sought to avoid its responsibility under its policy by a declaratory judgment action in the United States District Court, Southern District of Florida alleging that Dade County, as owner, had: (1) not properly maintained an automatic sprinkling system; and (2) knew or should have known of an allegedly improper method of storage in the warehouse that materially increased the risk. The federal court entered summary judgment in favor of Dade County, which determined that USLIC was liable under its policy. USLIC then made payment on the claim to Dade County. Upon making payment, USLIC became subrogated to Dade County’s rights either pursuant to the terms of the insurance policy or, at the very least, by operation of law. Goodwin v. Schmidt, 149 Fla. 85, 5 So.2d 64 (1941); Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916).

USLIC then instituted the present action in the Eleventh Judicial Circuit against Eagle alleging that it was negligent in the improper storage of flammable materials in the warehouse leased from Dade County. The suit was brought in the name of Dade County, as subrogor, as an exception to the real party in interest rule. Fla.R.Civ.Pro. 1.210(a); Gould v. Weibel, 62 So.2d 47 (Fla.1952); Section 4-3, Trawick’s Florida Practice and Procedure (1980 Edition). Eagle, which was then defended by its carrier, Employers Insurance of Wausau, filed a general denial and a counterclaim alleging that Dade County was negligent in the operation of a water supply system and/or a fire prevention system. The counterclaim was permissive in the sense that it constituted what was, under former common law practice, a setoff. Metropolitan Casualty Ins. Co. of New York v. Walker, 151 Fla. 314, 9 So.2d 361 (1942). Eagle procured an order striking the subrogor’s (in reality USLIC as subrogee for the real party in interest) complaint as a sham showing that in the prior declaratory judgment action Dade County had taken an inconsistent position. We affirmed the order striking the complaint on the grounds of equitable es-toppel. Board of County Commissioners of Dade County v. Eagle Family Discount Stores, Inc., 380 So.2d 486 (Fla. 3d DCA 1980). The parties then proceeded to litigation the counterclaim on the question as to whether notice was required to be given to Dade County pursuant to Section 768.28(6), Florida Statutes (1975). Ultimately, Eagle’s permissive counterclaim was dismissed by the trial court which is the subject of this appeal.

Eagle’s primary contention on appeal is that Sections 768.28(6) and 768.14, Florida Statutes (1975), when construed together, obviate the requirement of notice to the county as a political subdivision. We find it unnecessary to reach the point because we find that the trial court correctly dismissed Eagle’s permissive counterclaim on another ground.

USLIC contends that subrogation, being equitable in nature, 12 Florida Jurisprudence 2d Contribution, Indemnity and Sub-rogation Section 19, the liability of the sub-rogee will not extend beyond the benefits of its subrogation rights. Consequently, when Dade County’s, or in fact, USLIC’s, the real, party in interest, subrogee’s rights against Eagle failed, it could have no further liability. Where a subrogee succeeds to the benefits or the rights of its subrogor, it is chargeable with the liabilities of its subrogor to the extent of all benefits recovered. Occidental Ins. Co. v. Herman, 179 Misc. 499, 38 N.Y.S.2d 278 (Spec.Term.Sup.Ct.1942). Where a subrogee fails to recover any benefits, it is inequitable to extend the subrogor’s liability upon it for to do so would enlarge upon the terms of its policy. Occidental Ins. Co. v. Herman, supra; Marley v. United States, 423 F.2d 324 (Ct.Cl.1970); Restatement of Judgments, § 57, Comment (a). In that regard, we entirely agree with the reasoning of Occidental Ins. Co. v. Herman, supra:

If on the other hand the plaintiff fails to recover and the defendant succeeds upon his counterclaim, then there would be no benefits to which the plaintiff succeeded by reason of the assignment which can be chargeable with the liabilities of the plaintiff’s assignor. To permit the counterclaim, notwithstanding that the plaintiff receives no benefit from the assignment, would be to enlarge the coverage of the policy issued by the plaintiff so as to make it liable, not alone for the damages suffered by its assured, irrespective of fault, but for the liability incurred by him for the damages sustained by the defendant.

38 N.Y.S.2d at 280.

While the trial court did not have the benefit of the subrogee’s argument, it nonetheless reached the right conclusion in dismissing Eagle’s permissive counterclaim for failure to state a cause of action. We will affirm an order or judgment of a trial court if it is supportable on any basis. City of Coral Gables v. Puiggros, 376 So.2d 281 (Fla. 3d DCA 1979).

Affirmed.

      . For an excellent discussion regarding the normal ways in which a subrogee institutes an action, see Holyoke Mutual Insurance Company in Salem v. Concrete Equipment, Inc., 394 So.2d 193 (Fla. 3d DCA 1981).

      . This section concerns the waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitation; and exclusions.

      . 768.14 SUIT BY STATE; WAIVER OF SOVEREIGN IMMUNITY. — Suit by the state or any of its agencies or subdivisions to recover damages in tort shall constitute a waiver of sovereign immunity from liability and suit for damages in tort to the extent of permitting the defendant to counterclaim for damages resulting from the same transaction or occurrence.


author: FERGUSON, Judge.

text:
    DAVIDSON LUMBER COMPANY, Appellant, v. Jack SULLIVAN and Claudia Sullivan, his wife, and Florida Omni Corporation, a Florida corporation, Appellees.
    No. 80-1758.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.

      Joe N. Unger, Spiegelman & Spiegelman, Miami, for appellant.
    Walters, Costanzo, Miller & Russell and James G. Roth, Miami, Sylvester Adair, Homestead, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

Davidson Lumber Company as material-man sought to foreclose a mechanic’s lien against property owners and lessors, Jack and Claudia Sullivan, where improvements in the leased premises had been undertaken by the lessee. The trial court entered a final judgment in favor of the lessors and Davidson Lumber Company appeals. We affirm.

The issue on appeal is whether the improvements made by the lessees were in accordance with an agreement between the lessee and lessor pursuant to Section 713.10, Florida Statutes (1975).

By written agreement dated August 10, 1976, Jack and Claudia Sullivan leased to a Rhoda Albert on behalf of Florida Omni Corporation certain premises to be used as a halfway house for children. The lease specifically stated that the premises were to be used as a boarding house, required written consent of the lessor for any alterations or additions to the premises, provided the lessee with an option to purchase, and provided that in the event the option was not exercised, that all option money and all lease-hold improvements be forfeited to the lessor. There is no evidence that the lease was recorded.

Omni Corporation through its principles, Rhoda Albert and William Greene, arranged with Davidson Lumber to supply materials for renovation of the leased prem-ses. Greene was a full-time employee of Davidson Lumber. After the renovation project had been underway for about three months, the lessee defaulted and renovation ceased. Davidson Lumber then sued the Sullivans for $11,300.44 plus interest and attorney’s fees.

Florida law has consistently required that in order for a contractor to be entitled to a lien on improved realty as against the owner when the work is done for a lessee, the lease must by its terms require the work to be done or by its terms make it obvious that the improvements were the pith of the lease. Tom Joyce Realty Corp. v. Popkin, 111 So.2d 707 (Fla.3d DCA 1959). See also Anderson v. Sokolik, 88 So.2d 511 (Fla.1956); Brenner v. Smullian, 84 So.2d 44, 46 (Fla.1955); Edward L. Nezelek, Inc. v. Food Fair Properties Agency, Inc., 309 So.2d 219 (Fla.3d DCA 1975); Robb v. Lott Paving Company, Inc., 289 So.2d 776 (Fla. 4th DCA 1974).

In this case, it is clear that the parties contemplated some repair work. We find, however, nothing in either the terms of the lease or in the record which suggests that the Sullivans agreed to any extensive renovations or agreed to pay for such renovations. We note there is evidence in the record supporting a conclusion that the contractor, as well as the employee of Davidson Lumber, had actual knowledge that the Sul-livans intended not to be liable for the renovations.

There was conflicting testimony at trial as to the extent of repair work contemplated. The Sullivans testified that no more than the patching of two small leaks in the roof was required. Davidson Lumber offered testimony that the building would have to be completely reconditioned to qualify for a halfway house. The trial court could reasonably conclude that the testimony offered by Davidson Lumber did not demonstrate that the removal of the entire roof, the removal and replacement of the entire third floor, and the removal of windows and entire sections of wall was necessary in order to accomplish the purpose of the lease. Cf. Jenkins v. Graham, 237 So.2d 330 (Fla. 4th DCA 1970) (record demonstrated that installation of toilet facility was necessary to accomplish purpose of lease).

The finding of the trial.court is presumed to be correct and on this record, we find that Davidson Lumber has not met its burden of demonstrating error. See, e. g., American Motor Inns of Florida, Inc. v. Bell Electric Company, 260 So.2d 276, 278 (Fla. 4th DCA 1972).

Affirmed.

      . Section 713.10 provides in part:
      When an improvement is made by a lessee in accordance with an agreement between such lessee and his lessor, liens shall extend also to the interest of such lessor. In the absence of fraud on the part of the lessor, the interest of the lessor shall not be subject to liens for improvements made by the lessee when the lease is recorded in the clerk’s office and the terms of the lease expressly prohibit such liability.


author: PER CURIAM.

text:
    Cassandra R. NEWBY, Appellant, v. Jeffrey H. NEWBY, Appellee.
    No. 80-1763.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Gold & Fox and Roberta Fulton Fox, Coral Gables, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellee.
    Elizabeth S. Baker, Miami, for Legal Services of Greater Miami, Inc. as amicus curiae.
    Patricia Ireland, Miami, Julia Dawson, North Miami, Judith Bass, Miami, and Frances M. Farina, Miami Shores, for Nat. Organization for Women in Florida, Florida Women’s Political Caucus and Florida Ass’n of Women Lawyers as amicus curiae.

      Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

While in the process of dissolving their marriage of fourteen years, Cassandra and Jeff Newby, as joint obligors, were sued on a past due promissory note by Elizabeth Robertson, Cassandra’s mother. In response to Robertson’s complaint, Jeff, ap-pellee herein, filed an answer and cross-claim against Cassandra, requesting contribution, restitution, subrogation, and establishment and enforcement of an equitable lien on certain real property. Appellant filed a counterclaim for damages against Jeff, alleging that he had willfully and-physically abused her on several occasions. Appellee thereafter successfully moved to dismiss the counterclaim on the basis of interspousal immunity. Appeal is taken from a final order dismissing the counterclaim with prejudice.

Although a majority of jurisdictions have modified or abolished the doctrine of interspousal immunity, we are nonetheless bound by Florida law upholding the doctrine. Bencomo v. Bencomo, 200 So.2d 171 (Fla.), cert. denied, 389 U.S. 970, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). This identical issue is currently pending before the Florida Supreme Court on a certified question. See West v. West, 372 So.2d 170 (Fla. 2d DCA 1979). Accordingly, we affirm the dismissal below, and certify the following question to the Supreme Court of Florida as one of great public interest:

WHETHER A PERSON INJURED BY THE INTENTIONAL ACT OF ANOTHER PERSON IS PRECLUDED FROM ASSERTING LIABILITY AGAINST THE TORTFEASOR IN A CIVIL SUIT SOLELY BECAUSE THE TORTIOUS CONDUCT OCCURRED WHILE THEY WERE MARRIED TO EACH OTHER.

      . See MacDonald v. MacDonald, 412 A.2d 71, 73 (Me.1980), fn.3.


text:
    Gerald D. McALICE, Appellant, v. Marion ANDERSEN, Trustee and Judith Kirsch Sheffield, as Personal Representative of the Estate of Ralph Kirsch, Trustee, Deceased, Appellees.
    Nos. 80-1888, 80-1889.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.

      Gelb & Spatz and Carl A. Spatz, Miami, for appellant.
    Arky, Freed, Stearns, Watson & Greer and George Jahn, Orlando, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

The dispositive issue in this appeal is whether the trial court correctly set aside an execution sale and sheriff’s deed on the grounds that the bid price was inadequate and connected with irregularities.

The property in question was sold at a sheriff’s sale to enforce a judgment lien against Sapp Brothers Construction Company, the original owners of the property. McAlice purchased the property with a high bid of $600.00. The property was appraised at $92,000.00 as of the date of the sheriff’s sale and was one of three parcels encumbered by a single first mortgage of approximately $100,000.00. At the time of the sheriff’s sale, appellees, the Andersen group, had initiated mortgage foreclosure proceedings against the property pursuant to a recorded $20,000.00 second mortgage which appellees had given Sapp subsequent to the judgment lien but prior to the execution of that judgment lien. After purchasing the property, McAlice filed a quiet title action against appellees seeking an adjudication that appellees’ $20,000.00 mortgage was inferior and junior to the judgment lien upon which his purchase was based. Appel-lees then joined McAlice as a defendant in the pending foreclosure action.

The trial court entered summary judgment against appellant McAlice in the foreclosure action commenced by appellees Andersen, Sheffield and Kirsch, and against appellant in the corresponding quiet title action whereby McAlice sought to establish title to the property. Both judgments are appealed and have been consolidated by this court.

Under Florida law an inadequate purchase price alone is an insufficient basis for setting aside a sheriff’s sale; a party must also show that the low price is coupled with or resulted from mistake, fraud, accident, surprise, misconduct or irregularity. Arlt v. Buchanan, 190 So.2d 575 (Fla.1966); Moore v. Dade Glass and Mirror Company, Inc., 357 So .2d 221 (Fla.3d DCA 1978), cert. denied, 361 So.2d 834 (Fla.1978); Van Delinder v. Albion Realty & Mortgage, Inc., 287 So.2d 352 (Fla.2d DCA 1973); Edward A. Lashins, Inc. v. Baumann, 201 So.2d 495 (Fla.2d DCA 1967), cert. denied, 210 So.2d 221 (Fla.1968).

Although appellees alleged several irregularities, they fail to point to any mistake or irregularity in the sale which actually prejudiced appellees or any other interested party or caused the inadequate bid which would permit vacating the sheriff’s deed as a matter of law. See Taylor v. Bailey, 323 Pa. 278, 185 A. 699 (1936). Compare Moore v. Dade Glass and Mirror Company, supra (fact that notice of sale failed to state whether sale was to be inside or outside courthouse did not require vacation of sale based on inadequate bid) with Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla.1974) (sale vacated where serious question of good faith and evidence that party would have bid substantially higher). We reject appellees’ argument that one such fatal irregularity or mistake was the Sheriff’s announcement at the time of the sale that he was selling all right, title and interest of the judgment debtor Sapp as of the date of the sale rather than such interest of the judgment debtor as of the time the judgment became a lien upon the real property. In conducting an execution sale, the sheriff acts in a ministerial capacity, see, e. g., Camp v. Moseley, 2 Fla. 171 (1848), and makes no representations or warranties as to title. He is not charged with any affirmative duty of ascertaining the state of the title for the purpose of disclosing it to bidders. All that could pass by the sale was appellees’ interest in the property, whatever that might be. Taylor v. Bailey, supra.

Reversed with directions to enter judgment in favor of appellant.


text:
    David Luther HARRISON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 80-2004, 80-2005.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.
    Taffer & Jacobs and Warren G. Jacobs, Miami, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

David Harrison appeals from adjudications of guilt and sentences of imprisonment imposed after Harrison’s probation was revoked for possessing metallic knuckles and committing batteries upon a public officer and a medical technician in violation of the terms of probation.

We reject Harrison’s argument that there was a lack of competent evidence to prove possession of metallic knuckles classified as a weapon under Section 790.-001(13), Florida Statutes (1979) because a photograph rather than the actual knuckles was introduced into evidence. In this case, the officer who discovered the knuckles testified at the probation revocation hearing and was subject to cross-examination. Harrison’s right to confrontation under the Sixth Amendment of the United States Constitution is restricted to witnesses and does not encompass physical evidence. United States v. Herndon, 536 F.2d 1027 (5th Cir. 1979); G.E.G. v. State, 389 So.2d 325 (Fla. 5th DCA 1980); State v. Armstrong, 363 So.2d 38 (Fla. 2d DCA 1978). Nor has Harrison established that under Florida law, he has been prejudiced by the introduction of the photograph in lieu of the physical evidence. Smith v. State, 305 So.2d 868 (Fla. 3d DCA 1975), cert. denied, 316 So.2d 284 (Fla.1975). See, e. g., G.E.G. v. State, supra, Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978).

We also find record evidence sufficient to prove the intent element of the battery.

The State concedes, and we find, error in treating the sale of methaqualone as a second degree felony and imposing consecutive sentences of fifteen years for each count in violation of Section 893.13, Florida Statutes (1979). The offense is a third degree felony punishable by a maximum of five years on each count. §§ 893.-13(2), 893.03(2)(c)(5), Fla.Stat. (Supp.1980); § 775.082(3)(d), Fla.Stat. (1979).

Affirmed as to the finding of violation, possession and battery, reversed as to the sentencing, and remanded for sentencing in accord with this opinion.


author: BARKDULL, Judge.

text:
    The STATE of Florida, Appellant, v. James McQUAY, Alfred Cunningham, Michael Shipman, Antonio Allen a/k/a Torrence Allen and Richard Allen Bowe, Appellees.
    No. 80-2010.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1981.

      Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, Eugene F. Zenobi, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   BARKDULL, Judge.

The State appeals from an order granting the sworn motions to dismiss of the defendants, James McQuay, Alfred Cunningham, Michael Shipman, Antonio Allen, and Richard Bowe.

At about 5:00 A.M. on July 17, 1980, the victim, Deborah Carter (a Dade County school bus driver), was driving her bus northbound on N.W. 22nd Avenue, Miami, when she exited her bus to remove certain obstructions in the street. At this time, approximately ten males (including the present defendants), who were carrying bats and knives and one of whom was brandishing a pistol, boarded the empty bus and told the victim to take them to 84th Street. After traveling about one and one-half blocks, two of the group got off the bus, and after a total of about thirteen blocks of travel the bus approached a police roadblock (due to recent riots there was a curfew in effect). After coming to a stop, the victim ran off the bus and those on the bus were ordered off and were arrested. Upon searching the bus, a pistol, two knives and a baseball bat were found. Thereafter, the defendants were charged with burglary of a conveyance, kidnapping, aggravated assault, unlawful possession of a firearm while engaged in a criminal offense, and the unlawful possession of weapons while engaged in a criminal offense.

Pursuant to a motion to dismiss all charges for failure to establish a prima facie case filed by defendant Bowe, all other defendants subsequently adopted Bowe’s motion and the State thereupon filed traverses to the motions and a demurrer. Following a hearing, the trial judge entered an order dismissing the possession and aggravated assault counts, reducing the burglary of a conveyance count to a second degree felony, and reducing the kidnapping count to false imprisonment. Following the trial court’s rulings (reducing and dismissing certain counts), the State has filed this appeal.

A motion to dismiss should be granted only where the most favorable construction to the State would not establish a prima facie case of guilt. See: State v. Smith, 348 So.2d 637 (Fla.2d DCA 1977). And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied. See: State v. Hires, 372 So.2d 183 (Fla.2d DCA 1979). If the State files a traverse specifically denying under oath a material fact alleged in the motion, a denial of the motion is required. See: Fla.R.Crim.P. 3.190(d), and State v. J. T. S., 373 So.2d 418 (Fla.2d DCA 1979).

We find no error in the reducing of the burglary charge, a life felony (Count I), to a charge of burglary of a conveyance while occupied, a second degree felony.

It was error to reduce the charge of kidnapping (Count II) to a charge of false imprisonment. Although the defendants argued that the confinement was of a minimal duration and that the kidnapping could not be said to have facilitated the burglary, nonetheless the record in the present case supports the State’s traverse which alleged that the confinement was not of a minimal duration and that without the restraint and threat to the victim the burglary of the alleged conveyance could not have been completed. See: Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980).

It was error to dismiss the charge of aggravated assault (Count III). The State’s traverse specifically discounted the defendants’ position that the victim had not been placed in a well-founded fear of bodily injury and that there was no use or involvement of a deadly weapon. See: State v. Guyton, 331 So.2d 392 (Fla. 4th DCA 1976).

It was error to dismiss the charges of the display of a firearm while committing a felony (Count IV), and the display of a weapon while committing a felony (Count V). Simply because the victim and the police could not identify which of the defendants had actual possession of the firearm and weapons (because it was dark and most of the defendants had bandages on their faces), is an insufficient ground for dismissal. The defendants are still aiders and abettors and can be convicted under Sections 790.07(1) and (2); 777.011, Florida Statutes (1979). See: Norris v. State, 360 So.2d 476 (Fla.3d DCA 1978), which holds that a defendant may be convicted for the unlawful display of a firearm while committing a felony as an aider and abettor, where the only evidence shows that the firearm was possessed by a coperpetrator. In addition, these two counts alleged that someone in the group displayed the firearms and other weapons and, accordingly, because the defendants were part of that group the State has made out a prima facie case of guilt.

The order under review is affirmed in part, and reversed in part with directions to reinstate the counts in accordance with this opinion.

Affirmed in part; reversed in part with directions.


author: McCORD, Judge.

text:
    Gregory Wendell LEWIS, Appellant, v. STATE of Florida, Appellee.
    No XX-399.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 2, 1981.

      Charles Friend, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted of burglary of a structure (the Tallahassee Urban League Building) and grand larceny. Among other points raised, appellant contends the trial court erred in permitting Reverend Ernest Ferrell to testify as to the value of two calculators which were stolen from the building; that pursuant to Angel v. State, 305 So.2d 283 (Fla. 1st DCA 1974), Reverend Ferrell was not the owner of the calculators and was not shown to be qualified to state his opinion as to their value at the time of the theft. Unlike Angel, however, appellant made no objection to Ferrell’s testimony on hearsay or best evidence grounds. Reverend Ferrell, President of the Tallahassee Urban League (the owner of the calculators), testified without objection that the two calculators were less than a year old, were practically new, and cost $159 each when purchased. After so testifying, the state asked Reverend Ferrell if he had an opinion as to their value on June 11,1979, the date of the burglary and larceny. At that point, appellant’s counsel objected, stating as his sole ground:

“There’s been no showing that Reverend Ferrell is the owner of those items and therefore he is not qualified to testify as to their value.”

The objection was overruled and Ferrell testified that in his opinion they were worth more than $100 at that time. His testimony, unrefuted and unchallenged by cross-examination, showed his constructive possession and personal familiarity with the stolen property sufficient for consideration by the jury.

We have considered appellant’s remaining points and find them to be without merit.

AFFIRMED.

LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    Charles A. DAMYN, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. YY-149.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 2, 1981.
    Charles A. Damyn, in pro per.
    Jim Smith, Atty. Gen., Susan E. Gamble, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellee.
   PER CURIAM.

Appellant appeals the trial court’s denial of his petition for writ of habeas corpus alleging violation of due process in certain prison disciplinary proceedings. Of the numerous issues raised by appellant, only one has merit. Appellant correctly contends that he is entitled to be given a copy of the written statement of the evidence relied upon and the reasons for the disciplinary action against him. Lightfoot v. Wainwright, 369 So.2d 110 (Fla. 1st DCA 1979); Jerry v. Wainwright, 383 So.2d 1110 (Fla. 1st DCA 1980); Strong v. Wainwright, 385 So.2d 169 (Fla. 1st DCA 1980). Based upon the assurance of the department that copies of the pertinent written statements will be promptly furnished to appellant, it is unnecessary to remand on this point. The other issues raised by appellant are without merit.

AFFIRMED.

BOOTH, SHAW and WENTWORTH, JJ., concur.


author: JOANOS, Judge.

text:
    SHAW & KEETER MOTOR CO., INC., Appellant, v. MARIS DISTRIBUTING CO., INC. and Ford Motor Company, Appellees.
    No. ZZ-476.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1981.
    Bevin G. Ritch of Lowry & Ritch, Gaines-ville, for appellant.
    Terence J. Kann of Barton, Cox & Davis, Gainesville, for appellees.
   JOANOS, Judge.

This appeal results from the trial court’s dismissal of appellant’s complaint for failure to prosecute. Appellant argues that there was sufficient record activity during the year preceding appellee’s motion to dismiss to preclude dismissal under Fla.R.Civ.P. 1.420. We agree and reverse.

On June 7, 1977, appellant filed a complaint against appellee to recover for work performed on appellee’s trucks. Over the next two years, the complaint was amended several times, appellee filed an answer, discovery took place, and summary judgment was denied. Also during this period of time, appellee filed a third party complaint against Ford Motor Company. Between May 17, 1979 and September 10, 1980 no pleadings were filed in the case-in-chief; however, the record reflects a great deal of activity between appellee and Ford Motor over the third party complaint. Two amended third party complaints were filed, to which Ford Motor responded with a motion to strike, notices of deposition and production of documents, two notices of hearing, and an answer and affirmative defenses. The status of the third party complaint was not resolved until September 24, 1980, when Ford Motor’s motion to strike was finally granted in part, and denied in part.

On September 11, 1980 appellee filed a motion to dismiss appellant’s complaint for failure to prosecute, as provided by Fla.R. Civ.P. 1.420. Appellant responded to the motion alleging that the record activity on the third party complaint prevented dismissal under Rule 1.420 or, in the alternative, that it had good cause for not filing any pleadings because it could not proceed with the case-in-chief until the status of the third party complaint was finalized. Initially, the court denied the motion to dismiss stating that appellant had shown good cause why dismissal should not be granted. On reconsideration, however, the court vacated its earlier order and granted appel-lee’s motion to dismiss.

Appellee’s argument in support of the dismissal is based upon a narrow conception of Rule 1.420. Under appellee’s interpretation, dismissal under Rule 1.420 could be prevented only if record activity was initiated by the plaintiff within the year prior to the motion to dismiss and that activity related to the original complaint. The courts have not given such a restricted interpretation to Rule 1.420. In Harris v. Winn-Dixie Stores, Inc., 378 So.2d 90 (Fla. 1st DCA 1979) this Court recognized that “activity of any party is sufficient if it is more than ‘a mere passive effort’ and is an affirmative act directed toward disposition of the case.” (emphasis supplied)

There can be no question that the record activity in this case was directed toward the disposition of the case. The original claim filed by appellant had progressed to the point that the issues had been defined by appellant and appellee in the complaint and answer. Appellee suggested in its brief that appellant could have prevented dismissal by noticing the case for trial under Fla.R.Civ.P. 1.440. “As a practical matter,” however, appellee admitted that the trial court would probably not have set the case for trial until the third party complaint was finalized. In light of Fla.R.Civ.P. 1.180(a), which permits a third party defendant to answer and assert defenses to the original complaint, the trial court should have waited until the third party complaint was resolved before setting the main case for trial not only as a practical matter, but as a legal matter. See Zuckerman-Vernon Corp. v. Zelikoff, 323 So.2d 585 (Fla. 3d DCA 1975). In Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976), the only record activity that occurred during the year before the motion to dismiss for failure to prosecute was the plaintiff’s noticing a hearing on .the third party defendant’s motion to dismiss the third party complaint. Similar to this case, there was no record activity directed toward the original complaint, yet the Kenet court held that the action on the third party complaint was reasonably intended the progress the case-in-chief. The court reasoned that until the motion to dismiss the third party complaint was resolved, “the cause could not be brought to issue as defined by RCP 1.440.” Id. at 37.

As in Kenet, the advancement of the third party claim in this case served to bring the original complaint closer to being “at issue.” For purposes of Rule 1.420, therefore, the record activity during the year before the appellee’s motion to dismiss for failure to prosecute was sufficient to prevent dismissal of appellant’s complaint.

REVERSED and REMANDED for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.


author: DANAHY, Judge.

text:
    Jimmy WINEGARNER, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, an insurance company authorized to do business in the state of Florida, Appellee.
    No. 80-2195.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1981.

      Charles J. Cheves of Cheves & Rapkin, Venice, for appellant.
    Andrew D. Owens, Jr. and Daniel A. Carlton of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for ap-pellee.
   DANAHY, Judge.

Appellee issued a yacht policy covering appellant’s 31-foot Chris Craft. The policy, a “named perils” policy, insured against loss caused by “negligence of master, mariners, engineers, or pilots.” Appellant negligently caused his boat to sink and brought this suit to recover proceeds under the policy for the loss.

Appellee asserted four affirmative defenses, the first being that the negligence of the owner of the boat is not included in the phrase “negligence of master, mariners, engineers, or pilots.” No other named peril applied; hence appellee’s position denied coverage altogether. The trial judge agreed with appellee on this point and rendered summary -final judgment in its favor. We reverse.

A yacht policy seems obviously inappropriate for a 31-foot boat but, nevertheless, that is the type of policy which appellee issued. A clause in such a policy insuring against “negligence of master, mariners, engineers, or pilots” is known as an In-chmaree clause and typically contains language expressly excluding losses resulting from want of due diligence by an owner. Pacific Dredging Co., Inc. v. Hurley, 65 Wash.2d 394, 397 P.2d 819 (1964). The policy issued by appellee contained no such exclusion. Significantly, the policy separately excluded coverage for loss caused by “willfull misconduct of the assured.” There is no assertion of willful misconduct on appellant’s part.

We are compelled to agree with appellant that the clause in question, insuring against “negligence of master, mariners, engineers, or pilots,” is meaningless as applied to a 31-foot boat unless the owner of the boat is considered a master, mariner, engineer or pilot when acting in any such capacity. Surely appellee must be expected to know that a 31-foot boat is usually operated and maintained by its owner, not by a crew.

Accordingly, we reverse the summary final judgment entered by the trial judge in appellee’s favor. Since we are in doubt as to the status of the other three affirmative defenses asserted by appellee, we decline appellant’s request that we direct entry of final summary judgment for appellant.

REVERSED and REMANDED for further proceedings consistent with this opinion.

HOBSON, A. C. J., and GRIMES, J., concur.

      . The “Inchmaree” clause takes its name from the Steamship Inchmaree involved in Thames & Mersey Marine Insurance Co., v. Hamilton, Fraser & Co., 12 App.Cas. 484 (H.L.1887).


author: DOWNEY, Judge.

text:
    Richard Raymond DeANGELO, Appellant, v. STATE of Florida, Appellee.
    No. 79-2064.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Oct. 7, 1981.
    P. D. Aiken and Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

On June 22, 1978, the Grand Jury of Broward County indicted Richard DeAngelo for: (1) murder in the first degree by procuring Leonard Leon to commit a robbery against Narbly Keshishian, during the course of which robbery, or attempted robbery, Leonard Leon shot and killed Neil Prince with a .38 caliber pistol, and (2) robbery by procuring Leonard Leon to commit a robbery against Narbly Keshishian, during the course of which DeAngelo carried a .30 caliber rifle.

A petit jury found DeAngelo guilty of both first degree murder and robbery while being armed with a firearm. The court entered judgments of guilty pursuant to the verdicts and imposed a life sentence as punishment for each conviction, the sentences to run concurrently. DeAngelo raises three issues on appeal from those judgments and sentences; two of these issues warrant discussion.

Regarded in the light most favorable to the verdicts, the evidence showed the following events.

By prearrangement Narbey Keshishian and Neil Prince agreed to meet Leonard Leon at a specified location to effect the purchase of a large amount of marijuana. Upon Keshishian and Prince’s arrival at the location Leonard Leon took them to a large warehouse complex. Upon entering a particular warehouse, they met DeAngelo. Keshishian asked DeAngelo: “Where’s the pot?”, whereupon DeAngelo asked: “Where’s the money?” Keshishian left the warehouse, obtained $28,000 and returned. When he reentered the warehouse Leon pulled an automatic pistol and'' DeAngelo drew a revolver and a rifle and ordered Leon to search Prince and Keshishian. Shortly thereafter shots were fired and Keshishian ran from the warehouse to Oakland Park Boulevard where he was picked up by Pannuccio, a partner with Keshishian and Prince in the proposed purchase. Kesh-ishian told Pannuccio they had been ripped off and eventually Pannuccio notified the police that Prince was missing. As a result of the shooting Leonard Leon and Prince died; DeAngelo was wounded and ended up in Broward General Hospital.

Gary Leon visited DeAngelo in the hospital to find out what happened to his brother Leonard. The police learned Gary planned to visit DeAngelo and they asked him to carry a body bug and tape any conversation with DeAngelo. At one of Gary’s two hospital visits DeAngelo told Gary that he (DeAngelo) and Leonard were going to shake down Keshishian and Prince, i. e., take their money and keep the drugs. He also told him about the shooting.

At trial DeAngelo objected to the admission of either the tapes of his conversations with Gary Leon or to any testimony by Leon regarding their conversations. Thus, the first question we deal with involves the trial court’s acceptance into evidence of Gary Leon’s testimony concerning incriminating statements DeAngelo had made to Gary Leon during the course of the hospital visits, at a time when DeAngelo was not in custody.

DeAngelo argues, in sum, that the trial court’s reception of Gary Leon’s testimony violated his rights under the Fifth and Sixth Amendments, contending he was in custody and was interrogated by Gary Leon (who was an agent of the State) withqut first being advised of his rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Since Gary Leon testified that DeAngelo told him, “They [DeAngelo and Leonard Leon] were going to shake these people [Prince and Keshishian] down for money and keep the drugs,” it is clear that Gary Leon’s testimony was extremely helpful to the State and extremely damaging to DeAngelo. It may be that the foregoing testimony is, as the State suggests, cumulative to the testimony Keshishian gave, and therefore any error in its admission is harmless. We do not pass on the foregoing contention of the State because we do not think the trial court erred in allowing Gary Leon to give testimony concerning conversations he and DeAngelo had during Leon’s two visits to DeAngelo’s hospital room.

Shortly before Gary Leon testified, the defense and the prosecution had a lengthy three-way discourse with the court concerning (a) the propriety of Leon’s being permitted to testify concerning his conversation with DeAngelo during visits to DeAn-gelo’s hospital room on May 1st and May 3rd and (b) whether tapes made during Gary Leon’s two visits to DeAngelo were admissible. That discourse included some proffers, legal speculations, and legal argument. The prosecution conceded that, while Gary Leon made both visits to DeAn-gelo in order to find out for himself what had led to the death of his brother Leonard, he made the visits with the additional purpose of gaining information from DeAngelo to help the police in their investigation of the events at the warehouse. The prosecution also conceded it thought “on May. 1st DeAngelo was a primary suspect,” but did not describe the nature of the offense of which DeAngelo was a primary suspect. In turn, the defense conceded that at neither visit of Gary Leon to DeAngelo was there a custodial interrogation. Thereafter, the defense conceded Gary Leon would say, if asked, that he visited DeAngelo to find out what happened to his brother and the police said, “Well, if you are going in there, do you mind us wiring you up?” At the close of the discourse, the court ruled that no tape was admissible, but that Gary Leon’s testimony was admissible under Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

In order to answer the question whether the admission of Gary Leon’s testimony into evidence violated DeAngelo’s Fifth Amendment privilege against self incrimination or his Sixth Amendment right to counsel (the bifurcated first issue deserving discussion) we must resolve a preliminary question as to the Sixth Amendment: did DeAngelo have the right to be represented by counsel when Gary Leon visited him in the hospital on May 1st and 3rd?

Normally an individual’s Sixth Amendment right to counsel arises only after an accusatory pleading is filed against the individual. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Malone v. State, 390 So.2d 338 (Fla.1980); Barfield v. State, 402 So.2d 377 (Fla.1981); People v. Woollums, 93 Ill.App.3d 144, 48 Ill.Dec. 452, 416 N.E.2d 725 (1981). However, an individual against whom no accusatory pleading has been filed becomes an accused, in effect (and therefore entitled to representation by counsel), when a general investigation into an unsolved crime ceases and the investigation focuses on that individual. Escobedo v. Illinois, 378 U.S. 478, 485, 84 S.Ct. 1758, 1762, 12 L.Ed.2d 977, 982 (1964).

More specifically, the Escobedo court held:

“that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ . . . and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” 378 U.S. at 490-491, 84 S.Ct. at 1765, 12 L.Ed.2d at 986,

and ended its decision by stating:

“We hold only that when the process shifts from the investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.”
378 U.S. at 492, 84 S.Ct. at 1766, 12 L.Ed.2d at 987.

In the present case neither side presented evidence that the general investigatory process had ended. Moreover, it is clear that DeAngelo was not in custody when Gary Leon visited him in the hospital, and the police did not, through Gary Leon, conduct any interrogation designed to elicit a confession from DeAngelo. Gary Leon, while stating (a) that the police knew he was visiting DeAngelo and that they told him “to keep a running conversation to gather information” and (b) that he told the police what he saw and heard during the second visit, consistently maintained his purpose in visiting DeAngelo was to find out for himself the circumstances of his brother’s death. Under these circumstances the investigation was still general and had not focused on DeAngelo; thus DeAngelo did not have a right, under Escobedo, to consult with counsel before talking with Gary Leon. Our conclusion is bolstered by the following factors.

First, after the Supreme Court of the United States announced its Escobedo decision, the Supreme Court of Florida was presented with the question of whether a confession obtained by the police pursuant to a custodial interrogation following an arrest but preceding an indictment for first degree murder and appointment of counsel was admissible against the defendant at trial. The court held that (a) the confession was admissible because it was voluntary, and (b) the police did not violate the defendant’s right to counsel in obtaining the confession before counsel had been appointed, since the right to counsel did not attach because,

“Before a suspect has been formally charged with a crime — while the investigative processes are still going on — there is no ‘criminal prosecution’ [within the meaning of the Sixth Amendment] to which [the] constitutional guaranty [of the right to counsel] can attach.” Montgomery v. State, 176 So.2d 331, 334 (Fla.1965).

The Court distinguished Escobedo on the ground that its holding was restricted to its facts, and the facts in Montgomery were different from those of Escobedo, in that Montgomery made no request for the presence of counsel before the custodial interrogation while Escobedo had asked for counsel before his custodial interrogation and the police had denied his request. Accord: Myrick v. State, 177 So.2d 845 (Fla. 1st DCA 1965); Dampier v. State, 180 So.2d 183 (Fla. 1st DCA 1965). A plurality of the Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), recognized that an individual’s Sixth Amendment right to counsel does not attach until adversary judicial proceedings are brought against him, limiting the holding of Escobedo to its own facts and stating “that the ‘prime purpose’ of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, ‘to guarantee full effectuation of the privilege against self-incrimination. . . ’.” 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. Based on the foregoing authorities and on People v. Woollums, 93 Ill.App.2d 144, 48 Ill.Dec. 452, 416 N.E.2d 725 (1981) (which relied on Kirby v. Illinios), we hold that DeAngelo’s right to counsel did not attach until he was indicted for murder and robbery, and therefore DeAngelo had no Sixth Amendment right to counsel at the time of Gary Leon’s visits to him at the hospital. Since DeAngelo had no Sixth Amendment right to counsel during the visits, the admission into evidence of Gary Leon’s testimony concerning statements DeAngelo made during those visits could not infringe upon DeAngelo’s constitutional right to counsel.

Second, United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), upon which DeAngelo primarily relies, does not support his position that the admission of Gary Leon’s testimony into evidence infringed his Sixth Amendment right to counsel. It seems to us that the Supreme Court reversed Henry’s robbery conviction because the government, by paying (on a contingency basis) Henry’s cellmate to insinuate himself into Henry’s confidence and deliberately engage Henry in conversation to secure incriminating information, “intentionally creat[ed] a situation likely to induce Henry to make incriminating statements without the assistance of counsel, [and thereby] . . . violated Henry’s Sixth Amendment right to counsel.” 447 U.S. at 275, 100 S.Ct. at 2189, 65 L.Ed.2d at 125.

None of the foregoing circumstances is present in the case before us. The record shows the police did not intentionally create a situation likely to induce DeAngelo to make incriminating statements; DeAnge-lo’s presence in the hospital was fortuitous; DeAngelo was not in custody; Gary Leon’s visits were voluntary; DeAngelo knew Gary Leon; and Gary Leon did not deliberately engage DeAngelo in conversation to secure incriminating information. The record shows no infringement of DeAngelo’s right to counsel.

The second part of the first issue is whether the admission of Gary Leon’s testimony infringed DeAngelo’s privilege against self-incrimination. We hold that no Fifth Amendment violation occurred during the Gary Leon — -DeAngelo conversations because when Leon visited and spoke with DeAngelo no one exercised any coercion over DeAngelo, and DeAngelo’s statements were purely voluntary. Since there was no compulsion, DeAngelo’s Fifth Amendment privilege against self-incrimination was not violated. Odom v. State, 403 So.2d 936 (Fla.1980). We conclude that the trial court acted properly in admitting Gary Leon’s testimony concerning incriminating statements DeAngelo voluntarily made to Leon.

The other quéstions deserving discussion is whether the robbery conviction and the life sentence imposed therefor were proper.

As indicated above, the first degree murder charge was based solely on the felony-murder rule. The indictment contains no language that would support a premeditated murder charge. Therefore, the State could prove first degree murder only by showing that the homicide of Prince took place during the perpetration or attempted perpetration of a robbery.

Florida law relative to convictions and sentences for felonies underlying first degree murder convictions under the felony-murder rule has been in a state of flux for quite some time. The latest pronouncement of our Supreme Court on the subject is that when the sole basis for a first degree murder conviction is an unpremeditated homicide committed during the commission of a specified class of felonies, the defendant may be sentenced for the murder; in addition he may be convicted of the underlying felony, but the trial court may impose no penalty pursuant to the conviction for the underlying felony. State v. Hegstrom, 401 So.2d 1343 (Fla.1981). Accordingly, we affirm the judgment of guilty of robbery but quash the life sentence imposed pursuant to the robbery conviction.

For the forgoing reasons we affirm the judgment of guilty of first degree murder, the life sentence entered thereon, and the judgment of guilty of robbery. However, we quash the sentence entered upon the robbery conviction and we remand the cause with directions that the trial court vacate the life sentence for the robbery conviction.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

LETTS, C. J., and ANSTEAD, J., concur.


text:
    Mary Jane FLYNT, as personal representative of the Estate of James Robert Flynt, deceased, Appellant, v. James McGILLEN and Alvin Gamble, d/b/a Alvin Gamble Brothers Fern & Plants and Florida Farm Bureau Casualty Insurance Company, an insurer authorized to transact business in the State of Florida, Sam Smith and Bonnie Smith, and Government Employees Insurance Company, etc., Appellees. James McGILLEN, Alvin Gamble, d/b/a Alvin Gamble Brothers Fern & Plants, and Florida Farm Bureau Casualty Insurance Company, Appellants, v. Mary Jane FLYNT, as personal representative of the Estate of James Robert Flynt, deceased, Sam Smith and Bonnie Smith and Government Employees Casualty Insurance Co., an insurer authorized to transact business in the State of Florida, Appellees.
    Nos. 79-2391, 79-2392.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.

      Jack B. Ludin of Pomeroy, Betts & Wied-erhold, West Palm Beach, for James McGil-len, Alvin Gamble, and Florida Farm Bureau.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for Government Employees Ins. Co.
   DOWNEY, Judge.

Mary Jane Flynt, as personal representative of the estate of her husband, James Robert Flynt, deceased, brought an action for damages against James McGillen, his insurer, Government Employees Insurance Company (GEICO), Alvin Gamble d/b/a Alvin Gamble Brothers Fern and Plants, Sam Smith and his wife, Bonnie Smith, and the Smiths’ insurer, Florida Farm Bureau Casualty Company. The trial court granted GEICO’s motion for summary judgment on the basis that its policy afforded no coverage to McGillen for the occurrence at issue and denied GEICO’s subsequent motion to tax costs. We reverse as to former order and accordingly the latter order becomes moot.

James Robert Flynt was killed instantly while driving north on Alternate A1A in Palm Beach County when a trailer came loose from a truck driven by James McGil-len and collided with the Flynt vehicle. The pleadings and depositions show that the trailer was eight feet wide and fifteen to sixteen feet long and had two axles, four wheels, brakes and a homemade plywood body; that the truck pulling the trailer was a two-ton Ford truck; that both were owned by Gamble; that at the time of the accident McGillen, an employee of Gamble, was heading south on Alternate A1A en route to pick up plants for the respective nurseries owned in North Florida by Gamble and the Smiths; and that Gamble and Sam Smith differed on whether Smith contributed to any of the expenses incurred for the trip.

GEICO filed a cross-claim against McGil-len, its insured, alleging its policy provided no coverage for either the truck or the trailer because neither was an “owned auto” nor an “non-owned auto” and because the truck was being used to carry goods for hire. The relevant provisions of the GEICO policy which insured McGillen’s two family automobiles are as follows:

Section I
Liability Coverages
Your Protection Against Claims from
Others
* * * * * *
DEFINITIONS:
******
3.“Farm auto ” means a truck type vehicle with a load capacity of two thousand pounds or less not used for commercial purposes other than farming.
******
5. “Non-owned auto ” means an automobile or trailer not owned by or furnished for the regular use of either you or a relative, other than a temporary substitute auto.
******
7. “Private passenger auto ” means a four-wheel private passenger, station wagon or jeep-type auto.
******
10. “Trailer” means a vehicle designed to be towed by a private passenger auto. If the vehicle is being used for business or commercial purposes, it is a trailer only while used with a private passenger, farm or utility auto. Trailer also means a farm wagon or farm implement used with a farm auto.
******
LOSSES GEICO WILL PAY FOR YOU
Under Section I, we will pay damages which an insured becomes legally obligated to pay because of:
1. bodily injury, sustained by a person, and
2. damage to or destruction of property, arising out of the ownership, maintenance or use of the owned auto or a non-owned auto. We will defend any suit for damages payable under the terms of this policy. We may investigate and settle any claim or suit.
EXCLUSIONS:
When Section I Does Not Apply
1. Section I does not apply to any vehicle used to carry passengers or goods for hire. However, a vehicle used in an ordinary car pool on a ride sharing or cost sharing basis is covered.

GEICO moved for summary judgment, and the trial court awarded same against McGillen and the personal representative, apparently finding that the GEI-CO policy contains a “business use” exclusion which applies here. On the contrary, this policy does not contain such an exclusion. However, if the judgment of the trial court is correct, albeit for the wrong reasons, the appellate court will affirm. See Turner v. Turner, 383 So.2d 700, 702 (Fla. 4th DCA) pet. for rev. denied 392 So.2d 1381 (Fla.1980); Firestone v. Firestone, 263 So.2d 223, 225 (Fla.1972).

In defense of the judgment GEICO first contends that the trailer here was not a “non-owned auto” covered by the policy because it was not designed to be towed by a private passenger auto. It relies upon American Emp. Ins. Co. v. Yeomans, 356 So.2d 1281 (Fla.2d DCA 1978) appeal dismissed 364 So.2d 894 (Fla.1978). In that case the court held that although the trial court made no findings of fact or law, the record supported an implicit finding that an eighteen-foot, flat deck, three axle trailer being towed by a two-ton, six wheel, flatbed truck was not designed for use with a private passenger auto. Therefore, the subject trailer was not within the policy definition of “trailer” and was not a “non-owned automobile” for which liability coverage was afforded.

However, we believe that Yeomans, supra, does not control this case because of a difference in policy language. In Yeomans and in one of the cases it relies upon, Liberty Mutual Ins. Co. v. Allied Mutual Ins. Co., 442 F.2d 1151 (10th Cir. 1971), the pertinent policy language was:

“ ‘trailer’ means a trailer designed for use with a private passenger automobile. ...”

In another case Yeomans relies upon, Amco Insurance Company v. Chesley, 95 Idaho 161, 504 P.2d 1210 (1972), the definition of the term “trailer” included:

“a trailer not described in this policy, if designed for use with a private passenger automobile. .. . ”

Yeomans and Chesley followed the construction of that provision set forth in Liberty Mutual, which held essentially that the term “designed for use with a private passenger automobile” was not synonymous with “capable of being towed by a private passenger automobile,” but rather “connote[d] an object planned with a particular use in mind and so manufactured as to serve that use with reasonable efficiency and safety.” 442 F.2d at 1153 (footnote omitted).

It is one thing for those courts to hold that the policy language there under consideration should not be construed to be synonymous with “capable of being towed by a private passenger automobile,” but quite another for this court to hold that the policy language in question here does not mean “capable of being towed by a private passenger automobile” when that is virtually the policy terminology used; namely, “Trailer means a vehicle to be towed by a private passenger auto....” (Emphasis added.)

In view of the foregoing the trailer involved in this accident was a “nonowned auto” within the definitions of the GEICO policy if the facts demonstrate that this trailer was designed to be towed by a private passenger auto. That factual issue has not been resolved in this record so as to justify a summary judgment for GEICO on that ground.

GEICO also argues that the exclusion from coverage of any vehicle used to convey goods for hire applies here. As we read the record, there appears to be a question of fact as to whether Gamble was transporting for compensation goods belonging to Smith. This factual question precludes summary judgment for GEICO.

Accordingly, we reverse the final summary judgment in favor of defendant GEICO and against plaintiff Mary Jane Flynt in Case Number 79-2391, and also the final summary judgment in favor of defendant GEICO on its cross-claim declaring that there is no coverage in favor of defendant James McGillen in Case Number 79-2392 and remand to the trial court for proceedings not inconsistent herewith.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Randy Lee HART, Appellant, v. STATE of Florida, Appellee.
    No. 80-748.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Richard L. Jorandby, Public Defender, and Douglas N. Duncan, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Randy Lee Hart was informed against, tried and convicted of the crime of sexual battery. The record establishes that the evidence of guilt was overwhelming. We note, however, that the trial court denied appellant’s request that an instruction on the maximum and minimum penalties be read to the jury. This was error. Tascano v. State, 393 So.2d 540 (Fla.1980). Murray v. State, 403 So.2d 417 (Fla.1981).

Accordingly, we reverse and remand for a new trial.

LETTS, C. J., and MOORE and HERSEY, JJ., concur.


text:
    Paul C. MUELLER, Personal Representative of the Estate of Helen C. Smith, Deceased, Appellant, v. NORTH BROWARD HOSPITAL DISTRICT, d/b/a Broward General Medical Center, et al., Appellees.
    No. 80-1049.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Thomas E. Hunt, P.A., Fort Lauderdale, for appellant.
    No brief for appellees.
   PER CURIAM.

This is an appeal from an order granting appellee’s motion to dismiss for lack of prosecution. We reverse.

Appellant initiated this action in 1978 against North Broward Hospital District and three physicians, of whom appellee Dickens was one, alleging that the negligence of all four named defendants directly caused the death of Helen C. Smith. No process was issued as to Dickens. In April, 1979, the trial court granted the hospital district’s motion to dismiss on the ground that appellant’s claim had to be submitted first to medical mediation. On appeal we affirmed.

On November 30, 1979, appellant served upon the hospital district a motion for leave to file an amended complaint. The proposed amended complaint contained the allegation that the claim had been submitted to medical mediation and realleged the negligence of all four named defendants. On the same date appellant served on the district a notice of hearing upon his motion. The hearing was subsequently re-noticed; and on March 11, 1980, the trial court granted appellant’s motion for leave to amend.

On April 8,1980, counsel for Dickens filed a motion to dismiss for failure to prosecute. The motion alleged that Dickens had never been served with process in this action and that there had been no record activity for one year as to him.

On April 11, 1980, the trial court dismissed the amended complaint against the hospital district with prejudice on the ground that the claim was barred by the statute of limitations. In another appeal we affirmed.

On May 16, 1980, the trial court granted Dickens’ motion to dismiss for failure to prosecute. Appellant seeks review of that order.

Florida Rule of Civil Procedure 1.420(e) mandates dismissal for failure to prosecute if the face of the record reflects no activity by the filing of pleadings, order of court or otherwise for one year. This court has further recognized the requirement that the record activity must be of a type that is directed toward disposing of the case. Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980). We said in Bair that an order vacating a dismissal, if not a stipulation to permit filing of an amended complaint, was sufficient record activity. See also Florida East Coast Railway Co. v. Southern Sanitation Service, 392 So.2d 355 (Fla. 4th DCA 1981). Here we have an order granting appellant leave to file an amended complaint entered prior to the filing of Dickens’ motion to dismiss; and such order is sufficient record activity.

It makes no difference that the subject order granting leave to appellant to file an amended complaint was not the result of a motion served on appellee, the motion having been served only on the district. The record activity need not be directed to or instituted by the party who seeks dismissal. Biscayne Construction Co. v. Metropolitan Dade County, 388 So.2d 329 (Fla.3d DCA 1980); Phillips Petroleum Co. v. Heimer, 339 So.2d 284 (Fla.3d DCA 1976), cert. denied 348 So.2d 948 (Fla.1977).

Based on the foregoing we are compelled to reverse. In so doing, however, we take note that this court affirmed the trial court’s order of dismissal with prejudice as to the hospital district because of the statute of limitations.

REVERSED AND REMANDED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


text:
    Wondell Everett CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1093.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Sept. 30, 1981.
    Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of burglary. At trial he requested the court to instruct the jury as to the maximum and minimum sentences which could be imposed upon conviction. The court’s denial of that request was error, Tascano v. State, 393 So.2d 540 (Fla.1980), requiring that we reverse the judgment and remand this cause to the trial court for a new trial. This disposition of the case makes it unnecessary to reach the other issues raised on appeal.

REVERSED AND REMANDED FOR A NEW TRIAL.

DOWNEY and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: HURLEY, Judge.

text:
    SUN BANK OF ST. LUCIE COUNTY, as Personal Representative of the Estate of Vincent Vecchio, Deceased, Appellant, v. Gordon OLIVER, Appellee.
    No. 80-1737.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    J. Stephen Tierney, III of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellant.
    No appearance by appellee.
   HURLEY, Judge.

Sun Bank of St. Lucie County, as personal representative of the Estate of Vincent Vecchio, appeals from an adverse final judgment. We reverse for the reasons which are set forth herein.

In its representative capacity, Sun Bank sued Gordon Oliver on a promissory note from Oliver to Vecchio in the amount of $32,212.58. In his answer, Oliver raised affirmative defenses of failure of consideration, set-off of money due from Vecchio to Oliver, payment in full, and payment in part. The set-off defense was stricken by the trial court but Oliver filed an amended answer raising alteration of the note as an additional defense. The allegations of the affirmative defenses were denied.

At the non-jury trial, Sun Bank established a prima facie case, by introducing the note into evidence, and then rested. Oliver called several witnesses, but our decision to reverse rests on the testimony of one witness, Glenda Rogers. Ms. Rogers was the bookkeeper for Fort Pierce Tomato Growers, a business in which both Vecchio and Oliver participated. Over an objection by Sun Bank on best evidence grounds, she was permitted to testify that she had reviewed the deposit slips, books, and records of the company and had failed to find any evidence to indicate that Oliver had received credit for any money for which he had signed a note.

We believe the best evidence objection was well taken and find that the admission of the testimony was reversible error. The best evidence rule requires that if the original evidence is available, no evidence should be received which is merely substitutionary in nature. Evidence which itself indicates the existence of a more original source of information is to be excluded. See Liddon v. Board of Public Instruction, 128 Fla. 838, 175 So. 806 (1937); 23 Fla.Jur.2d Evidence and Witnesses § 197. The best evidence in the instant case would be the company records and only after their admission would Ms. Rogers’ testimony as to her findings be proper. Moreover, since the only evidence presented herein is both sketchy and circumstantial, there is some doubt as to whether the court would have ruled as it did absent Ms. Rogers’ statement. Thus, the error in allowing the testimony may not be classified as harmless.

For the above-stated reasons, the judgment herein is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

LETTS, C. J., and HERSEY, J., concur.


author: MOORE, Judge.

text:
    Clarence DAVIS, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES and Donna Owens, individually, and as mother, next friend and natural guardian of Dominique Nicol Owens, a minor, Appellees.
    No. 81-12.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Guy C. Hill, West Palm Beach, for appellant.
    William M. Holland, West Palm Beach, for appellees.
   MOORE, Judge.

This is an appeal from a final judgment of paternity ordering the father to pay child support pursuant to Section 742.041, Florida Statutes (1979). The father challenges the constitutionality of Section 742.041 on equal protection grounds, contending that Section 742.041(2) prohibits the court from considering the mother’s financial resources by allowing the court to consider the circumstances and ability of the father only. The father alleges that the statute denies unmarried fathers the equal protection of the law because married fathers in child support proceedings are entitled to have the mother’s financial ability considered pursuant to Section 61.13, Florida Statutes (1979).

We find that Section 742.031, Florida Statutes (1979), read in pari materia with Section 742.041, allows the court to consider the mother’s ability to pay child support. Therefore, the statute does not pose an equal protection problem on this ground.

Accordingly, the final judgment is affirmed.

AFFIRMED.

LETTS, C. J., and ANSTEAD, J., concur.


author: OTT, Judge.

text:
    Arthur TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 81-643.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1981.
    John L. Polk, Punta Gorda, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Taylor, convicted on a charge of grand theft, has raised two issues on this appeal: (1) refusal to grant a severance and separate trials, and (2) instruction on accomplices at the trial’s conclusion.

Briefly stated, the facts were that appellant, his codefendant, Geraldine Williams, and two other persons were passengers in a vehicle owned and driven by one Chester Moore. They stopped at a service station in Charlotte County, where all of them entered the store located on the premises. Shortly after they left the store, the owner discovered that his bank bag, containing $403 in cash and some checks, was missing.

When apprehended by the police, Williams had $403 in currency secreted on her person. She stated at trial that after the police had stopped the car and asked them to get out, appellant gave her the money and asked her to conceal it.

At all times, both prior to trial and in his testimony during trial, appellant denied ever seeing the bag or any money from it, stealing the bag, or having any connection with the money.

Appellant and Williams were tried together, and both testified during the trial. Over their joint objection, the trial judge instructed the jury on accomplices: ‘

Now, when two or more persons take part in the commission of a crime, each is an accomplice of all the others. The testimony of an accomplice must be received with great caution and carefully and closely examined by you before a conviction is based upon it. This is particularly true when there is neither direct testimony nor circumstances tending to corroborate the testimony of an accomplice. However, the testimony of an accomplice, even though uncorroborated, is sufficient upon which to base a conviction if you are convinced by it of the defendant’s guilt beyond a reasonable doubt.

We find that the giving of this instruction was improperly prejudicial to the appellant, and therefore reverse.

The court below erred in charging the jury in regard to accomplices because here the only defense testimony came from the defendants, who both testified. The warning that testimony of an accomplice must be received with caution was equally applicable to the testimony of both defendants. It east doubt and suspicion on not only the damaging testimony given by Williams, but also upon the exculpatory testimony given by appellant.

The accomplice instruction is not appropriate where defense testimony has been given by an “accomplice” of the accused or by one of two defendants tried jointly. Wheelis v. State, 340 So.2d 950 (Fla. 1st DCA 1976). When it is employed in such a situation, doubt and suspicion are improperly cast upon one defendants’ exculpatory testimony on his own or his eodefendant’s behalf, and reversal is justified.

We note that it may have been more prudent for the trial court to have granted a severance and separate trials in this instance. Because the granting of a severance rests within the discretion of the trial court, even though the defendants may have conflicting interests and antagonistic defenses, we would not reverse if this were the only problem. Menendez v. State, 368 So.2d 1278 (Fla.1979); Johnson v. State, 355 So.2d 143 (Fla. 3d DCA 1978); Williams v. State, 383 So.2d 722 (Fla. 1st DCA 1980). However, giving of the accomplice instruction where both defendants were present and both testified was clearly error, and we reverse and remand for a new trial.

GRIMES and RYDER, JJ., concur.


text:
    Robert V. ALLGOOD, Appellant, v. STATE of Florida, Appellee.
    No. AF-66.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1981.

      Carl S. McGinnis, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Allgood pleaded nolo contendere to a charge of possession of controlled substances reserving his right to appeal the trial court’s denial of his motion to suppress. The trial court held that the war-rantless search of Allgood’s person and the seizure of contraband found in his pocket were lawful as a search incident to a lawful arrest. Allgood contends the search and seizure cannot be justified on this basis because the probable cause necessary for a lawful arrest was lacking. We disagree. Based upon Adams v. State, 375 So.2d 638 (Fla. 1st DCA 1979), cert. denied, 385 So.2d 754 (Fla.1980), we find that the officers had sufficient probable cause to arrest Allgood for possession of marijuana. The search was incident to the arrest although the search preceded the formal arrest. Rawlings v. Kentucky, 448 U.S. 98, 110, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633, 645 (1980).

AFFIRMED.

ERVIN, SHAW and THOMPSON, JJ., concur.


text:
    Dennis Andrew HEGSTROM, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2480.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1981.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen. for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on October 7, 1980, 388 So.2d 1308, affirming in part and reversing in part the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS; on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed July 30, 1981 and mandate now lodged in this court, affirmed in part and reversed in part. 401 So.2d 1343.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on October 23, 1980 is withdrawn the judgment of this court filed in this cause on October 7, 1980, except as is affirmed by the judgment of the Supreme Court dated July 30, 1981, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 9.400 a Florida Rules of Appellate Procedure).