author: CAMPBELL, Judge. GRIMES, Acting Chief Judge,

text:
    John Morgan BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 81-1571.
    District Court of Appeal of Florida, Second District.
    May 12, 1982.
    Rehearing Denied July 1, 1982.

      Fred S. Pflaum, Sarasota, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, John Morgan Barnes, was convicted of false imprisonment, sexual battery and aggravated battery. Though he alleges numerous errors in his jury trial, only one merits discussion. The trial court excluded the testimony of John A. LaBreche, who testified that after appellant was arrested for the assault, he, Mr. LaBreche, had seen other unidentified persons who, in his opinion, fit the description of the assailant as described to him by the investigating officer, who had been furnished the description by the victim. Appellant argues the exclusion of that opinion evidence was error. We affirm the trial court.

The evidence presented to the jury was overwhelming that the sexual battery was committed by an unknown assailant upon the victim exactly in the manner described by her. The critical issue before the jury was whether appellant was that unknown assailant. The witness, Mr. LaBreche, was initially arrested for the assault after the victim picked his photograph from a photograph line-up as the one who looked most like her assailant. When he established an alibi, the victim then identified appellant as her assailant from another photograph lineup.

The investigation of the assault centered around a bowling alley where appellant and Mr. LaBreche were members of different teams in the same league and where they had bowled the night of the assault. The victim described her assailant as wearing blue jeans and a yellow bowling shirt which had black and white stripes on the shoulders with lettering over the pocket beginning with the letters “J” and “0” and perhaps an “H.” Mr. LaBreche testified for the state that on the night of the assault appellant was wearing blue jeans and the yellow bowling shirt with black stripes on the shoulders as worn by the five members of appellant’s team. Of those five members, only one, the appellant, was named John.

Detective Steube testified that during his investigation he determined that on the night of the assault forty-two men had bowled there and of that number only appellant, John LaBreche and one other were named John. All of the foregoing facts pertaining to the investigation and the initial arrest of Mr. LaBreche were admitted into evidence for the jury’s consideration.

We do not disagree with the principles of law cited in Judge Grimes’ dissent. We do feel that there must be a more substantial connection between unidentified third persons and the crime than Mr. LaBreche’s opinion derived from a physical comparison based on a double hearsay description. In each of the cases cited by Judge Grimes, there were other distinctive connections between the crime and the other person fitting the description.

Appellant’s proffer of Mr. LaBreche’s testimony which was excluded by the trial judge was as follows:

DIRECT EXAMINATION

BY MR. PFLAUM:

Q Mr. LaBreche, you have been previously sworn; you are still under oath.
A Yes, sir.
Q You were arrested approximately December the 20th, is that correct?
A The nineteenth.
Q The description that was given to you of the assailant of Debra Richert was of a blond haired man, with sandy colored hair to the mid-ear and short sideburns and a mustache, is that correct?
A Yes, sir.
Q Wearing a yellow bowling shirt with black and white stripes?
A Yes, sir.
Q And driving a white pick-up truck?
A White Chevrolet.
Q The following week after you were arrested, did you have the occasion to come into contact with someone who fit that description?
A Two weeks after that, after the Wednesday night rape, I was leaving the bowling alley about ten after nine with my wife, and we were parked directly in front of the building, facing the building, and I observed a white pick-up truck with a utility box in the back, with some lettering on the side, pull up to the right of me, some paces away, and I had started my vehicle, and I turned on my headlights and the person walked directly in front of my headlights, and I kind of followed him as he approached the opening to the door, where there was light.
This man was six-foot tall, blond hair, mustache, and had a yellow bowling shirt on, with black lettering.
Q Did it have stripes on the collar?
A Yes, sir. And why I observed that is because I was arrested for it and that I knew there were three Johns involved at that bowling alley and in that league.
I was talking to my wife about it and I got the tag number of the vehicle, I believe, and after that night I had spotted another General Motors white pick-up truck with a utility box, with a blond, with sideburns and the mustache and whole business, three consecutive times within two weeks, and I also took the license plate number of those vehicles.
Q Did you have your eye out for a person fitting that description?
A Yes, sir.
Q That was because you were arrested on this very same charge?
A Yes, sir.
MR. PFLAUM: I have no further questions.
MR. HOWES: I have some cross-examination.

CROSS-EXAMINATION

BY MR. HOWES:

Q Who did you report this information to that you had?
A At first, I didn’t really report it to nobody. I have kind of an office in the office — I’m a sales representative for Texaco. I made notes of the license plate and put them on some cards, my personal cards, on the back, and I observed the time and place at which I saw the people.
And later on, I believe it was about — I forget where I was. I believe that I had run into Officer Steube and I told him abou (sic) it.
And I also believe that I encountered Fred at one point when they took a deposition from me, and I don’t know when that was, but I had mentioned it at that point about the white pick-up truck.
Q Did you mention it in your deposition?
MR. PFLAUM: No, he didn’t.
MR. HOWES: Excuse me, I want the witness to answer.
THE WITNESS: I don’t remember.
Q (BY MR. HOWES) You don’t remember whether you did?
A I don’t remember if I was even asked. I know that I thought it was important, and I might have said something after the — during—after your taking the deposition.
Q That was just to Mr. Pflaum, is that correct?
A You were there, I believe.
Q But you didn’t tell me that, though, right?
A I don’t know if you were still in the room or not.
Q Let me ask you this: This description that you say you got, who did you get that from?
A Detective Steube.
Q Did you see whether or not there was a name on the front of the shirt when you saw this person?
A No; I — just as he walked by the car, I could see the shirt, and I said to my wife, “That’s a yellow bowling shirt, a blond hair — there’s the black letters.”
No, I did not see any name.

We think there are several significant reasons why the testimony was properly excluded. Immediately after finding help, the victim described her assailant and the white Ford pickup truck he was driving. She was familiar with that model truck and positively and repeatedly identified it as a Ford. Mr. LaBreehe first testified that he saw an unidentified individual driving a Chevrolet truck. Next, he testified that he saw someone on another occasion fitting the hearsay description driving a General Motors white pickup truck. Mr. LaBreehe testified that in all he saw vehicles on three occasions and each time he took the license numbers of the different vehicles. He did not proffer the license numbers, nor was it clear from the testimony whether Mr. La-Breche, prior to the proffer at trial, reported this information to anyone. As the Florida Supreme Court said in Lawrence v. State, 45 Fla. 42, 44, 34 So. 87, 88 (1903):

The question, to what extent one charged with a crime may defend by showing some third person to be the guilty party, has often been before the courts, and is discussed in the following cases: Banks v. State, 72 Ala. 522; Levison v. State, 54 Ala. 520; State v. Beaudet, 53 Conn. 536, 4 Atl. 237, 55 Am.Rep. 155; State v. Hawley, 63 Conn. 47, 27 Atl. 417; Commonwealth v. Abbott, 130 Mass. 472; State v. Davis, 77 N.C. 483; State v. Gee, 92 N.C. 756; State v. Lambert, 93 N.C. 618; Ex parte Gilstrap, 14 Tex.App. 240; Murphy v. State, 36 Tex.Cr.R. 24, 35 S.W. 174; Crookham v. State, 5 W.Va. 510. None of them authorizes an accused to defend by raising so vague a suspicion of guilt in another as is attempted here, and the court below committed no error in excluding such testimony.

Mr. LaBreche’s testimony was simply an offer of opinion testimony by a lay witness. In Roberson v. State, 40 Fla. 509, 522, 24 So. 474, 478 (1898), the court said that “[t]he opinion of a witness as to the identity of a person seen by him is admissible in all cases where the witness has a previous personal acquaintance with or knowledge of such person, and bases his opinion upon such acquaintance or knowledge.” In the case here, Mr. LaBreche’s description of the unidentified third persons depended entirely on what the victim told an investigating officer, who in turn told the witness. As such it was based totally on hearsay. In Henderson v. State, 94 Fla. 318, 332, 113 So. 689, 694 (1927), the court held:

Testimony as to identity is in the nature of opinion evidence. Provided he bases his testimony on his own knowledge and not on information furnished by another, the opinion, belief, judgment, or impression of an ordinary (non-expert) witness as to the identity of a person or an object is admissible in evidence.

Section 90.701, Florida Statutes (1979), allows opinions of lay witnesses only when based upon what the witness has “perceived.” Other jurisdictions have also held that the type of hearsay testimony proffered here was properly excluded. In People v. Turner, 91 Ill.App.2d 436, 235 N.E.2d 317 (1968), the court had for consideration the identification of an assailant which was based upon an artist’s sketch and a “wanted” bulletin. In rejecting the identification testimony, the court said:

Further, where a witness has no personal knowledge of the facts but his knowledge is derived entirely from information given by another, his testimony is incompetent and inadmissible as hearsay. People v. Grizzle, 381 Ill. 278, 44 N.E.2d 917, 920 (1942).
In the case at bar, the sketch drawn by the police artist is his written out-of-court belief as to the likeness of the assailant. Further, it is not his belief based on what he had observed but his belief based on what he had been told by the prosecutrix. . . .
... It was error to permit the officer to testify that Turner matched the complainant’s description of her assailant. That was testimony that only she could give. Allowing him to testify that the defendant looked like the sketch amounted to allowing him to state a conclusion based upon the initial conclusion of a third party. It also violated the rule against hearsay evidence.

Id. 235 N.E.2d at 320, 321.

AFFIRMED.

OTT, J., concurs.

GRIMES, A. C. J., dissents with opinion.

GRIMES, Acting Chief Judge,

dissenting.

Under the peculiar facts of this case, I am convinced that the court committed reversible error in refusing to allow Mr. La-Breche to testify that he has seen another man who fit the description given by the victim of the crimes of which appellant was accused.

When the guilt of a third person is inconsistent with the guilt of a defendant, the defendant may always present evidence that the third person committed the crime in order to show that he did not do so. Lindsay v. State, 69 Fla. 641, 68 So. 932 (1915); 1 C. Torcia, Wharton’s Criminal Evidence § 195 (13th ed. 1972); 1 J. Wigmore, Evidence § 139 (3d ed. 1940). However, in order to be admissible, the evidence must closely link the third person to the commission of the crime. 1 C. Torcía, supra. The question that must be considered here, then, is whether Mr. LaBreche’s testimony concerning the third person was closely enough tied to the crime with respect to time, place and accuracy of description to be relevant to the question of whether appellant or someone else committed the assault on Miss Richert.

As Wigmore notes, rulings on whether evidence of mistaken identity is relevant are rare. 1 J. Wigmore, supra, § 142, at 579 n. 5. However, three recent cases deal with the issue and are helpful to a determination of the relevance of Mr. LaBreche’s testimony. In United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980), the defendant was charged with robbing the American National Bank in Sacramento, California. At his trial, the defense attempted to introduce evidence that another person who matched the description of the robber had used $3,000 in bait bills taken from the bank to purchase a car the day after the robbery occurred. The district court excluded the evidence as irrelevant. However, on appeal, the Ninth Circuit reversed, stating:

We hold it was error to exclude as irrelevant testimony that another man, matching the description of the American National Bank robber, had used bait money taken in that robbery to purchase a car. Fundamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case, require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.

621 F.2d at 953.

The second pertinent case is United States v. Robinson, 544 F.2d 110 (2d Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978). There, the defendant was also charged with committing a bank robbery, and the government produced a bank surveillance photograph which it contended showed him to be one of the robbers. However, the defense attempted to introduce testimony that the individual in the picture also resembled one Eli Turner who was suspected by local police officials of committing two armed robberies in the area. The trial court excluded this evidence, but on appeal, the court said:

Robinson claims that the exclusion of the .. . testimony was error. We agree.
The central issue in this case was one of identification. The government maintained that the third man in the bank was Robinson, and Robinson claimed that it was not. ...
It was entirely proper for Robinson to disprove the government’s contention by proving that the third man was someone else. 1 J. Wigmore, Evidence § 34 (3d ed. 1940) [hereinafter cited as Wigmore]; 2 Wigmore § 413. If it was, then obviously Robinson was innocent. Evidence to the effect that the third man in the bank resembled an individual suspected of two armed robberies that occurred in the Bridgeport area within six days prior to the bank robbery was clearly probative of the issue Robinson sought to prove, namely, that the third man was someone else.

544 F.2d at 112-13 (footnotes omitted).

The final case is Siemon v. Stoughton, - Conn. -, 440 A.2d 210 (1981). In that case, the defendant was found guilty of a sexual assault on a sixteen year old girl who testified that while playing with her brother and sister on property in her neighborhood, a naked man appeared and assaulted her. At the trial, defense counsel failed to introduce evidence that less than one year before the assault, an incident had occurred in the same town where a nude man had approached a woman who was outside on her property and had fled only after the woman’s brother started to yell. Some time after his conviction, the defendant filed a petition for habeas corpus seeking a new trial on the grounds that his counsel acted incompetently in not presenting the testimony concerning the other incident with a nude man. In the course of granting the petition for habeas corpus and ordering a new trial, the court said:

We conclude that this testimony would have been admissible. A defendant may give evidence concerning a third party’s involvement with the crime, as long as there is some evidence which directly connects the third party with the crime. State v. Giguere, - Conn. -, -, 439 A.2d 1040 (42 Conn.L.J., No. 51, pp. 19, 21) (1981); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974); State v. Perelli [125 Conn. 321, 5 A.2d 705], supra; annot., 121 A.L.R. 1357, 1362. It is not, however, enough to show that another had a motive to commit the crime. State v. Perelli, supra, 125 Conn. 328, 5 A.2d 705. Here, there was more than mere evidence of a motive on the part of a third party. There was testimony to show that a white, nude man with black hair, a beard and without a Spanish accent was on the scene of the crime some months earlier. The description matched the composite drawing of the assailant. Moreover, the plaintiff does not have black hair and there was testimony that he did not have a beard on the date of the crime. The victim testified that her assailant did not have an accent. The habe-as court found that the plaintiff had a Spanish accent. The unusual fact of encountering a nude man in the same area on three occasions was enough to connect the nude man to the crime with sufficient directness to render the evidence admissible.

- Conn. at -, 440 A.2d at 214.

While the factual situations in these three cases vary from each other and from the present case, they are sufficiently analogous to demonstrate that the court here erred in excluding Mr. LaBreche’s testimony concerning the third person. LaBreche’s evidence was more than a general statement of having seen someone who matched the description of the criminal. The police obviously felt that the crime had been committed by someone who frequented the bowling alley. Appellant presented a witness who had good reason to be conscious of the crime and the description of the perpetrator because he, himself, had once been identified as the assailant. He was prepared to tell the jury that he had seen another person at the bowling alley only two weeks following the crime who matched the assailant’s description, who was wearing a bowling shirt like the one worn by the assailant, and who was driving a truck of the same type and color as described by the victim. Appellant was entitled to have the jury hear this evidence.

The cases cited in the majority opinion are not relevant. All but Lawrence v. State deal with testimony sought to be introduced by the prosecution, not with the question of when a defendant is entitled to introduce evidence that a third person committed the crime. In Lawrence the “vague” testimony which the defendant was precluded from introducing concerned only the motive that another person may have had to commit the crime rather than evidence directed toward identifying a third party as the culprit. Detective Steube originally noted on his report that the victim had told him that the truck driven by her assailant was “possibly” a Ford truck. Be that as it may, the discrepancy over the make of the vehicles would go to the weight of the evidence rather than its admissibility. The majority’s point about double hearsay might be valid if it were not for the fact that Mr. LaBreche had personal knowledge of the assailant’s description because the victim first identified him as that person.

Because the wrongfully excluded testimony went to the issue of identity and because identity was the major issue in the case, the error was clearly prejudicial to appellant. Accordingly, I would reverse and remand for a new trial.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    SEMINOLE COUNTY, Appellant/Cross-Appellee, v. Harold E. MERTZ and Esther M. Mertz, his wife; The Huskey Company, a Florida corporation; and Magnolia Service Corporation, a Florida corporation, Appellees/Cross-Appellants.
    No. 81-1115.
    District Court of Appeal of Florida, Fifth District.
    May 26, 1982.
    Rehearing Denied July 2, 1982.

      Clifton A. McClelland, Jr., of Nabors, Potter, McClelland, Griffith & Jones, P.A., Melbourne, and Nikki Clayton, Seminole County Atty., Sanford, for appellant/cross-appellee.
    Harlan Tuck of Giles, Hedrick & Robinson, P.A., Orlando, for appellee/cross-appel-lant Magnolia Service Corp.
    Michael J. Sheahan of Maguire, Voorhis & Wells, P.A., Winter Park, for appel-lee/cross-appellant The Huskey Co.
    Emery H. Rosenbluth, Jr., of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellees/cross-appellants Harold E. Mertz and Esther M. Mertz.
   COBB, Judge.

Seminole County and Magnolia Service Corporation appeal the granting of a permanent injunction prohibiting the flow of surface water onto appellees’ lands. We affirm. For reasons that will be discussed, Magnolia’s appeal of the dismissal of its counterclaim is denied.

Harold and Esther Mertz (Mertz), appel-lees herein, filed a complaint in March, 1978, in the Circuit Court of the Eighteenth Judicial Circuit seeking equitable relief and damages against Magnolia Service Corporation (Magnolia) and equitable relief against the Huskey Company (Huskey). Mertz also sought equitable relief from Seminole County (County), which was subsequently added to the complaint.

Mertz’s claim for injunctive relief, which is the focus of this appeal, requested that Magnolia, Huskey and County be prohibited from causing further damage to Mertz’s property by the flow of surface waters from the residential subdivision upland from the property which Magnolia and Hus-key had developed.

A temporary injunction was issued on April 24, 1979, ordering Magnolia to insure that no further damage came from its drainage onto the Mertz property. This temporary injunction was dissolved on July 19, 1979, the trial judge finding that the equities no longer called for such an injunction, particularly since the Mertzes had failed to allow repair of the problem.

Trial was begun by a different circuit judge on August 4, 1980, and continued for eleven days. The court entered its final judgment allowing the injunctive relief sought by Mertz on June 11, 1981. A motion for rehearing was denied on August 4, 1981, and this appeal followed.

This case stems from the development of two adjoining parcels of land in Seminole County. Magnolia is the developer of a planned unit development (PUD) known as Wekiva Hunt Club (Wekiva); Huskey is the developer of Sweetwater Properties, encompassing considerable acreage in Orange and Seminole Counties. This land, which is considered a development of regional impact, is adjacent to Wekiva and to the east and north of Mertz’s land.

At the time of trial, there were approximately 1,078 dwelling units in Wekiva, with a plan for 2,928. In addition, some of the streets had been completed, several sections had been platted, and streets and storm drains constructed.

Of the total 1,022 acres, this lawsuit concerned about 200 to 245 acres that form a triangular shaped basin, which contained approximately 109 dwelling units at the time of trial, with plans for an additional 500 in the future. It is the drainage from this basin that is the focus of this action.

The Mertz property was located immediately north and downhill from this basin. Mertz had planned a single-family residence for the land, which he thought contained two lakes, but which in reality were four sinkholes, a fact Mertz discovered as the dry season progressed. Mertz remedied the situation by lining the sinkholes with vinyl, with provisions for percolation into soil when the water rose over a certain level.

Magnolia proceeded with their development, including the building of a retarding dam with an 18-inch and a 36-inch pipe to allow the water to go through, as well as a spillway for heavy rains. Additionally, a 24-inch metal pipe carried water from a marshy area on Magnolia’s property into a small pond on the southeast of Mertz’s property. During construction of the dam, the concrete pipe was placed approximately ten feet east of where the metal pipe had been, so the stream of water now first flows on the Huskey property rather than directly into Mertz’s pond. This water now flows in a new man-made channel just east of the Mertz property and intersects the flow from the 36-inch pipe in the eastern part of the dam, with both entering the Mertz property approximately 115 feet north of its southeast corner, flowing eventually into Mertz’s vinyl lined lake across a portion of land which was also vinyl lined to cause a “babbling brook” effect.

The event which instigated this suit occurred on March 8, 1978, when a temporary dam, somewhat to the south of the permanent one being built, discharged a large amount of water through an 18-inch concrete pipe, filling the Mertz pond with sand and sediment and causing dirt and debris to flow onto the Mertz land, turning a crystal-clear lake into a sandy one, with erosion damage and destruction continuing through the trial.

Following eleven days of trial, with considerable expert testimony and the taking of a view by the court, the court entered its final judgment. The court found that the 200-acre area in question was in the form of two basins. Prior to development, the western basin consisting of about three-eighths of the area, drained without going through the marshy area on the east, but rather flowed directly northward onto the western portion of the Mertz land and then into what is now the Mertz lake. The court stated that the development has caused diversion of substantially all of the water from the western basin into the marshy area in the eastern basin. The court found that the western basin had no features that could conceivably be classified as a natural watercourse, and found that the flow instead was in the form of surface sheet flow.

In the eastern basin, the court found that there were no natural flows, and only two short channel areas of approximately 150 yards each, neither of which in the court’s opinion was seen as a watercourse. The court did state during the motion for rehearing that the small flow on the golf course may be a watercourse, but in the court’s opinion it did not make any difference to the total outcome of the case.

The court found two substantial divisions of water: that from the western basin to the eastern basin, and one in the shift of the western outlet of the marsh by the placing of the concrete pipe some ten feet east of where it had been, having a substantial effect on Mertz’s property by causing a channel to be eroded where none had existed previously. The court found these two diversions to have violated the water laws of Florida, entitling Mertz to equitable relief. The solution to the problem, in the court’s opinion, especially since further development would only increase the flow, was to have Magnolia use its 75-foot wide drainage easement it had previously acquired from Huskey and that ran along the eastern side of the Mertz property and along its northern border, to divert all the water flow now going onto the Mertz property. The court noted that while some water would flow in nature, allowing only that flow would require the digging of storm sewers and the obtaining of drainage easements from owners within the western basin.

The court ordered that Magnolia, Huskey and Seminole be enjoined from permitting the flow of surface waters onto the Mertz property and ordered them to construct a channel on the easements skirting the property to drain all such water. This order was modified on August 4, 1981, to include only those waters collected behind the defendant’s dam and which either passed through the dam or in times of extreme rainfall would flow over such dam.

Appellants claim that the trial court misapplied Florida water law in allowing the injunction. Courts of Florida have applied, in an almost unbroken line of decisions, practically all the elements of the modified civil law rule of surface water. F. Maloney, S. Plager, R. Ausness, B. Canter, Florida Water Law 617 (1980) [hereinafter cited as Maloney & Plager]. The general rule today is that the upper owner may improve and enhance the natural drainage of his land as long as he acts reasonably and does not divert the flow, and that the lower owner is subject to an easement for such flow as the upper owner is allowed to cast upon him. Maloney & Plager at 592.

In the leading case of Brumley v. Dorner, 78 Fla. 495, 83 So. 912 (1919), the court stated the civil law rule that no person has the right to gather surface waters that would naturally flow in one direction and divert them from their natural course and cast them upon lands of the lower owner to his injury. The court saw the case of a diversion as one stronger than that of merely increased accumulation of water in the same flow. 83 So. at 914.

That is the situation in the instant case. The trial court found two substantial diversions of diffused surface water from their natural flow which caused damage to the lower owner (Mertz). While the law is different where a natural watercourse is present, allowing for the quantity of surface water to greatly increase, even to the detriment of the subservient landowner, Edason v. Denison, 142 Fla. 101, 194 So. 342 (1940), that is not the case here. The judge specifically found that no watercourse existed; rather it was only diffused surface water. Even if the water were in a natural watercourse, that would only allow for an increased flow, and the diversion still would be impermissible. New Homes of Pensacola v. Mayne, 169 So.2d 345 (Fla. 1st DCA 1964); Stoer v. Ocala Mfg., Ice & Packing Co., 157 Fla. 4, 24 So.2d 579 (1946).

The question of whether a water flow is diffused surface water or a natural watercourse is one of fact. Libby, McNeil & Libby v. Roberts, 110 So.2d 82 (Fla. 2d DCA 1959). Such findings of a trial judge should not be disturbed in the absence of a showing that the trial court clearly erred. It is extremely difficult for the appellate court to visualize what the trial court saw and heard at trial and in actually viewing the site; therefore, his findings should be given great weight. Bray v. City of Winter Garden, 40 So.2d 459 (Fla.1949). The trial judge here clearly saw improper diversion as the key to this case, and correctly applied prevailing Florida water law.

Appellants’ second point on appeal is that the trial court erred by excluding evidence of Huskey’s commitments it entered into when it filed an application as a development of regional impact. The county alleges that these commitments were binding on Mertz as a subsequent buyer of the Huskey property, and that they were proper to be admitted and used by the county as an affirmative defense to show that Mertz’s non-compliance with pledges to use the area as a flood storage area contributed to his damages. The trial court found that Mertz did not fall under the definition of a developer under the statute, and therefore the evidence was found to be inadmissible as irrelevant. We agree with the trial court’s findings that the evidence was properly excluded.

Section 380.031(4), Florida Statutes (1981), defines “developer” as “any person, including a governmental agency, undertaking any development as defined in this chapter.” “Development” is defined in section 380.04 as including the dividing of land into three or more parcels. The statute then continues to define certain examples of what development entails, as well as what is not included in development. Many of the examples of what constitutes development, such as the clearing of land as an adjunct of construction, would seem to make many fall under the development definition who do not belong there. Therefore, a better reading and the one adopted by the trial court is that the requirement of a division of three or more is fundamental to the finding of a development. Since Mertz has only built a single-family dwelling, on one parcel, the statute does not apply and the DRI commitments are inapplicable.

Appellant contends that Mertz nevertheless should be bound by the prior commitments of Huskey, and relies upon General Electric Credit Corp. of Georgia v. Metropolitan Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977), to support its position. General Electric can be distinguished from the instant case. In that case, General Electric took over on a foreclosure from a prior holder who had filed a DRI commitment, and was seeking to develop the same large development as the predecessor was. Allowing for a successor in that case to avoid the statute would vitiate its effectiveness. The situation here is far different, where instead of a multiple-plan development, only a single-family dwelling is planned on one parcel, thereby removing any fears of a vitiation of the statute. Indeed, the developer in General Electric clearly met the three or more parcel rule in the statute, while here, Mertz clearly does not. The trial judge therefore acted properly in excluding the evidence as irrelevant.

Appellant Seminole County claims that the planning and disbursement of water flow is a discretionary act of government and that the county is therefore immune from tort liability on that basis. Mertz has made no claim against the county in tort; rather, they have merely joined the county in the action as follows:

Seminole County is a political subdivision of the State of Florida. Seminole County is or may be the owner of streets, rights-of-way, and drainage easements which may drain water into the area described in Paragraph 4, also known as Wekiva Hunt Club, and further holds the easements within the water storage area described in Paragraph 7, and as such, is a necessary party to this action for injunc-tive relief as it may be affected by or have an interest in any court action in that regard.

At no time was any action in tort taken against the city; rather, it was only one for injunctive relief against the continuing flow of water from the street drains onto the Mertz property.

Injunctions for water damage may be invoked against governmental bodies. Lawrence v. Eastern Airlines, Inc., 81 So.2d 632 (Fla.1955); Brumley v. Dorner, 78 Fla. 495, 83 So. 912 (1919); Dept. of Transp. v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980). Therefore, sovereign immunity is not applicable here as against the county.

Appellant Magnolia contends that the trial court erred in dismissing its counterclaim. against Mertz for tortious interference with the business relationship between Huskey and Magnolia.

Piecemeal appeals are not to be permitted where the claims are legally interrelated and their substance involve the same transaction; however, when it is obvious that a separate and distinct cause of action is pleaded which is not interdependent with other pleaded claims they should be appealable if dismissed with finality at the trial level and not delayed of appeal because of the pendency of other claims between the parties. Mendez v. West Flagler Family Ass’n., Inc., 303 So.2d 1 (Fla.1974). A dismissal of a counterclaim could constitute a final appealable order if in fact by dismissal of the counterclaim the trial judge adjudicates a distinct and severable cause of action. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974).

In the instant case, the counterclaim was dismissed without leave to amend by the court. The counterclaim dealt only with the alleged tortious interference with the business relationship of Huskey and Magnolia, and its proof was based upon several letters Mertz’s attorney had sent to the county commissioner and others outside the action. This action is clearly distinct from the rest of the case which dealt with the principles of water law and on the layout and drainage of the land. An adjudication of this claim had no effect on the water law suit, as the adjudication of the water law suit would have had no effect on the tort counterclaim. This clearly falls within the Mendez rule, and therefore, the appeal from its dismissal should have been filed by Magnolia following its dismissal, and any appeal now is untimely.

In their final point on appeal, Seminole County and Magnolia claim that the trial judge’s final order, which called for the diversion of water around Mertz’s property, violated the rule that the court should balance the equities of the parties, and further claim that the order is defectively overbroad. The court found the threat of continuing harm from the water flow. This is a prime requisite of allowing an injunction. Further, the court found that the method of diversion around the land was the easiest and cheapest way to remedy the situation, the court seeing any other alternatives as too drastic. The court stated it had to deal with a single flow coming onto Mertz’s land from the land above, and in the court’s opinion this limited its options, since to allow for any natural flow would cause harm to the western basin landowners. In the court’s opinion, this precluded any alternative that would allow a partial natural flow as urged by appellant. We agree.

While injunctions should not be overly broad, here, the court after hearing many experts and viewing the site, saw no lesser alternative to effectuate its order than the re-routing around Mertz’s land. It is improper for this court not to grant great weight to those findings and conclusions.

Appellant also urges that Mertz did not come into the court with “clean hands,” in that his actions in lining the pond and brook caused more harm than he would have suffered otherwise. This argument is without merit. The trial court found that there was no proof of any damage that Mertz had caused, nor of his blatant disregard for advice on how to change the flow of water on his land. Further, in the final judgment, the court made no mention of any harm caused by Mertz, but rather merely mentioned his changes as not having any effect on the previous flow.

The trial court applied the proper law in finding that an unlawful deviation of water flow had occurred. By finding that it would continue in the future, perhaps more drastically, the court was proper in granting the injunctive relief. Furthermore, since this remedy seemed to the trial court the least drastic method to accomplish its goals, it is not fatally overbroad. The judgment below is

AFFIRMED.

SHARP and COWART, JJ., concur.

      . Magnolia is styled as a cross-appellant/appel-lee for this action. This is due to its improperly filing a notice of cross-appeal rather than a notice of joinder. For purposes of this appeal, it will be considered an appellant.

      . Section 380.04(1), Florida Statutes (1981), states as follows:
      “Development” means the carrying out of any building or mining operation or the making of any material change in the use or appearance of any structure or land and the dividing of land into three or more parcels.


author: HENDRY, Judge.

text:
    John W. PHELAN and David J. Teer, Appellants, v. CITY OF CORAL GABLES, George Cheiffi, the Continental Casualty Company and Norman Morris, Appellees.
    No. 81-1311.
    District Court of Appeal of Florida, Third District.
    June 1, 1982.
    Rehearing Denied July 23, 1982.

      Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellants.
    Peter G. Stassun, Coral Gables, Steven R. Berger, Underwood, Gillis, Karcher, Reinert & Valle and Thomas R. Trompeter, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   HENDRY, Judge.

Plaintiffs-appellants John Phelan and David Teer appeal an adverse summary judgment entered in their suit for false arrest and imprisonment and malicious prosecution. The appellees are Norman Morris, owner of a boat Phelan and Teer were charged with looting, George Cheiffi, a detective employed by the City of Coral Gables Police Department, the City of Coral Gables, and Continental Casualty, the City’s insurer.

The facts culminating in the instant action are as follows. While checking on Teer’s boat in Coco Plum canal following Hurricane David, appellants observed a partially submerged Hatteras 36. Phelan called the Coast Guard to ask whether they might attempt salvage and was told they could. After 7:30 that evening, Phelan, Teer, Phelan’s son and several other boys went to cheek on the boat. While the boys were removing equipment from the bridge of the Hatteras, three men on the canal bank, Morris, John Griffin, and one of Griffin’s employees, threw rocks and yelled at them to stop. Griffin, hired to salvage the boat, told appellants that he was the owner’s representative and they were stealing. At this point, appellants and the boys covered the identification numbers on their boat and took off down the canal with the equipment they had removed. Griffin and his employee pursued in a boat that motored by. Appellants dropped off the boys and equipment at Phelan’s house and continued up the canal.

Officer Richards of the Coral Gables Police Department, responding to a call involving two boats speeding down the waterway, observed Phelan’s boat without running lights, and a boat containing an occupant hollering “thief.” Richards stopped the two boats and spoke with the men. He was suspicious of Phelan’s story since he did not believe salvage was lawful within territorial waters, and appellants both had alcohol on their breath. Officer Richards then retrieved the equipment from Phelan’s house.

The next day, Detective Cheiffi was assigned to the case and briefed by Officer Richards. He contacted Morris and took his statement and spoke with Griffin, who confirmed Morris’ version of the events. Detective Cheiffi attempted to obtain statements from Phelan and Teer, but they did not appear as scheduled and failed to set up another appointment. Detective Cheiffi also contacted the Coast Guard and its attorney who stated that no statutes would allow salvage in this situation. They also indicated that they were unaware of Phe-lan’s alleged telephone call, and would check into it, but their employees were under orders not to give legal advice and if anyone had told Phelan he could salvage, it was an unauthorized statement. An independent witness, one George Cubberly, came forward with a statement concerning the incident. He stated that he had gone by the Hatteras with his wife and asked appellants if they were in need of help. One of the two men told the Cubberly’s that they owned the boat, and their bilge pump was broken, but that they would take care of it.

Detective Cheiffi and Morris decided to turn the matter over to the State Attorney’s office for determination of whether criminal charges should be filed. Morris signed a statement and an assistant state attorney advised them there was probable cause to obtain arrest warrants for grand theft. After the warrants were issued, but prior to their arrest, appellants came forward and gave statements to Detective Cheiffi which were found to contain several inconsistencies. Detective Cheiffi was then able to review the Coast Guard tape of Phelan’s phone call. The tape indicated that while Phelan did receive limited permission to salvage, he had not been responsive to the procedure he was advised to follow. At a subsequent pretrial conference with the State Attorney’s office, Detective Cheiffi was advised that there was still probable cause to pursue the case.

Before trial, the case was dismissed for lack of criminal intent. Appellants then filed this suit against the City of Coral Gables for false arrest and imprisonment, and against Morris, Cheiffi, and the city for malicious prosecution. Continental Casualty was joined as insurer for the City of Coral Gables and its employee, Detective Cheiffi. The court below granted appellees’ motions for summary judgment. Appellants seek review of that order, challenging the summary judgment only on the malicious prosecution claim.

The plaintiff in a malicious prosecution action is required to prove, by a preponderance of competent evidence, six essential elements: (1) a criminal proceeding was commenced or continued against the plaintiff; (2) the defendant commenced or caused the commencement of such proceeding; (3) the criminal proceeding had a bona fide termination in plaintiff’s favor; (4) there was no probable cause for the commencement of the criminal proceeding; (5) the defendant acted with malice; (6) the plaintiff suffered damage. Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1942); Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3d DCA 1980); Applestein v. Preston, 335 So.2d 604 (Fla. 3d DCA), cert. denied, 341 So.2d 1084 (Fla.1976). Failure to establish any one element will destroy the cause of action. Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1981). In the present case there is no dispute that the first three elements and the sixth were demonstrated. The only issue is whether absence of probable cause and the existence of malice were shown.

The determinative factor as to the existence of probable cause as an element of a malicious prosecution action is whether the suit was brought without reasonable prospect of success. Acquittal or dismissal of the charges, as here, does not by itself establish improbability of the suit. Weissman v. K-Mart Corp., supra. Where no evidence is presented to establish that the criminal charges lacked a probable foundation, summary judgment is proper. Fee, Parker & Lloyd, P. A. v. Sullivan, 379 So.2d 412 (Fla. 4th DCA), cert. denied, 388 So.2d 1119 (Fla.1980); Clements v. Eastern Air Lines, Inc., 183 So.2d 264 (Fla. 3d DCA), cert. denied, 192 So.2d 486 (Fla.1966).

Guided by this standard, and viewing the facts most favorably to appellants, the pleadings, depositions and interrogatories filed in this case were legally insufficient to establish the absence of probable cause, see City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979); Duncan v. Germaine, 330 So.2d 479 (Fla. 4th DCA 1976), and the trial court properly granted appellees’ motions for summary judgment. The uncontroverted evidence demonstrates that appellants removed equipment from Morris’ boat, told passersby that they owned the boat, and covered up their identification numbers and fled the scene without running lights when challenged. Statements made by Morris and Griffin as well as an independent witness, coupled with information given by Coast Guard officials and the determination by the State Attorney’s office that probable cause existed for issuance of arrest warrants, provided a reasonable suspicion that appellants had committed a crime. Attempts to investigate appellants’ explanation of the events were frustrated by their own failure to appear and give statements until after arrest warrants were issued. Although the filing of an information by the State Attorney in a criminal prosecution does not give rise to a presumption of probable cause, such a determination does constitute evidence of reasonable grounds for the prosecution. Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978).

Aside from contending that appellees should have listened to the Coast Guard tape prior to filing charges, a detail which is not significant in light of the fact that Detective Cheiffi did contact the Coast Guard and was told they were unaware of the call, salvage was not permissible, and any such advice was unauthorized, appellants have presented no evidence to establish the absence of probable cause.

In view of appellees’ unrebutted showing that there was probable cause to initiate criminal proceedings, summary judgment was properly entered. We therefore need not determine whether malice, the final element of a malicious prosecution action, has been shown to exist.

Affirmed.

      . Appellee Morris initially appealed from the trial court’s determination that his marine policy with Insurance Company of North America did not afford coverage for a malicious prosecution suit, case number 81-1318, which was consolidated with the instant appeal. This appeal was later dismissed.

      . See also Hudson v. Dykes, 402 So.2d 491 (Fla. 1st DCA 1981) (trial court’s finding that defendant in malicious prosecution action had probable cause to believe a crime had been committed when he reported his beliefs to the State Attorney’s office would be a complete defense), see generally Pokorny v. First Federal Savings & Loan Ass'n, 382 So.2d 678 (Fla.1980) (private citizen may not be held liable for false imprisonment where he neither actually detained another nor instigated the other’s arrest by law enforcement officers; if the citizen makes honest, good-faith mistake in reporting incident, mere fact that his communication to officer may have caused victim’s arrest does not make him liable when he did not in fact request detention).

      . We also note that the State Attorney’s office determined the evidence was sufficient to prosecute even after listening to the tape.


author: WIGGINTON, Judge.

text:
    CANAL INSURANCE COMPANY, Appellant, v. HARTFORD INSURANCE COMPANY, Appellee.
    No. AG-157.
    District Court of Appeal of Florida, First District.
    June 4, 1982.
    Rehearing Denied July 22, 1982.

      James N. McConnaughhay of McCon-naughhay & Roland, P. A., Tallahassee, for appellant.
    Paul F. Hartsfield, Jr., and R. Jeremy Solomon, of Booth & Conner, P. A., Tallahassee, for appellee.
   WIGGINTON, Judge.

This appeal involves the tortuous question of which insurance company bears the burden of indemnity following a settlement by the insurers on behalf of party defendants involved in wrongful death actions. Although the points raised on appeal are several and suitable for permutation, our determination of one leads inexorably to our reversal of all.

The controversy stems from a lease agreement entered into between Robert Saint, a resident of Americus, Georgia, and Americus Steel Fabricators, Inc., also of Americus, in February, 1975. The agreement provided that Saint would lease his tractor and trailer to Americus for purposes of hauling steel in interstate commerce. Complying with the rules and regulations promulgated by the Interstate Commerce Commission, specifically 49 C.F.R., Section 1057.12(l)(d), the lease provided that Amer-icus, as the authorized carrier lessee, would have the exclusive use and control of the equipment. However, by the agreement, Saint and Americus sought to shift the responsibility arising from negligent operation of the tractor and trailer from Ameri-cus to Saint. The alleged intent of the parties was that Saint would procure a policy of public liability insurance, including Americus as an additional insured.

Pursuant to the agreement, Saint, through an independent insurance agent, obtained a policy issued by Canal Insurance Company. However, the policy named only him as the insured, and, unknown to either Saint or his agent, neither of whom read the policy, it included an endorsement specifically excluding from coverage “any person, firm or organization using the described automobile pursuant to any lease ...” In the event the vehicle was so used, the policy would afford the named insured, Saint, only excess coverage. Americus, on the other hand, was already insured by Hartford Insurance Company.

In the early evening of January 15, 1976, McArthur Whitehead, an employee of Am-ericus, was directed by the company to travel into Florida to deliver some materials. Driving the leased tractor and trailer, Whitehead proceeded south on U.S. 19 into Florida via Monticello. South of Perry, Whitehead was involved in an accident with another automobile resulting in the deaths of two Florida residents.

During the course of the resultant lawsuits, hearings were held for the purposes of determining whether Hartford or Canal afforded primary coverage and also whether Canal afforded insurance coverage over the defendant, Whitehead. It was determined by the trial court that Canal did afford coverage to Whitehead but that Hartford provided primary coverage for the alleged damages suffered by the plaintiffs as a result of the accident.

Following that determination, a settlement was reached between the parties to-talling $195,000, Canal contributing $25,000 and Hartford contributing $170,000. Both Canal and Hartford had policy limits of $100,000 per person and $300,000 per accident.

The case then proceeded on the issues framed in the cross claims between the two insurance companies. Hartford filed two cross claims for indemnity. The first one was against Saint, alleging that Hartford was a third party beneficiary to the lease contract between Saint and Americus. The second claim was against Whitehead, on the basis of Whitehead’s alleged active negligence.

Canal also filed two cross claims for indemnity against Americus and Hartford. The first claim was founded on Saint’s alleged vicarious liability. The second one arose from Canal’s defending Hartford’s insured, McArthur Whitehead. Canal also filed a motion for summary judgment regarding Hartford’s cross claims, contending that Hartford was not a third party beneficiary to the lease agreement and further, that Hartford could not sue its own insured, Whitehead.

The trial court orally ruled in favor of Canal but on rehearing, denied the motion for summary judgment. A final hearing was held, and based upon the issues and arguments raised in the cross claims, the court announced its intention to recede from its earlier order and determine that Canal was the primary carrier. The trial court was able to make that determination by reforming the insurance policy to reflect the alleged intent of the parties to include Americus as a named insured.

There is little doubt that Saint and Amer-icus intended for Americus to be a named insured. However, in reforming the insurance contract, the court erred in finding Saint and Canal to be mutually mistaken over that intent. The policy must stand as issued, thereby unequivocally excluding Americus and Whitehead from its coverage.

It is universally held that in order for a trial court to reform a contract, the evidence must clearly and convincingly show a mutual mistake of fact. Otherwise, the court will not be able to overcome the strong presumption that the contract expresses the intent of the parties. Boston Old Colony Insurance Company v. Popple, 305 So.2d 877, 879 (Fla. 1st DCA 1974). Moreover, the mutual mistake must be determined to have existed at the time the contract was reduced to writing. Old Colony Insurance Company v. Trapani, 118 So.2d 850, 852 (Fla.2d DCA 1960). Viewing the facts and all reasonable inferences that may be drawn from them in a light most favorable to the insured, it is clear that as a matter of law reformation was not warranted.

The evidence indicates that Saint contacted James Bowen, a Nationwide insurance agent, advising Bowen that he needed insurance. Bowen, who was never at any time an agent for Canal, completed the application requesting Saint to be the named insured and likewise indicating that no “certificates” were required. Neither Americus nor Whitehead were named as additional insureds on the application nor did the application reflect the lease arrangement. Nevertheless, Bowen forwarded the application to the Canal agent in Atlanta, Georgia. The policy was issued in April, 1975, with the endorsement excluding coverage of a lessee of the vehicle. As mentioned earlier, neither Saint nor Bowen read the policy. Although Canal instituted its own investigation of the application, which revealed the lease agreement, Bowen did not formally request Americus be added as a co-insured until March, 1976, approximately two months after the date of the accident.

Despite the good intentions of both Saint and Bowen to include Americus as a named insured under the policy, we find that at the time the policy was issued, there was no mutual mistake existing between Saint and Canal as to the type of insurance requested. Canal issued a policy clearly reflecting the information designated on the application. In that regard, Boston Old Colony Insurance Company v. Popple, relied on by the trial court, is distinguishable. In that case, unlike the case at bar, the insured not only was dealing directly with the insurance company’s agent who was aware at all times of the insured’s intent, but the mistake arose from a clerical error which resulted in deleting the insured’s property from the policy, which had already issued, by way of a subsequent endorsement. Here, the court attempted to extend coverage to include a party already excluded by way of an endorsement, on the basis of what could only be considered a unilateral mistake. In that respect the trial court erred.

Hartford’s argument that Canal has waived enforcement of, or has been es-topped from endorsing, the exclusion provision based on Canal’s alleged knowledge of and investigation into Saint’s intended purpose for the policy is equally erroneous. Poole v. Travelers Insurance Company, 130 Fla. 806, 179 So. 138 (1937), cited as authority for Hartford’s argument, is misapplied in that the exception to that policy clearly did not exclude the vehicle which the insurance company sought to have excluded. In dicta, however, the supreme court observed that the knowledge imputed to the insurance company serving to waive the exclusion or exception would had to have existed at the time the policy issued. Unlike the instant case, the evidence in Poole was un-contradicted that the agent was fully aware of facts which brought the insured within the exception at the time he wrote the policy. Cf. Travelers Insurance Company v. Sindle, 186 F.Supp. 8 (W.D.Ark.1960) (in a case very similar to the one at bar, the federal district court held that neither waiver nor estoppel could be asserted to extend coverage under a policy in which coverage was specifically excluded).

For the foregoing reasons, we hold that the trial court erred in reforming the policy of insurance issued by Canal to Robert Saint.

Keeping in mind, then, that Canal’s policy of insurance does not extend coverage to Americus and Whitehead, it is clear that the parties failed to effectively shift responsibility contractually by way of the lease agreement. Compare, Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975), and Truck Discount Corporation v. Serrano, 362 So.2d 340 (Fla. 1st DCA 1978). Therefore, under the I.C.C. rules and regulations, Americus, as lessee, and Hartford, as the insurer bear primary liability. Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc.; see also Simmons v. King, 478 F.2d 857 (5th Cir. 1973); and Hagans v. Glens Falls Insurance Company, 465 F.2d 1249 (10th Cir. 1972).

Consequently the court erred as a matter of law in determining that Hartford could obtain subrogation in an indemnity action against McArthur Whitehead, the driver of the tractor and trailer. An insurance company does not have any right of indemnity from an insured protected by its policy. Roth v. Old Republic Insurance Company, 269 So.2d 3 (Fla.1972); Sherwood Trucking, Inc. v. Carolina Casualty Insurance Company, 552 F.2d 568 (4th Cir. 1977). In that it was undisputed that Whitehead was and is an insured under Hartford’s policy, Hartford has no cause of action against him.

Further, the trial court erred as a matter of law in denying Saint’s and Canal’s cross claim for indemnity against Am-ericus and Hartford. The endorsement in Canal’s policy provides that under circumstances involving a lease of the vehicle, the insurance afforded Saint would be excess insurance over any other insurance. Since the settlement fell within the policy limits, no excess insurance coverage was needed. Thus, Canal was neither primarily nor secondarily liable for damages resulting from this accident. Transport Indemnity Company v. Travelers Indemnity Company, 357 So.2d 795 (Fla. 1st DCA 1978).

Finally, the trial court erred as a matter of law in determining that Hartford could obtain subrogation in an indemnity action against Saint and Canal for the amounts it paid under the settlement agreement. Apparently Hartford is indirectly seeking subrogation to any potential claim that Americus might have against Saint for breach of contract. However, Hartford is not a third party beneficiary to the lease agreement. Although it might have derived some incidental or consequential benefit from its terms had the intended policy been obtained by Saint, there was no clearly expressed intent that the purpose of the lease agreement was to confer a direct and substantial benefit upon Hartford. Muravchick v. United Bonding Insurance Company, 242 So.2d 179 (Fla.3d DCA 1970); American Empire Ins. Co. of South Dakota v. Fidelity and Deposit Company of Maryland, 408 F.2d 72 (5th Cir. 1969); State ex rel. Westinghouse Electric Supply Co. v. Wesley Construction Company, 316 F.Supp. 490 (S.D.Fla.1970), aff’d, 453 F.2d 1366 (5th Cir. 1972). In this instance, Saint’s agreement to procure insurance was solely for the benefit of Americus, not Hartford.

Thus, we reverse as to all points on appeal and remand the cause to the trial court for entry of an order consistent with this opinion.

JOANOS and THOMPSON, JJ., concur.


author: DANAHY, Judge.

text:
    FLORIDA CITRUS PROCESSORS ASSOCIATION, Plymouth Citrus Products Corporation, Golden Gem Growers, Inc., and Lykes Pasco Packing Co., Appellants, v. JESSE J. PARRISH, INC., a Florida corporation, Berry Citrus Products, Inc., a Florida corporation, B. A. Egan, Marvin Kahn, George Trogden, John Curtis, and State of Florida, Department of Citrus, Appellees. STATE of Florida, DEPARTMENT OF CITRUS, Appellant, v. JESSE J. PARRISH, INC., a Florida corporation, Berry Citrus Products, Inc., a Florida corporation, B. A. Egan, Marvin Kahn, George Trogden, John Curtis, and Florida Citrus Processors Association, Plymouth Citrus Products Corporation, Golden Gem Growers, Inc., and Lykes Pasco Packing Co., Appellees.
    Nos. 81-2232, 81-2333.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.
    Rehearing Denied June 28, 1982.

      Roderick K. Shaw, Jr., Edward O. Savitz and William S. Josey of Allen, Dell, Frank & Trinkle, Tampa, for appellants, Fla. Citrus Processors Ass’n, Plymouth Citrus Products Corp. and Golden Gem Growers, Inc.
    Charles Evans Davis and Tompkins A. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellees Jesse J. Parrish, Inc., Berry Citrus Products, Inc., B. A. Egan, Marvin Kahn, George Trogden and John Curtis.
    J. Hardin Peterson, Jr. of Peterson, Myers, Craig, Crews, Brandon & Mann, Lakeland, for appellant State of Fla., Dept, of Citrus.
    David C. G. Kerr and John A. Curtiss of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant Lykes Pasco Packing Co.
   DANAHY, Judge.

A group of citrus growers and processors (the petitioners) challenged the validity of rule amendments adopted by the Department of Citrus (the DOC) setting the minimum degrees of Brix (percent by weight of soluble solids) required in frozen concentrated orange juice. Another group of citrus growers and processors (the interve-nors) joined with the DOC in defending the amendments. A Department of Administration hearing officer determined that the rule amendments are invalid. In doing so, the hearing officer left in doubt the question of what minimum Brix requirement remains in effect. The petitioners, the in-tervenors, and the DOC all petition this court for review of the hearing officer’s determination. We hold that the rule amendments are valid.

From 1955 to the present time, the statutory minimum Brix requirement for frozen concentrated orange juice in Florida has been 41.8 degrees. The current statute is section 601.9909, Florida Statutes (1981), which provides that no frozen concentrated orange juice shall be sold, offered for sale, shipped, or offered for shipment which is concentrated to less than 41.8 or more than 47 degrees Brix.

In 1965, the DOC adopted a rule, codified as rule 20-64.07(lXa), setting the minimum Brix requirement for frozen concentrated orange juice produced in Florida at 44.8 degrees. That rule was adopted by vote of the Florida Citrus Commission, a collegial body which is the head of the DOC. In 1980, by the affirmative vote of seven of its twelve members, the Commission adopted the amendments to rule 20-64.07(l)(a) which are at issue here. As amended, rule 20-64.07(l)(a) contains the following sub-paragraphs:

1. Percent by weight of orange juice soluble solids as provided by Section 601.-9909(1), Florida Statutes, shall be not less than 44.8 percent nor more than 47 percent. This Brix provision shall not apply to frozen concentrated orange juice packed and certified for shipment outside the United States and Canada.
2. Section (l)(a)l. notwithstanding, effective July 15, 1980, the minimum percent by weight of orange juice soluble solids as provided by Section 601.9909(1), Florida Statutes, for product produced to fill Federal government purchase contracts shall be identical to the Food and Drug Administration Standard of Identity for Frozen Concentrated Orange Juice.
3. Section (l)(a)l. notwithstanding, effective December 1, 1980, the minimum percent by weight of orange juice soluble solids as provided by Section 601.9909(1), Florida Statutes, for product packed and certified for shipment to Canada and other export markets shall be identical to the Food and Drug Administration Standard of Identity for Frozen Concentrated Orange Juice.
4. Section (lXa)l. notwithstanding, effective December 1, 1980, the percent by weight of orange juice soluble solids as provided by Section 601.9909(1), Florida Statutes, for product for sale or shipment within the United States shall be not less than 43.2 percent nor more than 47 percent.
5. Section (l)(a)l. and 4. notwithstanding, effective December 1, 1981, the minimum percent by weight of orange juice soluble solids as provided by Section 601.9909(1), Florida Statutes, for all product shall be identical to the then current Food and Drug Administration Standard of Identity for Frozen Concentrated Orange Juice.

Since 1964, the federal minimum Brix requirement for frozen concentrated orange juice has been 41.8 degrees. The effect of the 1980 amendments to the DOC rule, therefore, was to reduce the minimum Brix requirement from 44.8 degrees to 41.8 degrees. As noted above, 41.8 degrees Brix is the statutory minimum standard in Florida as set forth in section 601.9909.

The petitioners attack the 1980 amendments principally on two grounds. First, they argue that the reference in the amendments to the federal standard violates the rule against delegation of rule making authority as announced in Hutchins v. Mayo, 143 Fla. 707, 197 So. 495 (1940). In that case, the supreme court addressed the validity of a rule promulgated by the Florida Citrus Commission which adopted rules of a federal bureau fixing standards for citrus products, whether then extant or later revised. The supreme court disapproved the rule, saying “We cannot accept the view that the state commission may make binding rules to be promulgated by the federal bureau in the future.” In the supreme court’s view, the rule constituted a delegation of a delegated power which the court could not sanction.

We do not believe the 1980 rule amendments at issue in this case violate the doctrine of Hutchins v. Mayo. The amendments adopted a federal standard as it existed on a specific date, and we believe this to be permissible. In Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976), the supreme court approved a statutory provision requiring the enforcing and rule making authority to comply with a federal standard in effect on or before the effective date of the law. That is essentially what the 1980 amendments to DOC rule 20-64.-07(l)(a) accomplished — the adoption of a federal standard as it existed on December 31,1981. We find no constitutional infirmity in that respect.

The second ground asserted by the petitioners is that section 601.9914, Florida Statutes (1979), requires the affirmative vote of at least nine members of the Florida Citrus Commission for the adoption of rule amendments reducing the minimum Brix previously established by DOC rule 20-64.-07(l)(a). In 1980, Section 601.9914 provided in part as follows:

(1)(a) Whenever ... the commission determines that a modification of any of the requirements of ss. 601.9905-601.9908 or s. 601.9909, within the limitations hereinafter specified, may increase the acceptance and consumption by consumers or a substantial segment of the consuming public of any of the citrus products regulated by the foregoing sections, it shall ... direct the formulation of a proposed regulation modifying the requirements of one or more of the foregoing sections in a manner designed to accomplish the foregoing purpose....
(2) The commission shall determine whether or not the promulgation of such regulation is likely to further increase the acceptance and consumption by consumers or a substantial segment of the consuming public of the citrus product or products regulated by such proposed regulation and that such substantial increase in acceptance and consumption shall be of substantial benefit to handlers and producers of citrus fruit. If the commission so determines, it may, by affirmative vote of at least nine members of the commission .. . with respect to a regulation hereunder pertaining to the citrus products regulated by s. 601.9909, promulgate such regulation.
(3) The extent to which the requirements of ... s. 601.9909, may be amended by regulation promulgated pursuant hereto is as follows:
(a) The existing requirements with respect to minimum or maximum Brix ... may be raised; [Emphasis ours.]

The 1980 amendments at issue here were adopted by the affirmative vote of only seven of the Commission members. The intervenors and the DOC argue that a vote of nine members was not required because section 601.9914 does not apply, and we agree. The statute provides that the “existing requirements” with respect to minimum or maximum Brix may be raised by vote of nine members of the Commission. We believe the statutory reference to “existing requirements” is clearly a reference to the requirements of section 601.-9909. The 1980 rule amendments at issue here did not purport to change the requirements of section 601.9909 as to minimum or maximum Brix, and certainly did not raise them. We do not speculate on the constitutional validity of section 601.9914 or the scope of its application; we simply hold that it does not apply here.

The 1980 amendments reduced the minimum Brix requirement which had previously been set by rule of the Commission. Whether intentionally or unintentionally, the legislature did not address that situation in section 601.9914. Therefore, the action of the Commission in adopting the 1980 amendments must be assessed on the basis of those statutes which generally establish the authority of the Commission to adopt standards for citrus products. Sections 601.10 and 601.11, Florida Statutes (1981), provide ample authority for the adoption of a rule setting a standard for citrus products by vote of a simple majority of the members of the Florida Citrus Commission.

We have considered additional arguments made by the petitioners and find them to be without merit.

The order under review is set aside. We deem it unnecessary to remand this case for further proceedings. § 120.68(9), Fla.Stat. (1981).

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

      . The statutory scheme for regulation of the Florida citrus industry and the structure of the Department of Citrus are discussed at length in Florida Canners Ass’n v. Dep’t of Citrus, 371 So.2d 503 (Fla.2d DCA 1979), aff'd sub nom. Coca-Cola Co. v. Dep’t of Citrus, 406 So.2d 1079 (Fla.1981).


author: PER CURIAM. THOMPSON, Judge,

text:
    CITY OF JACKSONVILLE, a body politic and corporate, Appellant, v. Sean Michael RAULERSON, a minor, by Peggy Ann Raulerson Eckerson, as natural guardian and next friend, Appellee.
    No. ZZ-214.
    District Court of Appeal of Florida, First District.
    June 8, 1982.
    Rehearing Denied July 22, 1982.

      Dawson A. McQuaig, Gen. Counsel, William Lee Allen and Donald R. Hazouri, Asst. Counsels, Jacksonville, for appellant.
    Dana G. Bradford, II, and Michael G. Tanner of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   PER CURIAM.

Jacksonville appeals from the money judgment in the amount of $50,000 entered on a jury verdict of $125,001 for Sean Michael Raulerson, a 10-year-old boy whose eye was burned by lime spilling from a machine used to line the ballpark baselines in Jacksonville’s Glynlea Recreational Park. Sean’s mother and next friend also appeals in Sean’s behalf from the circuit court’s remission of the judgment to $50,000, the statutory limit of Jacksonville’s liability. Sec. 768.28, Fla.Stat. (1979).

We first address the troubling question, raised by this Court but not by the parties at any stage, of whether it is sufficiently clear in this record that the real party plaintiff in interest is the minor Sean, rather than his mother the nominal plaintiff. Beyond mere questions of tidiness in the captions and preliminary recitals of pleadings and case reports, we are concerned to assure that Sean or his mother, whoever is the real plaintiff in interest, is bound by this judgment, and that the other is not. See Youngblood v. Taylor, 89 So.2d 503 (Fla.1956); Brown v. Caldwell, 389 So.2d 287 (Fla. 1st DCA 1980); Brown v. Ripley, 119 So.2d 712 (Fla. 1st DCA 1960); City Stores Co. v. Langer, 308 So.2d 621 (Fla. 3d DCA 1975).

The form of an action by a child having no appointed guardian should be, as now stated in the caption of this opinion, “SEAN MICHAEL RAULERSON, a minor, by PEGGY ANN RAULERSON ECKERSON, as natural guardian and next friend, plaintiff.” But the complaint in this case established the form of the action, both in the caption and in the body of the complaint, as that of “PEGGY ANN RAULERSON, as natural guardian and next friend of SEAN MICHAEL RAULERSON, a minor, plaintiff.” (Ms. Raulerson’s later marriage to Eckerson, and her adoption of his surname, is inconsequential to the problem now discussed.) Though both the caption and text of plaintiff’s complaint say that Ms. Rauler-son’s interest in the litigation is only to represent her son, whose age disability prevents him from suing alone, we were concerned that the complaint apparent designation of Ms. Raulerson as plaintiff, albeit as natural guardian and next friend of her son, jeopardized Sean’s recovery in this action for the personal injuries proved. See also Sanderson’s Administrators v. Sanderson, 17 Fla. 820 (1880).

The record in this case shows beyond doubt that Sean is the real party plaintiff in interest, and that his mother asserted no claim for medical bills or other damages she conceivably may have sustained individually. The proof of damages was limited to damages sustained by and properly recoverable for Sean. Sean’s identity as the real party plaintiff in interest was underscored in an exchange between Sean’s counsel and the trial judge during counsel’s opening statement to the jury:

JUDGE COX. Counselor, let me make a correction. The actual true plaintiff is the minor who is suing by and through his mother as his next friend.
MR. BRADFORD: As next friend, yes, sir.
THE COURT: Let’s not have any confusion about who the real plaintiff is.
MR. BRADFORD: That’s exactly right. The real plaintiff is the boy, and the mother is there for the reason Judge Cox just told you. She’s not advancing any claim of her own. She’s not involved in the claim.

Due to the trial court’s alertness, important subsequent proceedings were conformed to the reality that “the ‘next friend,’ who in this instance was the plaintiff’s mother, does not become a party to the suit.” Brown, supra, 389 So.2d at 288. Though the ambiguous caption was not corrected, the jury’s verdict in form and fact was rendered for Sean. The judgment entered on the verdict was for Sean.

We willingly regard the quoted exchange between Judge Cox and plaintiff’s counsel as tantamount to amending plaintiff’s pleadings to correct a misnomer or ambiguous description in the pleadings of the party plaintiff. Fla.R.Civ.P. 1.190(e). No prejudice to the City of Jacksonville or to any other party occurred or has been asserted. We now correct the caption of the case to complete the clarification, and pass on to the merits.

The City of Jacksonville contends that the injury received by the minor was not foreseeable and was the result of an independent, efficient, and intervening cause. We affirm for the reason that under the circumstances of this case, those issues were properly submitted to the jury to be decided.

The evidence at trial included the following. The minor plaintiff sustained the injury at a public park owned by the City. Sean was a member of Southside Youth Athletic Association (“SYAA”), which sponsored a league and baseball games at the park. City crews routinely maintained the baseball fields at the park. Further, the City promulgated the rules of play and provided the umpires for the baseball games. SYAA also participated in the preparation of the playing fields including the lining of the playing field with lime. The equipment and supplies, including two “field liner” machines containing lime, used to prepare the fields were stored in a building located on the grounds. On the day of the accident, an employee of SYAA had obtained the equipment and put it in the back of a truck. He then drove over to the playing field, leaving the equipment unattended on the truck while he raked the field. Shortly thereafter, while the baseball field was being prepared for the evening game, Sean’s grandmother left him unattended at the park. Sean was not a member of either team scheduled to play that night. Sean had previously helped in the lining of the fields in the presence of umpires.

Upon arriving at the park, Sean saw the truck containing the equipment and went over and attempted to remove a “field liner” machine which contained lime. As he attempted to remove the machine from the truck, he turned it over spilling some of the lime onto his face and into his left eye. Although two SYAA coaches immediately washed the eye with water and drove him home, the lime burns resulted in a permanent impairment of vision of the left eye.

The City had in the past furnished lime for use on the field. In some instances SYAA had obtained lime from a nearby nursery. Although we cannot be completely sure from the evidence that the lime in question was furnished by the City, there is ample evidence to support a jury’s conclusion that it was furnished by the City.

In the seven years prior to Sean’s accident, eight employees of the City had sustained eye injuries while using lime to line playing fields. No permanent disability or loss of vision was reported in any of those incidents. The City had been using lime for more than 30 years. There was no evidence of any minors ever having been previously injured by lime on a city playing field. There was evidence that an inert marble dust was available as an alternative to the use of the lime and that the City planned to switch to that substance but continued to use the lime in stock until it was used up.

The City has raised three points on appeal: (1) that the injury to the minor was unforeseeable; (2) that the injury was the result of an independent, efficient and intervening cause; and (3) that the minor himself was guilty of negligence as a matter of law.

We do not disagree with the argument put forward by appellant that legal cause exists only where injuries are the reasonably foreseeable result of a negligent act and that generally, foreseeability is a question of law initially. However, when reasonable persons can differ as to whether a particular injury is foreseeable, it becomes a jury question. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977). We find that the evidence presented made foreseeability a jury question. The jury could reasonably have found that the lime was an inherently dangerous substance which was dispensed by the City. There was evidence that Sean had helped in the lining of the field in the presence of city employees. City employees had previously been injured through the use of the lime. Therefore, it was within the province of the jury to determine that it was reasonably foreseeable that the use of the lime would result in an eye injury to a child which occurred and which could have been reasonably prevented by an available alternative to the use of lime. The jury’s finding of no contributory negligence on the part of Sean should likewise be undisturbed. While it may appear to some that Sean contributed to his own injury by taking it upon himself to climb on the unattended truck and lift the machine, reasonable men could also conclude that, under the circumstances, children of Sean’s age, capacity, and intelligence who previously worked with the machine could have been expected to do the same. Thus, the jury’s verdict should be sustained.

The appellee cross appeals challenging the trial court’s limitation of damages to $50,000.00. We reject this attack by reference to Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981). Appellee also urges error in the trial court’s refusal to tax costs of copies of depositions. Under the circumstances, we cannot say that the trial judge abused his discretion in disallowing the deposition costs sought. See generally: International Patrol and Detective Agency, Inc. v. Aetna Casualty and Surety Company, 396 So.2d 774, 777 (Fla. 1st DCA 1981).

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissents.

I agree with the appellant that the injury received by the minor was not foreseeable and that it was the result of an independent, efficient, and intervening cause.

Assuming that the City was negligent in making lime available for use in its park, this factor would not impose liability upon the City unless its negligence was the legal cause of Sean’s injury. “Not every negligent act . . . gives rise to a cause of action for injuries sustained by another.” Cone v. Inter County Telephone & Telegraph Co., 40 So.2d 148, 149 (Fla.1949). Liability is limited to those consequences which are reasonably foreseeable. As explained in Cone, foreseeability may be viewed in terms of whether consequences are natural and probable, as opposed to simply possible.

“Natural and probable” consequences are those which a person by prudent human foresight can be expected to anticipate as likely to result from an act, because they happen so frequently from the commission of such act that in the field of human experience they may be expected to happen again. “Possible” consequences are those which happen so infrequently from the commission of a particular act, that in the field of human experience they are not expected as likely to happen again from the commission of the same act.

40 So.2d at 149.

In Pinkerton-Hays Lumber Company v. Pope, 127 So.2d 441 (Fla.1961), the Supreme Court amplified their definition of the foreseeability test set out in Cone, saying:

The language in question was intended to convey the notion that foreseeability depends in part on whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that “in the field of human experience” the same type of result may be expected again. The test was not intended to, nor do we think it does, imply that a plaintiff, in order to recover in a negligence action, must prove that the particular causative act had frequently occurred before, and that it had frequently resulted in the same particular injury to the plaintiff.

See also Broome v. Budget Rent-A-Car of Jax, Inc., 182 So.2d 26 (Fla. 1st DCA 1966). This type accident had not occurred “frequently” before. As a matter of fact, it had never occurred before.

The facts herein indicate that it was foreseeable that persons lining the field with lime could suffer consequential injuries. Although no one playing on the field had ever been hurt by lime, the facts might even indicate that it was foreseeable that someone playing on a lime-lined field could suffer injuries resulting from the presence of the lime. But, it is only possible, not probable, that a spectator who should not go on the playing field could be injured by the lime. Although Sean answered affirmatively to a leading question as to whether he had ever assisted in lining a field, a SYAA official testified that because of his age Sean would not have been permitted to assist in lining the field even under supervision.

In this case, a grandparent left a 10 year old child, who the jury must have found incapable of contributory negligence, at a city park unattended and unsupervised. The child was not participating in any game under supervision and was a mere spectator at most. Before the game or when not interested in the game, he was free to do what most unattended and unsupervised 10 year olds would do, i.e., find things to do, some of which they do not have the maturity to recognize are dangerous. A third party put a “field liner” containing lime in his truck and left it unattended. This 10 year old, who was incapable of removing the “field liner” from the truck, climbed up into the truck and while attempting to remove the “field liner” dumped a substantial amount of lime directly in his face and left eye.

The injury to Sean’s eye was not a foreseeable result of the City making available free of charge to athletic associations, clubs, and other non-profit groups lime for the purpose of lining ball fields. Under the facts in this case, the evidence, as a matter of law, failed to establish that the City’s negligence was the legal cause of the damage sustained by Sean. Compare Pinkerton-Hays Lumber Company, which held that the negligent severing of a cable line by a bulldozer operator which prevented a night watchman of a sawmill from reporting a fire to the fire department before it spread to the sawmill was not the legal cause of the fire destroying the mill; Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978), in which this court held that the negligence of a vendor who sold a case of rum to two members of a high school club who were minors was not the legal cause of the damages to a third minor member of a club who became intoxicated to the extent that he was caused to fall, jump, or was pushed or shoved by other initiates so that he sustained severe permanent injuries; Adair v. The Island Club, 225 So.2d 541 (Fla. 2d DCA 1969), which held that the supplier of chlorine, an inherently dangerous commodity, could not have reasonably foreseen an officer’s injury received when he was trying to remove a defective chlorine tank; and Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980), which held that a young boy’s act of removing a loose copper coil from a water fountain in the city park and injuring another minor with it was not foreseeable despite the City’s admitted knowledge of previous acts of vandalism by minors in the park at night. Thus, failure by the City to properly maintain the water fountain was not a legal cause of the injury sustained by the plaintiff.

While it might be possible that the City’s action in furnishing lime for the lining of playgrounds and ball fields could result in the injury sustained by Sean, it is obviously not probable under the evidence in this case. The City’s motion for directed verdict should have been granted.

The City is not liable for injuries resulting to Sean if there is an independent intervening cause, unless that independent intervening cause is a foreseeable and probable consequence of the negligent action of the City. Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980); Adair, and Cone. In this case, a child of tender age was left alone, unsupervised and unattended, at a city playground. An employee of the SYAA, which was conducting the games on the city playground, left a “field liner” containing lime in a truck unattended. The child climbed up in the back of the truck and attempted to remove the “field liner” containing the lime and injured himself. The negligence of the parents or the SYAA and its employees or both was an active, efficient intervening cause of the injury to Sean. Parents and others having immediate custody and control of children too young to exercise judgment to care for themselves, have a duty as ordinary prudent persons to use reasonable care to watch over, supervise, and protect them from foreseeable hazards and harm. Quest v. Joseph, 392 So.2d 256 (Fla. 3d DCA 1981); Orlando Sports Stadium, Inc. v. Gerzel, 397 So.2d 370 (Fla. 5th DCA 1981). The negligence of parents in failing to supervise children under some circumstances can be the sole legal cause of their injury or death. Alves v. Adler Built Industries, Inc., 366 So.2d 802 (Fla. 3d DCA), cert. denied, 378 So.2d 342 (Fla.1979). “The responsibility of a tort-feasor for the consequences of his negligent acts must end somewhere, and under our legal system the liability of the wrongdoer is extended only to the reasonable and probable, not the merely possible, results of a dereliction of duty.” Cone, 40 So.2d at 150.

As a very strong believer in the sanctity of a jury verdict which has been approved by a trial judge, I think, in the absence of an error of law, that a judgment entered on such a verdict should be affirmed if there is any evidence to support it. Although this is a judgment based on a jury verdict approved by a very able trial judge, I simply cannot find any evidence on which to base an affirmance. Therefore, I would reverse and remand for the entry of a judgment notwithstanding the verdict in favor of the defendant.