Coleman v. Allen, X--116

• Decision Date: 27 October 1975
• Docket Number: No. X--116,X--116
• Citation: 320 So.2d 864
• Parties: P. L. COLEMAN and Jerry Cook, Appellants, v. Pace ALLEN et al., Appellees.
• Court: Florida District Court of Appeals

Page 864

320 So.2d 864

P. L. COLEMAN and Jerry Cook, Appellants, v. Pace ALLEN et al., Appellees.

No. X--116.

District Court of Appeal of Florida, First District.

Oct. 27, 1975.

D. Michael Chesser, Fort Walton Beach, for appellants.

C. LeDon Anchors, of Estergren, Fortune & Anchors, Fort Walton Beach, for appellees.

PER CURIAM.

Appellants, defendants below, appeal from an adverse jury verdict alleging that certain jury instructions relating to res ipsa loquitur, foreseeability, and joint venture were erroneous and/or inadequate.

This case concerns the pollution of three small bodies of water or fish ponds located on three different parcels of property in Okaloosa County and owned by the three individual appellees. The parcels had a common link, a stream that flowed from appellants' property. Appellant Coleman, who does business as Coastal Asphalt Company, had owned the 40 acre tract from which the stream emanated. He had operated an asphalt plant on the property and had placed five large fuel storage tanks on the grounds there. When appellant Cook bought the property from Coleman, he permitted Coleman to leave the storage tanks in place as an accommodation. In the early winter of 1973, Coleman removed the fuel tanks to an asphalt operation in Milton which was in appellant Cook's name. Coleman candidly admitted that, in removing the tanks, approximately 1500 gallons of a water-oil mixture was accidentally dumped into a trailer hole located immediately adjacent to the storage tanks.

Around the first of January, 1974, appellees discovered that their fish ponds had become covered with a thick oil or similar petroleum product. In investigating the source of the oil, appellee Oglesby testified that she found three large holes located on appellants' property adjacent to the stream which appeared to have a residue of oil in them. Mrs. Oglesby, Brian Carter (an employee of appellee Sikes), and William T. Young (a member of the Florida State Department of Pollution Control) all testified that the appellants' property was the source of the oil, although Mr. Young did admit that the source of the oil could not be exactly determined. Testifying on this point on behalf of the appellants, Mr. George Black stated that the pollutants could not have originated from the appellants' property and could not have come from and further than the first pond.

Before we consider the merits of the points raised by appellants, we note our concern over the manner in which the points were presented to this Court. In their brief, appellants attack the correctness of certain instructions given by the trial judge to the jury. Yet, appellants' assignments of error merely allege that the verdict and judgment are contrary to the law and evidence and that the trial court erred in refusing to give a certain instruction requested by appellants. The latter assignment of error was not argued in appellants' brief and is therefore to be considered abandoned. The former assignment has been held by this Court to be clearly insufficient. (Gregg v. State Road Department, Fla.App.1st, 140 So.2d 328) A cursory glance at Rule 3.5(c), F.A.R., reveals that appellants have not embodied the following required essentials in their assignments of error. 'The assignments or cross assignments of error shall designate identified judicial acts which should be stated as they occurred; grounds for error need not be stated in the assignment.' Although appellants now argue that the jury instructions on res ipsa...