author: ADKINS, Justice.

text:
    Leon WEST, Individually and as personal representative of the Estate of Gwendolyn West, Deceased, et al., Plaintiffs-Appellees, v. CATERPILLAR TRACTOR COMPANY, INC., Defendant-Appellant.
    No. 46709.
    Supreme Court of Florida.
    July 21, 1976.

      Robert Orseck of Podhurst, Orseck & Parks, Ser & Keyfetz, and Berkell, Strauss & Benjamin, Miami, for plaintiff-appellee.
    James S. Usich of the Law Offices of Papy, Levy, Carruthers & Poole, Coral Gables, for defendant-appellant.
    James E. Tribble and Mark Hicks of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Dade County Defense Bar Ass’n, amicus curiae.
    William M. Hicks, Miami, for Academy of Florida Trial Lawyers, amicus curiae.
   ADKINS, Justice.

This case is presented on certificate as authorized by Fla.Stat. § 25.031, F.S.A., and in Rule 4.61, Florida Appellate Rules, 32 F.S.A., from the United States Court of Appeals for the Fifth Circuit, 504 F.2d 967; in an appeal from a final judgment of the trial court which. applied the doctrine of strict liability in a products liability suit.

The court states that:

“A caterpillar grader operated by an employee of Houdaille Industries struck and ran over, with its left rear tandem wheel, Gwendolyn West on a street under construction in Miami, Florida, on September 1,1970. Gwendolyn West died of massive internal injuries after six days in the hospital. As a result, the deceased’s husband, Leon West, individually and as administrator of the estate of his deceased wife, claimed a right to damages against Houdaille Industries and Caterpillar Tractor Company, Inc., the manufacturer of the machine. He ultimately settled with Houdaille Industries for $35,-000 damages and brought a products liability suit against the manufacturer of the grader, Caterpillar Tractor Company, Inc., in the United States District Court, in and for the Southern District of Florida bottomed on diversity of citizenship jurisdiction.
“West’s Complaint contained two counts: (1) negligent design of the grader by failure to provide an audible warning system for use while backing the grader, by failure to provide adequate rear view mirrors, and by manufacturing the grader with a blind spot created by obstructions when looking to the rear while driving in reverse, and (2) a breach of implied warranty or strict liability based upon the same design defects.
“At trial, the evidence indicated that preceding the accident Gwendolyn West had walked to the corner, stood on the west curb of the street which was under construction, speaking to a friend, for a period while the grader operated in a forward manner, southward and proceeded to pass her. The machine reached the end of its southward operation and commenced to back up. In the meantime, Mrs. West began walking across the street intersecting the path of the grader while it was travelling in reverse. She had been waiting for a bus, and as it approached she commenced to walk across the street, looking to her left; and then she looked into her purse; and continued to look into her purse until the time of the accident. She did not look to her right at any time toward the approaching trader. Both West and Caterpillar presented extensive conflicting expert testimony about the alleged defects in the design of the caterpillar.
“The expert proof on the plaintiff’s side, in essence, showed improper design and configuration of various parts of the grader obstructing visibility to the rear; absence of appropriate mirrors; and absence of available warnings on a machine created for rearward use; and design with a “blind spot” behind the operator.
“.The expert proof of the defendant, in essence, was that the machine was designed in an ordinary, standard fashion in a practical, reasonable manner, and thus was properly designed and constructed in a reasonably safe manner.
“The district court submitted the case to the jury on three potential theories of recovery: negligence, which is not pertinent to this certificate; breach of an implied warranty of merchantability; and strict tort liability. On implied warranty the Court instructed the juiy that:
“Thus, in order for the plaintiff to prevail on the basis of the breach of an implied warranty of merchantability, the plaintiff must establish each of the following elements by a preponderance of the evidence:
“1. The motor grader manufactured by the defendant, Caterpillar Tractor Company, was not reasonably fit for the purposes for which it was sold and intended to be used;
“2. The motor grader manufactured by the defendant was defective on the date of its delivery to Houdaille Industries, whose employee was operating the vehicle at the time of the accident; and
“3. The plaintiff incurred damages as a result of the alleged defects.
“On strict liability, the Court instructed: “. . .in order for the plaintiffs to recover under the theory of strict tort liability, the plaintiff must establish each of the following elements by a preponderance of the evidence:
“1. That at the time of the sale the road-grading vehicle was in a defective condition unreasonably dangerous to foreseeable users or bystanders; and
“2. That the defective, unreasonably dangerous condition in the road-grading vehicle was a proximate cause of the damages complained of in this litigation by the plaintiff.
“Additionally, the Court asked the jury to consider Gwendolyn West’s negligence:
“. . . the burden is upon the defendant, Caterpillar Tractor Company, to establish by a preponderance of evidence that Mrs. West was contributorily negligent, as alleged, and that such negligence contributed one of the proximate causes of any injuries sustained by the plaintiff. On the defense of contributory negligence you must determine .
“1. Was Mrs. West herself negligent in the manner alleged by the defendant? If yes,
“2. Was such negligence a proximate cause of the incident complained of by the plaintiff? If yes,
“3. What was the percentage of Mrs. West’s negligence which contributed to the accident complained of by the plaintiff?
“The Court did not instruct the jury as to assumption of risk.
“In answer to special interrogatories, the jury found Caterpillar liable on all three theories of recovery and determined that damages totalled $125,000. The jury also concluded that Mrs. West’s negligence contributed to the accident to a degree of 35 percent.
“The Court entered judgment for West and disregarded comparative negligence on the basis of strict liability and concluded that contributory (comparative) negligence was no defense to strict liability in Florida. The Court thus awarded damages of $90,000 which represented the full jury award of $125,000 set off by the earlier $35,000 settlement. This appeal followed.
“3. Questions to be Certified.
“1. (a) Under Florida law, may a manufacturer be held liable under the theory of strict liability in tort, as distinct from breach of implied warranty of merchantability, for injury to a user of the product or a bystander?
“(b) If the answer to 1(a) is in the affirmative, what type of conduct by the injured party would create a defense of contributory or comparative negligence?
“(1) In particular, under principles of Florida law, would lack of ordinary due care, as found by the jury in this case, constitute a defense to strict tort liability?
“2. Assuming Florida law provides for liability on behalf of a manufacturer to a user or bystander for breach of implied warranty, what type of conduct by an injured person would constitute a defense of contributory or comparative negligence?
“(a) In particular, does the lack of ordinary due care, as found by the jury in the case, constitute such a defense?”
♦ * * * * *

Products liability deals with recourse for personal injury or property damage resulting from the use of a product and, in the past, has covered actions for negligence, breach of express warranty, breach of implied warranty, and fraud. These theories of recovery have been refined and consolidated to such an extent that the distinctions frequently have more theoretical than practical significance. As a result the theory of strict liability has evolved to complement the traditional conditional warranty and negligence theories. A statement of this theory appears in the American Law Institute Restatement (Second) of Torts § 402 A, as follows:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it' is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Strict liability was adopted at an early date by the California Supreme Court in Greenman v. Yuba Power Prod., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049, 1054 (1963):

“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”

In the development of products liability case law by the Courts of this State many of the vestiges of the traditional contractual “warranty” have been removed. It was traditionally recognized that, unless there is privity, liability to the consumer should be in tort and not in contract. See Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1133-34 (1960). In Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953), this Court aligned itself with those courts holding that a consumer could bring a suit on the theory of implied warranty against the manufacturer for improper labeling of seed notwithstanding want of privity. The District Court of Appeal in Berstein v. Lily-Tulip Cup Corp., 177 So.2d 362, 364 (Fla.App. 3d 1965) receded further from the privity requirement when it said:

“We fully recognize that the Florida law has not reached the point where the doctrine of privity has been removed in all suits based upon implied warranty. However, upon our review of the law we conclude that privity no longer obtains in an implied warranty suit by a consumer against a manufacturer.”

On certiorari, this opinion was approved by this Court. Lily-Tulip Cup Corp. v. Berstein, 181 So.2d 641 (Fla.1966).

We made further inroads into the elimination of privity when the product involved was dangerous or an inherently dangerous instrumentality. See Hicks & Sternlieb, Products Warranty Law in Florida — A Realistic Overview, 25 U.Miami L.Rev. 241 (1971); and Matthews v. Lawnlite Co., 88 So.2d 299 (Fla.1956). The court stated in Keller v. Eagle Army-Navy Dept. Stores, Inc., 291 So.2d 58, 60 (Fla.App. 4th 1974):

“Florida has long recognized that certain instrumentalities are ‘dangerous in-strumentalities’ per se, such as an automobile driven on the highways (Southern Cotton Oil Co. v. Anderson, 1920, 80 Fla. 441, 86 So. 629), an airplane in operation, (Shattuck v. Mullen, Fla.App.1959, 115 So.2d 597), an operated motorcycle, (Western Union Telegraph Co. v. Michel, 1935, 120 Fla. 511, 163 So. 86) and all boats (Sec. 371.52, F.S.A.), and strict liability has been imposed upon the owners thereof for their improper use. The Supreme Court has also recognized that certain items may be dangerous instrumen-talities in fact.”

An exception to the privity requirement involved food products when the court permitted an ultimate consumer to recover against a food manufacturer despite the absence of privity. Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So.2d 313 (1944). See also Reese v. Florida Coca-Cola Bottling Co., 256 So.2d 392 (Fla.App. 1st 1972).

Not only has the court made inroads into the requirement of privity, but has always extended exceptions to broader categories of persons, such as prospective or potential customers (Matthews v. Lawnlite Co., supra; McCarthy v. Florida Ladder Co., 295 So.2d 707 (Fla.App. 2d 1974)); employees of purchasers (Barfield v. Atlantic Coastline R. R. Co., 197 So.2d 545 (Fla.App. 2d 1967)). In Toombs v. Fort Pierce Gas Co., 208 So.2d 615, 617 (Fla.1968), the Court designated the product (propane storage gas) as falling within the dangerous instrumentality exception, saying:

“The inherently dangerous instrumentality qualification of the privity requirement in warranty, when applicable, has . been regarded as extending liability to those persons one ‘should expect to use the chattel lawfully or to be in the vicinity of its probable use.’ 28 Fla.Jur. 522.”

The Court held that the dangerous instrumentality exception to the privity requirement was applicable so that liability was extended to persons one should expect to be in the vicinity of the proper use of the chattel.

We approached strict liability in Green v. American Tobacco Co., 154 So.2d 169 (Fla.1963), which was a suit against the manufacturer and distributor of cigarettes. The Court observed that the suit involved a commodity which was available indiscriminately to the public generally, and applied a rule of absolute or strict liability to the manufacturer. The question certified to this Court by the United States Court of Appeals read as follows:

“Does the law of Florida impose on a manufacturer and distributor of cigarettes absolute liability, as for breach of implied warranty, for death caused by using such cigarettes from 1924 or 1925 until February 1, 1956, the cancer having developed prior to February 1, 1956, and the death occurring February 25, 1958, when the defendant manufacturer and distributor could not on, or prior to, February 1, 1956, by the reasonable application of human skill and foresight, have known that users of such cigarettes would be endangered, by the inhalation of the main stream smoke from such cigarettes, of contracting cancer of the lung?” 154 So.2d at 170.

This Court answered the question as follows:

“Upon the critical point, our decisions conclusively establish the principle that a manufacturer’s or seller’s actual knowledge or opportunity for knowledge of a defective or unwholesome condition is wholly irrelevant to his liability on the theory of implied warranty, and the question certified must therefore be answered in the affirmative.” 154 So.2d at 170-71.

See also McLeod v. W. S. Merrell Co., 174 So.2d 736 (Fla.1965).

In a products liability suit against a manufacturer of. a commercial product by an ultimate consumer or a user, the sole test has been whether or not the product was reasonably safe for its intended use, as manufactured and designed, when it left the plant of the manufacturer. This Court in Matthews v. Lawnlite Co., 88 So.2d 299, 300 (Fla.1956), said:

“[C]ases have so often departed from or modified the old theory that an innocent third party who purchases from a retailer can not sue a manufacturer because of absence of privity of contract that the doctrine may be said to have been abandoned in many jurisdictions. A doctrine more in line with reason and justice has been substituted for it and may be said to have been crystallized in Restatement of the Law of Torts, Sec. 398, Vol. 2, page 1084, as follows:
“ ‘A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use, for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.’ ”

From the foregoing analysis it is apparent that the Florida courts in many instances have imposed an absolute or strict liability in tort upon a manufacturer for placing a product on the market knowing that it is to be used without inspection for defects which cause injury to a human being. The manufacturer, by placing on the market a potentially dangerous product for use and consumption and by inducement and promotion encouraging the use of these products, thereby undertakes a certain and special responsibility toward the consuming public who may be injured by it. We believe that the prior decisions of this Court are in conformity with the principles set forth in the Restatement (Second) of Torts § 402A, quoted above. Such a recognition by the Court is no great new departure from present law and, in most instances, accomplishes a change of nomenclature. We should take a realistic view of the doctrine of products liability in Florida, as our distinctions frequently have been of more theoretical than practical significance. See Keeton, Products Liability, 49 Va.L.Rev. 675, 676 (1963).

The court in Royal v. Black and Decker Mfg. Co., 205 So.2d 307, 309 (Fla.App. 3d 1967), discussing the trend of Florida decisions toward strict liability, said:

“At the heart of each theory is the requirement that the plaintiff’s injury must have been caused by some defect in the product. Generally, when the injury is in no way attributable to a defect, there is no basis for imposing product liability upon the manufacturer. It is not contemplated that a manufacturer should be made the insurer for all physical injuries caused by his products.”

In other words strict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. The user should be protected from unreasonably dangerous products or from a product fraught with unexpected dangers. In order to hold a manufacturer liable on the theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages.

We adopt the doctrine of strict liability as stated by the A.L.I. Restatement (Second) of Torts § 402 A. In this, we are not alone.

The Dade County Defense Bar Association, as amicus curiae, questions the authority of this Court to adopt the provisions of the Restatement of Torts § 402A, where the Legislature has spoken on the subject by the enactment of the Uniform Commercial Code. It contends that judicial adoption of the strict liability doctrine conflicts with the Uniform Commercial Code.

In Ford Motor Co. v. Pittman, 227 So.2d 246, 249 (Fla.App. 1st 1969), the court discussed the effect of the U.C.C. upon the doctrine of implied warranty in products liability actions:

“So, we reach the real question here presented: Did enactment of the Uniform Commercial Code in 1965 sweep away in one stroke of the legislative broom the jurisprudence of this State pertaining to the doctrine of implied warranty? Apparently, from their briefs and arguments, both parties to this appeal are of this view. Although we are somewhat fearful to tread upon such noncontroversial ground, we are equally fearful of casting into the trash can of legislative unforeseeability some fifty years of this State’s jurisprudence upon a critical subject of paramount importance to the citizens of this State. And, unless the legislature has in unequivocal terms spelled out to the courts of this State that it has by the enactment of the omnibus Uniform Commercial Code severed the implied warranty doctrine from the jurisprudence of this State, we will not be the operator of the guillotine.”

Even though the Restatement § 402A and the U.C.C. provide conflicting products liability rules, that fact alone does not establish that a court in a U.C.C. jurisdiction that followed the Restatement § 402A would be improperly ignoring a legislative enactment. This Court would be prevented from following the strict liability rule only if the Legislature intended the U.C.C. warranty remedies to be exclusive in products liability cases. See Strict Tort Liability, 22 Stan.L.Rev. 713, 754 et seq.

In Caruth v. Mariam, 11 Ariz.App. 188, 463 P.2d 83, 87 (1970), a products liability suit based upon strict tort liability, the following appears:

“Finally, defendants contend that our decision in this case should be governed by those portions of the Uniform Commercial Code . .
“The U.C.C. parallels the doctrine of strict tort liability but the two should not be confused with each other. They are ‘different breeds of cat.’ Strict tort liability is based on public policy. Express and implied warranties under the U.C.C. are based on contract. The U.C.C. still talks about disclaimers and notice. These are not tort concepts.”

We recognize that there are two parallel but independent bodies of products liability law. One, strict liability, is an action in tort; the other, implied warranty, is an action in contract. An action under the strict liability doctrine eliminates the notice requirement, restricts the effectiveness of disclaimers to situations where it can be reasonably said that the consumer has freely assumed the risk, and abolishes the privity requirement. The doctrine of strict liability does not introduce a notion of “defective condition unreasonably dangerous to the user or consumer or to his property” which is different from the notion of “un-merchantability” as applied in warranty law. With the continued increase of products liability cases, the strict liability doctrine adapts the law to the marketing condition of today’s marketing consumer. See Products Liability, 19 Rutgers L.Rev. 692 (1965).

At the present time there is no legislative impediment to the adoption of this doctrine.

We next turn to the question of whether the doctrine of strict liability should be extended to. a foreseeable bystander who comes within range of the danger.

The manufacturer unquestionably intends that its product will be used by the public. There would appear to be no logic or reason in denying a right of relief to persons injured by defective merchandise solely on the ground that he was not himself a user of the merchandise. Many products in the hands of the consumer are sophisticated and even mysterious articles, frequently a sealed unit with an alluring exterior rather than a visible assembly of component parts. In today’s world it is often only the manufacturer who can fairly be said to know and understand when an article is suitably designed and safely made for its intended purpose. See Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973).

Toombs v. Ft. Pierce Gas Co., 208 So.2d 615 (Fla.1968), was an action by the customer of a gas company, his family and bystanders for injuries sustained in the explosion of a propane gas storage tank. The Court held that, with respect to bystanders injured by the explosion, the dangerous instrumentality exception to privity requirement extended the liability of the company to persons one should expect to be in the vicinity of the proper use of the chattel.

The framers of the Restatement did not express an opinion on whether the doctrine should apply where harm befalls persons other than users or consumers. A majority of the courts have said that there is no adequate rationale or theoretical explanation why nonusers and nonconsumers should be denied recovery. See 63 Am. Jur.2d Products Liability § 144; and Darryl v. Ford Motor Co., 440 S.W.2d 630, 633 (Tex.1969), where the court said:

“We hold that recovery under the strict liability doctrine is not limited to users and consumers. Piercefield v. Remington Arms Company, 375 Mich. 85, 133 N.W.2d 129 (1965); Mitchell v. Miller, 26 Conn. Sup. 142, 214 A.2d 694 (1965). There is no adequate rationale or theoretical explanation why non-users and non-consumers should be denied recovery against the manufacturer of a defective product. The reason for extending the strict liability doctrine to innocent bystanders is the desire to minimize risks of personal injury and/or property damage. A manufacturer who places in commerce a product rendered dangerous to life or limb by reason of some defect is strictly liable in tort to one who sustains injury because of the defective condition. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1962); Mitchell v. Miller, supra.”

The court in Caruth v. Mariani, 11 Ariz.App. 188, 463 P.2d 83, 85 (1970), in extending the doctrine to bystanders, said:

“All states which have adopted the theory of strict tort liability have extended the theory to the bystander when called upon to do so. Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84 (1969); Mitchell v. Miller, 26 Conn.Sup. 142, 214 A.2d 694 (1965); Piercefield v. Remington Arms Co., 375 Mich. 85, 113 N.W.2d 129 (1965); Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969); and Sills v. Massey-Ferguson, Inc., D.C., 296 F.Supp. 776 (1969), interpreting the law of Indiana and see also Klimas v. International Telephone & Telegraph Corp., D.C., 297 F.Supp. 937 (1969), interpreting the law of West Virginia wherein the ‘consumer-user’ limitation of Restatement (Second) of Torts § 402A was eliminated to await ‘development with respect to the extent of liability to non-user, non-consumer injured persons.’ ”

The public policy which protects the user and the consumer of a manufactured article should also protect the innocent bystander. Of course, the duty of a manufacturer for breach of which liability will attach runs only to those who suffer personal injury or property damage as the result of using or being within the vicinity of the use of the dangerous instrumentality furnished by a manufacturer which fails to give notice of the danger. Injury to a bystander is often feasible. A restriction of the doctrine to the users and consumers would have to rest on the vestige of the disappearing privity requirement. This requirement has been often applied, and frequently mutilated, in cases where a supplier of chattels was held liable on some theory of warranty.

We now hold that a manufacturer may be held liable under the theory of strict liability in tort, as distinct from breach of implied warranty of merchantability, for injury to a user of the product or a bystander, thereby answering question 1(a) in the affirmative.

We now turn to question 1(b) which reads as follows:

“(b) If the answer to 1(a) is in the affirmative, what type of conduct by the injured party would create a defense of contributory or comparative negligence?
“(1) In particular, under principles of Florida law, would lack of ordinary due care, as found by the jury in this case, constitute a defense to strict tort liability?”

It has been held generally that simple, contributory negligence is not a defense in a strict liability action, see 72 C.J.S. Supp. Products Liability § 45; 63 Am.Jur.2d Products Liability § 150, if such a defense is based upon the failure of the user to discover the defect in the product or the failure of the user to guard against the possibility of its existence.

Strict liability does not make the manufacturer or seller an insurer. Strict liability means negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence.

The gist of the doctrine of contributory negligence is that the person injured should not recover when it appears that the injury would have been avoided if the injured person had exercised reasonable care. In other words, the injured person must act as a reasonable person in exercising for his own safety the caution commensurate with the potential danger. This defense has been recognized where a products liability action is based on negligence. See Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958); Matthews v. Lawnlite Co., supra. Under the “reasonable man” standard the failure of the consumer or user, in the absence of warning, to discover a defect in the product or the failure to guard against the possibility of its existence would not bar recovery under the doctrine of contributory negligence. See 63 Am.Jur. Products Liability § 149.

As stated in the Restatement (Second) of Torts § 402A, comment at 356:

“Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”

We recognize that contributory negligence of the user or consumer or bystander in the sense of a failure to discover a defect, or to guard against the possibility of its existence, is not a defense. Contributory negligence of the consumer or user by unreasonable use of a product after discovery of the defect and the danger is a valid defense. Prior to the adoption of the comparative negligence doctrine, a plaintiff’s conduct as the sole proximate cause of his injuries would constitute a total defense. See Coleman v. American Universal of Florida, Inc., 264 So.2d 451 (Fla.App. 1st 1972), quoting from 2 Frumer and Friedman Products Liability § 16.01(3), at 3-20 to 3-31. The defendant manufacturer may assert that the plaintiff was negligent in some specified manner other than failing to discover or guard against a defect, such as assuming the risk, or misusing the product, and that such negligence was a substantial proximate cause of the plaintiff’s injuries or damages. See Annot., 13 A.L.R.3d 1057, 1100-1101. The fact that plaintiff acts or fails to act as a reasonable prudent person, and such conduct proximately contributes to his injury, constitutes a valid defense. In other words, lack of ordinary due care could constitute a defense to strict tort liability.

We now have comparative negligence, so the defense of contributory negligence is available in determining the apportionment of the negligence by the manufacturer of the alleged defective product and the negligent use made thereof by the consumer. The ordinary rules of causation and the defenses applicable to negligence are available under our adoption of the Restatement rule. If this were not so, this Court would, in effect, abolish the adoption of comparative negligence. See Powers v. Hunt-Wesson Foods, Inc., 64 Wis.2d 532, 219 N.W.2d 393 (1974).

The last certified question reads as follows:

“2. Assuming Florida law provides for liability on behalf of a manufacturer to a user or bystander for breach of implied warranty, what type of conduct by an injured person would constitute a defense of contributory or comparative negligence?
“(a) In particular, does the lack of ordinary due care, as found by the jury in the case, constitute such a defense?”

The adoption of the doctrine of strict liability in tort does not result in the demise of implied warranty. If a user is injured by a defective product, but the circumstances do not create a contractual relationship with a manufacturer, then the vehicle for recovery could be strict liability in tort. If there is a contractual relationship with the manufacturer, the vehicle of implied warranty remains.

Contributory negligence is generally considered to be a doctrine of the law of torts. However, breach of warranty actions retain certain aspects of the law of torts and frequently a given set of facts could support either an action for breach of implied warranty or an action for negligence. As a consequence questions have arisen as to whether a defense of contributory negligence may properly be asserted in an action for breach of warranty. American Law of Products Liability, Second Edition, Hursh and Bailey, Volume 1, § 3:81, pp. 619-21, contains the following:

“It would seem at first glance that there is no room for operation of any of the principles of the law of negligence in a purely contractual area. But when it is considered that liability for breach of warranty exists only where it is shown that the breach was the proximate cause of the harm for which recovery is sought, the question arises whether evidence which, in a negligence suit, might be introduced as showing the injured person’s contributory negligence, may not be introduced in a breach of warranty action to show that the harm alleged to flow from a breach of warranty actually was otherwise caused.
“The cases as to whether contributory negligence is a defense in a products liability case based on breach of warranty are in (at least semantic) disagreement. Some cases hold or state that contributory negligence is available as a defense, and there is also some authority which impliedly supports the view that contributory negligence, where established, will bar recovery for breach of warranty.
“On >the other hand, there are decisions holding or indicating that contributory negligence is not available as a defense in an action for an alleged breach of a warranty. And there appears to be some conflict even within some jurisdictions as to whether contributory negligence is a defense.”

In Coleman v. American Universal of Florida, Inc., 264 So.2d 451 (Fla.App. 1st 1972), the sole question under consideration was whether the trial court correctly instructed the jury that the plaintiff’s contributory negligence constituted a bar to his recovery in an action for breach of implied warranty. The court pointed out that the authorities were “pretty evenly divided on the question before us.” The court then said:

“In this legal situation, with the authorities fairly evenly divided, we are inclined to the view that contributory negligence is available as a defense in an action for breach of an implied warranty, even though it may superficially look as though we are thereby approving a tor-tious defense in an action ex contractu.
“Our philosophy in this matter was well expressed by Schreiber and Rhein-gold in their ‘Products Liability’ (Chap. 5, page 32) in their concluding remarks, as follows:
“ ‘As is readily apprehended, contributory negligence in the defense of a product liability action is a can of worms. But, if it is recognized that there is not [sic] such thing as “contributory negligence” and that the defense contemplated is that of abnormal, unintended, or unforeseen use, or is that of assumed risk, or that of lack of due care, then there may perhaps be order brought out of the chaos. However, it ' is strongly suggested that even these defenses are, in the absence of uncon-trovertible facts, no panacea for defendants. There are much better ways to beat a product liability claim than relying on contributory negligence, an illusory defense.’ ” 264 So.2d 454.

We approve this decision. Unreasonable exposure to a known and appreciated risk should bar recovery in an action based upon implied warranty just as it bars recovery in negligence. However, it is unreasonable to require the noncommercial consumer to make any sort of detailed or expert inspection. If the injured person’s conduct is a proximate cause of the injuries, the defendant would have the right to a charge on comparative negligence in an action for breach of implied warranty. If the injured person failed to use that degree of care which a reasonably careful person would use under like circumstances then he is guilty of some negligence. If this negligence was a proximate contributing cause of the injuries, the defendant would be entitled to raise the defense of contributory or comparative negligence. In other words, lack of ordinary due care could constitute such a defense.

To summarize, we recognize that in the present day marketing milieu treatment of the manufacturers’ liability to ultimate purchasers or consumers in terms of implied warranty is simply using a convenient legal device to accomplish some recourse for an injured person. Traditionally, warranty has had its source in contract. Ordinarily there is no contract in a real sense between a manufacturer and an ultimate consumer of its product. As a result, warranty law in Florida has become filled with inconsistencies and misapplications in the judiciary’s attempt to provide justice to the injured consumer, user, employee, bystander, etc., while still maintaining the contract principles of privity.

The obligation of the manufacturer must become what in justice it ought to be — an enterprise liability, and one which should not depend upon the intricacies of the law of sales. The cost of injuries or damages, either to persons or property, resulting from defective products, should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves. We therefore hold that a man-' ufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. This doctrine of strict liability applies when harm befalls a foreseeable bystander who comes within range of the danger.

Contributory or comparative negligence is a defense in a strict liability action if based upon grounds other than the failure of the user to discover the defect in the product or the failure of the user to guard against the possibility of its existence. The consumer or user is entitled to believe that the product will do the job for which it was built. On the other hand, the consumer, user, or bystander is required to exercise ordinary due care.

The adoption of the doctrine of strict liability in tort does not result in the demise of implied warranty. In an action upon implied warranty the defense of contributory or comparative negligence may be interposed, for the injured person is required to exercise “ordinary due care.”

Having answered the questions certified, we return the case to the United States Court of Appeals for a decision as to the evidentiary and procedural issues which remain.

It is so ordered.

OVERTON, C. J., and ROBERTS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

       “The appellant contends that it made timely application for jury instruction on its defense as pled of assumption of risk. The ap-pellee denies same.”

      . The various states that have approved the doctrine of strict liability can be categorized as follows:

        States which have specifically adopted § 402 A:

      Arizona, O. S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968);
      Connecticut, Wachtel v. Rosol, 159 Conn. 496, 271 A.2d 84 (1970);
      Hawaii, Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240 (1970);
      —Idaho, Shields v. Morton Chem. Co., 95 Idaho 674, 518 P.2d 857 (1974);
      Indiana, Perfection Paint & Color Co. v. Konduris, 147 Ind.App. 106, 258 N.E.2d 681 (1970);
      Iowa, Hawkeye Sec. Ins. Co. v. Ford Motor Co., 174 N.W.2d 672 (Iowa 1970);
      Kentucky, Dealers Transp. Co. v. Battery Distrib. Co., 402 S.W.2d 441 (Ky.1965);
      Mississippi, State Stove Mfg. Co. v. Hodges, 189 So.2d 113 (Miss.1966);
      Missouri, Giberson v. Ford Motor Co., 504 S.W.2d 8 (Mo.1974);
      Montana, Brandenburger v. Toyota Motor Sales, 162 Mont. 506, 513 P.2d 268 (1973);
      New Hampshire, Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36, 260 A.2d 111 (1969);
      New Mexico, Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972);
      Oklahoma, Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl.1974);
      Oregon, Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967);
      Pennsylvania, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966);
      Rhode Island, Ritter v. Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255 (1971);
      Texas, Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969);
      Washington, Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969);
      Wisconsin, Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967);

        States which have adopted the substantial equivalent of § 402A:

      Alaska, Bachner v. Pearson, 479 P.2d 319 (Alaska 1970);
      California, Greenman v. Yuba Power Prod., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962);
      Illinois, Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965);
      Louisiana, Weber v. Fid. & Cas. Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971);
      Michigan, Piercefield v. Remington Arms Co., 375 Mich. 85, 133 N.W.2d 129 (1965);
      Minnesota, Kerr v. Corning Glass Works, 284 Minn. 115, 169 N.W.2d 587 (1969);
      Nebraska, Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971);
      Nevada, Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970);
      New Jersey, Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965);
      New York, Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973);
      Ohio, Lonzrick v. Republic Steel Corp., 6 Ohio St.2d 227, 218 N.E.2d 185 (1966);
      Tennessee, Ford Motor Co. v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966);

        States where federal courts have predicted that § 402A would be applied:

      Utah, Juiander v. Ford Motor Co., 488 F.2d 839 (10th Cir. 1973);
      Vermont, Wasik v. Borg, 423 F.2d 44 (2nd Cir. 1970).


source: Caselaw Access Project

author: BOYD, Justice. ADKINS, Justice

license: Public Domain

text:
    James Randolph JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 46672.
    Supreme Court of Florida.
    July 21, 1976.
    Clinton A. Curtis, Woolfolk, Myers, Curtis, Craig & Crews, Lake Wales, and Jack T. Edmund, Bartow, for appellant.

      Harold S. Richmond and Richard L. Wilson, Asst. State Attys., for appellee.
   BOYD, Justice.

This cause is before us on an appeal from the Leon County Circuit Court. The trial court denied Appellant’s motion to expunge, declaring Chapter 74-206, Laws of Florida, to be unconstitutional. This Court has jurisdiction of the direct appeal under Article V, Section 3(b)(1), Florida Constitution.

The facts of the case are as follows.

Appellant was arrested in Tallahassee on December 6, 1968; on January 16, 1969, Appellee filed an information against him, charging possession of marijuana. Appellant’s motion to suppress items seized at the time of the search was granted; subsequently, Appellee nol-prossed the information against Appellant. Pursuant to Chapter 74-206, Laws of Florida 1974, on September 11, 1974, Appellant filed his Motion to Expunge Record, by which he sought an order “to expunge all official records relating to [his] arrest. . . .” Although originally the State Attorney filed a reply to Appellant’s motion stating that “the State has no objection” thereto, after inquiry by the court as to possible constitutional defects, the State Attorney subsequently opposed the motion both by brief and oral argument.

Chapter 74r-206, Laws of Florida 1974, provides, in part, as follows:

“A person, not having previously been convicted of a criminal offense or municipal ordinance violation, charged with a violation of a municipal ordinance or a felony or misdemeanor, if he was acquitted or released without being adjudicated guilty may file a motion with the court wherein the charge was brought to expunge the record of arrest from the official records of the arresting authority. Notice of such motion shall be served upon the prosecuting authority charged with the duty of prosecuting the offense and upon the arresting authority. The court shall issue an order to expunge all official records relating to such arrest, indictment or information, trial, and dismissal or discharge. Provided, however, the Court shall require that non-public records be retained by the Department of Law Enforcement and shall be made available by said Department only to Law Enforcement Agencies in the event of a future investigation of said person relative to a pending charge, indictment or information upon or against said person for an act which, if committed, would be an offense similar in nature to the offense for which said person had been charged and not found guilty. . . . ”

The lower court found that “the conclusion is inescapable” that the Legislature intended the word “expunge,” as used in that statute, to mean to destroy or obliterate, to annihilate physically, to strike out wholly.

Furthermore, the court stated:

“By the statute under consideration, it was the obvious intent of the legislature to eliminate all public records relating to the cases of those persons coming within its terms, so that no inquiring person could ascertain that these defendants had even been the subject of criminal prosecutions. . . . ”

Inasmuch as “[t]he judicial department of government has the inherent power and duty to keep records of its proceedings” and since “[m]any situations arise in which the records of court proceedings are essential in the determining of the rights of people,” the court found that “Chapter 74 — 206 is invalid insofar as it attempts to require courts to destroy records of their judicial acts.” It. is from this holding that the instant appeal is brought.

As was said in State ex rel. Harrington v. Genung :

“The separation of powers of the three branches of government — legislative, executive and judicial — is a constitutional rule upon which our system of government has survived from its inception. It is essential that to safeguard this system the preservation of the inherent powers of the three branches must be free from encroachment or infringement by one upon the other.”

Clearly, the Legislature has the power to enact substantive law, and it is the duty of the courts to enforce such substantive law where constitutional. Likewise, the Constitution establishes judicial power in the court system and vests this Court with the power of administration of the court system, including the establishment of judicial rules of practice and procedure; while such rules may be repealed by a general law enacted by a two-thirds vote of the Legislature, the power to initiate them rests in this Court.

We recognize the value of the ex-pungement statute to society and its innate fairness to people improperly accused. We also recognize that from time immemorial courts have exercised their discretion, on their own initiative or upon motion of the parties, to seal their records from public view wherein the ends of justice may be served. Further, we recognize our duty to construe a statute in such a way as to achieve the legislative intent subject to constitutional restriction on legislative authority. To permit a law to stand wherein the Legislature requires the destruction of judicial records would permit an unconstitutional encroachment by the legislative branch on the procedural responsibilities granted exclusively to this Court.

Therefore, to achieve the legislative purpose in this case we hold that to the extent that Chapter 74-206, Laws of Florida 1974, grants a substantive right to a defendant, the statute is valid; and we find that the law is substantive to the degree that it protects Appellant from having his record left open for public inspection in the Criminal Division of the Circuit Court. To achieve the legislative intent under the unique circumstances of the instant case without violating the Constitution, we direct the learned trial judge to seal Appellant’s record and to retain it sealed subject to the power of the court for good cause shown to open it under conditions wherein the ends of justice might require it. If a portion of the record is to be preserved anywhere in state government, the logical place for preserving the actual proceedings is in the court, with such record being made available on a confidential basis to the Department of Law Enforcement, rather than having it left solely with the latter agency.

Nevertheless, insofar as Chapter 74r-206, Laws of Florida 1974, attempts to establish procedure for the accomplishment of this new, substantive right, we find and so hold that it is an encroachment upon the judicial function and, therefore, unconstitutional to that degree. Consequently, the Court will consider adoption of a rule to effectuate the legislative intent by requiring the sealing of court records of first offenders found innocent or of those persons against whom criminal proceedings are dismissed. Affirmed in part, reversed in part.

It is so ordered.

OVERTON, C. J., ROBERTS, J., and FERRIS, Circuit Judge, concur.

ADKINS, J., dissents with an opinion, with which ENGLAND, J., concurs in result only.

ENGLAND and SUNDBERG, JJ., dissent.

ADKINS, Justice

(dissenting).

In enacting Fla.Stat. § 901.33, F.S.A., the Legislature has attempted to protect an individual who has never been previously convicted of a criminal offense from the stigma resulting from an arrest record. The statute requires the court wherein the charge was brought to “expunge the record of arrest from the official records of the arresting authority.”

The majority holds, certainly not without some reason, that such action would lead to the destruction of records of judicial acts and would be an unconstitutional legislative infringement upon the judiciary. Reference is made to the lower court’s statement that situations arise in which the records of court proceedings are essential in determining the rights of individuals. That court gave the examples of the officer executing a warrant being sued by a criminal defendant for trespass or being charged with breaking and entering or an accused bringing an action for malicious prosecution. In both cases, the expungement of the official records would preclude the actions. What this fails to take into consideration is the salient fact that the accused has the option of filing a motion to expunge. Obviously, if an accused has grounds to bring a trespass or malicious prosecution suit, he would be ill-advised to file for expungement prior to the determination of such actions. The Legislature has placed no time limitations on the accused’s actions.

It should be noted that the lower court indicated that the two examples given did not exhaust all the possibilities where an expunged record could be used to determine individual rights. However, no other use of such records comes to mind which would not be under the control of the accused. The statute provides that non-public records be retained by the Department of Law Enforcement (the mere existence of which records are at least somewhat inconsistent with the majority’s definition of expunge), to be made available in the event of a future investigation of an offense similar in nature. This is ample provision for protecting what is the State’s only legitimate interest in preserving the records of arrests which result in acquittal or release without an adjudication of guilt.

The majority’s reliance on State ex rel. Harrington v. Genung, 300 So.2d 271 (Fla.App.2d 1975) is misplaced. That case involved a statute mandating the release on bail of a certain class of defendants. The court correctly held that the power to admit to bail is a judicial function, which cannot be encroached upon by a coequal branch of government. Here, however, the keeping of records is merely a ministerial function of the judicial system, interference with which is not comparable to interference with the bail process.

The Legislature has attempted to deal with a problem important to a certain group of individuals. The net result is a balancing of societal and individual interests. Society is protected by the provisions which allows the investigative authorities access to non-public files showing arrests for similar offenses, and the individual is given the option of applying for an ex-pungement of arrests which do not result in conviction. The effect on the judicial system is minimal. We stated in Hearns v. State, 223 So.2d 738, 740 (Fla.1969), which dealt with a statutory requirement that convicted defendants be fingerprinted in open court,

“[I]t is not beyond the legislative province to confer upon the judiciary certain reasonable duties which are designed to promote law enforcement . . . .”

Given the fact that statutes are strongly presumed to be constitutional, minor interferences with a court’s business (the actual destruction of the official records) are clearly an insufficient basis upon which to invalidate.

The majority’s compromise of sealing the records does not effectuate the legislative purpose, which clearly mandates the procedure of expungement. This procedure does not provide that a court could for good reason open the records; it directs the court to expunge all official records upon the filing of the appropriate motion.

In addition, it is not altogether clear whether a person whose records are sealed will be able to state without fear of perjury that he has never been arrested. If he is not, then the major purpose of the statute (to allow individuals to avoid the prejudice engendered by an arrest record) fails totally-

For the foregoing reasons I believe that the statute is constitutional and the decision of the trial court should be reversed.

ENGLAND, J., concurs in result only.

      . Now codiñed as Section 901.33, Florida Statutes.

      . Black’s Law Dictionary (Revised Fourth Edition, 1968).

      . 300 So.2d 271 (Fla.App.1974); Simmons v. State, 160 Fla. 626, 36 So.2d 207, 208 (1948); See, also, Article II, Section 3, Florida Constitution.

      . Article III, Section 1, Florida Constitution.

      . Article V, Sections 1 and 2, Florida Constitution.


author: (s) BEN F. OVERTON_ Chief Justice (s) JOSEPH A. BOYD. Jr. Justice (s) ALAN C. SUNDBERG Justice (s) JOSEPH W. HATCHETT Justice BOYD, Justice ROBERTS and ADKINS, Justices ROBERTS, Justice,

text:
    In re ADVISORY OPINION TO THE GOVERNOR REQUEST OF JULY 12, 1976.
    No. 49811.
    Supreme Court of Florida.
    July 30, 1976.
    Donald M. Middlebrooks, Gen. Counsel, Orlando, and Algia R. Cooper, Asst. General Counsel, Tallahassee, for Reubin O’D. Askew, Governor.
    William L. Durden and Lacy Mahon, Jr., Jacksonville, for Hans G. Tanzler, Jr.
    Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Counsel, Jacksonville, for City of Jacksonville.
    Edward P. Vieira, in pro. per.
   The Honorable Reubin O’D. Askew

Governor

State of Florida

The Capitol

Tallahassee, Florida 32304 Dear Governor Askew:

We have the honor to acknowledge your communication of July 12, 1976, requesting our advice pursuant to Section 1(c), Article IV, Florida Constitution, 1968 Revision, and Rule 2.1(h), Florida Appellate Rules, relating to certain executive powers and duties.

Your letter reads in part as follows:

“I have been advised that the Duval County Grand Jury has returned indictments alleging commission of a felony and two misdemeanor offenses by the Mayor of the City of Jacksonville, Hans G. Tanzler, Jr.
“Jacksonville operates under a charter form of government which vests certain powers in local officials. Questions have arisen in my mind concerning my constitutional duties relating to the suspension of local elected officials under consolidated government in Jacksonville as well as my authority to appoint an interim May- or should my decision be to suspend May or Tanzler.
******
“In view of the above circumstances affecting my executive powers and duties, I therefore submit the following questions for your consideration:
“1. Should the Mayor of Jacksonville be regarded as a municipal officer or a county officer for purpose of Article IV, Section 7 suspension and appointment or can the Mayor be suspended under both § 7(a) and (c)?
“2. If Article IV, Section 7(c) which authorizes suspension of a municipal official indicted for a crime is controlling, must the indictment be a result of actions arising directly or indirectly out of or pertaining to official conduct or duties or is § 112.51(1) an unconstitutional limitation on the constitutional duties of the governor under Article IV, Section 7(c)?
“3. Does § 112.42, F.S. represent an invalid limitation upon the governor’s authority to suspend under Article IV, Section 7 or may the governor suspend for conduct which takes place in prior terms but which may affect the officers [sic] capacity to conduct his office?
“4. If the Mayor of Jacksonville should be suspended pursuant to either section of Article IV, Section 7, what procedure should be utilized to fill the vacancy which would be created by such suspension?”

Upon receipt of your communication, an Interlocutory Order was entered, announcing that the questions propounded were answerable and setting dates for filing of briefs and oral argument.

We will respond to your questions in order of their submission.

Question 1: “Should the Mayor of Jacksonville be regarded as a municipal officer or a county officer for purpose of Article IV, Section 7 suspension and appointment or can the Mayor be suspended under both § 7(a) and (c)?”

It is our opinion that you as Governor have authority to suspend the mayor of the consolidated government of the City of Jacksonville under the provisions of Article IV, Section 7(a), of the Florida Constitution, 1968 Revision, provided you find the existence of a ground for removal as set forth in Section 7(a), which are limited to:

1. Malfeasance,
2. Misfeasance,
3. Neglect of duty,
4. Drunkenness,
5. Incompetence,
6. Permanent inability to perform his official duties, or
7. Commission of a felony.

By virtue of this conclusion we are of the opinion that you are without authority to suspend the mayor of Jacksonville as a municipal official under the provisions of Article IV, Section 7(c).

Some officers of the consolidated government carry out both county and municipal functions. Article IV, Section 7(a), relates to the suspension of county officers and provides:

“By executive order stating the grounds and filed with the secretary of state, the governor may suspend from office any state officer not subject to impeachment, any officer of the militia not in the active service of the United States, or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform his official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal be reinstated by the governor.”

Article IV, Section 7(c), relates to the suspension of municipal officials and provides:

“By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted and the office filled by appointment for the period of suspension, not to extend beyond the term, unless these powers are vested elsewhere by law or the municipal charter.” [Emphasis supplied]

This provision grants to the Legislature the authority to vest elsewhere by legislative act the suspension power over municipal officials. The Legislature recognized the unique nature of consolidated governments and the fact that some officials of such governments function as both county and municipal officials by enacting Section 112.-49, Florida Statutes, which provides:

“In the administration of any city-county merger or city-county charter, or any such form of government which provides for the merging of the powers, duties and functions of any municipal and county governments, any officer, official or employee of such merged government who exercises the powers and duties of a county officer, whether he shall be elected or appointed, shall be deemed to be a county officer and therefore subject to the power of the governor under the state constitution to suspend officers. If the charter or other authority under which any city-county merger is accomplished shall provide means for the suspension or removal of such officers, then the power to suspend shall be concurrent in the city-county government and in the governor.”

Inasmuch as the Legislature has power to create, alter, and abolish both counties and municipalities, we believe it was well within the legislative power to enact Section 112.49, defining what a municipality is and what a county is, for suspension purposes. An examination of Jacksonville’s charter leads us to conclude that the mayor of the consolidated City of Jacksonville has “the powers and duties of a county officer,” Section 112.49, supra, and should be treated as a county officer, if he is to be suspended. The grounds for suspension of county officers are set forth in Article IV, Section 7(a), of the Florida Constitution. Section 7(c), pertaining to municipal officers, is not applicable.

Question 2: “If Article IV, Section 7(c) which authorizes suspension of a municipal official indicted for a crime is controlling, must the indictment be a result of actions arising directly or indirectly out of or pertaining to official conduct or duties or is § 112.51(1) an unconstitutional limitation on the constitutional duties of the governor under Article IV, Section 7(c)?”

We need not answer this question in view of our answer to question one.

Question 3: “Does § 112.42, F. S. represent an invalid limitation upon the governor’s authority to suspend under Article IV, Section 7 or may the governor suspend for conduct which takes place in prior terms but which may affect the officers [sic] capacity to conduct his office?”,

To answer this question would require this Court to pass on the legal sufficiency of the individual charges contained in the indictments in this cause. It is our opinion that such a determination should not be made an advisory opinion but should be resolved in regular trial and appellate proceedings where appropriate factual issues can be developed.

We, therefore, decline to answer question three.

Question 4: “If the Mayor of Jacksonville should be suspended pursuant to either section of Article IV, Section 7, what procedure should be utilized to fill the vacancy which would be created by such suspension?”

In our opinion, you may appoint an interim replacement in the same manner as you would any other county official in accordance with the provisions of Article IV, Section 7(a).

Respectfully,

(s) BEN F. OVERTON_ Chief Justice

(s) JOSEPH A. BOYD. Jr. Justice

(s) ALAN C. SUNDBERG Justice

(s) JOSEPH W. HATCHETT Justice

ENGLAND, J., took no part in the consideration of this case.

BOYD, Justice

(concurring specially).

I agree with, and have signed, the Advisory Opinion to Your Excellency. Justice B. K. Roberts has stated that almost without exception public officials have not been subjected to disciplinary action for conduct occurring in prior terms of office. The one known exception to that rule is cited in your pleadings to this Court and is referred to as In re Boyd, 308 So.2d 13. The holding in that case conflicted with the majority opinion stated in State ex rel. Turner v. Earle, 295 So.2d 609, and other prior cases decided by the regular members of the Supreme Court of Florida. The Boyd case was decided by a special panel of judges who were on temporary assignment to this Court, and the holding conflicted with precedents previously established by this and other Courts. It should be further noted that a Select Committee of the Florida House of Representatives held extensive hearings and found no basis for disciplinary action by the Legislature against Boyd.

I respectfully submit this information to you as Governor only to assist you in considering the question of law raised by Justice Roberts.

CsUOSEPH A. BOYD Jr. Justice

ROBERTS and ADKINS, Justices

(dissenting).

In response to your preliminary inquiry as to the status of Mayor Tanzler as a municipal officer or a county officer, upon examination of the pertinent constitutional authority and decisions of the courts, we must conclude that insofar as the instant cause is concerned, Mayor Tanzler is a municipal officer. Article VIII, Section 9, Florida Constitution (1885), carried forward in full force and effect by Article VIII, Section 6(e), provides:

“§ 9. Legislative power over city of Jacksonville and Duval county. — The Legislature shall have power to establish, alter or abolish, a Municipal corporation to be known as the City of Jacksonville, extending territorially throughout the present limits of Duval County, in the place of any or all county, district, municipal and local governments, boards, bodies and officers, constitutional or statutory, legislative, executive, judicial, or administrative, and shall prescribe the jurisdiction, powers, duties and functions of such municipal corporation, its legislative, executive, judicial and administrative departments and its boards, bodies and officers; to divide the territory included in such municipality into subordinate districts, and to prescribe a just and reasonable system of taxation for such municipality and districts; and to fix the liability of such municipality and districts. Bonded and other indebtedness, existing at the time of the establishment of such municipality, shall be enforceable only against property theretofore taxable therefor. The Legislature shall, from time to time, determine what portion of said municipality is a rural area, and a homestead in such rural area shall not be limited as if in a city or town. Such municipality may exercise all the powers of a municipal corporation and shall also be recognized as one of the legal political divisions of the State with the duties and obligations of a county and shall be entitled to all the powers, rights and privileges, including representation in the State Legislature, which would accrue to it if it were a county. All property of Duval County and of the municipalities in said county shall vest in such municipal corporation when established as herein provided. The offices of Clerk of the Circuit Court and Sheriff shall not be abolished but the Legislature may prescribe the time when, and the method by which, such offices shall be filled and the compensation to be paid to such officers and may vest in them additional powers and duties. No county office shall be abolished or consolidated with another office without making provision for the performance of all State duties now or hereafter prescribed by law to be performed by such county officer. Nothing contained herein shall affect Section 20 of Article III of the Constitution of the State of Florida, except as to such provisions therein as relate to regulating the jurisdiction and duties of any class of officers, to summoning and impanelling grand and petit jurors, to assessing and collecting taxes for county purposes and to regulating the fees and compensation of county officers. No law authorizing the establishing or abolishing of such Municipal corporation pursuant to this Section, shall become operative or effective until approved by a majority of the qualified electors participating in an election held in said County, but so long as such Municipal corporation exists under this Section the Legislature may amend or extend the law authorizing the same without referendum to the qualified voters unless the Legislative act providing for such amendment or extension shall provide for such referendum.”

This constitutional provision authorized the Legislature to establish a municipal corporation to be known as the City of Jacksonville. Pursuant to such authority, Ch. 67-1320, Laws of Florida, was promulgated by the Legislature creating the consolidated City of Jacksonville and such act was ratified by the Duval County voters. In Jackson v. Consolidated Gov. of City of Jacksonville, 225 So.2d 497 (Fla.1969), this Court approving the opinion of the Circuit Court authored by Judge Larkin, explained:

“The Jacksonville Consolidation Amendment is a special provision applying only to Duval County and giving the legislature power at any time to consolidate the county and the cities within it into a municipality.”

Being fully mindful of Section 112.49, Florida Statutes, which provides:

“112.49 Persons exercising powers and duties of county officers subject to suspension by governor. — In the administration of any city-county merger or city- • county charter, or any such form of government which provides for the merging of the powers, duties and functions of any municipal and county governments, any officer, official or employee of such merged government who exercises the powers and duties of a county officer, whether he shall be elected or appointed, shall be deemed to be a county officer and therefore subject to the power of the governor under the state constitution to suspend officers. If the charter or other authority under which any city-county merger is accomplished shall provide means for the suspension or removal of such officers, then the power to suspend shall be concurrent in the city-county government and in the governor.”

it should be noted that sub judice no contention has been made that any county duties or responsibilities are involved. In conclusion as to this question, therefore, the Governor’s power of suspension relative to Mayor Tanzler under the existing circumstances arises from Article IV, Section 7(c).

Article IV, Section 7(c), provides:

“(c) By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted and the office filled by appointment for the period of suspension, not to extend beyond the term, unless these powers are vested elsewhere by law or the municipal charter.”

The proviso language specifically vests the Legislature with the power to abrogate the authority to suspend which is vested in the Governor. It necessarily follows that the Legislature having the full authority to derogate the responsibility of the Governor in this area also has the power to circumscribe said authority which it has done through enactment of Section 112.51(1), Florida Statutes, which provides:

“112.51 Municipal officers; suspension; removal from office.—
(1) When any grand jury shall present or return a true bill against any elected or appointed municipal official as a result of actions of such official arising directly or indirectly out of or pertaining to his official conduct or duties, the governor shall have the power to suspend such municipal official from office. Suspension of such official by the governor shall create a temporary vacancy in such office during suspension.”

This statutory provision is not inconsistent with or in conflict with the aforementioned constitutional provision. The questioned indictments and charges contained therein do not relate to official actions arising directly or indirectly out of or pertaining to official conduct or duties as Mayor.

Counsel for Mayor Tanzler accurately points out that had Tanzler been the challenger rather than the incumbent, the cited acts could not have even been attempted to be attributed to his duties as Mayor.

In your request, the questions are anchored to indictments referred to therein. Since the questions thus pose a problem of both law and fact, we must limit this opinion to the factual situation involved in the indictments. It is our opinion and we advise you that the management of campaign financing and matters relating thereto are neither county nor municipal functions, and we must therefore advise you that you are without authority on the present state of the record to suspend Mayor Tanzler.

We are hot unmindful that other facts and circumstances set forth by a subsequent proclamation of the Governor in this or some other matter may henceforth establish grounds for removal of Mayor Tanzler, but such facts and circumstances must be dealt with subsequent to this time upon appropriate presentation to this Court.

Insofar as the validity vel non of Section 112.42 is concerned, we refer to this Court’s decision in State ex rel. Turner v. Earle, 295 So.2d 609 (Fla.1974), wherein this Court quoted with approval the long established rule of this Court stated by the revered late Justice Terrell in 1945 (Rosenfelder v. Hut-toe, 156 Fla. 682, 24 So.2d 108) writing for a unanimous court and the overwhelming majority of other jurisdictions, that “No rule is better settled under our democratic theory than this; When one is re-elected or re-appointed to an office or position he is not subject to removal for offenses previously committed.”

Furthermore, the Court said:

“We find that the rule supported by the great weight of authority and specifically adopted by this Court in construing statutory and constitutional provisions authorizing the removal of public officers guilty of misconduct when such provisions do not refer to the term of office in which the misconduct occurred is that a public officer may not be removed from office for misconduct which he committed in another public office or in a prior term of office in the absence of disqualification to hold office in the future because of such misconduct. (See Article VI, Section 4, Florida Constitution 1968, F.S.A.) In Re Advisory Opinion to the Governor, 31 Fla. 1, 12 So. 114 (1893); In Re Advisory Opinion to Governor, 64 Fla. 168, 60 So. 387 (1912); State ex rel. Hardee v. Allen, 126 Fla. 878, 172 So. 222 (1937); Rosenfelder v. Huttoe, 156 Fla. 682, 24 So.2d 108 (1945); State ex rel. Hawthorne v. Wisehart, 158 Fla. 267, 28 So.2d 589 (1946); In re Proposed Disciplinary Action by the Florida Bar Against a Circuit Judge, 103 So.2d 632 (Fla.1958); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Wood's v. Varnum, 85 Cal. 639, 24 P. 843; Speed v. Common Council of City of Detroit et al, 98 Mich. 360, 57 N.W. 406 (1894); Thurston v. Clark, 107 Cal. 285, 40 P. 435 (1895); State ex rel. Schulz v. Patton, 131 Mo.App. 628, 110 S.W. 636 (1908); State ex rel. Attorney General v. Hasty, 184 Ala. 121, 63 So. 559 (1913); State ex rel. Thompson v. Crump, 134 Tenn. 121, 183 S.W. 505 (1916); State v. Scott, 35 Wyo. 108, 247 P. 699 (1926); Jacobs v. Parham, 175 Ark. 86, 298 S.W. 483 (1927); Barham v. McCollum, 174 Ark. 1179, 298 S.W. 484 (1927); Board of Commrs. of Kingfisher County v. Shutler, 139 Okl. 52, 281 P. 222 (1929); Edson v. Superior Court, 98 Cal.App. 367, 277 P. 194; State v. Blake, 138 Okl. 241, 280 P. 833 (1929); In re Fudula et al., 297 Pa. 364, 147 A. 67 (1929); Montgomery v. Nowell, 183 Ark. 1116, 40 S.W.2d 418 (1931); Rice v. State, 204 Ark. 236, 161 S.W.2d 401 (1942); People ex rel. Bagshaw v. Thompson, 55 Cal.App.2d 147, 130 P.2d 237 (1942); State ex rel. Agee et al. v. Hassler, 196 Tenn. 158, 264 S.W.2d 799 (1954); State ex rel Chitwood v. Murley, 202 Tenn. 637, 308 S.W.2d 405 (1957); People v. Hale, 232 Cal.App.2d 112, 42 Cal.Rptr. 533 (1965); Letcher v. Commonwealth, 414 S.W.2d 402 (Ky. 1966); State ex rel. Stokes v. Probate Court of Cuyahoga County, 22 Ohio St.2d 120, 51 Ohio Ops.2d 180, 258 N.E.2d 594 '(1970); Smith v. Godby, 154 W.Va. 190, 174 S.E.2d 165 (1970), 42 A.L.R.3d 675; see also House of Representatives 42nd Cong., 3d Sess., Report No. 81, Inquiry as to Impeachment in Credit Mobilier Testimony as contained in Impeachment, Selected Materials, Committee on the Judiciary, House of Representatives, Ninety-third Congress, First Session, United States Government Printing Office, Washington, 1973.”

The following relevant facts are pertinent:

DATE EVENT
March 1,1968 Present Mayor took office as Mayor of the Consolidated City of Jacksonville (Section 22.03, Chap. 67-1320, Laws of Florida) (A — 1—17)
March 1, 1968 Charter transitional period (Section 22.03, Chap. 67-1320, Laws of Florida)
January 4,1971 Date of alleged perjury, as set forth in indictment therefor (A — 18—19)
February 15, 1971 Date of alleged failure to report by, of gifts received on December 30, 1970, as set forth in indictment therefor (A-19-20)
July 1,1971 Present Mayor took office for first full term as Mayor of the Consolidated City of Jacksonville (A — 22—32)
August 15,1973 Date of alleged failure to report by, of gifts received for period January 1 through June 30, 1973, as set forth in indictment therefor (A-33-34)
July 7, 1975 Present Mayor took office for second full term as Mayor of the Consolidated City of Jacksonville (A — 36—53)

As the City of Jacksonville points out, none of the events set forth in the indictments occurred during the existing term of Mayor and the only indictment covering events occurring in the next preceding four years is failure to report gifts received for the period of January 1 through June 30, 1973, by August 15,1973, which is a misdemeanor not connected with his duties and responsibilities as Mayor.

Since it would therefore appear that removal at this time is inappropriate as a matter of law, it is unnecessary to give consideration to the fulfilling of a prospective vacancy.

Respectfully,

(s)B. K. ROBERTS

CsUAMES C. ADKINS

ROBERTS, Justice,

further dissenting.

An exhaustive study of the National Reporter System and all other available treatises demonstrate a near unanimous rule throughout this nation, both State and Federal, that a public official cannot be removed from office under a current commission for misconduct in a prior one. . See numerous precedents cited in the main dissenting opinion. Therefore, I advise you that in my opinion to do so would violate almost unanimous precedent for more than a century. In view of this rule, the other questions presented are moot. I am authorized to say that Justice Adkins joins me in this view.

(¥>B. K. ROBERTS


author: PER CURIAM.

text:
    Jimmie Lee WOOLEN, Appellant, v. STATE of Florida, Appellee.
    No. AA-55.
    District Court of Appeal of Florida, First District.
    July 12, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Section 813.011, F.S. 1973; Castle v. State, Sup.Ct.Fla.1976, 330 So.2d 10; and Article 10, Section 9, Florida Constitution.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    Jimmy Dan JOSEY and Glenn Dyson Riley, a/k/a “Red” Riley, Appellants, v. STATE of Florida, Appellee.
    No. AA-184.
    District Court of Appeal of Florida, First District.
    July 20, 1976.
    Rehearing Denied Aug. 30, 1976.
    W. Fred Turner and James C. Husbands, Lynn Haven, for appellants.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Appellants-defendants Josey and Riley appeal judgments of conviction of malicious injury to the property of another, a road grader owned by Holmes County.

The primary issue posed by appellants is that the trial court erred in admitting into evidence the Holmes County Grand Jury presentments.

Appellant Josey previously held the office of county commissioner in Holmes County and appellant Riley had been employed in the Holmes County Road Department. Political turmoil in the county resulted in two grand jury presentments; the first on April 11, 1973, and the second on May 9, 1973. The April 11 presentment generally castigated the county officers (clerk, sheriff, and county commissioners) for failure to cooperate. The May 9 presentment attributed the majority of the problems in county government to Josey and two other county commissioners and concluded with a recommendation that the governor suspend them from office for misfeasance and malfeasance. The governor accommodated the grand jury and suspended the three county commissioners, Josey being one of the three. Josey was restored to office by the Florida Senate on February 25, 1974, and on the same date, by information, was charged along with Riley with malicious injury to the personal property of another (a Holmes County road grader). Upon a change of venue, these two appellants were tried and found guilty by a Bay County petit jury.

The gist of the evidence adduced by the state is that Josey and Riley intentionally placed or caused to be placed metal filings and valve grinding compound into the engine of the road grader owned by Holmes County. Motive was of paramount importance, and such was supplied by the state by introducing, over defense counsel’s objection, the above mentioned grand jury presentments. The landmark case of Williams v. State emphasizes that if proffered evidence is relevant to a material fact in issue, it is admissible even though it points to a separate crime. Of course, most information, including the fruits of the bearer of town gossip, might well be termed to be “relevant”; thus, the broad teachings of Williams are not sufficient to resolve the question of relevancy. Before admitting evidence, such as we now consider, the trial court must engage in a balancing process to determine whether the relevancy of the evidence is outweighed by the potential prejudice to the defendant. The balance was tipped in favor of the state in Dodson v. State, but in Colbert v. State relevant testimony was found to be inadmissible because the prejudice to the defendant outweighed the relevance. A review of the cases indicates that the balancing process must be employed on a case-by-case basis.

So, we return to the instant case. Why did Josey and Riley damage the instant road grader? What was their motive ? Surely the state had to adduce proof of the “malice” required by the “malicious” portion of the information, and just as surely the jury was entitled to be apprised of the state’s theory as to motive. A presentment is not of the evidentiary character of an indictment, and save in exceptional circumstances we would be inclined to hold that a grand jury presentment (or an indictment) would be inadmissible. However, under the facts of this case, the scales of admissibility weigh in the state’s favor. We have carefully considered appellants’ other points and find them to be without merit.

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . Sufficiency of the evidence is not challenged. We observe that the evidence overwhelmingly supports the verdicts of guilty.

      . The question of expunging these presentments pursuant to holdings in State v. Interim Report of Grand Jury, 93 So.2d 99 (Fla.1957); In Re Gulf County Grand Jury, 224 So.2d 764 (Fla.App.lst 1969); and In Re Brevard Co. Grand Jury Int. Report, 249 So.2d 709 (Fla.App.4th 1971), was not raised and thus is not here involved.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Dodson v. State, 334 So.2d 305 (Fla.App. 1st 1976), opinion filed June 10, 1976, not yet reported.

      . Colbert v. State, 320 So.2d 853 (Fla.App. 1st 1975).

      . In Smith v. Stale, 48 Fla. 307, 37 So. 573 (1904), the Supreme Court held: “ . The indictment tended to show that the deceased was prosecuting the defendant for stealing his cattle, and furnished a strong motive for murder, and it was therefore both pertinent and admissible.” See also Beard v. State, 131 Fla. 512, 180 So. 1 (1938).


text:
    Jerome KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. AA-358.
    District Court of Appeal of Florida, First District.
    July 20, 1976.
    Rehearing Denied Aug. 30, 1976.
    James A. Johnston, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

In this appeal from a denial of appellant’s Fla.R.Crim.P. 3.850 motion, appellant’s primary grievance is that his plea of guilty to the offense of reckless display of a deadly weapon is not supported by the trial court eliciting a “factual basis” as dictated by Fla.R.Crim.P. 3.170(j).

In support of this argument, appellant argues in his brief:

“From a reading of the transcript of record it is obvious that the Appellant was both bewildered and dumbfounded during both the arrest and his initial appearance in court where he entered his plea of guilty . . . . ”

The foregoing transcript relied upon is that developed during the instant hearing upon appellant’s collateral attack. As cogently pointed out by the State, appellant has not benefited this court with a transcript of the trial proceedings which resulted in the plea of guilty which he now seeks to attack collaterally.

AFFIRMED.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.

      . Williams v. State, 316 So.2d 267 (Fla. 1975).


text:
    Charles Marlin THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. W-265.
    District Court of Appeal of Florida, First District.
    July 12, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. See Hand v. State, Sup.Ct. Fla.1976, 334 So.2d 601.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


text:
    John Angelo VIGNALI, Appellant, v. Cynthia Kae VIGNALI, Appellee.
    No. AA-254.
    District Court of Appeal of Florida, First District.
    July 12, 1976.
    Richard E. Gentry, Jacksonville, for appellant.
    No appearance for appellee; no brief filed.
   PER CURIAM.

Appellant having failed to furnish this Court with a record sufficient to demonstrate error, and orders and judgments of the trial court reaching an appellate court clothed with a presumption of correctness, the final judgment here appealed is

AFFIRMED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


text:
    Cecil Emily JOHNSON, Appellant, v. The TOWN OF SUWANNEE RIVER, Florida, Appellee.
    No. Z-6.
    District Court of Appeal of Florida, First District.
    July 13, 1976.
    Rehearing Denied Sept. 1, 1976.
    Albert C. Simmons of Simmons & Langley, Chiefland, for appellant.
    William O. Clifton, Trenton, for appel-lee.
   RAWLS, Acting Chief Judge.

Pursuant to the provisions of Florida Statute 171.02 (1973), appellant, Cecil Emily Johnson, owner of a substantial acreage of land located within the corporate limits of appellee, Town of Suwannee River, Florida, appeals from a final judgment in which the trial court refused to exclude some 400 acres from the corporate limits of said town.

The trial court made the following findings of fact in its final judgment, viz:

“The Town of Suwannee River, Florida, comprises approximately 1,500-1,600 acres in Levy and Gilchrist Counties lying South and East of the Suwannee River. The Town is traversed by U.S. Highway #19-98, and State Road #26 ends adjoining U.S. Highway #19-98 within the corporate limits. Likewise, a railroad traverses the Town. The main development of the Town is along U.S. Highway #19-98. Other than the Petitioner’s [appellant’s] land, the majority of the Town is subdivided into lots or tracts, but has not otherwise been developed.
“The Town of Suwannee River levies a three (3) mill ad valorem taxation. The Town has built a Civic Center-Town Hall, provides certain street lighting, subsidizes a private garbage disposal operation, subsidizes a volunteer fire department, has paved approximately one (1) mile of streets, and maintains through a contract with the County certain other pre-existing roads and streets. The City provides no water or sewage services and maintains no police forcé. The Town Government has adopted a building, electrical and plumbing code, and is in the process of adopting a zoning ordinance. “The Petitioner’s land sought to be ousted, comprises approximately 400 acres, lying in the Northeast corner of the corporate limits within a mile of U.S. Highway #19-98. It is bounded on the East by State Road #26 and on the West by the Seaboard Coastline Railroad. The lands adjoining the property sought to be ousted on the East and North are rural farm lands sparcely inhabited. The land sought to be ousted is bounded on the South by other lands owned by the Petitioner which are not sought to be ousted. The City has paved a street West of the Railroad, but there is no crossing from said street to Petitioner’s lands. The corporate limits actually jog North one-half section to take Petitioner’s land into the corporate limits. Petitioner’s land is completely uninhabited, there being thereon a planted pine tree plantation, several hundred acres of cleared area for corn and soybean farming, the remainder being wild and unimproved. Portions of the land are used for cattle pasturage. All of the land is high and dry and suitable for subdivision, although Petitioner has declared her intentions that the lands shall remain in their present condition and used for their present purposes. The Petitioner lives outside the corporate limits on land adjoining the property sought to be ousted.
“There is no other farm or farming operation or planted tree plantation within the corporate limits other than Petitioner’s. There is at least one (1) other large tract within the corporate limits, that being approximately 160 acres upon which is located Fannin Springs.
“Petitioner’s land receives none of the municipal benefits listed hereinabove other than the protection afforded by the volunteer fire department. However, all of the said benefits would be available were the land inhabited and/or subdivided, and if so, would be commensurate with the benefits received by other lands within the municipal limits. The land of the Petitioner is suitable for development as a subdivision, and as such will potentially be afforded municipal benefits.”

Appellant has no quarrel with the foregoing findings of fact, her sole contention is that the trial court erred in applying the law to those facts. We agree and reverse.

The elements essential to constitute a municipal corporation comprehend a contiguous territory sufficiently populated and industrialized to make it necessary that additional and better governmental services such as police protection, sanitary improvements, lights, water, electricity, sewage disposal, paved streets, and other municipal conveniences be provided. The area incorporated must be suited for municipal purposes and must bear a just proportion to the population included. The foregoing elements as a whole were found absent by the trial court when it found: 1) the town provides no water or sewage services or police protection; 2) no streets paved or otherwise to the subject property; 3) the corporate limits jog north one-half section in order to include the property; 4) the land is uninhabited and is now being utilized for agricultural purposes (primarily for growing pine trees, corn and soybeans with the remainder being wild and unimproved); and 5) that appellant’s land receives no municipal benefits other than the protection afforded by the volunteer fire department.

Although not cited in entering its final judgment, apparently, the trial court relied upon the opinion of the Fourth District Court of Appeal in Town of Malabar v. State. The Malabar decision and line of cases relied upon therein specifically found that the land sought to be ousted “received benefits worthy of cognizance in the past, and there were substantial prospects of benefits in the future”, and that the land in question was of the same nature as most of the other land located in the town. As disclosed in the trial court’s findings of fact, the subject land is not of the same nature as most of the other land located in the town, and, save for the possible services of the volunteer fire department, it received no municipal benefits. The finding by the trial court "that all of the said [municipal] benefits would be available were the land inhabited and/or subdivided, and if so, would be commensurate with the benefits received by other lands within the municipal limits” (emphasis supplied) does not constitute a metamorphic transformation of agricultural land into municipal property.

The Supreme Court’s decision in Smith v. Town of Montverde is squarely in point. There, the owners of 450 acres sought to exclude same from 1,360 acres of land which had been incorporated within the Town of Montverde. The Supreme Court, in reversing a judgment in favor of the town, stated:

“When considering the actual use to which petitioners’ land is being applied and the potential, natural and appropriate use of the land by reason of the factual surrounding circumstances, it is apparent that the rendering or tendering of municipal services in respect thereto would not be of commensurate value to the petitioners as would like services rendered or tendered to the lands (and the owners thereof) appropriately placed within the municipality. Furthermore, neither the pleadings nor the evidence shows that any inequity will result from the exclusion.”

The judgment appealed is REVERSED.

BARKDULL, THOMAS H., Jr., Associate Judge, and MELVIN, WOODROW M., Associate Judge, concur.

      . The Town of Suwannee River contains less than 150 qualified electors, thus bringing this action within the purview of Florida Statute 171.02 (1973).

      . State v. Town of Boynton Beach, 129 Fla. 528, 177 So. 327 (1937); State v. Town of Lake Placid, 109 Fla. 419, 147 So. 468 (1933); and State v. City of Largo, 110 Fla. 21, 149 So. 420 (1933).

      . Town of Malabar v. State, 195 So.2d 43 (4 Fla.App.1967).

      . Smith v. Town of Montverde, 38 So.2d 135 (Fla.1948).


author: BY THE COURT.

text:
    Otis WILSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-479.
    District Court of Appeal of Florida, First District.
    July 15, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

Upon considering the briefs and the record, affirmed on authority of Berry v. State, 316 So.2d 72 (Fla.App.1st, 1975).

BOYER, C. J., and MILLS and SMITH, JJ., concur.


author: McNULTY, Chief Judge.

text:
    James L. KIRK, II, Executor of the Estate of Josephine Thompson, Deceased, Appellant, v. Stanley BAUMANN et al., Appellees.
    No. 76-221.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.
    Rehearing Denied Sept. 2, 1976.
    Malka Isaak and Hume F. Coleman, Holland & Knight, Lakeland, for appellant.
    James R. Clouse, Jr., Fort Myers, for appellees.
   McNULTY, Chief Judge.

Appellant, seeking a declaratory judgment as to ownership of certain stock and injunctive relief, filed a notice of lis pen-dens pursuant to § 48.23, F.S.1975, intending thereby to prevent alienation of the stock during the pendency of the action. On motion, the trial judge discharged the lis pendens and this interlocutory appeal ensued. We affirm.

The one point meriting discussion herein involves the trial court’s interpretation of § 48.23(3), F.S.197S. That section provides:

“(3) When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.’’ (Italics supplied.)

The trial court construed this section to mean that, in a situation such as here wherein the action is not founded on a duly recorded instrument or mechanic’s lien, a notice of lis pendens may not be filed absent a prior order of court. Appellant argues, on the other hand, that the section merely gives the court authority to discharge such lis pendens, upon good cause shown, after notice thereof has been filed. We agree with the trial court.

At common law, of course, a lis pendens operated only as against realty. Section 48.23, supra, contemplates that it may also operate as against personalty; but it was obviously the intent of the legislature in enacting paragraph (3) thereof to require that the same safeguards applicable to injunctions be observed. If it were otherwise, one could avoid the requirements' of notice, the posting of an adequate bond and the showing of irreparable harm as required for injunctions by Rule 1.610, RCP, merely by filing a notice of lis pendens. Neither public policy, the interests of justice nor, indeed, due process can tolerate such a result.

In view whereof the judgment appealed from should be, and it is hereby, affirmed.

BOARDMAN and SCHEB, JJ., concur.


text:
    Charlie Sylvester MAPP, Appellant, v. STATE of Florida, Appellee.
    No. BB-325.
    District Court of Appeal of Florida, First District.
    July 23, 1976.
    Salvatore D. Mollica, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Castle v. State, 330 So.2d 10 (Fla. 1976).

BOYER, C. J., and MILLS and SMITH, JJ., concur.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Marvin R. SPELLINGS, Jr., Appellee.
    No. AA-229.
    District Court of Appeal of Florida, First District.
    July 15, 1976.
    Rehearing Denied Aug. 25, 1976.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellant.

      Fredric G. Levin of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

AFFIRMED. See Government Employees Ins. Co. v. Farmer, Fla.App. 1st, 330 So.2d 236, opinion filed April 13, 1976.

BOYER, C. J., RAWLS, J., and WARREN, LAMAR, Associate Judge, concur.


text:
    Ronald VAN GRIFFIN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-202.
    District Court of Appeal of Florida, First District.
    July 23, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.