author: FAULKNER, Justice.

text:
    Governor George C. WALLACE et al. v. ALABAMA PUBLIC SERVICE COMMISSION et al. (two cases).
    77-588, 77-589.
    Supreme Court of Alabama.
    Nov. 10, 1978.
    Maurice F. Bishop, Birmingham, for appellants.
    Oakley Melton, Jr., Montgomery, for Independent Telephone Co. appellees.
   FAULKNER, Justice.

This is a direct appeal from the Public Service Commission under Act No. 851, Regular Session, 1978.

Gov. Wallace, and the State of Alabama appealed refund orders of the PSC dated April 18 and May 2, 1978, and filed a petition for mandamus to vacate the orders, and to require the PSC to enter orders directing a more extensive refund. The refunds were pursuant to this Court’s decision in Alabama Public Service Commission v. South Central Bell, 348 So.2d 443 (1977). We dismiss the appeal and deny the petition for mandamus.

The appellees are independent telephone companies which had published, and filed with the PSC a tariff or schedule of rates, and charges concurring in, and adopting, the intrastate toll rates of South Central Bell. Under this arrangement, appellees’ increases were automatic when Bell received an increase. Intrastate toll revenues received by appellees were paid or credited to Bell; under a standard settlement agreement, each appellee was reimbursed for all its toll expenses, and paid a return on its toll plant based on the overall rate of return of Bell.

In February, 1975, Bell sought to increase its intrastate rates by $59,109,900 annually. On September 5, the PSC issued its order granting an increase of only $16,694,545, but on January 6,1976, the Circuit Court of Montgomery County allowed the full amount requested by Bell to be placed in effect under bond. This Court’s opinion affirmed the PSC’s order, and provided for the “vacation of the writ of supersedeas and a refund with interest for the appropriate sums collected.” Subsequently, the PSC ordered Bell to refund, in full, all the sums it had collected under supersedeas (plus interest and taxes) from January 8, 1976-September 1, 1977, including refunds to independent telephone companies of amounts received as a result of the increased rates under bond.

On February 23, 1978, Bell reported to the PSC as required (1) the amount Bell refunded to independent telephone companies (including interest) and (2) the amount retained by independent telephone companies owed to its customers (excluding interest and taxes). Of the 35 independent telephone companies, 20 have refunded both categories of amounts (i. e., those received back from Bell and those retained by the independents). Appellees, however, filed proposals to refund only those amounts actually refunded to them by Bell. No notice was given, and no hearings were held in reference to these proposals. Consequently, the record contains only copies of several PSC orders, and the proposals themselves. The proposals were approved by the PSC, with Commissioner McDaniel dissenting.

This is the first direct appeal to this Court under the statute enacted by the Regular Session of the Legislature. Section 1 of the Act provides:

“In all cases involving controversies respecting rates and charges of telephone companies or public utilities, an appeal from any action or order of the Alabama Public Service Commission in the exercise of the jurisdiction, power, and authority conferred upon it by Title 37, Code of Alabama 1975, as amended and supplemented, shall lie directly to the Supreme Court of Alabama. All such appeals shall be given a preferred setting in the Supreme Court and shall be heard and determined by said Court en banc. Nothing in this Act shall be deemed to apply to any such cases other than those in which rates and charges are involved. All such appeals shall be taken within thirty days from the date of such action or order of the Alabama Public Service Commission and shall be granted as a matter of right and be deemed perfected by filing with the Public Service Commission a bond for the security of the cost of said appeal when the appellant is a utility or person, and by filing notice of an appeal when the appellant is the State of Alabama.” (Emphasis added.)

As we construe the Act, a direct appeal from the Public Service Commission to this Court lies only from a final order of the PSC in cases involving rates and charges of a telephone company or a public utility. Jurisdiction under the Act is specifically limited to final orders in those cases. In this case, the Public Service Commission’s orders relate only to refunds to the toll subscribers of the independent telephone companies.

THE APPEAL IS DISMISSED, AND THE PETITION FOR MANDAMUS IS DENIED.

All the Justices concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    BOARD OF DENTAL EXAMINERS et al. v. Grady S. KING.
    Civ. 1187.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1977.
    Rehearing Denied Dec. 7, 1977.

      Charles M. Crook, Montgomery, for appellants.
    Robert L. Hodges of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
   BRADLEY, Judge.

The Board of Dental Examiners revoked the license of Dr. Grady S. King to practice dentistry and he appealed to the Circuit Court of Madison. County. After a wide-ranging hearing that court reversed the board’s revocation order. The board appeals to this court.

On October 29, 1975 the board notified Dr. King in writing that he was to appear before it on November 22, 1975 to show cause if any he had why his license to practice dentistry should not be suspended or revoked. King then requested a more definite statement of the charges made against him, and the board responded by filing a nine count statement of charges against him.

After completion of Dr. King’s discovery efforts, the board conducted a hearing on the enlarged complaint at which witnesses testified both for and against Dr. King. At the conclusion of the hearing, the board found Dr. King guilty of the following charges and revoked his license:

“6. Gross negligence in the practice of dentistry in directing and permitting your dental assistant or others in your office to perform procedures upon patients without sufficient or adequate supervision or instruction.
“7. Gross negligence in the practice of dentistry in directing and permitting your dental assistant or assistants, to-wit, Kathrine S. Perky, Jo Ann Moore and Ann Smith, to perform procedures upon patients without sufficient or adequate supervision or instruction.
“8. Employing, allowing or permitting unlicensed persons to perform work in your office which, under the provisions of the Alabama Dental Practice Act, can only be legally done by a person or persons holding a license to practice dentistry or dental hygiene.
“9. Employing, allowing or permitting unlicensed persons, to-wit, Kathrine S. Perky, Jo Ann Moore and Ann Smith, to perform work in your office which, under the provisions of the Alabama Dental Practice Act, can only be legally done by a person or persons holding a license to practice dentistry or dental hygiene, including: packing amalgam filling for a patient; installing a bridge for a patient, Mr. Dan Marshall; seating a crown for a patient, Mr. Edd Turner.”

Dr. King appealed the revocation order to the Circuit Court of Madison County and asked that the revocation order be. overturned and that he be permitted to continue the practice of dentistry. The circuit court reversed the board’s order revoking Dr. King’s license. As a result of the circuit court’s action the board brings this appeal.

The first issue presented on appeal concerns whether the circuit court applied an improper scope of review to the action which the Board of Dental Examiners took against Dr. King.

At the outset of the proceedings in the Madison County Circuit Court the board’s attorney suggested to both the judge and the lawyer for Dr. King that the circuit court’s scope of review in the matter before it was limited to a consideration of the record taken at Dr. King’s hearing before the Board of Dental Examiners. The court, however, apparently rejected the board’s suggestion and permitted Dr. King to present evidence outside the original record. The “independent” evidence was adduced by Dr. King in an effort to demonstrate that the board’s decision revoking his license was arbitrary and/or unlawful. Title 46, section 120(30), Code of Alabama 1940 (Recomp. 1958) (Supp.1973). Counsel for the board objected to the court’s action, contending that a hearing before the court should be restricted to testimony (and exhibits) evidenced in the record made before the dental board and filed with the circuit court.

As the events described above indicate, the circuit court did not limit its review to the record taken at Dr. King’s hearing before the board.

Thus, we agree with the contention made by the board at trial (and on appeal) and conclude that the circuit court exceeded its scope of review in reversing the board’s determination that Dr. King’s license to practice dentistry should be revoked.

The standard of review upon appeal to a circuit court from an order suspending or revoking a dental license is set out in Title 46, section 120(30), Code of Alabama (1940) (Recomp. 1958) (Supp.1973). Section 120(30) provides in applicable part:

“From any order of the board . revoking or suspending a [dental] license . any party affected thereby may bring an action in the circuit courts to set aside said order on the ground that the same is unlawful or arbitrary.” (Emphasis supplied.)

In its brief and in oral arguments' before this court, Dr. King’s attorney asserted that the use of the statutory language “unlawful” must be interpreted liberally and that a liberal interpretation of such language would permit the introduction of evidence upon appeal to a circuit court which was independent or extraneous to the evidence presented in the hearing before the dental board. Counsel for Dr. King urged that such extraneous evidence is necessary in order to demonstrate that a party’s right to due process of law was denied by the proceedings before the board.

Although Dr. King’s arguments are persuasive, we do not believe that our legislature intended the circuit court’s review to extend to matters not documented by the record taken during a hearing before the Board of Dental Examiners.

In the interpretation of statutes, the legislative will is very important, and, in fact, it has been said that the intent of the legislature constitutes the law. Abramson v. Hard, 229 Ala. 2, 155 So. 590. In construing and applying a statute, the essential object to be determined is the valid legislative intent. In reaching this determination we must consider the subject upon which the law operates, its language and purpose. And in order to further clarify legislative intent this court may examine any prior statutes (or other laws) which deal with the same subject as the statute presented for review.

The statutory section which dealt with an appeal to a circuit court from an order by the Board of Dental Examiners prior to section 120(30) was Title 46, section 94, Code of Alabama 1940 (Recomp. 1958) (repealed 1973). Section 94 specifically provided that “upon . . . appeal [to a circuit court] said cause shall be tried de novo.” However, when section 120(30) replaced section 94 the legislature deleted any reference to a trial de novo. Instead of permitting the circuit court to conduct an entirely new trial where the court could substitute its own findings and judgment for that of the board, section 120(30) mandated that the board’s action be set aside only if such action was unlawful or arbitrary. Thus, it is reasonable to conclude that if the legislature had intended to provide a trial de novo upon an appeal from a judgment by the Board of Dental Examiners revoking a dental practitioner’s license, the legislature could have done so by either leaving the de novo language of section 94 intact when it modified (or repealed) other statutory provisions dealing with the practice of dentistry or by placing language in section 120(30) expressly permitting a circuit court to conduct a de novo proceeding. Since the legislature exercised neither of these options, section 120(30) cannot be viewed as authorizing a circuit court to re-try a matter which has already been tried before a professional regulatory body expressly created to determine whether the evidence placed before it warrants the revocation or suspension of a dental practitioner’s license. Title 46, sections 120(5) and 120(22), Code of Alabama 1940 (Recomp. 1958) (Supp.1973).

Having determined what the legislature did not intend to do when jt substituted section 120(30) for a provision which expressly allowed de novo proceedings upon appeal to a circuit court, it remains the duty of this court to decide what the legislature did intend the circuit court’s scope of review to be.

Although we recognize that statutes regulating and safeguarding the practice of professions such as dentistry require that a liberal construction be given these statutes in order that the purpose of their enactment be attained, see Title 46, section 120(1), Code of Alabama 1940 (Recomp. 1958) (Supp.1973), we cannot cast aside our common sense in an effort to arrive at the intent of the legislature in situations where the statutory language used is not precise. And the statutory language of section 120(30) is not precise. It provides that a circuit court may set aside an order by the dental board revoking or suspending a dental license only if the board’s order is unlawful or arbitrary.

Despite the fact that both parties on appeal concede that the use of the word “arbitrary” in section 120(30) permits a circuit court to set aside the board’s action if such action is unsupported by any substantial evidence, Dr. King contends that the word “unlawful” must be construed in such a manner as to enable the circuit court to examine evidence which was not presented at the board’s hearing in order for the court to determine if the result of that hearing should be set aside. However, such a construction of the word “unlawful” would in effect permit a trial de novo by the circuit court — a result which, as stated earlier, the legislature could not have intended since it did not expressly provide for a de novo trial in section 120(30).

Furthermore, the maxim “expressio unius est exclusio alterius," though not a rule of law, is certainly an aid to the interpretation of statutory language. Stated briefly, the maxim stands for the proposition that the expression of one thing is the exclusion of another. In the present case the legislature provided that an order by the dental board would be set aside if it was unlawful or arbitrary. Thus by logical implication the right to a de novo proceeding was excluded by the legislature. Consequently, logic further dictates that if the circuit court is not entitled to re-try the case by means of an entirely new proceeding, then that court must be limited to an examination of the record before the Board of Dental Examiners in reaching its decision on whether the board’s action was unlawful or arbitrary.

In delineating a circuit court’s scope of review with respect to a party’s appeal from an order by a professional regulatory board our legislature has provided a number of alternatives. Generally, however, the court’s review is defined in either of two ways. On one hand, the circuit court may be permitted by statute to try the appeal in an entirely new proceeding. On the other hand, statutory provisions may restrict the court to a determination from the record before the professional regulatory board. These entirely contrasting means of reviewing a professional regulatory case must be taken into account when determining what the legislature intended when, as here, it specified neither alternative.

In discussing the maxim of “expressio unius est exclusio alterius," our supreme court in Weill v. State, 250 Ala. 328, 34 So.2d 132, stated that the doctrine had application when:

“. . .in the natural association of ideas, that which is expressed is so set over by way of contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment. . . .”

In regulating dental practitioners the legislature noticeably omitted a provision for a trial de novo in circuit court in section 120(30) despite the fact that section 120(30)’s statutory predecessor had expressly mandated such a procedure. Thus, it may be inferred that the legislature intended the review by the circuit court to be treated in an opposite and contrary manner. And the opposite or contrary manner of a review by a trial de novo is a review by examination of evidence actually adduced at the hearing before the professional regulatory board. Accordingly, in deciding whether the dental board’s action was unlawful, section 120(30) must be construed to limit the circuit court to a review of the record before the board.

Moreover, the very term “unlawful” presupposes that there must be an existing law. In this instance the existing law is Chapter 5, Title 46, Code of Alabama 1940, (Recomp. 1958) (Supp.1973). However, no provision in Chapter 5 permits a circuit court to review extraneous or independent evidence in deciding whether the board’s hearing was unlawful. On the other hand, Chapter 5 does require that procedural due process be complied with, Title 46, sections 120(22) and 120(29), Code of Alabama 1940 (Recomp. 1958) (Supp.1973), and the circuit court may properly examine the record taken at the hearing before the board in order to determine if adequate notice of the hearing (including a fair statement of charges) was provided by the board.

Thus we must reject Dr. King’s argument that the circuit court may go outside the record before the dental board and admit independent evidence in support of a party’s charge that his right to due process was violated in an unlawful manner. Nor may the circuit court modify the severity of the punishment ordered by the board as Dr. King contends. Although the circuit court may examine the manner in which the board reaches its decision to subject a dental practitioner to discipline and set aside the board’s decision if it has no substantial basis in law or fact, section 120(30) does not authorize the circuit court to disregard the board’s judgment that a dental practitioner’s license should be suspended or revoked. If the record filed with the circuit court demonstrates that the proceedings before the Board of Dental Examiners were conducted in compliance with the procedural due process requirements of Chapter 5, Title 46, section 120(1) et seq., and such proceedings were not reasonably calculated to deprive a party of fundamental justice, and the board’s action was supported by substantial evidence, there is no authority for the circuit court upon review to supplant the board’s judgment as to the severity of punishment with its own judgment as to the extent and severity of punishment.

In the case at bar the circuit court exceeded the scope of review authorized in sections 120(29) and (30) by conducting a de novo hearing and by failing to limit itself to the record made before the board. For this error the judgment of the trial court is reversed and the case remanded for a review within the guidelines set out in this opinion.

On appeal to this court the parties raise two additional issues which merit our consideration. First, counsel for Dr. King argued that Title 46, section 120(22), Code of lAlabama 1940 (Recomp. 1958) (Supp.1973) should be pronounced unconstitutional on the ground that it is void for vagueness. Secondly, Dr. King’s attorney urged that this court declare that the combination of investigative and adjudicative functions reposed in the Board of Dental Examiners effectively denies dental practitioners their right to due process. The basis of this argument is that the conflicting nature of such functions creates an unconstitutional risk that board members will be biased toward those persons whom the board eventually decides to proceed against.

In considering Dr. King’s first argument we note that section 120(22) sets out fifteen separate grounds for which a dentist’s (or dental hygienist’s) license may be revoked. The sixth ground set forth in this statute is “gross negligence in the practice of dentistry.” Dr. King contends that in view of the fact that the dental board revoked his license on this basis, his right to practice was properly reinstated in that the term “gross negligence” is so vague and indefinite that the board should be precluded from making a determination with regard to it. However, we disagree with Dr. King’s contention.

Where statutory language is such that it provides a sufficiently definite warning so that the conduct sought to be prohibited may be ascertained or comprehended within the common meaning of words or practices, such language will not be held to be unconstitutionally vague. See Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886; Devine v. Wood, 286 F.Supp. 102 (M.D.Ala.).

Pursuant to the aforementioned test (or tests of a similar nature) a number of eases have upheld the validity of statutes which permit revocation of a professional license on the grounds of “incompetency,” “gross immorality,” and “negligent or wilful” violation of rules promulgated by health authorities. Brinkley v. Hassig, 83 F.2d 351 (10th Cir.); Yoshizawa v. Hewitt, 52 F.2d 411 (9th Cir.); Green v. Blanchard, 138 Ark. 137, 211 S.W. 375; State Board of Medical Examiners v. Spears, 79 Colo. 588, 247 P. 563; State Dental Examiners v. Savelle, 90 Colo. 177, 8 P.2d 693. Moreover, in Lehmann v. State Board of Public Accountancy, 208 Ala. 185, 94 So. 94, our supreme court held that a provision warranting revocation of an accountant’s certificate for “unprofessional conduct” was not void for indefiniteness or uncertainty. Consequently, we do not believe that the term “gross negligence” is inherently vague to a degree that a provision which uses such language as a ground for disciplinary action must be declared unconstitutional.

Dr. King also argues that members of the dental board were prejudiced in the instant case by earlier complaints which the board had received against him. Accordingly, Dr. King contends that since the board’s investigatory function requires that the board members have knowledge of prior complaints these members will be tainted with bias upon any subsequent exercise of the board’s quasi-judicial function. Therefore, he argues that the combination of investigative and adjudicative functions exercised by the Board of Dental Examiners is unconstitutional.

In regard to a very similar contention, Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712, held that the combination of investigative and adjudicative functions in a regulatory body did not, without more, constitute a violation of due process. In addition, the United States Supreme Court concluded in Withrow that the blending of such functions did not create an unconstitutional risk of bias.

Moreover, the mere fact that a professional regulatory board (which has received legislative authority to investigate and adjudicate charges against members of its profession) has had prior contact with the particular individual or considered other, separate charges against him, is not sufficient, in the absence of some showing to the contrary, to demonstrate that the board’s members are biased. See Pangburn v. CAB, 311 F.2d 349 (1st Cir.). Indeed, those persons who serve on professional regulatory boards are presumed to be men and women of “conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances,” Withrow v. Larkin, supra. And in order to rebut this presumption, a party seeking to demonstrate prejudice or antipathy on the part of one or more board members must show at the outset of (or during) the hearings before the board that the risk of bias is intolerably high or such that there is a substantial temptation on the part of the members sitting in their quasi-judicial capacity to pre-judge the case with regard to any issue to be presented (or actually presented) by the party challenging the board’s impartiality. See Withrow v. Larkin, supra.

Thus we conclude that the unification of investigatory and adjudicative proceedings in a professional regulatory board is not constitutionally impermissible.

Furthermore, such a conclusion is even more valid when it is remembered that the decision of the board must be supported by substantial evidence in order to be upheld on appeal to a circuit court.

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.

      . The latter evidence involved a deposition by a member of the dental board which was taken after the board’s order and introduced during the proceedings in circuit court.

       This case was brought under Chapter 5, Title 46, section 120(1) et seq., Code of Alabama 1940 (Recomp. 1958) (Supp.1973). The statutory provisions discussed in this opinion are referenced to sections found in the 1973 supplement to the Alabama Code. However, under the newly revised Code of Alabama the provisions regulating and safeguarding dentists and dental hygienists are now found in Chapter 9, Title 34, section 1 et seq., Code of Alabama 1975. The new Code is effective October 31, 1977.
      Nonetheless, the statutory language construed in this opinion has not been revised or changed by the new Alabama Code.

      . Yoshizawa v. Hewitt, 52 F.2d 411, 413 (9th Cir.) stated:
      “ ‘ “Gross negligence” is that entire want of care which would raise a presumption of conscious indifference to consequences; an entire want of care, or such a slight degree of care as to raise the presumption of entire disregard for, and indifference to, the safety and welfare of others; the want of even slight care or diligence.’ ” (Citations omitted.)

      . In order to demonstrate that the members of the Board of Dental Examiners are biased, a party who wishes to challenge the board’s impartiality may use the discovery procedures provided for in Chapter 5, or testimony of the members themselves (including other persons with relevant information) taken at the hearing before the board.


author: SHORES, Justice. TORBERT, Chief Justice

text:
    In re BOARD OF DENTAL EXAMINERS et al. v. Grady S. KING. Ex parte Grady S. KING.
    77-209.
    Supreme Court of Alabama.
    July 21, 1978.
    Robert L. Hodges of Ford, Caldwell, Ford & Payne, Huntsville, for petitioner.
    Charles M. Crook, Montgomery, for respondents.
   SHORES, Justice.

We granted certiorari in this cause because we have not heretofore expressed an opinion on the scope of review in the circuit court under § 34-9-25, Code 1975, formerly Title 46, § 120(30). We cannot agree with the Court of Civil Appeals, 364 So.2d 311, that the circuit court is limited to matters documented in the transcript of the proceedings held before the State Board of Dental Examiners.

We agree that the statute does not permit a de novo hearing in the circuit court. However, a dentist disciplined by the Board has a clear right to show by the evidence that the Board’s action denied him due process. All boards, as well as courts, must observe that fundamental right. See Katz v. Alabama State Board of Medical Examiners, 351 So.2d 890 (Ala.1977). And this may be shown by evidence not included in the transcript of the proceedings before the Board. We cannot agree with the Court of Civil Appeals in holding that the statute precludes the introduction of independent or extraneous evidence in the circuit court to establish a claim that the Board acted unlawfully or arbitrarily or in such a manner as to deny Dr. King due process.

We, therefore, reverse and remand to the Court of Civil Appeals to determine whether the trial court erred in holding that the Board acted unlawfully or arbitrarily as shown by the evidence or in such a manner as to deny due process and, in making this determination, the Court of Civil Appeals is not limited to the proceedings before the Board.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially):

Section 34-9-25, Code 1975, formerly Title 46, § 120(30), provides for determination by the circuit court as to whether the order of the Board of Dental Examiners is unlawful or arbitrary. Such judicial determination may include a ruling on an allegation that the dentist was not afforded due process of law. However, as stated by the majority, section 34-9-25 does not provide for a de novo hearing in the circuit court.

Since a hearing in an action brought under section 34-9-25 to set aside an order of the Board is not de novo, the scope of review by the circuit court should be a determination as to whether the order is supported by the evidence introduced before the Board as well as other evidence presented to the circuit court. If so, the order should not be disturbed by the trial court. Further, I agree with the majority that, if denial of due process is alleged, the dentist has a clear right to introduce evidence not included in the transcript of the proceedings before the Board which tends to establish his claim.

Because the Court of Civil Appeals did not adopt this interpretation of the scope of review under section 34-9-25, it was unnecessary for that court to determine whether the trial court erred in holding that the Board acted unlawfully or arbitrarily or in such a manner as to deny Dr. King due process. Accordingly, by reversing the Court of Civil Appeals on this issue, it does not necessarily follow that the circumstances of this case mandate affirmance of the trial court decision.


text:
    BOARD OF DENTAL EXAMINERS et al. v. Grady S. KING.
    Civ. 1187.
    Court of Civil Appeals of Alabama.
    Sept. 27, 1978.
    Rehearing Denied Nov. 1, 1978.
   On Rehearing After Remand from Supreme Court

BRADLEY, Judge.

This case came to us upon remand from the Alabama Supreme Court. As a result of the supreme court’s remand we issued an opinion on August 23, 1978. Upon rehearing, the opinion of August 28 is hereby withdrawn and the following opinion substituted in its place.

In our original opinion (dated November 2, 1977) we concluded that a de novo trial was not permitted upon an appeal from a decision by the State Board of Dental Examiners to a circuit court and that upon appeal a circuit court was limited to a consideration of testimony and evidence documented in the transcript of the proceedings held before the Board. The supreme court reversed us, however, holding that while a de novo proceeding was improper, the circuit court could, nevertheless, permit the introduction of independent evidence to establish a claim that the Board acted unlawfully or arbitrarily or that it acted in such a manner as to deny the complaining party due process.

Pursuant to the directions of the supreme court we have carefully examined the transcripts taken before both the Board and the circuit court, as well as the deposition which was at issue during the initial arguments in this matter, and have determined that the Board of Dental Examiners deprived Dr. King of due process. Consequently, the judgment of the circuit court setting aside and holding for naught the Board’s decision is hereby affirmed.

The right to engage in the practice of dentistry is a property right that may be denied only if the requirements of due process are complied with. See Katz v. Alabama State Board of Medical Examiners, Ala., 351 So.2d 890 (1977). The deliberations by the Board in this case do not demonstrate compliance with the requirements which are fundamental to due process. There existed a file containing previous charges against Dr. King (which dated back to 1963). The Board of Dental Examiners was in possession of this file. One Board member testified by deposition that this file was present during the course of the Board’s deliberations on the present charges against Dr. King and that the prior trouble which Dr. King had had with the Board was discussed at that time. The file had not been introduced into evidence at the hearing before the Board. And in making a determination after a hearing an administrative board acting as a quasi-judicial body must limit its consideration to matters of record and cannot rely on material not introduced into evidence at the hearing. Pennsylvania State Board of Funeral Directors v. Errichetti, 440 Pa. 40, 269 A.2d 758 (1970); Posner v. Martin, 135 A.2d 156 (D.C.Mun.Ct.App.1957). 1 Cooper State Administrative Law 430 (1965). Such a rule is basic to due process and the requirements of a fair hearing. Posner v. Martin. An individual’s right to a fair hearing is destroyed if an agency bases its findings on matters not introduced into evidence. Posner v. Martin. Cf. Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937).

In the present case some questions were asked by the Board members concerning Dr. King’s earlier appearances before various dental grievance committees. The details of some of these appearances were related by Dr. King to the Board. However, these questions did not deal with all of the prior charges against Dr. King, nor did they fully cover the entire spectrum of what was a rather extensive file documenting Dr. King’s previous indiscretions in the practice of dentistry. Accordingly, we must assume on the basis of the deposition of the Board member that the entire file or record regarding Dr. King was involved in the Board’s deliberations. As indicated earlier, this file was not introduced into evidence at the hearing before the Board.

Moreover, despite the fact that both Board members who were questioned about the file denied that its contents influenced their decision in this matter, we, nevertheless, believe that there was sufficient evidence before the circuit court for it to conclude that Dr. King’s right to due process was violated. There was testimony before the trial court that his “prior trouble” with the Board was discussed by the Board during its deliberations preparatory to a decision. The trial court could have concluded from this testimony that the “prior troubles” of the doctor did enter into the deliberations of the other Board members in the absence of testimony by them that the earlier charges did not play a part in their determinations regarding Dr. King in the instant case. Such a finding is in keeping with the principle that a decision by an administrative tribunal must maintain an appearance of fairness. See Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977).

However, we wish to emphasize that the mere existence of previous charges against a dentist and the fact that the Board members are aware of such charges because of their prior dealings with them in their capacity of regulating the dental profession does not automatically necessitate a finding that the prior charges were used in a subsequent case as the basis for the Board’s decision regarding a licensee’s guilt or innocence. For us to formulate a rule recognizing that the mere existence of previous charges constitutes violation of due process in subsequent matters would preclude the same Board from ever considering further complaints against a dentist once its members had received and reached a decision on the initial charges against the individual. Indeed, before further charges could be brought, an entirely new Board would have to be appointed to consider the charges since the members of the Board who reviewed the initial complaint would generally be aware of the prior charges against the dentist in any subsequent procedure against the same individual. Such a view would be inconsistent with the legislative intent in creating a body of dentists to review the actions of the members of their own profession. Accordingly, we are persuaded that the better view requires that the evidence regarding the previous charges against a complaining party be demonstrably shown to have been considered in the subsequent proceeding against that party without affording him (or her) requisite due process. In this case there was sufficient evidence before the circuit court that the charges made as a result of earlier incidents were used or considered against Dr. King in the present proceeding despite the fact that the file containing such charges was never introduced into evidence. On this basis we cannot say that the circuit court acted improperly in setting aside and holding for naught the Board’s decision to revoke Dr. King’s license to practice dentistry.

APPLICATION FOR REHEARING GRANTED.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . We believe that evidence of prior proceedings against a dentist and disciplinary actions taken as a result thereof may properly be admitted on the issue of the degree of punishment to be administered. However, the admission of such evidence must be in accordance with the requirements of due process, i. e. right to notice, cross-examination, etc. 2 Am.Jur.2d Administrative Law §§ 380, 386-88 and 444; 1 Cooper State Administrative Law 392 and 419 (1965).


author: HOLMES, Judge.

text:
    GLOBE INDEMNITY COMPANY, a corporation v. Homer H. BROWN and Lela C. Brown.
    Civ. 1332.
    Court of Civil Appeals of Alabama.
    July 12, 1978.
    Rehearing Denied Aug. 16, 1978.
    Michael Gillion and Philip H. Partridge, Mobile, for appellant.
    Champ Lyons, Jr., Mobile, for appellees.
   HOLMES, Judge.

This is an insurance case.

Plaintiff-appellees initiated this action seeking to recover under a policy of insurance issued to the plaintiffs by defendant. Plaintiffs claimed to have suffered a loss which was recoverable under the terms of the policy. The case proceeded to trial in the Circuit Court of Mobile County before a jury. Prior to the start of the trial, defendant filed a motion for summary judgment. The trial court denied the motion. The defendant also filed a motion for directed verdict at the close of plaintiffs’ evidence and at the close of all the evidence. Both of these motions were denied by the trial court. Following closing statements and the trial court’s charge, the jury retired and returned a verdict in the amount of $8,021 for the plaintiffs.

We perceive the issues on appeal to be whether the trial court erred to reversal in refusing to direct a verdict for the defendant-appellant or in its refusal to grant defendant’s motion for summary judgment.

The record reveals the following pertinent facts: Plaintiffs were insured under a homeowner’s insurance policy issued by the defendant. Plaintiff — Homer Brown testified that while in the parking lot of a shopping center in Mobile, he was abducted at gun point by a white male. At that point, Brown was robbed of $21 which the thief took from Brown’s billfold. The thief also found some blank checks in Brown’s glove compartment. The thief told plaintiff-Brown that he wanted $18,000 and instructed plaintiff to drive to a local branch bank. Both the thief and plaintiff went inside the bank, at which time plaintiff wrote out a $3,000 check. After the plaintiff wrote out the check, the thief took the check and laid it on the teller’s counter for payment. The thief told the teller that he wanted the money in one hundred dollar bills. The teller placed the $3,000 in an envelope, handed it to the thief and the thief put the envelope in his pocket.

After leaving the bank, the thief told Brown that he would have to raise more money. Having determined that Brown had a certificate of deposit in a safety deposit box at the bank, the two men drove to Brown’s home where they obtained a key for the box. The two men entered the branch bank where Brown’s safety deposit box was located. Upon opening the box, the thief removed the $12,000 certificate of deposit and put it in his pocket. The men then drove to the main branch and attempted to cash the certificate but it had not matured and could not be cashed.

Brown then negotiated a loan from the bank in the amount of $5,000 and the bank issued a cashier’s check in that amount. Upon leaving the bank, the thief took the cashier’s check and put it in his pocket. The men then drove to another branch of the bank to cash the cashier’s check. The two men walked inside the bank; the thief laid the check on the teller’s counter; Brown endorsed the check and presented it to the teller for payment. Again, the thief instructed the teller that he wanted the money in one hundred dollar bills. As with the $3,000 check, the money was paid directly to the thief. After this was completed, the thief told Brown to drive to the campus of the University of South Alabama where the thief then left on foot.

As noted above, the plaintiffs sought to recover the $8,021 from the defendant under the home owner’s policy issued by the defendant. The defendant denied coverage for the sum claimed and further alleged that the policy did not provide coverage for the property allegedly stolen.

The relevant portions of the policy issued to the plaintiffs are as follows:

“COVERAGE C — UNSCHEDULED PERSONAL PROPERTY.
“This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an insured, while on the described premises and, at the option of the Named Insured, owned by others while on a portion of the premises occupied exclusively by the Insured.
“This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world:
“1. owned or used by an Insured; or
“2. Special Limits of Liability or Certain Property:
“b. Under Coverage C, this Company shall not be liable for loss in any one occurrence with respect to the following property for more than:
“(1) $100 in the aggregate on money, bullion, numismatic property and bank notes;
“(2) $500 in the aggregate on securities, accounts, bills, deeds, evidence of debt, letters of credit, notes other than bank notes, passports, railroad and other tickets or stamps, including philatelic property; . . . ”
[Emphasis supplied.]

Specifically, defendant contends that the property stolen, in this instance, was money and that coverage was therefore limited to $100 under the terms of the policy.

Plaintiffs, however, argue that the term “money” in the insurance policy is ambiguous with reference to its applicability to “checks” and “cashier’s checks.” Along the same line, plaintiffs contend such an ambiguity is to be submitted to the trier of fact to determine the intention of the parties.

Plaintiffs further argue that even an absence of ambiguity ought to lead to the conclusion that “money” does not in any way include “checks” or “cashier’s checks.” In furtherance of the above, plaintiffs contend checks, not money, were stolen and that since no limitation of liability is set out for them, the whole amount is recoverable.

As noted above, defendant made a motion for a directed verdict at the close of the plaintiffs’ evidence and at the close of all the evidence. The trial court denied both of these motions as well as a motion for summary judgment filed earlier by the defendant. Defendant appeals and alleges as error the denial of these motions by the court.

It is well settled that a motion for a directed verdict is designed to test the sufficiency of the opponent’s evidence. The motion is due to be granted only where the strongest tendencies of all the evidence falls short of raising a reasonable inference of the movant’s, i. e., defendant in the instant case, alleged liability. See Coburn v. American Liberty Insurance Co., Ala., 341 So.2d 717 (1977).

We cannot say in this instance that the evidence falls short of raising an inference of the defendant’s liability. Based upon the evidence presented at trial, the jury could have found a theft of checks suffered by the plaintiff. Such a finding of a loss of checks would, in view of the manner in which the case was presented, create coverage under the policy for the loss and impose liability upon the defendant.

In view of the above, the court did not err in denying the defendant’s motions to dismiss. The record reveals to this court an inference of liability on the part of defendant due to the evidence presented at trial.

The defendant further contends the trial court erred in not awarding its motion for summary judgment. Rule 56, ARCP, states that summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Contrary to defendant’s argument, we cannot say as a matter of law that the plaintiffs suffered a loss of money nor can we say, as a matter of law, that checks were lost. The resolution of the character of the loss was one for the jury based upon the facts in evidence. As noted above, the jury could have found from the evidence that a loss was suffered by the plaintiffs in the form of checks.

In view of the above, the record clearly reveals more than a scintilla of evidence to support a finding of liability against the defendant. Due to this evidence tending to show liability on the part of defendant, the trial court properly refused to grant the defendant’s motion for summary judgment.

This opinion is not to be construed as holding that the insurance policy was ambiguous and that such ambiguity was to be resolved for the jury. Rather, we hold that the character of the loss suffered by the plaintiff was one to be resolved by the jury. As noted above, the policy of insurance had no limitation of liability concerning checks, nor does the insurance company so contend in this instance, but the limitation is applicable to money. In view of the above facts, in conjunction with provisions of the policy and arguments made to this court, the evidence supports a finding of an inference or scintilla of liability against the defendant. The court therefore did not err in denying the defendant’s motions for summary judgment and directed verdict.

Defendant, in its reply brief, raised several additional grounds in support of its appeal. These grounds pointed out what defendant contends to be reversible error on the part of the trial court.

Suffice it to say, questions not raised in the original brief of appellant are deemed waived and will not be considered by this court when raised for the first time in reply brief. See Hazelrig v. Thomas, 291 Ala. 659, 286 So.2d 830 (1973); Lunney v. Southern Ry. Co., 272 Ala. 611, 133 So.2d 247 (1961).

The above being dispositive of the issues in this appeal, the trial court is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: ALMON, Justice.

text:
    Ex Parte GLOBE INDEMNITY COMPANY.
    77-753.
    Supreme Court of Alabama.
    Nov. 22, 1978.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS, and Kiddie Care Center v. Ola SINGLETON.
    Civ. 1474.
    Court of Civil Appeals of Alabama.
    Aug. 2, 1978.
    Rehearing Denied Sept. 6, 1978.

      Frank D. Marsh, Asst. Gen. Counsel, State of Ala., Dept, of Industrial Relations, Montgomery, for appellants.
    Charles Y. Boyd of Rhea, Boyd & Rhea, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

Claimant appealed an adverse determination by the Appeals Referee to Marshall County Circuit Court. That court reversed the decision of the referee. The State appeals.

The only issue for our determination is whether the court erred in finding that claimant was available for work as required by Section 25-4-77(3), Code of Alabama (1975).

The burden of proof is upon the claimant to establish rights to benefits and the claimant assumes the risk of nonpersuasion. Department of Indus. Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948).

There is no hard and fast rule as to what constitutes availability for work. It depends on the facts and circumstances of each case. It is established that a claimant must at least show that he acted in good faith and made a reasonable effort to secure suitable employment of a character which he is qualified to perform by past experience or training. Department of Indus. Relations v. Smith, Ala.Civ.App., 360 So.2d 726 (1978).

Where, as here, evidence has been taken orally before a trial judge, his findings are clothed with a presumption of correctness unless plainly contrary to the weight of the evidence. State v. Thompson, Ala.Civ.App., 359 So.2d 1158 (1978); Department of Indus. Relations v. Rich, 42 Ala.App. 80, 152 So.2d 692 (1963).

The testimony of claimant was that she was available for work from the time she terminated her last employment; that she applied for jobs and was employed at the time of the hearing. There was no refutation of her testimony. A claimant is not required to prove the exact number of applications for employment made; there merely must be such evidence that the totality of the circumstances shows good faith and reasonable efforts. Department of Indus. Relations v. Smith, supra. In Alabama Dep’t of Indus. Relations v. Anderson, 41 Ala.App. 267, 128 So.2d 532 (1961) claimant was held available for work despite failure to show any applications.

The evidence sufficiently supports the conclusion that claimant was available for work.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Ex parte DEPARTMENT OF INDUSTRIAL RELATIONS.
    77-800.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    FORD LIFE INSURANCE COMPANY, a corporation v. Rosa Rice BURTON, Administratrix of the Estate of Earnest Burton.
    Civ. 1431.
    Court of Civil Appeals of Alabama.
    Aug. 9, 1978.
    Rehearing Denied Sept. 6, 1978.

      Ray Ward, of Ray, Oliver & Ward, Tuscaloosa, for appellant.
    Richard 0. Fant, Jr., Tuscaloosa, for ap-pellee.
   HOLMES, Judge.

The plaintiff, as administratrix of her husband’s estate, filed suit against the defendant-insurance company. A jury returned a verdict in favor of the plaintiff and against the insurance company. The insurance company appeals.

The issue, as stated by the insurance company, is whether the trial court erred to reversal in denying the insurance company’s motion for new trial in that the verdict is contrary to the great weight and preponderance of the evidence. The defendant-insurance company’s contention for reversal is bottomed on the premise that the insured’s death resulted from a condition which existed prior to the issuance of the policy. Put another way, the insured’s death was the result of a pre-existing condition. We agree and reverse and remand.

The pertinent policy provision is as follows:

“No insurance is provided hereunder if death results from:
“(b) a disease, injury, or health condition for which you are hospitalized or received medical treatment within the thirty (30) days immediately preceding the date of indebtedness, if death occurs within the ninety (90) days immediately following such date.”

The uncontradicted evidence reveals that beginning in approximately 1972, the deceased was treated by his physician for peripheral vascular disease and stasis ulcer. In August of 1974, this treatment was being continued. On October 11, 1974, the deceased visited his physician still suffering from the medical problems as indicated above and complained of severe abdominal pain. At this time the doctor suggested that if the deceased’s condition did not improve, he should be hospitalized.

On October 31, 1974, the deceased purchased a new car and obtained credit life insurance on himself. This coverage was with defendant insurance company and the policy contained the provision as set out hereinabove.

The deceased next visited his doctor on November 22, 1974. The deceased was advised to go to the hospital immediately. The deceased did not go immediately to the hospital but was, on December 13, 1974, admitted to the hospital. At this time, he was experiencing gastrointestinal hemorrhaging. On December 14, 1974, the deceased died. The death certificate as signed by the deceased’s physician reported the cause of death as being “cerebral arteriosclerosis.”

The only evidence as to the cause of death was the testimony of the deceased’s physician. This testimony in pertinent part and in succinct language is as follows:

“Q All right, sir.
“I’ll ask you again, so we can clarify the record, in your opinion, as Mr. Burton’s physician and as the attending physician at the time of his death, was Earnest Burton’s death in December, specifically December 14, 1974, a result of a health condition for which he was treated in your office in October of ’74?
“A Yes.”

Additionally, testimony from the deceased’s physician is as follows:

“Q He was in a degenerative process or state when he saw you in October of ’74?
“A Right.
I would say that.
“Q Which, in your opinion, culminated in his death on December 14, 1974; is that correct?
“A I would say that.”

As to the cause of death as indicated on the death certificate, the doctor’s testimony is as follows:

“Q Doctor, I believe in your Certificate of Death, you said that he died of cerebral arteriosclerosis; is that correct?
“A Well, that is another way of stating the advanced condition of his periphal disease at that time.”

As is indicated above, the physician’s testimony is the only evidence as to the cause of death. We would also point out that no pertinent evidence regarding the cause of death is indicated to us in brief by counsel for the plaintiff.

The physician’s testimony is clear that the insured’s cause of death resulted from a health condition that pre-existed the policy and was treated medically within thirty days of the policy, to wit, October 11, 1974.' The policy is equally as clear that coverage is not afforded under the facts of this case.

The Court of Appeals, in Provident Life & Accident Insurance Co. v. Nelson, 38 Ala.App. 372, 84 So.2d 130 (1955), clearly indicated that where the testimony of a medical expert, as to the cause of death is uncontradicted, and such testimony is based on personal observation and examination, then in that event the testimony is conclusive as to the cause of death. Such is the case in this instance. See also Grabove v. Mutual Benefit Health & Accident Association, 241 Ala. 88, 1 So.2d 297 (1941); New York Life Insurance Co. v. Horton, 235 Ala. 626, 180 So. 277 (1938); Aetna Life Insurance Co. v. Norfleet, 232 Ala. 599, 169 So. 225 (1936).

In view of the above, the learned trial judge erred in refusing to grant the defendant’s motion for new trial.

The case is reversed and remanded.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . It is also without dispute that death occurred within the prescribed ninety days.


author: BEATTY, Justice.

text:
    Ex parte Rosa Rice BURTON, Administratrix, etc.
    77-801.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Cecil Trellis INGRAM v. STATE of Alabama.
    Civ. 1466.
    Court of Civil Appeals of Alabama.
    Aug. 9, 1978.
    Rehearing Denied Sept. 6, 1978.

      Richard W. Bell, Pelham, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State, appellee.
   HOLMES, Judge.

The appellant-defendant was found to be the father of a child in a paternity proceeding before a jury in the Circuit Court of Chilton County. The defendant appeals, contending the evidence was not sufficient to rebut the presumption that a child conceived during marriage is presumed to be the child of the husband. We cannot agree and affirm.

Viewing the record with the attendant presumptions, we find the following pertinent facts: The prosecutrix-mother separated from her husband in April, 1975. They never lived together after that time nor did they date or see each other socially. The mother testified that she and her husband never again had sexual intercourse and that their contact was limited to merely passing each other on the street. They were divorced in October, 1975.

In May, 1975 the mother moved to Birmingham away from her husband and began living with the defendant in June. They continued to cohabit in the mother’s apartment until October, 1975, at which time the mother left her apartment. During their cohabitation, the mother testified that she dated no one else and that she and the defendant had intercourse several times weekly. The record contains conflicting testimony concerning the use of contraceptives by the parties during this time.

The mother further testified she had not had sexual relations with anyone for three months prior to her meeting the defendant. The mother became pregnant in October, 1975, but did not notify the defendant of this until after she had moved out of the apartment. The child was born in May, 1976.

There was a finding of paternity against the defendant by the District Court of Chil-ton County in June 1977. That decision was appealed to the Circuit Court of Chil-ton County for a trial de novo. As noted above, the jury returned a verdict finding the defendant to be the father of the child. Defendant appeals.

The defendant contends the evidence is not sufficient to find him to be the father of the child. In support of this, the defendant relies on the oft-stated principle that a child conceived during marriage, though born after decree of divorce, is presumed to be the child of the husband. See Butler v. Butler, 254 Ala. 375, 48 So.2d 318 (1950).

Put another way, defendant argues that since the mother and her husband were married at the time of conception, the child is to be presumed legitimate even though they were divorced when the child was born. The defendant furthermore contends that the testimony at trial was insufficient to rebut the above presumption of legitimacy and hold him the father of the illegitimate child.

While we are well aware of the presumption of legitimacy, this presumption is not conclusive. As the court in Jackson v. Jackson, 259 Ala. 267, 268, 66 So.2d 745, 746 (1953), aptly stated:

“That presumption may be overcome by proof of impotency on the part of appel-lee or his want of access to his wife during the time when pregnancy might have occurred, and other conditions in which it was impossible that the husband could have been the father of the child of his wife during their marriage. . . . ” [Emphasis supplied.]

The record, as noted above, is replete with evidence to rebut the presumption of legitimacy. This evidence is in large measure uncontradicted. The wife’s last social contact with her husband, besides a chance meeting on the street, was in April, 1975. She started living with the defendant in June, 1975, and continued to do so until October, 1975. During this period, the mother dated no one else besides defendant. The record further reveals that the mother and defendant had an active sexual relationship during their cohabitation. She discovered her pregnancy in October and the child was born in May, 1976.

In view of the above, we cannot say the state failed to meet its burden of showing that the husband was not the father of the child. It is clear to this court that there was no evidence of cohabitation or access between the wife and husband during the time pregnancy might have occurred. Suffice it to say, the record contains overwhelming evidence tending to show the defendant as the father and thus rebutting the presumption of legitimacy.

Defendant, through able counsel, argues that Donahey v. Donahey, 52 Ala.App. 596, 296 So.2d 188 (1974), applied and that the state has failed to meet its burden. Defendant contends that Donahey, supra, stands for the proposition that the presumption of legitimacy may be rebutted only by proof that the husband could not physically nor biologically be the father.

Even if the defendant’s contention is correct, we would note that Donahey, supra, is clearly distinguishable from the situation in the instant case. Donahey involved a situation where the husband, i. e., the reputed father, was attempting to prove illegitimacy and had to overcome the presumption. In the present case, the wife is attempting to prove illegitimacy as against a third party, the defendant. The husband is not involved in this case. This is a paternity proceeding and the defendant, the reputed father, is attempting to use the presumption of legitimacy in this case as a defense in an effort to avoid being found to be the father. Based upon the above rationale, we find the language contained in Jackson, supra, to be controlling in this instance.

We would further note that we find no conflict in Donahey and Jackson, supra.

Additionally, this court finds no conflict in the instant appeal and in the recent case of the Supreme Court of Alabama of Leonard v. Leonard, 360 So.2d 710, 1978.

The above being dispositive of the issue in this case, the trial court is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

      . We note that the husband was not involved in the case below in any way nor is he involved on appeal.


author: MADDOX, Justice.

text:
    Ex parte Cecil Trellis INGRAM.
    77-799.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    GULF AMERICAN FIRE & CASUALTY COMPANY v. William Dean AZAR, a minor who sues by and through his father and next friend, Zack Azar, Zack Azar, William Benjamin McGiffert.
    Civ. 1523.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.
    Rehearing Denied Oct. 18, 1978.
    Henry C. Chappell, Jr., Montgomery, for appellant.
    George B. Azar, Montgomery, for appel-lees.
   BRADLEY, Judge.

Appellees (William Benjamin McGiffert, William Dean Azar and Zack Azar) filed suit against appellant (Gulf American Fire & Casualty Company) in the Circuit Court of Montgomery County. Appellees sought recovery for injuries sustained by McGiffert and William Dean Azar in an automobile collision with an uninsured motorist. Their suit was premised on an uninsured motorist provision contained in T. B. McGiffert’s automobile insurance policy. T. B. McGif-fert is the father of appellee-William Benjamin “Ben” McGiffert.

The issue presented for our determination is whether William Dean Azar and Ben McGiffert were excluded from coverage under a policy issued to the latter’s father, T. B. McGiffert. The circuit court held that they were not excluded and granted a partial summary judgment in favor of appel-lees. We reverse.

T. B. McGiffert was divorced from his wife Katilou McGiffert Murchison on July 25, 1973. Under the terms of the divorce decree Mrs. Murchison was awarded custody of the couple’s children including Ben McGiffert. The decree also permitted T. B. McGiffert reasonable visitation with the children and required him to furnish money for their support. The family residence remained in the joint ownership of T. B. McGiffert and Katilou McGiffert Murchison and was to be sold as soon as possible in order that the proceeds from the sale could be used to pay off certain outstanding loans. The wife was granted the right to occupy the family home until the sale and the husband was not to come onto the premises while the wife was residing there. Accordingly, T. B. McGiffert continued to live at the address where he had taken up residence prior to the couple’s actual divorce. Finally, the divorce decree stipulated that the husband (T. B. McGiffert) was to provide “automobile insurance for as long as the Wife and minor children reside[d] in the family home. . . . ”

The automobile accident which resulted in this dispute occurred on October 8, 1973. At the time of the accident seventeen year old Ben McGiffert was driving an automobile owned by a third person. Appellee-William Dean Azar was a passenger in the vehicle driven by McGiffert. The car containing McGiffert and Azar collided with a vehicle driven by an uninsured motorist and both McGiffert and Azar sustained injuries. It was undisputed that the negligence of the uninsured motorist caused the accident.

The uninsured motorist provision of the policy in question provides coverage with respect to a non-owned vehicle for the named insured or his relatives. However, the term “relative” in the policy is defined as “a relative of the named insured who is a resident of the same household.” Thus, there is coverage only if Ben McGiffert was a resident of the same household as his father, T. B. McGiffert.

The circuit court found that the language “who is a resident of the same household” was ambiguous and, accordingly, that such language should be construed in favor of the insured. The court then concluded that Ben McGiffert and T. B. McGiffert were members of the same household.

Appellant-Gulf American contends that under the facts presented, the circuit court erroneously concluded that Ben McGiffert was a resident of his father’s household. In support of its contention Gulf American relies on two Louisiana decisions which are factually similar to the instant case: Chapman v. Allstate Insurance Co., 306 So.2d 414 (La.App.1975); Ursin v. Oubre, 343 So.2d 1189 (La.App.1977).

Conversely, appellees rely on two Alabama cases, State Farm Mutual Automobile Insurance Co. v. Hanna, 277 Ala. 32, 166 So.2d 872 (1964) and Crossett v. St. Louis Fire & Marine Insurance Co., 289 Ala. 598, 269 So.2d 869 (1972), which held that terms such as “residing” or “residents” as used in policies referring to households of the named insured were ambiguous. Accordingly, both decisions found that such language should be construed in favor of the insured.

We believe that appellees’ and the circuit court’s reliance on Hanna and Crossett was misplaced. While we have no quarrel with the general proposition stated in those cases, we are of the opinion that even a favorable construction of ambiguous terms for the insured requires a factual basis. Indeed, the necessity of providing facts in support of a party’s contention that he is or is not a resident of the same household as the named insured is clearly indicated by the opinions of former Justice Harwood in Hanna and Justice Bloodworth in Crossett. See Nationwide Mutual Insurance Co. v. Herren, Ala.Civ.App., 362 So.2d 253 (1978). In the present case there were simply no facts presented to the circuit court which would demonstrate that Ben McGiffert resided in the same household as his father, the named insured.

When the automobile accident which resulted in this dispute occurred, Ben McGif-fert was living with his mother, Mrs. Murchison. T. B. McGiffert, the named insured, resided at an entirely different location. And although Ben McGiffert visited his father at the father’s home, Mrs. Murchison testified by deposition that the visits did not include overnight stays. Furthermore, custody of Ben McGiffert had been awarded to Mrs. Murchison under the provisions contained in the decree divorcing her and her husband, and, consequently, Ben was a legal resident of his mother’s household. See Chapman v. Allstate Insurance Co., supra.

As these facts indicate, neither Ben McGiffert’s actual or legal residence was in his father’s household. Thus, the circuit court improperly awarded a summary judgment in favor of appellees on the ground that Ben McGiffert was a member of his father’s household.

Moreover, we believe that a summary judgment should have been rendered in favor of appellant-Gulf American. As defendant in this matter, Gulf American moved for a summary judgment on the basis of Mrs. Murchison’s deposition. The motion of Gulf American was supported by facts which demonstrated that Ben McGif-fert maintained neither legal or actual residence in his father’s household. Appellees presented no affidavits, depositions or other documents to refute Gulf American’s claim that Ben McGiffert did not reside with the person named in the insurance policy issued by Gulf American. Instead, appellees filed their own motion for summary judgment based on the Crossett and Hanna decisions. However, appellees offered no facts to support their own motion even though such facts were necessary in view of the question to be decided.

As we stated in State v. Deaton, Inc., Ala.Civ.App., 355 So.2d 378 (1978), a trial court may enter a summary judgment in favor of a party who moves for summary judgment if the adverse party makes no evidentiary or factual showing in opposition to the motion of the moving party on the grounds that under such circumstances an adverse party must “set forth specific facts showing that there is a genuine issue for trial.” Rule 56, ARCP. Appellees, however, made no evidentiary or factual showing in opposition to Gulf American’s motion. Likewise, Rule 56 of the Alabama Rules of Civil Procedure generally requires the presentation of facts showing that the moving party is entitled to a summary judgment, but, as stated earlier, appellees presented no facts in support of their own motion for summary judgment.

The insurance policy at issue here provided uninsured motorist coverage to relatives of the named insured only if such relatives resided with the named insured. There was no factual dispute that Ben McGiffert did not reside with his father who was the named insured under the policy. As a consequence, there was no genuine issue of fact with regard to the condition necessary for Ben to be deemed an “insured” under the terms of the policy. And the inability of Ben McGiffert to establish that he was an “insured,” i. e., a relative residing in the same household as the named insured, also precluded as a matter of law his ability to recover benefits under uninsured motorist coverage.

Likewise, under the terms of the policy issued to T. B. McGiffert, appellees William Dean Azar and Zack Azar were not entitled to recover benefits. The policy in dispute provides uninsured motorist coverage to an insured person including “any other person while occupying an insured automobile.” However, an “insured automobile” in situations involving á non-owned vehicle is defined as an “automobile . being operated by the named insured.” (Emphasis supplied.) Ben McGiffert, the operator of the non-owned automobile in which William Dean Azar was injured, was not the named insured or a relative residing in the same household as the named insured. Moreover, a named insured is defined by the policy as the named insured or his (or her) spouse provided the two reside in the same household. T. B. McGif-fert and his wife were divorced and did not reside in the same household. And since neither T. B. McGiffert nor his spouse residing in the same household were operating the automobile in which William Dean Azar was a passenger, the automobile was not insured under the terms of the policy defining an insured automobile as an automobile driven by the named insured. Consequently, Azar could not recover because a person occupying the vehicle involved in an accident was entitled to recover only if the vehicle was an “insured automobile” under the terms of the policy.

Under the circumstances of this case there was nothing to support a summary judgment in favor of appellees. In fact, the record before us demonstrates that the appellant-Gulf American should have been granted a summary judgment on its motion to dismiss appellees’ suit. Accordingly, the judgment of the circuit court is reversed with directions that a summary judgment be entered in favor of appellant.

REVERSED AND REMANDED WITH DIRECTIONS.

WRIGHT, P. J., and HOLMES, J., concur.

      . The ambiguity in these words results from the fact that the language “resident” or “residing” refers to temporary as well as permanent abodes. State Farm Mut. Auto. Ins. Co. v. Hanna, 277 Ala. 32, 166 So.2d 872 (1964).


author: JONES, Justice.

text:
    Ex parte William Dean AZAR, a minor, etc., et al.
    78-54.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


text:
    Charles U. THARP v. UNION STATE BANK.
    Civ. 1487.
    Court of Civil Appeals of Alabama.
    Oct. 4, 1978.
    Rehearing Denied Nov. 22, 1978.

      Charles U. Tharp, pro se.
    William J. Trussed, of Church, Trussed & Robinson, Pell City, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the granting of summary judgment in favor of plaintiff in a suit on a note.

Plaintiff Union Bank sued defendant in the District Court of St. Clair County upon a note, claiming principal, interest and attorney fee after default. Defendant, appearing pro se, filed an answer and a counterclaim. The answer denied responsibility for payment of the note by virtue of the counterclaim. The essence of the counterclaim was that the bank was negligent and discriminatory in failing to respond to defendant’s financial need by denying him an additional loan. Damages of $100,000 were claimed.

Plaintiff moved to dismiss the counterclaim for failure to state a claim. Shortly thereafter the suit was transferred to circuit court. Some three weeks later plaintiff filed motion for a hearing. The court immediately responded, setting a hearing on the 16th of December, 1977. The purpose of the hearing is not stated, though there had been no pleading to the counterclaim other than the motion to dismiss. That motion had not been ruled on. On December 12, 1977, plaintiff filed a motion for summary judgment with exhibits and affidavit. The certificate of service indicated service by mail upon defendant on December 7. However, the accompanying affidavit was not dated until December 9. On December 15, defendant filed various and sundry exhibits, including copies of alleged authorities and various financial statements prepared by him. The purpose of these exhibits is unclear. They were apparently in support of his counterclaim.

The record before us of the proceedings before the court at the hearing on December 16 indicates the presence of defendant and counsel for plaintiff. There is testimony of an attorney as to a reasonable fee to be awarded plaintiff for services of his counsel. There is a colloquy between defendant and the court.

Defendant inquired if there was a ruling on his motion for continuance. The judge stated he was denying the continuance. Defendant interrupted to take exception. The judge continued that, based upon the affidavit and exhibits filed by plaintiff, he was going to grant the motion for summary judgment and was striking defendant’s counterclaim. Defendant took exception to that and began a statement saying, “I don’t know just what .He was cut off by the judge who proceeded to announce the amount of the judgment he was entering. The record then notes the proceedings were adjourned.

The judgment entry then made begins as follows:

“This being date heretofore set for consideration of plaintiff’s motion for summary judgment and plaintiff’s motion to dismiss defendant’s counterclaim and upon consideration thereof, this court is of the opinion that said motions are due to be granted.” (R. 70)

Defendant thereafter moved for a new trial, which must be considered technically as a motion to set aside summary judgment. Among other grounds, the motion alleged that the defendant did not receive service by mail of the motion for summary judgment with the attached affidavit and exhibits until after he returned home from the hearing. The truth of the allegation was supported by exhibits and affidavit. Defendant contended violation of Rule 56, ARCP which requires service of a motion for summary judgment with attached affidavits ten days prior to the date for hearing. The trial court denied the motion for new trial.

Defendant appeals to this court pro se. As is generally the case when one unlearned in the law attempts to represent himself, the issues presented and attempted to be argued in brief are inept except for two. There are two which we consider sufficiently appropriate for consideration.

The first we consider is the propriety of the granting of the motion to dismiss the counterclaim. We find the court correct in granting the motion. Defendant seeks to state a claim founded upon the denial by the bank of additional credit requested by him. He seemingly claims that a bank is under a legal obligation or duty to extend credit, grant a loan or continue to extend credit to anyone who requests it. There is no such obligation absent contract. Defendant complains of the failure of the court to inform him as to how he might defend against plaintiff’s claim and amend and prosecute his counterclaim. The trial judge is not present to aid either party in the lawsuit and certainly under no duty to do so. He is the arbiter and moderator, not an advocate.

The other issue presented on appeal has been noted heretofore as having been brought to the attention of the trial court by defendant’s post-trial motion. That issue is whether the court erroneously granted summary judgment when service of the motion was had upon defendant less than ten days prior to hearing as required by Rule 56, ARCP.

The requirement of ten days’ notice between motion and hearing is a procedural rule for the purpose of allowing the opposing party the opportunity for discovery and preparation of opposing evidence to that of the movant. Thacker v. Whitehead, 548 F.2d 634 (6th Cir. 1977). Some cases have said that failure to give the required notice and hearing deprives the court of authority to enter summary judgment. Mustang Fuel Corp. v. Youngstown Sheet and Tube Co., 480 F.2d 607 (10th Cir. 1973). Other cases have said that entry of summary judgment without notice and hearing as required by Rule 56(c) is an abuse of discretion. Georgia Southern & Florida Railway Co. v. Atlantic Coast Line R. R. Co., 373 F.2d 493 (5th Cir. 1967), cert. denied, 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120. All of these cases, however, grant that the requirement of the rule may be waived. Some cases have said that though error, it is not reversible error if no prejudice can be demonstrated by the unsuccessful party. Thacker v. Whitehead, supra; Oppenheimer v. Morton Hotel Corporation, 324 F.2d 766 (6th Cir. 1963).

We have before us in this case the unusual situation of no service at all prior to judgment. Though a hearing was held, it was not set and designated as a hearing on summary judgment. In fact, the hearing, as we view the file, could only have been set for the purpose of considering the motion to dismiss the counterclaim.

We have said the requirements of notice and hearing may be waived. However, waiver requires knowledge, actual or implied, of the right being waived. Givens v. General Motors Acceptance Corp., 56 Ala.App. 561, 324 So.2d 277 (1975). There is nothing in the record of this case which indicates defendant was aware at the hearing of what was transpiring until the judge announced the granting of summary judgment. He then took exception and apparently began a statement of lack of understanding of what was transpiring. This objection to the entry of summary judgment and the state of the record showing that ten days had not expired since even the certified date of service negates any claim of waiver. This court has the greatest respect for the trial judge, but we must hold that under such circumstances he should not have entered summary judgment. In doing so he approved a violation of Rule 56 and had no authority to enter judgment thereunder. Billingsley v. Gordon, 340 So.2d 743 (Ala.1976); Mustang Fuel Corp., supra.

We are not impressed with plaintiff’s argument as to absence of prejudice to defendant. The facts of this case are far different from those of Oppenheimer, supra. The rule is not prefaced upon whether or not the opposing party may successfully defend against summary judgment. It does require that the opportunity to defend be given. We certainly make no judgment here as to the merits of plaintiff’s motion for summary judgment.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    WASHINGTON COUNTY BOARD OF EDUCATION v. ALABAMA STATE TENURE COMMISSION.
    Civ. 1562.
    Court of Civil Appeals of Alabama.
    Nov. 8, 1978.

      Edward P. Turner, Jr., Marc E. Bradley, Chatom, for appellant.
    W. Troy Massey, Sp. Asst. Atty. Gen., Montgomery, for appellee.
   HOLMES, Judge.

This is a teacher tenure case.

The record reveals the following: On August 25, 1977, the board of education notified the tenured teacher of its intent to cancel the teacher’s employment contract. The teacher thereafter notified the board of his intention to contest the board’s decision. A hearing was held on September 20 and 28 of 1977. The teacher was notified on September 30, 1977, that his contract was canceled. On October 5, 1977, the teacher notified the board of education of his intention to appeal to the State Tenure Commission.

Thereafter, on October 19, 1977, more than twenty days after the hearing before the board of education, the teacher made a motion before the Commission to strike the transcript of the hearing held before the board of education. The basis of this motion was that the board had failed to timely file with the Tenure Commission and the teacher a complete transcript of the hearings held on September 20 and 28. The motion specifically alleged that the board of education had failed to comply with Code of Ala.1975, § 16-24-10.

The Tenure Commission granted the teacher’s motion and reversed the board of education’s action. The board of education then sought mandamus in the circuit court. The circuit court denied the board’s petition for mandamus and, from this action, appeal was taken to this court.

The board, through able and distinguished counsel, argues in brief that in situation such as this, the Commission has the authority to extend the time within which transcripts of hearings held before county boards of education are to be filed with the Commission. Second, the board maintains that the action of the Commission in striking the transcript of the hearing before the board in this matter was arbitrary and unjust and should be vacated.

To this court, the dispositive issue in this instance is whether the Tenure Commission acted properly in granting the teacher’s motion to strike the transcript for failure to timely file as required by Code of Ala.1975, § 16-24-10.

The record before this court reveals the following additional information. After the October 19 filing of the teacher’s “Motion to Strike,” the board of education, on October 24, wrote a letter to the Tenure Commission. This letter stated that it was an impossibility for the board to complete and file the transcript within the time indicated by § 16-24-10. Several days thereafter, apparently on November 1, the board filed with the Tenure Commission a motion requesting an extension of time within which to file the required transcript.

Thereafter, the Tenure Commission set a hearing on the aforesaid motions. This hearing was held on November 7 and on that date the board of education filed the transcript. The result of the hearing culminated in this appeal.

The Code of Ala.1975, § 16-24-9 and § 16-24-10, in pertinent part reads as follows:

“After each party, has presented its case at said hearing, the employing board of education may determine the question of the cancellation of the contract by a majority vote, or it may defer action regarding the decision for a period not to exceed five days. Its action and vote, whether taken immediately following the hearing or within five days thereafter, shall be evidenced by the minute proceedings of the board and shall be only after full compliance with this section. . .
“(b) The teacher shall have the right to appeal to the state tenure commission, as hereinafter established, to obtain a review by the commission as to whether such action was in compliance with this chapter and whether such action was arbitrarily unjust. Such appeal shall be taken by filing within 15 days after the decision of the employing board a written notice of appeal with the superintendent or chairman of said board. If Said appeal is not taken within 15 days after decision of the board, the board’s decision shall be final. Upon notice of appeal, the board shall cause to be made sufficient copies of the record of proceedings to provide a copy for each of the members of the commission and one for the teacher. The record shall consist of all notices given to the teacher, all papers filed with the board by the teacher in compliance with the provisions of this chapter, transcript of testimony and other evidence and the findings and decisions of the board. The requisite number of copies of the record shall be delivered to the commission and to the teacher within 20 days from the day of the hearing. The commission shall set a date for the hearing at which the board and the teacher, or a representative of each, shall have an opportunity to be heard. The date of such hearing shall be within 40 days after the decision of the board, and the teacher and the board shall be given at least five days’ notice of the time and place where the appeal will be considered. On said appeal the commission will consider the case on the record of the proceedings before the said board and the evidence as recorded at such hearing. The commission shall by a majority vote determine the validity of the action by the board and shall render its decision within five days after its hearing.”

The Tenure Commission contends that there is ample evidence to support its action in light of the mandate regarding the scope of appellate review as set by our supreme court in Sumter County Bd. of Ed. v. Ala. State Tenure Commission, Ala., 352 So.2d 1137 (1977). Specifically and without detail, the Commission argues that its action is required by the aforesaid provisions of the Tenure Act.

The fundamental rule of courts in construing acts of the legislature is to ascertain and give effect to the legislative intent. If possible, such intent must be gathered from the language of the legislation itself. Morgan County Bd. of Ed. v. Ala. Public School & College Authority, 362 So.2d 850 (Ala., 1978); Drake v. Pennsylvania Threshermen & Farmers’ Mut. Cas. Ins. Co., 265 Ala. 444, 92 So.2d 11 (1957).

It is clear to this court that the pertinent sections of the code provide for the following: An employing board of education must act, i. e., make a decision within five days of the hearing before the board. If the teacher appeals this decision, the appeal must be taken within fifteen days of the decision of the board. Upon notice of the appeal, the board is required to make copies of the record. The requisite copies of the record before the board of education shall be delivered to the Commission and the teacher within twenty days from the hearing before the board of education. Thereafter, it is the duty of the Commission to set a hearing. This hearing before the Tenure Commission shall be within forty days after the decision of the board of education.

After a careful study of the above code sections, it is clear to this court that the code sections, as applied in the instant appeal, are not inconsistent or unreasonable. It is true that they provide for a rather short time frame for the various acts to take place. However, it appears that these sections could have been complied with in this instance. We would further note that there are obvious reasons for the speedy disposition of teacher tenure cases.

Having said the above, we now address ourselves to the pertinent facts of this case.

The hearing before the board of education was concluded on September 28. On October 19, more than twenty days after the hearing before the board, the teacher requested the Tenure Commission to strike the transcript due to the board’s failure to file within the twenty days mandated by the statute. No request for an extension of time had been made by the board of education at this point. It was not until several days after October 24 that the board of education requested an extension of the twenty-day limit. Put another way, the first request for an extension of time occurred after the expiration of the twenty-day requirement. The Tenure Commission, after a hearing, denied the request.

Viewing the Tenure Commission’s action in light of the supreme court decision in Sumter County, supra, there is sufficient evidence to support the conclusion that the board of education failed to comply with the statutory requirement relating to the twenty-day time limit for filing the transcript.

The appellate court of Michigan, in dealing with a remarkably similar case and statutory requirement, reached the same conclusion as we have in this instance. See Davis v. Bd. of Ed. of School District, 73 Mich.App. 358, 251 N.W.2d 585 (1977). In Davis, supra, the Michigan court stated that the board of education, in failing to comply with the statutory requirement such as we have here, failed to afford the teacher his procedural due process rights. Our supreme court, in State Tenure Commission v. Madison County Bd. of Ed., 282 Ala. 658, 213 So.2d 823 (1968), concluded that due process must be observed by all boards, as well as courts.

In view of the above, keeping in mind the standard of review as mandated by Sumter County, supra, we cannot say the Tenure Commission or circuit court erred in its determination in this case.

The case is due to be. affirmed,

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    Solomon A. AZAR and Hazel G. Azar v. Gussie P. JUDAH, Henry H. Judah, Edward Judah and David Judah.
    Civ. 1648.
    Court of Civil Appeals of Alabama.
    Nov. 8, 1978.

      Edward J. Azar, Montgomery, for appellants.
    Joe W. Adams for Steagall & Adams, Ozark, and Kenneth W. Quattlebaum, Ozark, for appellees.
   HOLMES, Judge.

This is a case involving a dispute over ownership of a parcel of land.

The plaintiffs-Azars brought suit against the defendants to quiet title, recover possession of the disputed land, and for damages for trespass. After an ore tenus hearing, the trial court, based on defendants’ counterclaim, found that the defendants were the owners of the parcel of land and awarded damages of $10. Plaintiffs have appealed and we affirm.

The dispositive issue on appeal is whether there was sufficient evidence to support the trial court’s finding that defendants had title to the disputed realty by reason of adverse possession.

Viewing the trial court’s decree with the attendant presumption of correctness, we find the following as revealed by the record: The disputed property is, for the most part, a heavily wooded, triangular area of one and seven-eighths acres in the midst of useable farm land. The property has a natural spring and a large gulley which significantly limits the uses to which it is suited. A small portion of the land is suitable for cultivation. There is an old public road traversing the property.

The plaintiffs’ lands generally border the disputed area to the north, the defendants’ to the south. There is an old fence and hedgerow between the parties’ lands. The defendants’ properties on the south apparently include the disputed area due to the fact that this ancient hedgerow and fence physically divides and excludes the plaintiffs’ estate on the north. This is further substantiated by the fact that one of the plaintiffs’ predecessors erected a portion of the above mentioned fence, excluding the disputed property from his other lands. The record reveals that this fence was maintained by one of the defendants’ sons.

Each of the parties traces its chain of title to the area in controversy back to a common titleholder. The plaintiffs’ purported title has its genesis in November, 1903; the defendants’ in September, 1904. After a series of intervening conveyances, there is evidence that the defendants acquired ownership of the property by purchase in 1943; the plaintiffs in 1968. The defendant-owner is a widow, who by virtue of holding the property in joint tenancy with her husband, survived to the fee upon her husband’s death in 1963. The defendants have assessed the disputed property for tax purposes and have paid taxes from the date of its purchase in 1943.

There is testimony in the record that two of the plaintiffs’ predecessors in title had informed their employees and lessees, in years past, not to trespass on the disputed area. These admonishments included instructions not to take firewood or cut timber on the parcel because the defendants were cultivating a cane patch there, and that the parcel belonged to the defendants.

Most significantly, the record reveals that the defendants or his tenants have farmed the only portion of the area suitable for raising crops since they went into possession in 1943. In addition, in the 1950s, the defendants harvested timber from the wooded portion of the land. The defendants’ sons have hunted and taken game from this land for many years.

Testimony taken below indicates that the defendants unsuccessfully contacted the Soil Conservation Service to repair the public road which traverses the disputed area. This request for repairs became necessary because the gulley which exists on the property had eroded in the direction of the public road and had damaged it. Further erosion rendered the road impassible. Since the plaintiffs’ tenants used the road as a means of ingress and egress to adjacent fields, the plaintiffs constructed a new road on the disputed land north of the original road site. When the defendants attempted to block this construction and use of the land, the plaintiffs sought a temporary restraining order and instituted this action.

The law of Alabama provides that in order for one to obtain title to land by reason of adverse possession, he must establish (1) such possession as the land reasonably admits, (2) openness, notoriety and exclusiveness of possession, (3) hostility toward all others with respect to possession, (4) possession under a claim of right or claim of color of title and, (5) continuity of possession for ten years. Cameron v. Union Hill Baptist Church, Ala., 350 So.2d 314 (1977); Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962). See also Code of Ala.1975, § 6-5-200. Here, based on the facts indicated above, there is evidence to support the trial court’s finding that the defendants perfected title by adverse possession.

The defendants’ acts of possession must be consistent with the nature of the land in question and must be acts of ownership. Cameron, supra; Family Land & Inv. Co. v. Williams, 273 Ala. 273, 138 So.2d 696 (1961). All acts of possession of the adverse claimant are taken collectively rather than independently to establish sufficiency of possession. Baldwin v. Odom, 291 Ala. 129, 278 So.2d 713 (1973). The disputed land in this case is in part wooded and in part cultivable. As noted above, the defendants cut timber and hunted game on the wooded portions. They farmed or leased for cultivation the remaining portion. In view of these collective facts, we cannot say the court below erred in finding that the defendants’ acts of possession were sufficient to establish adverse possession.

With regard to the element of openness and notoriety of possession, the record indicates that the plaintiffs’ predecessors in title had warned their employees and lessees that the defendants owned the disputed parcel and thus they were not to go there. In addition, the defendants openly cultivated this land and paid taxes on the property for over thirty years. We would agree with the trial court that this is sufficient openness and notoriety to establish exclusiveness of possession. See, e. g., Turnham v. Potter, 289 Ala. 685, 271 So.2d 246 (1972).

The plaintiffs argue that the defendants did not establish hostility toward all others with respect to possession. This contention, as we perceive it, is apparently premised on the fact that since the defendants never objected to the plaintiffs’ use of the road located on the disputed area, the defendants failed to lay claim to the parcel to the hostile exclusion of all others. The evidence indicates that the road is public and, therefore, the defendants had no right to object to anyone’s use of it. The defendants’ failure to act with hostility toward the plaintiffs’ use of a public road does not, in any way, indicate a permissive attitude toward the plaintiffs’ use of the remainder of the parcel which the defendants claimed. See, e. g., Alexander City Union Warehouse & Storage Co. v. Central of Ga. Ry. Co., 182 Ala. 516, 62 So. 745 (1913).

In order for the adverse claimant to establish color of title, it is not necessary that he be the true legal owner; the actual claim of ownership and not the strength of the title is the inquiry. Foster v. Foster, 267 Ala. 90, 100 So.2d 19 (1958). As noted above, the record indicates that the defendants claim under a deed which originated from the common title holder of both the parties. Under the test enunciated in Foster, supra, this is a sufficient color of title to support the defendants’ right to ownership of the parcel.

The record reveals that the defendants have continuously done acts, since taking possession in 1943, sufficient to satisfy the ten year time limitation, as the trial court noted. Given the fact that the plaintiffs purchased their lands in 1968, “title had already vested in [the defendants] by virtue of adverse possession and . . . [the plaintiffs’] activity . . . has not been such to dispossess the already ripened title. . ."

In this instance, a reviewing court cannot substitute its judgment for that of the trier of facts. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972). Every presumption is to be indulged in favor of the trial judge where testimony is taken ore tenus and will not be disturbed unless palpably wrong. English v. Brantley, Ala., 361 So.2d 549 (1978). Where, as here, there is credible evidence to support the holding below, it is the function of this court to affirm.

Able and distinguished counsel for plaintiffs have, in brief, presented cogent reasons in support of plaintiffs’ superior title gained by conveyance. However, in view of the above, the trial court’s holding that title to property is in the defendants by virtue of adverse possession will not be disturbed here.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.