author: TORBERT, Chief Justice. SHORES, Justice BEATTY, Justice FAULKNER, Justice JONES, Justice

text:
    John C. SCOTT and Thelma K. Scott v. E. J. DUNN, et al.
    80-829.
    Supreme Court of Alabama.
    July 23, 1982.
    Rehearing Denied Sept. 17, 1982.

      G. Houston Howard, II, Wetumpka, for appellants.
    Ted Taylor and Roger Morrow, Prattville, and Tom Wright, Montgomery, for appel-lees.
   TORBERT, Chief Justice.

On January 16, 1980, John Scott, accompanied by his wife, Thelma Scott, was driving his automobile on Highway 14 in Au-tauga County, Alabama, when he struck a cow owned and/or cared for by Ben, E. J., and Glenn Dunn, and Dry Greek Farms. The Scotts brought suit in Circuit Court to recover damages for injuries they suffered as a result of the collision with the cow. The complaint alleged that the defendants were negligent, that they were reckless or wanton in their conduct, and that they failed to secure an animal of known mischievous propensities.

The defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted, based upon Code 1975, § 3-5-3(a). The Scotts moved for summary judgment, arguing that § 3-5-3(a) is unconstitutional. The trial court granted the defendants’ motion to dismiss and denied the Scotts’ motion for summary judgment.

The Scotts challenged the constitutionality of the statute on the grounds that it violated Ala.Const., art. I, § 13. Section 3 -5 -3(a) provides:

“The owner of such livestock or animal being or running at large upon the premises of another or upon the public lands, roads, highways or streets in the state of Alabama shall be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers of any person, to be recovered before any court of competent jurisdiction; provided, that the owner of any stock or animal shall not be liable for any damages to any motor vehicle or any occupant thereof suffered, caused by or resulting from a collision with such stock or other animal, unless it be proven that such owner knowingly or wilfully put or placed such stock upon such public highway, road or street where such damages were occasioned.”

Code 1975, § 3-5-3(a). Section 13 of the Alabama Constitution provides:

“That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.”

Ala.Const., art. I, § 13. For the following reasons we hold that § 3-5-3(a) does not violate § 13 and we thereby affirm the decision of the trial court.

The thrust of the appellants’ contentions for reversal of the trial court is that the Alabama Legislature, by enacting Code 1975, § 3-5-3(a), has denied a common law remedy to persons traveling upon the highways of this state in contradiction to Ala. Const., art. I, § 13. This is simply not the case. The Alabama Legislature has, in fact, given persons who suffer damages on the public roads and highways as a result of livestock thereon a new cause of action that did not exist at common law.

When the Mississippi Territory was settled, the law adopted was that the land would be open territory; that is, a landowner was required to fence livestock out to protect his private land. Livestock were permitted to run at large on open land and on the public roads and highways. When Alabama became a state in 1819, it retained, as part of its common law, this same rule adopted in the Mississippi Territory. Nashville & Chattanooga Railroad Co. v. Peacock, 25 Ala. 229 (1854).

In the case of Smith v. Causey, 22 Ala. 568 (1853), this Court stated the law as it stood in Alabama:

“At [Alabama] common law, where an injury to another arises from carelessness in keeping domestic animals, which are not necessarily inclined to do mischief, such as dogs, horses, &c., no recovery can be had against the owner, for an injury done by them, unless it is averred and proved that he knew their vicious propensities, and so carelessly kept them, that injury resulted to the plaintiff therefrom. Burk v. Dyson, 4 Camp. 198; Smith v. Pelah, 2 Strange 1293; Durden v. Barnett & Harris, 7 Ala. 169.”

22 Ala. at 571. Several years later, Chief Justice Brickell, writing for this Court, said in Mobile & Ohio Railroad Co. v. Williams, 53 Ala. 595 (1875):

“The doctrine of the [English] common law in relation to trespasses by and upon cattle running at large has never been of force in this State. It was never applicable to our situation, and is inconsistent with our estray laws and statutes in reference to trespasses by cattle. These laws treat unenclosed lands as common of pasture, and permit an owner to suffer his cattle to run at large. N. & C. R.R. v. Peacock, 25 Ala. 229. The character of inclosures & fences is carefully defined. R. C. § 1282. If an animal suffered to go at large trespasses or should do damage on lands not inclosed as required, the owner is exempt from liability therefor; and if the animal is injured, the person inflicting the injury is liable for five fold damages. R. C. § 1283.... This legislation is all founded on the theory of the right of an owner to permit his stock to run at large. In the exercise of this right he cannot be molested, and if injury is wantonly or negligently inflicted on his stock, the law entitles him to redress. He has a perfect right to suffer his animals to run at large, and those who would guard themselves from damages in consequence of it must inclose against them...

53 Ala. at 596-97. This law was reiterated by the Court of Appeals in Means v. Morgan, 2 Ala.App. 547, 56 So. 759 (1911):

“The [English] common-law rule that animals must be kept on one’s premises does not obtain in this state. The rule is, rather, reversed, and animals are permitted to run at large unless prohibited by statute. M. & O. R. R. Co. v. Williams, 53 Ala. 595; Hurd v. Lacy, 93 Ala. 427, 9 South. 378, 30 Am.St.Rep. 61.
“The maxim that one who suffers his animals to run at large takes upon himself the risk incidental thereto applies only where the animals are trespassing on the lands of another, and not to animals running at large in the highway. Colvin v. Sutherland, 32 Mo.App. 77.”

2 Ala.App. at 550, 56 So. at 759-60. See also, Rowe v. Baber, 93 Ala. 422, 8 So. 865 (1890); Wilhite v. Speakman, 79 Ala. 400 (1885); Alabama Great Southern Railroad Co. v. Jones, 71 Ala. 487 (1882). These eases make it clear that the common law of Alabama, as adopted from the Mississippi Territory, did not allow an action for damages on public roads and highways caused by an animal of normal propensities.

When the Legislature adopted the present “closed state” stock law in 1939 (now found at § 3-5-3(a)), it also altered the liability of a livestock owner with respect to the public roads and highways. While under Alabama common law a livestock owner had the right to turn livestock out onto the public way, upon passage of Title 3, § 79 (now § 3-5-3(a)) in 1939, a livestock owner could be liable when he knowingly or willfully put or placed such stock upon the public roads or highways. Therefore, for the first time in Alabama, a person who sustained damages on a public highway could recover against a livestock owner under certain limited conditions. This act created a new right of action, limited though it may be, and did not abolish any common law rights, for before the 1939 enactment, persons suffering injury or property damage because of an animal on a public road or highways had no remedy unless the animal was known to have dangerous propensities.

The appellants, however, allege that § 3-5-3(a) abolishes all common law causes of action against the owners of livestock by the owners or occupants of motor vehicles, except actions based upon proof that the owner knowingly or willfully put or placed such stock upon the public highway. As stated, the 1939 act did not abolish a remedy for a protected right, but, instead, created a right where none had previously existed.

While it has been correctly stated that the common law is constantly changing and that this common law cannot be restricted to its meaning as of the date of statehood, it would be incorrect to hold that the right of action urged by the appellants had somehow become the law at some time in the past, thereby gaining the protection of § 13, when no case law, common law, or legislation has heretofore allowed such a recovery in this state.

To attack § 3-5-3(a) as unconstitutional under § 13, as do the appellants, one must begin with this Court’s decision in Grantham v. Denke, 359 So.2d 785 (Ala.1978). The cornerstone of Grantham was that § 13 prohibits the Legislature from abolishing a cause of action recognized at common law.

Yet the present case involved a right totally unknown to the common law of Alabama. As stated by Slagle v. Parker, 370 So.2d 947 (Ala.1979), the Legislature may bar or limit actions that were not a part of the common law. That is exactly what the Legislature did when it passed the forerunner of § 3-5-3(a) in 1939. Since the only prohibition on the legislative power arises when an act abolishes all remedies for a common law or fundamental right, and since it is clear that this action was not recognized at common law in Alabama, then the Legislature was within its power when it enacted § 3-5-3(a).

The appellants contend that prior to the adoption of § 3-5-3(a), a person injured by a domestic animal had a cause of action based upon proof that the owner of the animal was guilty of ordinary negligence in caring for that animal. We are compelled to reject this contention based upon our review of several old cases.

One case relied upon by the appellants is Durden v. Barnett & Harris, 7 Ala. 169 (1844). While the Durden court did indeed say that an owner of domestic animals is liable where the injury is attributable to some neglect on his part, the appellants overlook the fact that that case had nothing to do with any situation resembling the present one. Durden involved an appeal by the plaintiff after the dismissal of his complaint. He sued for injuries his minor son had received when bitten by “certain hound dogs, from ten to twenty in number.” The plaintiff alleged in his complaint that defendant “carelessly and negligently did permit [the dogs] to run at large, well knowing the said hound dogs then were used and accustomed to attack and bite mankind.” The Durden court was merely saying that the plaintiff’s averments were sufficient to state that the owner had notice of the animals’ dangerous propensities. When Justice Goldthwaite wrote in that 1844 ease “that the injury was attributable to some neglect on his part,” it is obvious he was talking about a neglect in allowing animals with known dangerous propensities to run at large. Justice Goldthwaite was, most certainly, not referring to the right to sue for negligence in allowing a cow (or other animal) to be upon a public way, for no such right had ever existed in Alabama. See, e.g., Nashville & Chattanooga Railroad Co. v. Peacock, 25 Ala. 229 (1854).

The appellants further rely upon Hopper v. Crocker, 17 Ala.App. 372, 85 So. 843 (1919). This was also a dog bite case wherein the plaintiff alleged that the defendants, knowing that their pet “fice” dog had been bitten by a rabid dog and was likely to develop rabies itself, nevertheless allowed it to run at large. It bit the plaintiff and as a consequence she had to incur “great expense to take the Pasteur treatment, in seeking to be cured of her said injury.” This perfectly fits Justice Goldth-waite’s negligence example. The Hoppers’ negligence, for which they were held liable, consisted of letting the dog run loose with knowledge that it had been bitten by a rabid dog and would now be dangerous if allowed to run at large. Thus, the owner knew that there was a present dangerousness by virtue of the bite by a rabid dog. This case says nothing about animals being struck on public ways.

In further support of their contention that the general rules of common law negligence govern damages caused by livestock to an automobile, the appellants cite Pelham v. Spears, 222 Ala. 365, 132 So. 886 (1931). They state that the complaint in Pelham was dismissed because plaintiff failed to aver that “the cow was of such a nature that the damage done was likely to arise from such an animal and that the owner knew of its propensity” and “the injury must have been foreseeable and must have been proximately caused by the owner’s negligence.” The appellants contend that this implicitly recognizes a cause of action against the owner of an animal for damage to a motor vehicle based upon ordinary principles of negligence.

The appellants, however, badly misperceive Pelham. It was just a case of a cow hit by a car. Because the appellants recognize that letting livestock run free was not considered negligence, and recognize that the Pelham Court would have required a showing of knowledge of an animal’s mischievous propensities, but nevertheless contend that Pelham would have found liability upon proof that the injuries were the proximate result of the owner’s action, it becomes clear that the appellants would have us hold that the cow’s tendency to get in the road was a “mischievous propensity” which, upon a showing of the owner’s knowledge, would have supported a finding of liability. It is, however, obvious that the tendency of a cow to get in a road is not a “mischievous propensity,” whether or not the owner knows of the tendency. “Mischievous propensities” of an animal are its tendencies to bite, kick, gore, etc., not its tendencies to walk on a highway. Chief Justice Anderson recognized this in Pelham:

“The present complaint, while charging negligence, fails to establish a duty owing the plaintiff by the defendant not to permit the cow of the usual and ordinary nature and propensities to be upon the highway.” (Emphasis added.)

222 Ala. at 367, 132 So. 886. While the appellants allege that the defendants allowed the animal to roam at large with knowledge of its dangerous propensities, they make no claim that the animal’s propensities, whether or not such propensities were dangerous ones, were the proximate cause of their damages. While the bare allegation is made that the defendants knew of the animal’s dangerous propensities, if any, it is apparent that the overall issue here is whether § 3-5-3(a) unconstitutionally bars such a remedy. As stated above, we feel that § 3-5-3(a) creates new remedies.

Pelham was a suit brought by the plaintiff for damages caused when his automobile struck a cow, which he alleged to be on a public highway through its owner’s negligence. The plaintiff attempted to show that the cow’s presence on the highway was in violation of a statute. Chief Justice Anderson recognized that in 1928 Alabama laws provided for “stock law districts.” Section 10207, Code of 1923, authorized county commissioners to supervise elections “for establishing stock law districts in their respective counties.” These districts were contrary to the general state law and in them it was forbidden to permit stock to run at large. Section 10215 provided for a penalty against the owner of livestock whose livestock caused damage “on the premises of another” within the “stock law district.”

Chief Justice Anderson wrote in Pelham that the Court considered plaintiff’s allegation that the cow was on the road “contra formam statuti” to mean “in violation of the stock law.” Even with this assumption, however, he wrote that even if the act alleged occurred within a stock law district, the complaint “shows upon its face that the cow was not unlawfully upon the highway.” The stock law, he stated, would have made it unlawful to permit stock to go upon the premises of another, but would not have made it unlawful for the stock to be upon the highway, because:

“The common-law rule that animals must be on owner’s own premises does not obtain in this state. The rule is rather reversed and animals are permitted to run at large unless prohibited by statute. Means v. Morgan, 2 Ala.App. 547, 56 So. 759; M. & O. R.R. v. Williams, 53 Ala. 595; Hurd v. Lacy, 93 Ala. 427, 9 So. 378, 30 Am.St.Rep. 61.”

Pelham v. Spears, 222 Ala. at 366, 132 So. 886. In Pelham, the cow’s running at large violated no statute. Thus the cow was legally upon a public road and since its presence was legal, there could be liability only if the defendant-owner knew of “such propensities as would probably result in the injuries charged.” Then, Chief Justice Anderson added:

“Even if the owner negligently permitted the cow to be on the highway, as charged in the complaint, the said negligence must have been connected with the damage and it should be averred and proved that the cow was of such a nature that the damage done was likely to arise from such an animal and the owner knew of its propensity." (Emphasis added.)

222 Ala. at 367, 132 So. 886. In other words, (1) the general English common law rule that animals had to stay on their owner’s land has never been law in Alabama; (2) even if there had been proven a stock law district, it would not have been unlawful for the cow to be on the highway; and (3) even if the owner was negligent in letting the cow on the public road or highway, for that negligence to result in liability, it had to be shown that the cow’s nature made it likely to do damage if it got on a public road. There was no liability when a cow “of the usual and ordinary propensities” was allowed to be upon the highway and an automobile ran into it. There could, however, be liability if the cow was known to gore passersby or to charge motor vehicles and was allowed to go upon the highway and do just that.

A reading of Pelham v. Spears shows that no action existed in Alabama against an owner who allowed his cow to be upon a public highway and shows that the appellants are incorrect when they allege that at common law, the driver of a vehicle, a passenger, or the owner of the vehicle had a cause of action for injuries caused by livestock if the acts of the animal's owner proximately caused the injury. Pelham reaches exactly the opposite result insofar as it relates to automobile collisions.

The appellants also allege that § 3-5-3(a) abolishes all remedies for damages caused by a known mischievous animal or by the owner’s negligence or at least leaves a remedy barely worth pursuing, thereby violating § 13 of the constitution by abolishing a common law right. Yet § 3-5-3(a) makes no reference to damages caused by a “known mischievous animal.” Prior to the adoption of that statutory provision in 1939, an owner was liable only for his negligence which allowed damages to occur because of an animal’s “mischievous tendencies” or “mischievous propensities,” Pelham v. Spears, 222 Ala. 365, 132 So. 886 (1931), and § 3-5-3(a) in no way attempts to restrict that long recognized right. The 1939 statute for the first time extended to a wronged party a right to recover when a negligently loosed animal destroyed or damaged “crops, shade or fruit trees or ornamental shrubs and flowers.” These are not damages done by “mischievous” or “dangerous” animals — they are damages done by ordinary animals as they walk and eat. Section 3-5-3(a) does not deal with damages or injuries caused by “mischievous” or “dangerous” animals. Persons injured by a negligently loosed animal of dangerous propensities still have the same common law remedy that has always existed under Alabama common law. The appellants err in saying that § 3-5-3(a) abolishes such a right. Furthermore, as stated, no other remedy for damages done to automobiles by negligently loosed animals of ordinary propensities ever existed at common law for § 3-5-3(a) to abolish.

Justice Maddox succinctly explained the effect of § 3-5-3(a) in Chandler v. Waugh, 290 Ala. 70, 274 So.2d 46 (1973), when he stated:

“We think the legislature, in adopting the proviso in § 79 [now § 3-5-3(a)], intended to make the owner or keeper of stock ... liable for damages in motor vehicle accidents caused by livestock only where the owner or keeper knowingly or willfully placed or put the livestock on the highway, road, or street.”

290 Ala. at 74, 274 So.2d 46.

The appellants erroneously conclude that § 3-5-3(a) imposes such a low standard of care as to impose no standard at all, and that as a result, it abolishes an automobile owner’s or driver’s common law remedy for negligence. The 1939 statute actually created new rights that had not existed since the advent of statehood on December 14, 1819. This was well recognized by Judge Harwood when he wrote Randle v. Payne, 39 Ala.App. 652, 107 So.2d 907 (1958), in which he stated:

“Counsel for appellant asserts that Section 79, supra [§ 3-5-3(a), Code 1975], is violative of Section 13 of the Alabama Constitution which provides ‘That every person, for an injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law.’
“The injury mentioned in Section 13, supra, is damage resulting from breach of a legal duty. Whatever damage results from doing that which is lawful does not lay the foundation of an action. Pickett v. Matthews, 238 Ala. 542, 192 So. 261.
“Prior to the 1939 Act, supra, it was lawful for one to suffer stock to run at large upon a public highway. Crittenden v. Speake, 240 Ala. 133, 198 So. 137.
“It became unlawful so to do by the 1939 Act. At the same time that the legislature created this new legal duty it also provided a remedy imposing liability for its breach. This remedy, in case of injury to motor vehicles, was limited to those cases where the owner knowingly or wilfully placed stock on the highway. These limitations placed on the liability thus created became a part of the right created. See, 1 Am.Jur., Actions, Sec. 11. Having the power to create a new legal duty, necessarily the legislature had a right to limit the liability for breach of such duty.”

39 Ala.App. at 656-57, 107 So.2d 907. We believe Judge Harwood was correct. The statute in question did not limit or destroy rights, but created them. The Legislature, in the creation of a new right, is certainly not prohibited by § 13 of the Constitution from restricting that newly created right. Since we do not find that § 3-5-3(a) abolishes a common law right, but instead created a new cause of action unknown at common law in Alabama, the decision of the trial court to dismiss the complaint for failure to state a claim upon which relief could be granted is due to be affirmed.

AFFIRMED.

MADDOX and BEATTY, JJ., concur.

SHORES, ALMON and BEATTY, JJ., concur specially.

FAULKNER, JONES, EMBRY and ADAMS, JJ., dissent.

SHORES, Justice

(concurring specially).

I agree that the judgment of the trial court is due to be affirmed and adhere to the views that I expressed in Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980), and as expressed by the opinion of the Court in Lankford v. Sullivan, Long & Hagerty, [MS. July 9, 1982] 416 So.2d 996 (Ala.1982).

ALMON, J., concurs.

BEATTY, Justice

(concurring specially):

I agree with the majority opinion, and also adhere to the views expressed in my dissent in Fireman’s Fund American Insurance Company v. Coleman, 394 So.2d 334 (Ala.1981).

FAULKNER, Justice

(dissenting).

The Scotts challenged the constitutionality of the statute on the grounds that it violated the Equal Protection and Due Process clauses of the United States and Alabama Constitutions, as well as Ala. Const., Art. I, § 13. I would hold that the statute violates § 13; and thus, would reverse the judgment and remand the cause for trial.

A synthesis of earlier opinions construing § 13 establishes: If the legislative enactment abolishes or infringes on a common law right, a substantive right, or a fundamental right, the legislation will survive constitutional scrutiny only if:

1) The right is voluntarily relinquished for equivalent benefits;
2) the statute eradicates a perceived social evil, or;
3) the cause of action is no longer of benefit to society.

Second, if the legislative enactment merely alters a common law right or remedy, or does not infringe on a fundamental right, the legislation will be upheld unless:

1) the cause of action has already accrued or “vested;” or
2) the legislation is not rationally related to a reasonable state objective.

Section 13 is contained in that portion of the Constitution entitled “Declaration of Rights.” The Declaration of Rights, like the Bill of Rights, denotes those protections guaranteed to individuals against intrusions of the legislature. This provision had its origins in the Magna Charta and was a restriction upon royal power. See Ex parte Pollard, 40 Ala. 77 (1866); 2 Coke’s Institute, p. 55. Thus § 13 was perceived by the framers of our Constitution as a fundamental right.

It is a basic tenet of statutory construction that a provision should be interpreted to give effect to every portion of the enactment. In order to effectuate the provisions of § 13, the powers of the legislature cannot be read so broadly that the “very rights the section was intended to protect” are left meaningless. Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334, 351 (Ala.1981). Nevertheless, there must be a guard against an interpretation that may “effectively preclude governmental action in areas of crucial public concern.” The legislature has plenary powers to regulate matters concerning the health and welfare of its citizens, as well as other matters not constitutionally proscribed.

As early as 1866, this Court recognized a distinction between complete abolition of a cause of action and mere alteration of it. The Court stated, “the legislature may, consistently with the constitution, alter, enlarge, modify, or confer a remedy for existing rights.” Ex parte Pollard, 40 Ala. 77 (1866) (upholding constitutionality of “stay law”). “If the State legislature should abolish all remedies, and provide none, or should provide such as would barely leave the remedy worth pursuing, then this court, in my judgment, would be bound, upon principle and authority, to hold such act unconstitutional and void.” Id., (Bird, J., concurring). “The essence of the provision is . . . that an individual is entitled to a remedy for his injuries. Accordingly, a legislative enactment should withstand a § 13 attack if some remedy is provided a plaintiff for his injuries.” Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d at 355. (Beatty, J., dissenting).

A thorough examination of the cases interpreting § 13 shows that when the legislature has attempted to completely abolish a remedy for a protected right the statute must either eradicate a social evil or provide a quid pro quo. See Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1981); Grantham v. Denke, 359 So.2d 785 (Ala.1978); Ivey v. Dixon Investment Co., 283 Ala. 590, 219 So.2d 639 (1969). Nevertheless, legislation which provides procedural prerequisites to bringing suits, or limits, modifies or merely alters a remedy in some way is valid, subject to a “vested rights” limitation. See Mayo v. Rouselle Corp., 375 So.2d 449 (Ala.1979); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939); Swann v. Kidd, 79 Ala. 431 (1885); Martin’s Executrix v. Martin, 25 Ala. 201 (1854).

Two basic questions are raised when interpreting § 13. First, what rights are protected from legislative abolishment? Second, when does a legislative enactment so restrict a remedy that an otherwise protected right is not “worth pursuing” and thus is effectively abolished?

The majority suggest that § 13 protects only common law rights that existed at the time the constitutional provision was enacted. This interpretation ignores the nature of the common law. The common law is constantly changing. Surely, the legislature did not intend to restrict the rights of Alabama citizens only to those rights which existed over 200 years ago. If this were the case, many advancements in the law would never have occurred. ■ Furthermore, the language of the provision suggests no such limitation. This “common law right” interpretation is a judicially engrafted limitation which ignores the dynamic nature of societal standards from which fundamental rights evolve.

Protecting common law rights is similar to the Seventh Amendment’s preservation of the right to jury trial in “actions at law.” See U.S.Const., Amend. VII. The right to trial by jury has not been frozen to give the right only in those cases which were tried at law in 1791. See U.S.Const., Amend. VII. The right to trial by jury exists in all actions in which there is presently an “adequate remedy at law.” See Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1958); Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1961). A remedy by due process of law for injuries to a person is not limited to remedies that existed in the 1800’s. This right is part of our “fundamental law,” just as the right to trial by jury is. See Martin’s Executrix v. Martin, 25 Ala. 201 (1854).

Nonetheless, viewing § 13 as limited to actions which existed at common law is a convenient rule of thumb for review and a good starting point. But, § 13 also protects other fundamental or substantial rights; and these rights may find their source in either the legislative or judicial process, or in societal customs and usages. Hale, The History of the Common Law of England, 44.45 (Grey ed. 1971); H. F. Stone, The Common Law in the United States, 50 Harv.L.Rev. 4,12-14 (1936) (footnotes omitted). See also Landis, Statutes and the Sources of Law, Harvard Legal Essays, 213 (1934); Pound, Common Law and Legislation, 21 Harv.L.Rev. 383 (1908); Note, 82 Yale L.Rev. 258 (1972).

The term “fundamental right” is often used very loosely. But in this context, the term refers only to those rights which are so fundamental to an ordered society that the violation or abridgement of them would be constitutionally proscribed. Some such rights are expressly mentioned in our organic law, the written constitution, but others have been recently enunciated and afforded constitutional protection. Of the former, freedom of speech is an example, of the latter, the fundamental right to privacy is an example. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Thus, every fundamental and substantial right even though it may not have existed at common law, but which has become deeply embedded in our system of justice is constitutionally protected. See Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1981) (Shores, J., concurring).

The converse of the principle that § 13 protection is not limited to common law actions is also true. Section 13 protection of a common law remedy may cease when “evolving mores [have] rendered those causes of action obsolete and of no benefit to society.” Id. at 354. See Henley v. Rockett, 243 Ala. 172, 8 So.2d 852 (1942).

In sum, the legislative power is broad and subject to only narrow scrutiny under § 13. The legislature may alter, amend, or modify any cause of action either procedurally or substantively. The enactment need only be a reasonable means of obtaining a permissible objective. See Beasley v. Bozeman, 294 Ala. 288, 315 So.2d 570 (1975); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939). The legislation also must not deny a remedy for injuries to rights which have accrued and become vested before the enactment of the legislation — a retroactivity requirement. Id.

As against a § 13 challenge, the only prohibition on the legislative power arises when an act abolishes all remedies for a common law or fundamental right. The legislation will fail under constitutional scrutiny unless:

1) The right is voluntarily relinquished by its possessor in exchange for equivalent benefits or protection;
2) The legislation eradicates or ameliorates a perceived social evil and is thus a valid exercise of the police power; or
3) The cause of action is obsolete and of no benefit to society.

Grantham v. Denke, 359 So.2d at 789 (Maddox, J., dissenting).

Now turning to the issue of whether § 3-5-3(a) is constitutional. The first step in the analysis is to determine if the right to a remedy for injury or damage due to the negligence of a livestock owner is protected by § 13. In other words, is the right to sue a livestock owner a common law or fundamental right?

As early as 1844, this Court stated:

“[T]he owner of domestic animals, not necessarily inclined to commit mischief, such as dogs, horses, &c., is not liable for an injury committed by them, unless it can be shown that [1] he previously had notice of the animal’s mischievous propensity; or, [2] that the injury was attributable to some neglect on his part.”

Durden v. Barnett & Harris, 7 Ala. 169 (1844). See Hopper v. Crocker, 17 Ala.App. 372, 85 So. 843 (1919), cert denied, 204 Ala. 698, 85 So. 922 (1920); 3 J. Dooley, Modern Tort Law, §§ 37.02 and 37.05 (1977).

In Pelham v. Spears, 222 Ala. 365, 132 So. 886 (1931), the Court refused to permit recovery by an automobile owner for damages caused by a cow which had escaped. The complaint was dismissed because the plaintiff failed to aver that “the cow was of such a nature that the damage done was likely to arise from such an animal and the owner knew of its propensity.” In other words, the injury must have been foreseeable and must have been proximately caused by the owner’s negligence.

The Court at that time required knowledge of an animal’s mischievous propensities before holding that the injury was foreseeable, because there was no rule or statute prohibiting livestock from running free, as there is today. Id. Thus, merely permitting the livestock to run free was not considered negligence because the owners had no duty to restrict their livestock. The case implicitly recognizes a cause of action for negligence of the livestock owner, but found that the complaint failed to aver that the injuries were the proximate result of the owner’s action.

It is clear that at common law, the driver of a vehicle or owner had a cause of action for injuries caused by livestock if the acts of the animal’s owner proximately caused the injury or if the owner knew of the animal’s mischievous propensities.

The next step in the analysis is to determine if the legislature, by enacting Section 3-5-3(a), abolished all remedies for damages caused by a known mischievous animal or by the owner’s negligence. The statute prohibits recovery unless the owner “knowingly or willfully put or placed such stock upon such public highway.” In Carter v. Alman, 46 Ala.App. 633, 247 So.2d 676 (1971), the Court of Civil Appeals discussed the intention of the legislature in barring recovery unless the livestock are willfully placed on the highway. In an action for damages to an automobile caused by striking a cow in the road, the Court stated:

“There was evidence that appellee often had cows out of his pasture, and that the fence was of insufficient height to properly contain his cattle. His cattle had been observed in and along the highway at other times and had been hit by automobiles.
“[T]he owner of the feasant beast [must have] placed or put it upon the highway with a “designed set purpose, intention, or deliberation.” Evidence of negligence or gross carelessness is not enough [to establish liability under § 3-5-3(a).]”

Clearly the effect of requiring specific intent to place livestock in the road “would barely leave the remedy worth pursuing.” The standard of liability is so high, that it would be almost impossible to meet. To require an injured person to prove that a livestock owner knowingly and purposefully placed the stock in the highway leaves most injured persons with no remedy. Unlike the “guest statute,” which merely imposes a more difficult burden on a guest riding in a car, § 3-5-3(a) imposes a nearly impossible burden on an injured automobile owner or driver. See Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939). Under the “guest statute,” Code 1975, § 32-1-2, a driver may be liable for “wanton” misconduct. Wantonness requires that the actor have knowledge of the perilous consequences of his or her conduct and that the actor pursue the conduct in reckless disregard of the consequences, i.e., recklessness or gross carelessness. See Lankford v. Mong, 283 Ala. 24, 214 So.2d 301 (1968); Couch v. Hutcherson, 243 Ala. 47, 8 So.2d 580 (1942). But under § 3--5-3(a), recklessness or gross carelessness is not sufficient — the injured party must prove intent. The low standard of care for livestock owners is actually no standard at all, and abolishes an automobile owner or driver’s common law remedy for negligence.

The final determination to be made is whether the abolition of the common law cause of action eradicates a social evil or whether the cause of action was voluntarily relinquished in exchange for equivalent benefits.

The paradigmatic instance in which protected rights are relinquished in exchange for statutory benefits is the workmen’s compensation statute. Under the Workmen’s Compensation Act, the employee relinquishes the right to sue the employer for negligence, and instead is guaranteed a remedy regardless of the employer’s “fault” in causing the employee’s injury. See Grantham v. Denke, 359 So.2d at 787. In the present situation, automobile drivers, owners and passengers relinquish the right to sue the owner of livestock for injuries caused by the owner’s negligence or recklessness. In exchange, the injured parties receive nothing — there are no alternative remedies or schemes for compensation.

The immunity provisions of § 3-5-3(a) do not eradicate a perceived social evil. Obviously, the intent of the legislature in enacting the predecessor of § 3-5-3(a), was to regulate the open range. The advent of the automobile, then considered “a dangerous instrumentality,” necessitated regulation of livestock on the highway. The law prohibited owners of livestock from permitting their livestock to roam free. At the same time, the legislature gave immunity to those livestock owners, showing disfavor of the “dangerous instrumentality.”

Whether the statute eradicated a social evil' in 1939, I cannot say. But clearly, § 3-5-3(a) does not eradicate a social evil today. It abolishes an action for negligence, recklessness, and for failure to secure an animal whose known mischievous propensity is to roam on highways.

“[T]o hold a person liable for his carelessness is to make him more careful.... From [man’s] dual capacity for human excesses springs the time-tested fault-based system of reparation for injury — its fountainhead being the imposition of duty to act prudently not to inflict injury to another, and its result being safer conditions for all of us.”

Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d at 346 (Jones, J., concurring).

Judicial notice is taken that there are thousands of miles of highways in this state, and along with them, thousands of automobiles and hundreds of accidents, injuries, and deaths each year. The safety of those driving automobiles should not be jeopardized by the negligence or recklessness of livestock owners.

Parenthetically, I note that § 3-5-3(a) is suspect under the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the Constitution. Without ruling on the issue, I see that the statute arbitrarily distinguishes between owners whose livestock damage plants, trees, shrubs, and so forth, and owners whose livestock damage automobiles and injure the passengers inside. It is questionable whether this classification is reasonably related to a permissible state objective.

It is my opinion that the legislature exceeded the constitutional limits on its legislative authority by enacting § 3-5-3(a).

JONES, EMBRY and ADAMS, JJ., concur.

JONES, Justice

(dissenting).

I respectfully dissent. I concur generally in the dissent of Justice Faulkner. See my special concurrence in Lankford v. Sullivan, Long & Hagerty [MS. July 9, 1982] 416 So.2d 996 (Ala.1982). It is my belief that the challenged statute is so bad (speaking legally and not policy wise) that it cannot withstand constitutional attack (§ 13) under either the test espoused by Justice Al-mon in Lankford or the test set forth in Justice Faulkner’s dissent in the instant case.

While I personally embrace the Lankford test, as modified by my special concurrence, I believe its application renders the legislation here in issue constitutionally defective. To suggest that the statute afforded a right of action against the owner of livestock that did not otherwise exist, as opposed to restricting (or, in practical effect, virtually abolishing) the right of action, is, in my opinion, utterly ridiculous; and an opinion of this Court so holding should come as quite a shock to those “Black Belt” legislators who sponsored this statute to “protect” their cattleowner constituents.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    ALABAMA ELECTRIC COOPERATIVE, INC. v. Henry W. WATSON, et al.
    80-549.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    Alan C. Livingston and George C. Douglas, Jr., Andalusia, for appellant.
    Richard H. Ramsey, III, Dothan, for ap-pellee.
   ADAMS, Justice.

Alabama Electric Cooperative, Inc. (AEC) appeals from an order of the circuit court granting an injunction restraining AEC from continuing work on transmission lines across the property of Henry W. Watson and Kay L. Watson (the Watsons), appel-lees. The court stayed its order pending appeal so that AEC could put its nearly-completed lines into service, and adjudged that as to AEC’s motion for clarification, “the question of whether [AEC] will have to remove its transmission line will depend upon the outcome of [AEC’s] appeal herein.” Because we find the court to have erred in finding AEC’s choice of route was arbitrary, we reverse the grant of injunction. The question of whether AEC must move its line is, therefore, moot.

On January 30, 1981, AEC filed an application for order of condemnation in the Probate Court of Houston County, seeking transmission line easements across several parcels of land, including the Watsons’. Pursuant to a report of commissioners appointed in the cause, the probate court issued an order of condemnation on March 11, 1981. The damages assessed to the Wat-sons for their lands totaled $24,940.00. AEC appealed on March 11 to the circuit court from the portion of the order fixing damages and compensation, paid the award into the probate court, and began construction. On March 18, 1981, the Watsons appealed from both the order of condemnation and the portion of the order fixing damages. They also filed a complaint asking the circuit court to enter preliminary and permanent injunctions restraining AEC from continuing work on the Watsons’ property. An amendment to the complaint added the ground eventually relied on by the trial court, that AEC had not exercised good faith and had “acted in a capricious or wantonly injurious manner . . . resulting in an abuse of [AEC’s] right of eminent domain.”

The court held a hearing on April 23 on the Watsons’ amended complaint, AEC’s motion to strike, motion to dismiss, and answer. AEC’s responses averred, inter alia, that the acts sought to be enjoined were lawful exercises of AEC’s statutory power of eminent domain. The court issued an order enjoining AEC from further construction. Because AEC had a June 1,1981, deadline to begin supplying electricity for which it proposed to use these transmission lines, the court granted the above-mentioned stay to allow AEC to use the lines pending appeal.

The facts simply stated are that AEC routed these transmission lines parallel and adjacent to existing Alabama Power Company lines except for a detour through the Watsons’ property. If the line had gone straight instead of making this detour, it would have crossed a vacant subdivision lot and rendered it unusable. The line also would have passed within thirty feet of a house on another lot. All the trees on the west side of this house, between the house and the existing Alabama Power Company line, would have had to be cut down to make room for the AEC line. The Watsons use the portion of their land across which the line runs for grazing cattle. Counsel for AEC informed this Court, during oral argument, that the cows are still grazing.

The trial court’s order of injunction, after a brief statement of the case, reads as follows:

Generally, “a broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose with respect to the particular route, line, or location of the proposed work or improvement and the general rule is that the Courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion. The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable or just as suitable, for the purpose.” 26 Am.Jur. 2d Eminent Domain Sec. 113.
In Alabama, the delegation of the power of eminent domain without restriction carries with it the power to locate the route, and its location will not be interfered with if it is made in good faith or it is not capriciously or wantonly injurious. Berry v. Alabama Power Company, 257 Ala. 654, 60 So.2d 681 (1952); Alabama Power Company, v. Hamilton, 342 So.2d 8 (Ala.1977); Hogan v. Alabama Power Company, 351 So.2d 1378 (Ala.Civ.App.1977).
This Court does not find, under the testimony and evidence presented herein that Plaintiff’s decision to locate its electrical line along the route taken through the Defendants’ property was made in bad faith or is wantonly injurious, but the Court does find that such is capriciously injurious. The words “arbitrary” and “capricious” when used in a legal sense in determining that a decision was arbitrary and capricious are to be distinguished from the same words used in a popular sense, where they have an opprobrious connotation. Such are used in a legal sense to indicate that the findings are without rational basis or that the evidence to support the findings is non-existent or without probative value in either direction. Tri-County Electric Cooperative, Inc. v. Elkin, N.D., 224 N.W.2d 785, 794.
A finding that a decision was arbitrarily or capriciously made does not amount to a finding that it was made in bad faith, fraudulently, or through ignorance or incompetency; but, that it was made without a reasonable or rational basis or without adequate determining principle.
The defendant landowners in this case do not object merely because other property might have been obtained by the Plaintiff on which to run the electrical transmission line easement, but object to the taking of their property in order to avoid the taking of such other property. They object to the Plaintiff’s determination of what property is necessary for the public purpose with respect to the particular route of their electrical transmission line; and it appears to this Court that there is in fact another route which might have been followed which not only would be suitable, or just as suitable, but could in fact be more suitable, after a thorough consideration of all factors, and would avoid the necessity of taking a meandering detour through the property of the Defendants. This Court after hearing testimony and evidence does not feel that the Plaintiff fully considered all relevant factors which should have been considered.
The Court finds that the Plaintiff’s decision to locate its electrical line along the route herein through the Defendants’ property was made without sufficient adequate determining principle in that it was made without due or reasonable consideration of all factors. Many factors which should weigh upon the decision of which route to select and which land to condemn, including whether or not there is an alternate route over unoccupied land, are cost, environmental factors, long-range area planning, and safety considerations. Some of these factors — cost, for example — involve many sub-factors, such as the value of the land, the engineering problems presented by the terrain, et cetera. Hillsboro County v. Sapp, (Fla.) 280 So.2d 443.
The Plaintiff’s Manager of Engineering Services, whose job involves the planning, engineering, design, and construction of facilities, testified that the proposed route came through an area that they thought would have the least damaging impact on the overall area, and that such route was determined to be the most feasible in order to avoid running the line within 25 or 30 feet of a house.
The desire of avoiding running an electrical transmission line near a house is understandable. However, the Plaintiff has run such lines within such proximity of houses on other occasions. Further, it was admitted that the Plaintiff could avoid running the line within such proximity of the particular house by crossing the Alabama Power Company easement at a point above the point where it proposes to cross it, and [the court] fails to see the determining principle by which it made its determination not to. In either event, such would involve taking someone’s property and this Court fails to see why the Plaintiff chose the Defendants’ property.
Under the testimony presented at the hearing herein, the Plaintiff could run its route more directly without detouring through the property of the Defendants. The Plaintiff has failed to take into consideration factors which should weigh upon its decision of which route to select and which land to condemn, including construction costs and condemned property costs of a more direct route as opposed to the proposed route and has failed to fully take into consideration whether the proposed route is in fact reasonably or rationally necessary in consideration of all factors.
Wherefore, IT IS HEREBY ORDERED that the Plaintiff, its agents, servants, and employees are hereby enjoined and restrained from continuing further work on their electrical transmission line on Defendants’ property until further Order of the Court.
DONE this the 23rd day of April, 1981.

We find that the able judge below erred in holding that AEC abused its discretion and capriciously injured the Watsons. As AEC argues on appeal, the opinion seems to place the burden on AEC to prove that its choice was reasonable rather than on the Watsons to prove the action was capricious. The essence of the court’s decision is that another route would be “more suitable” in contradistinction to the rule that the landowner may not object merely because another location “would have been suitable or just as suitable.”

Our inspection of the cases confirms our opinion that deference is due to a condemn- or’s choice of route. The trial court correctly cited Berry v. Alabama Power Company, 257 Ala. 654, 60 So.2d 681 (1952); Alabama Power Company v. Hamilton, 342 So.2d 8 (Ala.1977); and Hogan v. Alabama Power Company, 351 So.2d 1378 (Ala.Civ.App.1977), as statements of the law on this subject in Alabama. In Berry and Hamilton, however, the issues centered on legislative delegation of the power to condemn with little or no allegation that Alabama Power had exercised such power capriciously or wantonly. In Hogan, the Court of Civil Appeals addressed the issue and concluded that, “although the final location of the power line on Hogan’s land could result in interference with its proposed future use, we cannot say that the ultimate location of the power line was a wanton and capricious act resulting in an abuse of the Power Company’s right of eminent domain.” Hogan, supra, 351 So.2d at 1386. Alabama Power had changed an original plan which would have crossed Hogan’s lake and garden, but he still complained that the location interfered with his proposed development of a resort area.

This Court made the statement in Berry that:

The general principle is well established that the delegation of the power of eminent domain to a grantee, without restriction, carries with it the power to locate the route, and its location of necessity will not be interfered with by the courts if it is made by the utility in good faith and is not capricious or wantonly injurious.

Berry v. Alabama Power Co., supra, 257 Ala. at 657, 60 So.2d 681. This phrasing of the standard of review came from 29 (now 29A) C.J.S. Eminent Domain, § 91, page 886 (now pp. 376-377).

The above-cited section in C.J.S. continues as follows:

The landowner cannot raise the objection that there is no necessity for condemning his property because some other location might be made, or some other property obtained which would be more suitable. The choice of location by the grantee may not be challenged on the ground that another location on its own land would be as convenient and less expensive. The question whether the taking of land in another location will better suit the economic, cultural, aesthetic, or conservation needs of the community, and its residents, is not judicial. 29A C.J.S., Eminent Domain, § 91 pp. 378-79 (citations omitted).

Our inspection of the cases cited by C.J.S. and found through our research discloses that instances where the condemning authority’s choice has been upheld are legion. The courts in the following cases have held that a condemnor did not act arbitrarily or capriciously or abuse its discretion: Arco Pipeline Co. v. 3.60 Acres, More or Less, 539 P.2d 64 (Alaska 1975) (availability of alternate route which might even be more desirable in some respects not sufficient to show arbitrariness or abuse of discretion); City of Jacksonville v. Griffin, 346 So.2d 988 (Fla.1977) (city presented sufficient evidence of reasonable necessity); Wright v. Dade County, 216 So.2d 494 (Fla.App.1968); Sweat v. Georgia Power Co., 235 Ga. 281, 219 S.E.2d 384 (1975); Miller v. Georgia Power Co., 222 Ga. 239, 149 S.E.2d 479 (1966) (owners’ plan to use property for subdivision did not prevent power company from exercising its power of eminent domain, even though this was not the most direct route); Oxendine v. Public Service Co. of Indiana, Inc., 423 N.E.2d 612 (Ind.App.1980); Ellis v. Public Service Co. of Indiana, Inc., 168 Ind.App. 269, 342 N.E.2d 921 (1976) (company marked out straight line for transmission lines, then made changes to avoid buildings, roads, etc.); J. M. Foster Co., Inc. v. Northern Indiana Public Service Co., Inc., 164 Ind.App. 72, 326 N.E.2d 584 (1975); State, Through Dept. of Highways v. Olinkraft, Inc., 350 So.2d 865 (La.1977); Texas Pipe Line Company v. Stein, 190 So.2d 244 (La.App.1966) (choice of route for pipeline under Mississippi River was not arbitrary); Louisiana Power & Light Co. v. Anderson, 188 So.2d 733 (La.App.1966); State Highway Commission v. Crossen-Nissen Co., 145 Mont. 251, 400 P.2d 283 (1965); City of Newark v. New Jersey Turnpike Authority, 7 N.J. 377, 81 A.2d 705 (1951), appeal dismissed, 342 U.S. 874 (1951); In re Flinchum, 21 N.C.App. 124, 203 S.E.2d 325 (1974); Board of Ed. of City School Dist. of Columbus v. Holding Corp. of Ohio, 29 Ohio App.2d 114, 580 Ohio Op.2d 165, 278 N.E.2d 693 (1971) (bad judgment is not abuse of discretion); Laird v. Pennsylvania Public Utility Commission, 183 Pa.Super. 457, 133 A.2d 579 (1957) (selection of route is for utility in first instance and Public Utility Commission is not required to withhold its approval merely because another route might have been adopted); Hillman Coal & Coke Co. v. Pennsylvania Public Utility Commission, 61 Pa.Cmwlth. 355, 433 A.2d 634 (1981) (evidence supported commission’s conclusion that route selected was not arbitrary, wanton, or capricious); In re Spory, 54 Pa.Cmwlth. 17, 419 A.2d 804 (1980) (emphasizing burden on landowner seeking to prove abuse of discretion): Blank v. Columbia Gas of Pennsylvania, Inc., 11 Pa.Cmwlth. 304, 314 A.2d 880 (1974) (choice of right-of-way not arbitrary and capricious even though utility had existing right-of-way); Krenek v. South Texas Electric Cooperative, Inc., 502 S.W.2d 605 (Tex.Civ.App.1973) (if condemning authority’s action is honestly exercised, it is not arbitrary even though other experts would have selected a different route).

Many of the above cases involved fact situations similar to the one here, where a condemnor has chosen one route for a road, pipeline, transmission line, etc., and the property owner advocates another location. We deem it more instructive to point out distinguishing aspects of the few cases we have found holding a decision to be arbitrary or capricious than to detail the similarities of the above eases.

In State Highway Commission v. Danielsen, 146 Mont. 539, 409 P.2d 443 (1965), the Highway Commission had rerouted an existing road across fourteen miles of fertile farmland. The Supreme Court of Montana held that damage to the farmland and businesses along the existing highway should have been considered where, for all the record showed, the merits of the proposed route and one substantially following the existing highway were almost equal. The magnitude of damage to the farmland by that highway was much greater than the damage here to the Watsons’ land, where their cattle can still graze.

In State v. Superior Court of Washington for Yakima County, 128 Wash. 79, 222 P. 208 (1924), the proposed location of a road would have interfered with use of the landowners’ fruit warehouse for cold storage. Rerouting the road forty feet away would avoid the interference and also make a railroad crossing safer. The cold storage was necessary for the growers in the area and the warehouse could not be relocated because of the terrain. The rerouting would add very little expense, length, or curvature to the road. The Supreme Court of Washington affirmed a finding of constructive arbitrary and capricious action.

We have found two Louisiana cases denying a condemnor’s choice of route. Louisiana Power & Light v. Caldwell, 353 So.2d 1343 (La.App.1977); Southwest Louisiana Electric Mem. Corp. v. Simon, 207 So.2d 546 (La.App.1968). These decisions were based on statutory requirements that an electric utility consider the convenience of the landowner and conduct bona fide negotiations with the landowner. While we approve such efforts by utility companies, our statutes do not impose such a duty so specifically as to negate the discretion granted to the condemnor where it acts in good faith, as the court below found here. Code 1975, §§ 18-1-1 et seq., and § 37-6-3. Furthermore, even Louisiana courts do not make these considerations absolute. See, e.g., Louisiana Power & Light Company v. Anderson, supra.

For two other cases indicating a possible result against the condemnor, but based on specific statutory provisions, see In re Bangor Hydro-Electric Company, 314 A.2d 800 (Me.1974) (under statute, location had to be the proper location in the public interest— i.e., one more in the public interest than any others proposed); Bouton v. Potomac Edison Co., 282 Md. 142, 383 A.2d 669 (1978) (Public Service Commission granted the required certificate of public convenience and necessity conditioned on specific rerouting; landowner could bring action to determine if power company followed this rerouting).

Clearly, then, the weight of authority imposes a heavy burden on the Watsons in their attempt to prove that AEC acted capriciously. We reiterate that the legislative delegation of the power to condemn carries with it the power to choose the route. Berry v. Alabama Power Co., supra. Courts allow broad discretion in this choice in part because legislatures can narrow it or subject it to guidelines if they choose. See, e.g., Bouton v. Potomac Edison Co., supra, wherein Maryland law requires Public Service Commission approval of a proposed route.

A landowner cannot object merely because another route might have been adopted; e.g., Lavid v. Pennsylvania Public Service Commission, supra., or because the company crossed his land in order to avoid crossing some other land, Miller v. Georgia Power Co., supra. The fact that AEC has run lines within thirty feet of houses on other occasions does not require them to do it this time. Cf. Krenek v. South Texas Electric Cooperative, Inc., supra, in which the landowners’ attempt to prove that the company had deviated from a straight line in other areas was held not probative of their assertion that it arbitrarily refused to accept their proposed deviation from the straight line through their property.

Mr. Watson testified in the trial below that he had seen AEC’s lines pass close to other houses. This evidence cannot by itself support a conclusion that AEC’s effort to avoid passing within 30 feet of a house was arbitrary. AEC’s engineer, Brandon Ray Clausen, testified he would not route the lines close to houses if he could avoid it. There was no evidence as to the circumstances or alternatives where AEC did pass its lines close to houses. Therefore, the Watsons’ evidence that AEC had passed lines close to other houses was not probative of his assertion that AEC’s decision in this case was arbitrary.

The alternate route suggested by the trial court of crossing the Alabama Power Company lines and proceeding parallel to them was conceded at trial to be a possible route. However, there is no evidence in the record that this alternative was suggested to AEC either before or during the probate court condemnation proceeding. The authorities cited above make it abundantly clear that the possibility of another route is not enough to make a condemnor’s decision arbitrary or capricious.

Because of the damage to the homeowner next to the original straight-line route and because of the lack of significant interference with the Watsons’ use of their property, we hold that the trial court erred in finding that AEC’s decision to reroute its lines was capricious or without rational basis. We reverse and remand for the trial court to issue an order dissolving its injunction and to proceed with the appeals of the damage award.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.

      . “Plaintiff” refers to AEC (in its posture as condemnor) and “defendants” to the Watsons.


author:
SHORES, Justice.
     JONES, Justice EMBRY, Justice

text:
    NATIONAL SAVINGS LIFE INSURANCE COMPANY, a Corporation v. Eula DUTTON.
    80-897.
    Supreme Court of Alabama.
    Sept. 17, 1982.

      Robert H. Harris of Caddell, Shanks, Harris, Moores & Murphree, Decatur, for appellant.
    A. P. Reich, II of Speake, Speake & Reich, Moulton, for appellees.

         Although not sitting at oral argument of this case, this Justice has listened to the tapes of oral argument and has studied the briefs.

   SHORES, Justice.

This is an action in which damages were claimed for breach of a contract of health and accident insurance issued to plaintiff Eula Dutton by defendant National Savings Life Insurance Company (National), and the bad faith refusal by National to pay a claim made under the policy.

National denied any liability and charged that Mrs. Dutton had, in her application, materially misrepresented matters relating to her previous health condition. For this reason, National denied the claim, rescinded the policy, and returned all premiums.

The case was tried to a jury, which returned a verdict in favor of the plaintiff for $14,000. National filed a motion for new trial or, in the alternative, a judgment notwithstanding the verdict, contending:

(1) That the court erred in denying National’s motion for a directed verdict on the tort claim of bad faith refusal to pay Mrs. Dutton’s claim; and

(2) That the court erred in its instruction to the jury that the policy was subject to cancellation or rescission only if Mrs. Dut-ton intentionally or deliberately furnished false information to National in her application for insurance.

The trial court denied National’s motion, and National appealed. We reverse and remand.

The policy was solicited by Wendell Eddy, Mrs. Dutton’s son-in-law, who was a soliciting agent for National and other companies. In completing the application for the policy, he asked Mrs. Dutton a series of questions which appeared on the printed application form. He testified that he recorded her response to each question, one of which inquired of her whether she had ever had: “High or low blood pressure, pain in chest, varicose veins, disease of heart or circulatory system.” To this she responded “no.” Dr. Paul P. McCain, Decatur, was shown on the application as her physician.

After completing the application, Eddy forwarded it to National to be processed. When the policy was returned to Eddy for delivery to Mrs. Dutton, he reviewed it with her and pointed out to her the “NOTICE” contained in the policy, advising that it could be voided if the application contained incorrect information.

The policy became effective on September 20, 1977. On November 6, 1978, Mrs. Dutton, for the first time, consulted Dr. Tony Williams, a medical practitioner in Moulton. A medical history was taken by his nurse, which, according to Dr. William’s testimony, included a statement that Mrs. Dutton “was having pain in her right side of her back and under the right shoulder,” and this pain had been experienced “at intermittent intervals for two or three years.”

At trial, Dr. Williams described the pain as radiating “from the right side around into the right upper quadrant, the lower part of the chest right upper quadrant.” He also testified that, because of the vagueness of the symptoms and his being not quite sure what the cause was, he sent her to the hospital for further examination that same day.

As part of the admitting process, a further medical history was taken by hospital personnel, who are not medically trained. This hospital record contains the following entry:

“NAME: Dutton, Eula NMN Date: 11-7-78
“Sex: Female
“No. 46624
“CHIEF COMPLAINT: Chest pain.
“PRESENT ILLNESS: This 57 year old WF was admitted complaining with having chest pain in left side at intervals for approximately three years. Patient states this continued and became worse one month ago. Patient states this was very severe one day prior to admission. Patient states takes medication for high blood. Patient admitted for further evaluation and treatment.”

Dr. Williams testified that he admitted Mrs. Dutton to the hospital and ordered laboratory tests “to rule out the cause of chest pain.” He also testified, and the hospital record reflects, that the patient had some high blood pressure readings in the days following her admission to the hospital, and Dr. Williams started her on high blood pressure medication “shortly thereafter.” The patient’s chart contains this entry on the night she was admitted:

“9:30 P.M. Dr. Williams visits patient, ordered medicines .... Shaking and complaining of chest pain, blood pressure 180/100, pulse 100.”

The patient was dismissed after several days, and the hospital discharge summary, as reflected in the record, is as follows:

“DISCHARGE SUMMARY
“Patient: Dutton, Eula NMN Age: 57
“Sex: Female Case No: 46624
“Admitted: 11-6-78 Discharged: 11-10-78
“Physician: Dr. Tony Williams
“Provisional Diagnosis: Back Pain
“Final Diagnosis: Ulcer Disease
“Hospital Course: This 57 yr. old WF was admitted with two months history of pain in the back which radiated into the right upper quadrant. On questioning it was difficult to differentiate what the patient was calling back pain from right upper quadrant pain. I suspect this patient might possibly have gallbladder disease although the gallbladder series was within normal limits. BE was also within normal limits. Upper G. I. Series did reveal some deformity of the duodenal area. There was no noted active ulcer at the present time. EKG was essentially within normal limits except for some mild or minimal ST segment changes. SMA 12, CBC, Urinalysis were all within normal limits.
“Final Disposition: Patient was discharged from the hospital in good condition on Tagamet and Antacid.”

Following her discharge from the hospital, a claim for benefits was filed with National by the hospital and Dr. Williams. The claim indicated that Mrs. Dutton’s hospitalization was for an ulcer disease. Upon receipt of the claim, National sought and received, with Mrs. Dutton’s authorization, the medical records relating to her hospitalization. After reviewing these records, the company denied the claim with the following letter:

“March 2, 1979
“Eula Dutton
“Route 3, Box 316
“Moulton, AL 35650
“RE: Policy No. 312252
“Mrs. Dutton, we now have the medical information we needed to complete your file . . . thank you for your patience. “According to this information, you have been experiencing chest pains in the left side for approximately three years. The information also indicates that you have been taking medication for high blood pressure. This information was not on your application for insurance. If our Underwriters had known about this past history at the time they were considering your application, they could not have issued the policy as applied for. In view of this, we must now void your policy as of the date of issue . . . I’m sorry. The enclosed check represents a refund of the premiums you have paid us.
“This action, Mrs. Dutton, is based upon the information we have in file. If for any reason you feel this to be inaccurate or incomplete, we will be glad to review anything additional you might want to present us.
“Fount W. Bertram, Manager
“Claims Department”

Mrs. Dutton asked Dr. Williams to respond to this letter, which he did, he said, to document that he “was not aware that Mrs. Dutton had previous outstanding hypertension.” His letter follows:

“March 8, 1979
“National Savings Life Insurance Company
“Murfreesboro,
“Tennessee
“Re: Eula Dutton
BD: 1-7-21
Pol. # 312252
# 2177-AL
“Dear Sir:
“Mrs. Dutton was first seen in my office approximately two and one-half months ago on routine examination and was found to be moderately hypertensive. Patient had had no previous history of hypertension or previous medications. Patient returned and repeat B. P. continued to be moderately elevated and patient was started on B. P. medicines approximately two months ago. Patient had also had some intermittent pain which was located in the posterior cervical area on the left side. Patient had not had medical care for this. This pain became progressively worse and patient was hospitalized on 11-6-78 and was seen in the office on the day of admission with moderately severe pain in the left posteri- or cervical region radiating into chest. Examination was essentially negative except for some epigastric tenderness. Patient has had no previous medications for this pain, but I felt that patient should be evaluated for this problem.
“If there is any further information needed, will be happy to send copies of records, etc.
“Sincerely,
“Tony L. Williams, MD.”

The record also discloses that subsequent to the cancellation of the policy, Mrs. Dut-ton was again admitted to the hospital, complaining of chest pains. When the company declined Mrs. Dutton’s request to reinstate the policy, she cashed the premium refund check and filed this lawsuit.

On appeal, National presents the same two issues on which its motion for new trial or JNOV was based. It argues that the trial court erred in its instruction to the jury that the policy was subject to cancellation or rescission only if Mrs. Dutton intentionally or deliberately furnished false information in her application for insurance.

The trial court addressed the issue of National’s right to cancel the policy several times in its instruction to the jury, and the following is representative of the substance of the trial court’s charge:

“The question in the first instance that the Jury has got to answer is, whether or not the Plaintiff, Mrs. Dutton, was truthful in her answer. She might have had a heart condition; if she knew about it and if she failed to answer, then the insurance company is entitled to have the contract rescinded, but the fact that it turns out later on that she has a heart condition or she has some heart condition, that is not the question; the question is, was at the time and place that she filled out this application did she truthfully answer to the best of her knowledge all the questions as specified in that application. And once you have found that she did, then we must move on to other areas.”

We agree that the trial court’s instruction was erroneous. A representation need not be made with intent to deceive for an insurer to void an insurance policy. In pertinent part, Code 1975, § 27-14-7, provides:

“(a) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by, or in behalf of, the insured or annuitant shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy or contract unless either:
“(1) Fraudulent;
“(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
“(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract at the premium rate as applied for, or would not have issued a policy or contract in as large an amount or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.”

Construing the predecessor to § 27-14-7, this Court in New York Life Ins. Co. v. Horton, 235 Ala. 626 at 630, 180 So. 277 at 280-1 (1938), commented:

“It will be noticed, as often heretofore pointed out in our decisions, that the statute is in the alternative, ‘unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increase the risk of loss.’ If the misrepresentation falls within the second alternative, then it is not necessary that it be ‘made with actual intent to deceive.’ In fact, under the second alternative, the party making the representation may be wholly unaware that he is misrepresenting the true facts, and may be wholly innocent of any bad motive. In such case, intent or motive is not a material inquiry.” (Citations omitted.)

It was unnecessary, therefore, for plaintiff to have provided incorrect information with an intent to deceive. If she innocently made an incorrect statement that was material to acceptance of the risk, or would have caused National, in good faith, not to have issued the policy as it did, then National could have denied her claim and voided her policy. Accordingly, National’s objections to the erroneous charges and motion for a new trial were meritorious.

National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982), is our most recent effort to define the recently recognized tort of bad faith refusal to pay a valid insurance claim. There we said:

“An insurer is liable for its refusal to pay a direct claim when there is no lawful basis for the refusal coupled with actual knowledge of that fact. Chavers v. National Security Fire Ins. Co., Ala., 405 So.2d 1 (1981). No lawful basis ‘means that the insurer lacks a legitimate or arguable reason for failing to pay the claim.’ Gulf Atlantic Life Ins. Co. v. Barnes, Ala. 405 So.2d 916 (1981). When a claim is ‘fairly debatable,’ the insurer is entitled to debate it, whether the debate concerns a matter of fact or law. Ibid.
“Under those authorities the plaintiff in a ‘bad faith refusal’ case has the burden of proving:
“(a) an insurance contract between the parties and a breach thereof by the defendant;
“(b) an intentional refusal to pay the insured’s claim;
“(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.
“In short, plaintiff must go beyond a mere showing of nonpayment and prove a bad faith nonpayment, a nonpayment without any reasonable ground for dispute. Or, stated differently, the plaintiff must show that the insurance company had no legal or factual defense to the insurance claim.
“The ‘debatable reason’ under (c) above means an arguable reason, one that is open to dispute or question.”

Applying these rules to the facts of this case, we are compelled to hold that the trial court erred in denying National’s motion for judgment notwithstanding the verdict on the bad faith claim.

The plaintiff failed to meet the burden of proof that she must bear. She did not prove that her claim was denied by National without a reasonably legitimate or arguable reason for the refusal. In fact, her evidence established that it did have a reasonable basis for denying the claim.

Whether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision is made. Here, the company had before it a hospital record which purported to quote Mrs. Dutton as saying, upon her admission, that she was suffering chest pain and had experienced chest pain for two or three years. This was in direct contrast to the answer which she gave to a direct question on the application. When the company informed her that it was denying the claim and cancelling the policy because her answers to the questions on the application conflicted with the medical records, she did not come forward with any additional information with regard to a history of chest pain. She did not tell the company that the hospital admission record was false; in fact, she did not attempt to refute it in any way except to have her physician write a letter in which he did not dispute the record. He simply said that, insofar as he knew, she had no history of hypertension before he first saw her and hospitalized her.

Under these facts, a reasonable basis existed for denying the claim and would, thus, defeat a tort action for bad faith refusal to pay the claim. We cannot agree with the plaintiff’s assertion in brief that the company had an affirmative duty to investigate further. It invited Mrs. Dutton to supply additional information if what it had was inaccurate. This she did not do.

As noted by both sides in this case, the tort of bad faith refusal to pay a valid insurance claim is in the embryonic stage, and the Court has not had occasion to address every issue that might arise in these cases. In Bowen, supra, we set out the elements of the tort and attempted to show the plaintiff’s burden in these cases. It is a heavy burden. In the normal case in order for a plaintiff to make out a prima facie case of bad faith refusal to pay an insurance claim, the proof offered must show that the plaintiff is entitled to a directed verdict on the contract claim and, thus, entitled to recover on the contract claim as a matter of law. Ordinarily, if the evidence produced by either side creates a fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim must fail and should not be submitted to the jury.

Such is the case before us. Under these facts, National sought and was entitled to a directed verdict on the tort claim. Therefore, the trial court erred in denying its motion for a judgment notwithstanding the verdict on that claim.

The judgment appealed from is reversed and the cause remanded for a new trial on the contract claim.

REVERSED AND REMANDED.

MADDOX, BEATTY, and ADAMS, JJ., concur.

JONES and EMBRY, JJ., concur specially.

FAULKNER, J., dissents.

TORBERT, C. J., recused.

JONES, Justice

(concurring specially).

I concur completely with the opinion and write separately to elaborate on one point. The opinion correctly prefaces the “directed verdict on the contract claim” standard with the words “In the normal case”; and the phrase “if the evidence produced . .. creates a fact issue ...” is preceded by the word “Ordinarily.” These are significant qualifications. Certainly, extreme cases will arise in which a fact issue will present a jury question on that claim. This is not the case before us; and, absent such circumstances, the “directed verdict on the contract claim” is the applicable standard for testing the tort of bad faith claim.

EMBRY, Justice

(concurring specially):

I am in complete agreement with the result the opinion of the majority dictates. However, it seems to me the course of this case through the trial court demonstrates the need for the safeguards suggested in my dissent in Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So.2d 1054, 1067, 1068 (Ala.1979). My views, regarding the safeguards necessitated by the nature of these cases, were repeated in my dissent in Chavers v. National Security Fire & Casualty Co., 405 So.2d 1, 16, 17 (Ala.1981), and in my special concurrence in Aspinwall v. Gowens, on rehearing, 405 So.2d 135, 139.

       Although not sitting at oral argument of this case, this Justice has listened to the tapes of oral argument and has studied the briefs.