author: BEATTY, Justice.

text:
    Lucile WHITE v. James R. KNIGHT, As Chairman, etc., et al.
    82-2.
    Supreme Court of Alabama.
    Decision Announced Oct. 11, 1982.
    Opinion Nov. 5, 1982.
    Rehearing Denied Dec. 30, 1982.
    David J. Vann of Carlton, Vann & Sti-chweh, Birmingham, for appellant.
    Edward S. Allen and Edward Still, Birmingham, for appellees.
   BEATTY, Justice.

This is an appeal from an order issued in a declaratory judgment action which sought interpretations of Section 47, Constitution of 1901, and Code of Ala. 1975, § 17-16-86, and injunctive relief. We affirm.

The relevant portion of Section 47 mandates that:

“Senators ... shall have been citizens and residents of this state for three years and residents of their respective counties or districts for one year next before their election, if such county or district shall have been so long established; but if not, then of the county or district from which the same shall have been taken.... ” (Emphasis added.)

Section 17-16-86 deals with the results of election contests, viz.:

“Upon the hearing of any contest, if the state or county executive committee finally determines who is the legal nominee for any office, it shall make a declaration of its judgment upon the question, but a failure or refusal by the committee in which the contest is brought to hear and determine the same as much as 40 days before the general election in November shall be treated as a dismissal or the rendition of judgment against the contestant ... but all certificates shall be made so as to get the nominee on the ballots for the general election in November.” (Emphasis added.)

The plaintiff, Lucile White, was the winner of the September 7, 1982, Democratic primary election for the nomination as state senator for Senate District 17. However, acting on a contest of that election filed by Ida Mae Cowley, a subcommittee appointed by the State Democratic Executive Committee on September 30,1982, declared that Lucile White did not meet the residency requirements of Section 47 because she had not been a resident of the state for the three-year period next preceding the date of the general election. White’s primary election was set aside, and the position was declared vacant to be filled by the State Democratic Executive Committee on October 9,1982. This subcommittee decision on the contest was rendered thirty-two days before the general election (November 2, 1982), not 40 days as § 17-16-86 prescribes.

Lucile White brought this declaratory judgment action challenging the action of the subcommittee. The Circuit Court of Jefferson County upheld the action of the subcommittee, holding that Section 47 of the state Constitution required a three-year state residency next preceding the general election, and White’s admitted two years and six months’ state residency prior to that election was insufficient under that section. The circuit court also held that the requirements of § 17-16-86 were directory, not jurisdictional, intended to allow election officials adequate time in which to have the names of candidates placed on the ballot for the general election. On this appeal the plaintiff takes issue with both of these conclusions.

The plaintiff points to the phrasing of Section 47 which refers to state residency and then to district residency. The latter residency, she asserts, contains the qualification of residency “next before their election,” while the former does not. Accordingly, she insists, the Constitution framers did not place the same qualifications on both with the result that an aggregate residence of three years would suffice. Moreover, plaintiff argues that the language of Section 47 is ambiguous, and being so dictates the use of the “doctrine of last antecedent” in discovering its meaning:

“By what is known as the doctrine of the ‘last antecedent,’ relative and qualifying words, phrases, and clauses, are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote; ...”

citing 82 C.J.S. Statutes § 334 (1953).

We appreciate the application of this general rule of statutory construction; however, we also note from the cited section that the doctrine is only an aid to construction and “will not be adhered to where extension to a more remote antecedent is clearly required by a consideration of the entire act.... Where several words are followed by a clause as much applicable to the first and other words as to the last, the clause should be read as applicable to all.” Ibid. See also 2A Sutherland Statutory Construction § 47.33 (Sands 4th ed. 1973).

The search for the meaning of this entire act is aided by the decision of Butler v. Amos, 292 Ala. 260, 292 So.2d 645 (1974). That case held that a candidate for election to the state senate was required under Section 47 to have resided in his district for one year next preceding the election, Merrill, J., expressing the following reasoning:

“ ‘[T]he ... object ... intended ... ’ was that a legislator must have lived at least one year in the same district with the people he sought to represent in the legislature so that they could know him and he could learn something of their needs.”

We agree with the reasoning of the trial court that this same object is to be accomplished under the three-year residency requirement, i.e., so that the elected senator would possess, or would have had an opportunity to possess, knowledge of the needs of the people of the state at large which the three years’ minimum continuing residency would avail the candidate, and which would not be accomplished by the use of “tacking” former years of residency as in this instance. This construction appears to us to accomplish the intent of the framers of Section 47.

With respect to § 17-16-86 the plaintiff maintains that compliance with its time requirements is jurisdictional, thus, she argues, when the Lucile White contest was heard and determined on September 30, 1982, which was less than forty days prior to the date of the general election, November 2,1982, such non-compliance acted as a dismissal of the contest or a rendition of judgment against the contestant, Ida Mae Cowley.

This problem arises because of the legislative change of the date for holding primary elections from August (Code of Ala., § 17-16-6 (Acts 1975, No. 1196, § 5)) to September (Code of Ala., § 17-16-6 (Acts 1978, No. 691, p. 994, § 16)) and the necessity of applying that change to the unchanged time provisions of § 17-16-85 (state executive committee or subcommittee required to meet not less than ten nor more than twenty days from filing of election contest) and § 17-16-86, supra. The plaintiff cites us to cases which, it is argued, require a strict application of the time limitations of these statutes even though such an application in this particular matter would lead to an anomaly.

This contest was heard and decided on September 30, 1982. Had the latest legislative change not occurred, it is possible that the hearing and decision would have occurred on August 30. That date would have been more than forty days before the November 2 general election. As it was under the amended § 17-16-85, however, September 30 was less than forty days before the date for the general election. Put another way, by complying with the time requirements of §§ 17-16-6 as amended and 17-16-85, the state executive committee might not be able to comply with the time provisions of § 17-16-86.

In Perloff v. Edington, 293 Ala. 277, 302 So.2d 92 (1974), this Court adhered to the position that election contests are statutory, and that time provisions contained within them are jurisdictional:

“In effect, the Legislature has said that political parties can run their party affairs without interruption by the courts, but those affairs must be run within the rules laid down by the Legislature.” Supra, 293 Ala. at 279, 302 So.2d 92. (Emphasis added.)

In that case the subcommittee hearing the contest did not meet within the prescribed time. Edington, however, and those cases it follows, regretfully do not furnish solace when the very rules laid down by the legislature at one and the' same time provide for contests and confuse the machinery within which they are to be obtained.

In resolving this confusion the trial court adopted the reasoning of Jefferson County Circuit Court Judge Jack D. Carl expressed in his order in the case of Jackson v. The Democratic Party of Alabama, CV 82 504-138 JDC (September 22, 1982):

“It is clear from a reading of Act No. 79-800 [§ 17-16-6 which changed the primary to September] and the other provisions of the Code pertaining to primary elections that the Legislature intended to provide a means for the contest of primary elections. The Court is aware that in order to justify a departure from the language of the statutes, there must be a moral conviction that its practical effect under existing law, the spirit of the whole statute and its legislative history, as well as the purpose to be accomplished, duly disclose the Legislature could not have intended such a result under a rational, sensible construction.... ”

Indeed, § 17-16-86 contains a significant clue to the overall intent of the legislature which serves as a guide in instances like the present, for the concluding sentence reads:

“[A]ll certificates shall be made so as to get the nominee on the ballots for the general election in November.” (Emphasis added.)

Thus, while the statutory time limitations serve as strict guidelines for the conduct of party officials in election contests as a general rule, nevertheless in instances like the present, when their conflicting observance would thwart the basic and underlying purpose of the pertinent statutes, which is to get the candidates certified and have their names placed on the November ballots, it is apparent that the legislature intended that the time limitations be directory only. The trial court’s position, therefore, was correct. It follows that the action of the trial court in denying the injunctive relief sought and in dismissing the complaint must be, and is, affirmed.

AFFIRMED.

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

JONES, J., recused.

MADDOX, J., not sitting.

      . Plaintiff White was bom in Jefferson County on January 13, 1945, and resided there until May 1969 when she moved to another state. She returned to Alabama in May 1980, resuming residence in Senate District 17. Her position is that her two and one-half years of residency next preceding the general election, coupled with her more than twenty years of residency before 1969, met the residency requirements of Section 47.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. BONITZ INSULATION COMPANY OF ALABAMA, a Corporation. EMPLOYEES MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN v. BONITZ INSULATION COMPANY OF ALABAMA, a Corporation.
    81-391, 81-445.
    Supreme Court of Alabama.
    Dec. 30, 1982.

      L. Graves Stiff, III of Starnes & Atchi-son, Birmingham, for appellant U.S. Fidelity and Guar. Co.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellant Employees Mut. Liab. Ins. Co. of Wis.
    Larry W. Harper of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee.
   SHORES, Justice.

This is an appeal from a declaratory judgment entered in favor of plaintiff Bon-itz Insulation Company. The court held that the appellants, USF&G and Employers Mutual Liability Insurance Company of Wisconsin, were both liable under insurance policies issued to Bonitz if a judgment were rendered against Bonitz and that both companies owed to Bonitz a duty to defend it in the action brought by the City of Midfield.

On June 9, 1972, Bonitz entered into a contract with the City of Midfield, Alabama, for the construction of the roofing and insulation on a gymnasium as part of a larger school construction project. Part of the roofing job was subcontracted to Vulcan Roofing Company. The job was completed in the fall of 1972, and the final billing to Midfield was in February of 1973.

As early as late fall of 1972, the roof began to leak. Bonitz was informed of the problem by letter in November of 1972 and July of 1973. The problem was referred to Vulcan, who attempted to repair the roof on several occasions. Water entry from the roof continued over the next several years, and the roof finally had to be completely replaced in 1978. Suit was filed on August 18, 1977, by the City of Midfield against Bonitz and others, alleging that Bonitz had breached its contract by failing to perform in a good and workmanlike manner and by failing to follow specifications in the installation of the roof.

At the time of the contract, and until January 1, 1977, Bonitz was insured by USF&G under a comprehensive general liability policy. On January 1, 1977, the USF&G policy was not extended, and the coverage was taken over by Employers. Both policies provided the following coverage:

“The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of
“A. bodily injury or
“B. property damage
to which this insurance applies, caused by an occurrence, and the Company shall have the right and duty to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

Upon the filing of the action by the City of Midfield, Bonitz immediately forwarded suit papers to both USF&G and Employers. USF&G denied coverage and Employers assumed defense of the suit under a reservation of rights.

Bonitz then filed the instant action for declaratory judgment. The trial court, in its final decree, without explanation and without making any findings of fact, ordered both insurance companies to defend the suit against the plaintiff and to pay any judgment rendered against Bonitz in the suit brought by the City of Midfield.

From that judgment both insurance companies appeal. We reverse in part and remand.

USF&G and Employers first contend that the water entry problem made the basis of the underlying action did not constitute an occurrence under their respective policies. Both policies define “occurrence” as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the Insured.”

Addressing each insurance company’s claim separately, we disagree with USF&G’s argument that, if Bonitz were negligent in the installation of the roof, then there could have been no “accident” or “occurrence” within the terms of the policy. We have previously held that the term “accident” does not necessarily exclude human fault called negligence. Employers Insurance Co. of Alabama, Inc. v. Alabama Roofing & Siding Co., Inc., 271 Ala. 394, 124 So.2d 261 (1960). USF&G’s attempt to distinguish that case from the instant case on the ground that, in the former, the damage occurred prior to completion of the contract is unconvincing. In both cases, there was a “continuous or repeated exposure to conditions” within the definition contained in the policy resulting in property damage. When the property damage began vis-a-vis the roof leaks, there was an occurrence under USF&G’s policy. As Bonitz is merely charged with negligence in installing the roof, there is no evidence that they' either expected or intended the roof to start leaking. This satisfies the occurrence question under the USF&G policy.

The same cannot be said for coverage under Employers’ policy. When Employers took over coverage in January, 1977, the roof had been leaking nearly four and one-half years. The term “accident” has been variously defined as something unforeseen, unexpected, or unusual. Employers Insurance Co. of Alabama v. Rives, 264 Ala. 310, 87 So.2d 653 (1955).

A case that is very instructive on this point is City of Carter Lake v. Aetna Casualty & Surety Co., 454 F.Supp. 47 (D.Neb.1978). In that case, the city maintained a pumping system that was not adequate during flooding to control the flow of sewage, causing it to back up into people’s homes. There the court held:

“After the first incident of flooding, it was clear that the pump could become overloaded and automatically shut off. This, in turn, would cause the flooding in question. Carter Lake personnel knew exactly what would happen if the pump shut off and was not reset within four to six hours. However, the City chose not to remedy the situation at that time and cannot now be heard to claim that the floodings subsequent to the first occurrence were unexpected or unintended’ as required under the insurance policy in question. In view of the facts of this case, Iowa principles of interpretation and persuasive case law from other jurisdictions, it is the judgment of this court that if the question were presented to the Iowa Supreme Court, it would hold that the subsequent floodings do not fall within the definition of ‘accident’ under the policy here.”

In the instant case, even though Bonitz, through Vulcan Roofing Company, attempted for over four years to repair the roof, the roof continued to leak, and the real possibility existed that it would continue to leak each time it rained. Knowledge of this possibility increased every time the roof leaked in the four-year span before Employers’ coverage commenced. Therefore, the damage that resulted when the possibility of leaks became a reality was not unusual, unexpected, or unforeseen and, therefore, not an accident. The absence of an accident necessarily precludes the existence of an occurrence under-the Employers policy. Employers, therefore, has no duty to defend Bonitz in the action brought by the City of Midfield and also, of course, no liability for any judgment rendered in that action. Having so held, we need address the remaining issues only as they apply to coverage under the USF&G policy.

USF&G next argues that, if there was an occurrence, Bonitz breached the notice provisions of the policy by failing to report the occurrence to USF&G until after suit was filed.

The policy provided the following condition with regard to notice:

“4. Insured’s Duties in the Event of Occurrence, Claim or Suit
“(a) In the event of an occurrence, written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to the Company or any of its authorized agents as soon as practicable.
“(b) If claim is made or suit is brought against the Insured, the Insured shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.”

The requirement of notice “as soon as practicable” means that the insured must give notice “within a reasonable time under all the circumstances.” See American Liberty Insurance Co. v. Soules, 288 Ala. 163, 258 So.2d 872 (1972). In making this determination, the only factors to be considered are the length of the delay in giving notice and the reasons therefor. Absence of prejudice to the insurer from the delay is not a factor to be considered. Southern Guaranty Insurance Co. v. Thomas, 334 So.2d 879 (Ala.1976).

Resolution of this question presents a question of fact to the trier of fact — the trial judge in this instance. If the insured offers evidence of mitigating circumstances, then conflicting inferences may be drawn as to the reasonableness of the delay, and the question becomes one for the trier of fact. Southern Guaranty Insurance Co. v. Thomas, supra, at 882.

Such evidence was offered in the instant case. Hunter Price, president of Bonitz, testified that it was not unusual for leaks of this type to occur, that he was unaware of the extent of the problem, and that he thought that Vulcan Roofing Company was taking care of the problem. We find this testimony sufficient to raise conflicting inferences as to the reasonableness of the delay. As we stated in Pinson Truck Equipment Co., Inc. v. Gulf American Fire & Casualty Co., 388 So.2d 955, 957 (Ala.1980), “The question of whether delay is reasonable is a question of fact, and we recognize the presumption of correctness accorded ore tenus fact finding by the trial court.”

Recognizing that presumption here, we do not disturb the trial court’s apparent finding that the delay by Bonitz in giving notice of a potential claim to USF&G was not unreasonable.

That leaves for our final consideration the effect on coverage of the so-called “work product exclusions” contained in the USF&G policy. The applicable exclusions are as follows:

“Exclusions.
“This insurance does not apply:
“(n) To property damage to the Named Insured’s products arising out of such products or any part of such products;
“(o) To property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts, or equipment furnished in connection therewith;
“(p) To damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the Named Insured’s products or work completed by or for the Named Insured or any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.”

The policy also contained an endorsement for completed operations hazards to include the risk of property damage from completed operations within the scope of coverage. Bonitz contends that the endorsement works to include damage to the roof within the coverage of the policy. We do not agree. The amended exclusion contained in the endorsement reads: “[This insurance does not apply] ... (x) with respect to the completed operations hazard to property damage to work performed by the Named Insured arising out of the work, or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”

We agree with USF&G that the endorsement for completed operations hazard does not affect the exclusion from coverage of the products hazard. Since the roof is ultimately Bonitz’s product in the sense that it is the end result of work performed by or on behalf of Bonitz, several of the exclusions apply to remove liability for damage to the roof itself from the coverage of the policy. See Aetna Insurance Co. v. Pete Wilson Roofing & Heating Co., Inc., 289 Ala. 719, 272 So.2d 232 (Ala.1972). It is well settled in Alabama that, in the absence of statutory provisions to the contrary, insurance companies have the right to limit their liability and write policies with narrow coverage. Id., 272 So.2d at 235.

If damage to the roof itself were the only damage claimed by the City of Midfield, the exclusions would work to deny Bonitz any coverage under the USF&G policy. The City of Midfield, however, also claims damage to ceilings, walls, carpets, and the gym floor. We think there can be no doubt that, if the occurrence or accident causes damage to some other property than the insured’s product, the insured’s liability for such damage becomes the liability of the insurer under the policy. See Employers Casualty Co. v. Brown-McKee, Inc., 430 S.W.2d 21 (Tex.Civ.App.1968); Aetna Casualty & Surety Co. v. Harvey W. Hottel, Inc., 289 F.2d 457 (D.C.Cir.1961).

Finding coverage under the policy for damage to other property, we affirm the trial court’s judgment that USF&G owes Bonitz a duty to defend it in the action brought by the City of Midfield and to pay any judgment rendered against Bonitz in accordance with our above holding.

For the above reasons, the judgment appealed from is affirmed in part and reversed in part.

AFFIRMED IN PART; REVERSED IN PART.

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


author: JONES, Justice.

text:
    Thomas SULLIVAN v. Wayne TEAGUE, Superintendent of Education.
    81-574.
    Supreme Court of Alabama.
    Nov. 5, 1982.
    Rehearing Denied Dec. 22, 1982.
    Frank Caskey, Montgomery, for appellant.
    Charles S. Coody and Jeffery A. Foshee, Montgomery, for appellee.
   JONES, Justice.

This is a state personnel case. Appellant Thomas Sullivan initiated this cause, seeking a determination that his transfer within the State Department of Education from the position of Vocational Rehabilitation Counselor II to the Division of Disability Determination as a Disability Examiner, contravened the provisions of the Merit System Act, Ala.Code 1975, § 36-26-1 et seq. Sullivan sought temporary and permanent injunctive relief against Appellee Wayne Teague, in his official capacity as State Superintendent of Education, as well as reinstatement to his former position pending final outcome of the controversy. The trial court denied Sullivan’s prayer for temporary relief. Subsequent to a final hearing on February 19, 1982, the trial court entered final judgment for the defendant, denying plaintiff’s request for permanent injunctive relief.

We affirm.

FACTS

Thomas Sullivan was employed by the State Department of Education in 1972, as a Rehabilitation Counselor I for the department’s division of rehabilitation and crippled children’s services. Some two years prior to this action, Sullivan assumed the position as Rehabilitation Counselor II.

In 1981, the Department of Education, faced with cutbacks in state and federal appropriations, determined that nineteen counselors statewide would be laid off from their employment. Of these nineteen, five were to be from the Mobile area. During this same period, the department learned that another of its subsections, the Division of Disability Determination, was planning to hire additional employees. Mr. John Reynolds, Deputy Director of the State Personnel Department, recommended that the aforementioned nineteen employees be considered to fill the vacancies within the disability division. Subsequently, the State Superintendent of Education (Teague), as appointing authority, transferred these employees from Rehabilitation Counselor II class to Disability Determination class. These two classes are “comparable,” as regards character of duties, responsibilities, qualification requirements, etc.

On November 20, 1981, Teague wrote to Sullivan, advising him of his transfer to the Disability Determination Division. Sullivan was to be transferred from Mobile in the Rehabilitation Examiner II class to Birmingham in the Disability Examiner II class. The transfer was to take place without any change in Sullivan’s salary, benefits, or standing in the department.

Subsequently, Sullivan traveled to Birmingham, toured the environs of his new employment, and received an explanation as to his new duties. Sullivan, thereafter, refused to accept the transfer, at which point his employment was terminated effective January 5, 1982.

Sullivan raises two issues for consideration on appeal: 1) Whether the personnel action taken by the Department of Education, Division of Vocational Rehabilitation and Crippled Children’s Services, was a “layoff” within the provisions of Ala.Code 1975, § 36-26-26; and 2) whether an appointing authority may transfer an employee to a “different class” under the provisions of Ala.Code 1975, § 36-26-24. We answer the first inquiry in the negative, and the latter in the affirmative.

“TRANSFER” OR “LAYOFF”

Ala.Code 1975, § 36-26-26, reads as follows:

“In accordance with the rules, an appointing authority may lay off an employee in the classified service whenever he deems it necessary by reason of shortage of work or funds or the abolition of a position or other material change in duties or organization. The seniority and service ratings of employees shall be considered, in such manner as the rules shall provide, among the factors in determining the order of layoffs. The appointing authority shall give written notice to the director of every proposed layoff a reasonable time before the effective date thereof, and the director shall make such orders relating thereto as he considers necessary to secure compliance with the rules. The name of every regular employee so laid off shall be placed on the appropriate reemployment list. (Acts 1939, No. 58, p. 68; Code 1940, T. 55, § 314).” (Emphasis added.).

Sullivan contends, contrary to findings by the trial court, that the action of the board constituted a “lay-off,” rather than a “transfer,” and consequently that the procedures of Ala.Code 1975, § 36-26-26, should have been followed. We disagree.

Mr. John Reynolds, Deputy Director of the State Personnel Department, and a member of that department for over 36 years, was qualified as an expert by Sullivan before the trial court. Reynolds was asked whether, in his opinion, Sullivan was “laid off” or “transferred.”

Reynolds replied in pertinent part:

“Q. All right, sir. Did Mr. Slate come to see you regarding a layoff at the Rehabilitation Division?
“A. I assume that he did because he was faced ... the Department of Education was faced with one.
“Q. All right. And did you give him any advice as to whether he ought to lay off people or take some other action?
“A. I don’t think at the first visit, but the second visit — or I may have called someone Dr. Teague or someone in the State Department. At the same time Rehab was speaking of laying off nineteen, I believe it was, Rehab couselors for funding reasons, D.D.U. was asking for additional employees, and I told Dr. Teague or his representative that I thought it would be cruel to be laying off nineteen professionally qualified career people and then at the same time in the same department employing like people to like, similar work, and he agreed. I don’t think the public would think that it looked good or would accept such.
“Q. And under the rules that you have been familiar with for thirty-six years, these transfers were Okay?
“A. Sure.
“Q. And the Personnel Department approved these transfers?
“A. We recommended it rather than laying off people.
“Q. It has been alleged in the complaint filed with the court that this transfer was in reality a layoff. Do you have a judgment about the accuracy of that allegation? Was that a layoff?
“A. Not in my opinion. Nobody was terminated.”

Mr. Royce Slate, Supervisor of Personnel Services at the Division of Rehabilitation and Crippled Children’s Services, testified to the same effect: that it was never the intent of the personnel board to “lay off” anyone.

At the risk of oversimplification, we feel that because, as stated by Mr. Reynolds, “Nobody was terminated,” Sullivan’s argument that he was “laid off” is totally without merit. Likewise, the trial court did not err in failing to apply the standards of Code 1975, § 36-26-26, to Sullivan’s situation.

SULLIVAN’S TRANSFER TO A “DIFFERENT CLASS”

Ala.Code 1975, § 36-26-24, states the following:

“An appointing authority may, at any time, assign a classified employee under his jurisdiction from one position to another in the same class. Any classified employee may be transferred from one department to another in the same class; provided, that the director shall have authorized the transfer and shall have received the approval of both appointing authorities concerned. In every case involving transfer, the appointing authority shall submit a written request to the director. (Acts 1939, No. 58, p. 68; Code 1940, T. 55, § 312.)” (Emphasis added.)

Sullivan submits that his transfer was not within the “same class,” and thus was contrary to Ala.Code 1975, § 36-26-24. The crux of this contention is that any transfer should have been to another position in an “identical” class. The trial court found, and we agree, that Code 1975, § 36-26-24, permits an appointing authority to transfer employees to “comparable” classes. Accordingly, Sullivan’s transfer was in accordance with the provisions of the laws governing the state merit system.

The rules of the State Personnel Department have the force and effect of law. Ala.Code 1975, § 36-26-9. These rules define “class” in the following manner:

“20. ‘Class’ or ‘class of positions’ means a definitely recognized kind of employment in the classified service designed to embrace all positions that are sufficiently alike with respect to the character of duties, responsibilities, consequent qualification requirements, as to be treated alike under like conditions for all personnel purposes.”

Mr. John Reynolds, mentioned earlier, helped compose che rules and regulations of the personnel department. Reynolds, when asked about the above definition of “class,” responded:

“Q. And that defines class as sufficiently alike?
“A. Yes.
“Q. It defines class in terms of comparability does it not?
“A. That’s my interpretation of it.”

Reynolds further testified that the above definition of “class,” embracing the concept of “comparability,” has been adopted by the State Personnel Board.

When asked what a determination that “same class” meant “identical class” would have on the state personnel system, Reynolds replied:

“A. It would have a devastating effect on the employees because down through the ages we have been able to avoid termination because of the ability to transfer employees from one agency to another in comparable classes.”

Black’s Law Dictionary 1203 (rev. 5th ed. 1979), defines the term “same” as follows:

“SAME. Identical, equal, equivalent. The word ‘same’, however, does not always mean ‘identical.’ It frequently means of the kind or species, not the specific thing. When preceded by the definite article, means the one just referred to.” See In re Conner’s Estate, 318 Pa. 150, 178 A. 15, 17 (1935), and Crapo v. Brown, 40 Iowa 487, 493 (1875).

We agree with the trial court that restricting the definition of the term “same class” to that suggested by Sullivan (i.e., identical class) would serve to retard the purpose and spirit of the Merit System Act — that of fostering efficiency within the state personnel system, while attracting officers and employees of a high character and quality.

Consequently, we hold the term “same class” as used in Code 1975, § 36-26-24, to encompass the term “comparable class.” For a recent case dealing with the authority of the Commissioner of the Alabama Department of Pensions and Security to transfer employees from the state level to county levels, pursuant to Code 1975, § 38-2-6, see Williams v. James, 420 So.2d 773 (Ala.1982).

The trial court did not err in its interpretation and application of § 36-26-24 and § 36-26-26.

AFFIRMED.

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

      . Sullivan contends that had the provisions of Ala.Code 1975, § 36-26-26, been adhered to in these proceedings, his seniority and service rating would have prevented his transfer to Birmingham, in that he would have had a higher retention score than others similarly situated.


text:
    Henry Elmore TURNER, et al. v. CITY OF MOBILE, etc., et al.
    81-44.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Rehearing Denied Dec. 22, 1982.

      William H. McGowen, Jr. and Edward H. Stevens of McGowen & McGowen, Birmingham, for appellants.
    William R. Lauten, Mobile, for appellee City of Mobile.
    Davis Carr and Harold D. Parkman of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
   BEATTY, Justice.

At issue on this appeal is the validity of a zoning change allowed by the City of Mobile and its planning commission. We affirm the trial court’s rulings that the City’s decision was not arbitrary and capricious and that there was no statutory violation in the membership of the city planning commission.

In January 1979 the owners of a nursing home applied for rezoning of property they had acquired for expansion. The Mobile city planning commission heard their application and objections from local residents. The planning commission voted to recommend approval of the rezoning to the city commission, which granted the rezoning application after hearing the parties.

The local residents then filed the present action against the City and the nursing home owners. The plaintiffs sought a declaration (1) that the zoning ordinance was arbitrary and capricious and (2) that the composition of the city planning commission violated Code 1975, § 11-52-3. (A claim that § 11-52-3 was unconstitutional was dropped at a pretrial conference.) The trial court in a careful, detailed opinion denied the requested relief.

I. WAS § 11-52-3 VIOLATED?

Mobile’s nine-person planning commission includes all three members of the city board of commissioners. Thus, the planning commission presented its recommendation to a body — the city commission — whose members had already voted on the issue in their capacity as planning commission members.

The appellants argue that the action taken by the City was void because the makeup of the planning commission violated Code 1975, § 11-52-3(a), which provides in part:

“(a) The [municipal planning] commission shall consist of nine members: the mayor, one of the administrative officials of the municipality selected by the may- or, a member of the council to be selected by it as a member ex officio and six persons who shall, be appointed by the mayor....” (Emphasis added.)

The term “mayor” is defined in Code 1975, § 11-52-1(2) as the “chief executive of the municipality.” The term “council” is defined in § 11-52-1(3) as the “chief legislative body of the municipality.” The term “administrative officials” is undefined.

The appellants contend that “§ 11-52-3(a) limits the ex officio membership on the planning commission to one city commissioner.” They believe that the present arrangement reduces the planning commission to a “rubber stamp for the city commissioners ... since three members of the planning commission have ultimate power over zoning ordinances.” Id. The appellants also emphasize that there has been no selection process as contemplated by the statute because the city commissioners’ testimony indicates that they assumed they were automatically members of the planning commission. To the appellants a lack of a selection process results in a violation of § 11-52-3(c), which provides:

“(c) The terms of ex officio members [of the planning commission] shall correspond to their respective official tenures, except that the term of the administrative official selected by the mayor shall terminate with the term of the mayor selecting him.”

They argue that the city should undergo the required selection process on each occasion when the office of mayor is transferred.

The apparent purpose of § 11-52-3(a) is to include on the planning commission representatives of different branches of city government; the mayor or chief executive, a city administrative official, and a member of the chief legislative body. We do not believe that this purpose has been frustrated by what the city has done.

Under the commission form of government that Mobile has adopted, the president of the board of commissioners is “invested with all the powers, jurisdiction and functions possessed by the mayor,” Code 1975, § 11-44-14. Thus, for that member of the board of commissioners to also serve on the planning commission is consistent with and in fact required by § 11-52-3(a), which designates the mayor as a member. Similarly, § 11-52-3(a) requires a second city commissioner to serve on the planning commission because the “council” here is the city commission which functions as the “chief legislative body of the municipality,” Code 1975, § 11-52-1(3).

The question thus becomes whether the third city commissioner can be considered “one of the administrative officials of the municipality” within the meaning of § 11-52-3(a). The trial court found that “the evidence demonstrated that the commissioners are such administrative officials.” The appellants concede this point apparently as a matter of law when they state:

“Under the commission form of government (set out in Chapter 44 of Title 11 of the Alabama Code) the commissioners can be counted among the administrative officials in Mobile.”

Their concession finds specific support in Code 1975, § 11-44-9, which assigns each member of the board of commissioners direction of one of the three specified departments of city government. See also Code 1975, § 11-44-23 and § 11-44-30. Clearly then, to have all three city commissioners sitting on the planning commission does not violate the statutory purpose of representing the different branches of city government on the planning commission.

II. APPROVAL OF THE REZONING APPLICATION

The trial court recognized, and the appellants do not dispute, that judicial review of zoning ordinances or amendments is limited. Because zoning ordinances are legislative acts, they are presumed valid unless shown to be arbitrary and capricious. Cudd v. City of Homewood, 284 Ala. 268, 270, 224 So.2d 625 (1969); Marshall v. City of Mobile, 250 Ala. 646, 649, 35 So.2d 553 (1948). A zoning ordinance cannot be considered arbitrary and capricious if its adoption “raises questions upon which reasonable differences may exist in view of all the circumstances and the wisdom of the ordinance is fairly debatable.” Waters v. City of Birmingham, 282 Ala. 104, 108, 209 So.2d 388, 391 (1968). After summarizing this standard of review, the trial court wrote:

“In the case at bar, the court not only finds as fact that the decision to rezone was fairly debatable; the court finds as fact that the decision was fairly debated.”
(Emphasis in original.)

The court went on to note the following. The appellants spoke and were ably represented at three hearings, the transcripts of which “demonstrated much more than mere cursory attention to the complaints voiced.” The major concern was the anticipated worsening of a drainage problem in the area, but a special study revealed that the proposed expansion of the nursing home in the manner allowed by the city would not significantly affect the drainage problem. Finally, the trial court noted trial testimony and exhibits showing other businesses in what the appellants contended was a residential area.

Although the trial court took testimony ore tenus from eight witnesses, the appellants argue that the ore tenus rule does not apply to our review of the trial court’s decision, because the trial court considered records of the hearing before the city commissioners in addition to the evidence of the witnesses before the court.

We disagree. The trial court considered the transcripts of the hearing before the commissioners in light of the testimony of the eight witnesses, who included area residents, the former city planning director, the zoning administrator, the city engineer, the vice president of the nursing home, and one of the city commissioners. Their testimony could have been important in evaluating the documentary evidence contained in the documents. Accordingly, the ore tenus presumption of correctness must apply. See Lott v. Keith, 286 Ala. 431, 433, 241 So.2d 104 (1970); and Alabama Rules of Civil Procedure, Rule 52, Committee Comments (presumption of correctness attaches when evidence is partially oral).

On the merits the appellants do not directly dispute any of the trial court’s specific findings on the factors that made the City’s decision a fairly debatable one. Instead, the appellants emphasize the commissioners’ language at a hearing to the effect that they were “not a court,” would not hear “all this legal stuff,” and would allow the rezoning in order to “move the case off dead center,” knowing that the appellants would take an appeal to court. Viewed in isolation this language might suggest an arbitrary and capricious exercise of discretion on the part of the commissioners; however, the context makes clear that “this legal stuff” refers to evidence that the nursing home operated in the past without a license. The commissioners stated that this evidence was irrelevant to their zoning decision and would have to be dealt with by a court. It is not clear from the entire record that the commissioners were rejecting consideration of the factors legally relevant to the merits of the zoning decision. Therefore, we have no reason to doubt the trial court’s conclusion that the commissioners’ zoning decision was fairly debated.

The appellants cite other indications that the city commissioners were hostile and had prejudged the issues, but they do not question the trial court’s specific factual findings described above. These findings were sufficient to show that reasonable differences could have existed on the merits of the ordinance. Accordingly we have no occasion to reverse.

Let the judgment be affirmed.

AFFIRMED.

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


text:
    FOUNTAIN-LOWREY ENTERPRISES, INC., a corporation v. Pamela M. Gay WILLIAMS and Wayne Gay.
    81-299.
    Supreme Court of Alabama.
    Nov. 19, 1982.
    Rehearing Denied Dec. 30, 1982.

      W. Bartlett Taylor of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellant.
    John B. Givhan of Albrittons & Givhan, W. Beatty Pearson of Powell & Powell, Andalusia, for appellee Boulder, Inc.
   SHORES, Justice.

Plaintiffs Williams and Gay brought an action claiming damages for breach of warranty and fraud against Fountain-Lowrey Enterprises, Inc., d/b/a Big 4 (hereinafter referred to as Big 4), and Citicorp Homeowners, Inc. (Citicorp); Big 4 brought a third party complaint against Boulder, Inc., who manufactured the mobile home involved, seeking indemnification if breach of warranty was shown against Big 4. Summary judgment was granted in favor of Boulder on the fraud claim before trial. Big 4 argues that the trial court erred in denying its motions for directed verdict on a breach of warranty and fraud claim involving the sale of a mobile home. We affirm.

The jury returned a $688.00 verdict in favor of the plaintiffs/buyers and against the defendant/seller, Big 4, on the breach of warranty claim and $22,500.00 on the fraud claim. It awarded the mobile home to Citicorp, which held a security interest in the same. The jury returned a verdict in favor of Boulder on the breach of warranty claim.

Because we must decide whether the court erred in denying Big 4’s motions for directed verdict, we must examine the evidence offered by the plaintiffs in support of their claims. It includes the following:

Pamela Williams (Williams) and Wayne Gay were divorced in September of 1979. After the divorce, Williams decided to move from Alexander City, Alabama, to Andalusia, Alabama, and she began to shop for a mobile home. Williams went to the Big 4 mobile home lot, and talked to salesperson Nelda Godwin. Williams looked at several mobile homes and then came back several days later, and finally selected the one she bought. Williams was informed by Nelda Godwin that, since she was not working, had no income and no credit in her name, Nelda Godwin could not get her approved for financing unless she could get a relative to sign with her. Williams thereafter brought in Wayne Gay with her to sign a credit application for purposes of closing the transaction and for approval of the loan. Williams and Gay purchased the new 1979 Boulder mobile home on October 31, 1979, and signed the Alabama Mobile Home Retail Installment Contract on that same date.

Nelda Godwin told Williams that the mobile home was a fine one. Williams’s two minor daughters and one minor son were to, and did, live in the mobile home with her. After Williams made the down payment, she returned to Alexander City, Alabama, and the next time she saw the mobile home, it was set up by Big 4 on her lot in rural Covington County. It had been wrecked; the paneling on the side was torn loose and there were streaks down the side. In the first bathroom, the commode was torn completely out of the floor and the tank lid was chipped. The paneling in one of the windows in the living room was broken loose and bowed out. The commode in the master bathroom was partially pulled out, and the tank lid was broken. The back door was bent and a crack appeared around the top. Williams said that she could see the ground through a crack in the master bedroom.

After seeing her wrecked mobile home, Williams immediately went to the Big 4 office and lot in Andalusia, Alabama, and spoke to their agent, Nelda Godwin. Williams told Nelda Godwin that her trailer was a total wreck. Williams told Nelda Godwin what had to be fixed and how badly it was damaged and all that she had seen wrong with the mobile home. Nelda God-win, agent of Big 4, told Williams she would have everything fixed to Williams’s specifications if Williams still wanted the trailer. Williams testified that that statement of Nelda Godwin caused her to continue with the mobile home. Also, based on that representation of Nelda Godwin, Williams said she signed some more papers on the Big 4 mobile home lot that day.

Bobby Whatley witnessed Big 4 attempting to deliver and set up the mobile home (the mobile home was to be set up just across a road from his house). It was brought out to the lot by some Big 4 people. Bobby Whatley was standing in his front yard the day the mobile home was being delivered and saw it coming down the public road about a quarter mile from his house. The Big 4 employees who were delivering the mobile home got it tangled in some overhanging limbs, and tore the edge of the home, and then they hung it on a stump. The Big 4 employees “gunned” the truck back and forth with the mobile home attached, trying to get it off the stump. While this was going on, one of the Big 4 employees present told Bobby Whatley he had not slept in two days. Bobby Whatley testified the floor of the mobile home was “ruffled” where the stump hit it. The Big 4 employees cut the stump with a chain saw and then pulled the mobile home through the bushes and trees and tore the top when they did that. After the Big 4 employees finally set up the trailer on Williams’s lot, Bobby Whatley noticed that the back door was warped. He observed the Big 4 employees trying to shut the mobile home door that was warped. He asked them how they were ever going to get it straightened out, and they told him Big 4 would put in a new door. The new door was never put in. After Williams moved into this mobile home, Bobby Whatley went over to visit her. It was raining, and he observed water in one of the living rooms, even running into the kitchen. It was coming from the wall and there was so much water that it could not be gotten up with a mop.

Williams testified that Big 4’s agent, Nelda Godwin, told her that everything would be fixed to her specifications if she would keep the trailer, sign additional papers and pay for it, but it was never repaired and certainly never repaired to Williams’s specifications.

Nelda Godwin testified that the total of payments agreed to by Williams and Gay for the mobile home was $27,567.36. The mobile home was delivered by Robbin Davis, an employee of Big 4 who was later fired or quit. He and another Big 4 worker delivered the same mobile home that Williams had purchased. On the afternoon of delivery, Robbin Davis told Nelda Godwin that he hit a stump with the mobile home while delivering it. After Williams had lived in the mobile home a few days, she told Nelda Godwin that the back door did not fit well and that it rained in under that door. The back door was never repaired, and the replacement door was left lying in the back yard of the house, where it remained on the day of trial.

Johnny Godwin testified that he was employed by Big 4 as general manager and manager of the Andalusia, Alabama, lot. He went out and looked at the lot where the mobile home was to be installed and set a date for delivery with Big 4’s Brewton, Alabama, office. He knew Big 4 employees wrecked the mobile home on a stump and he knew where the lot was, but he never personally went back to the lot or to the site of the mobile home after it was delivered and wrecked by Big 4.

Johnny Godwin testified that he was aware that the back door on the mobile home was warped and did not fit in January of 1980. He testified that he knew the back door never had been repaired or replaced. Johnny Godwin knew that it had rained in the warped back door, that there was a weak spot in the floor by the back door, and that the floor had begun to rot. He knew that this rotting would happen after the floor had continuously been wet. Big 4 never repaired the back door, even though Williams came by his office and made numerous complaints. Johnny God-win was aware that rain was still coming in the back door, that the floor was damaged, and that there was a weak spot in the floor; however, he personally never did anything about it even though his wife, Nelda God-win, had promised Williams that the mobile home would be repaired to Williams’s specifications.

After Williams reported the problems with the wreck to Nelda Godwin at Big 4, three weeks went by before she could move into the mobile home, because the power company would not connect electricity because the bathrooms were torn up. The shower was leaking and water was running into her son’s bedroom. The water would not drain out of the bathtub in the master bedroom. Big 4 employees cut her insulation. Williams reported the problem to Nelda Godwin at Big 4, but it was never corrected. A repairman brought a door that would not fit. He brought it in a pouring rain. The repairman took the warped door off, put on the other one, which did not fit, and then put the warped door back on the mobile home and stood the new door up beside the mobile home and left. That left Williams with the old door that had leaked all along. This repairman, sent at Big 4’s direction, told Williams that he would be back the next day, but she never saw him again. Then, Mr. Fountain, an officer of Big 4, sent another repairman out to the mobile home, and he told Williams he would not fix the door because it was wrecked. He told Williams, “I know you have heard this before, but I’ll be back tomorrow.” Williams has never seen him since, either. Williams contacted the Andalusia Area Chamber of Commerce for help. She wrote the Consumer Protection Agency in Montgomery, Alabama, for help. She went by the corporate headquarters of Big 4 in Brewton, Alabama, and talked to the corporate officers and told them they had not fixed her back door and the floor was rotting out because it was still raining in every time it rained. Finally, Williams moved out of the mobile home because she was frightened for her children, afraid they would fall through the hole that had rotted by the door. Before she moved out of the mobile home, she fell through the hole at the back door, just inside the back door. The floor fell through and, if she had not been holding onto the door, she would have hit the ground. Her children had to change schools because of her having to move.

We cannot agree with Big 4 that it was entitled to a directed verdict on the plaintiffs’ fraud count. The plaintiffs put on evidence from which the jury could conclude that Big 4’s agents misrepresented to Williams a material fact, which false representation was relied upon by Williams, who suffered damage as a result. Specifically, there was evidence to support a jury’s determination that Big 4, subsequent to the sale, misrepresented that it would fix the damaged mobile home to Williams’s specifications. This being so, the trial court correctly denied Big 4’s motion for directed verdict. International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977).

The trial judge charged the jury correctly on the fraud claims, as follows:

“[F]irst, there must be a false representation made by the Defendant or the seller, usually. Two, the false representation must concern a material existing fact. The person or the Plaintiff, normally, the person to whom that misrepresentation is made, must rely upon it.... And the Plaintiff must be damaged as a proximate result of the action. That is, the false representation.
“Now, to that, ladies and gentlemen, you are talking about a normal situation, the damage for which is compensatory.... If you are reasonably satisfied by the evidence that the Defendant was guilty of legal fraud as charged by the Plaintiff and that the Plaintiff was damaged or injured thereby, the Plaintiff would be entitled to recover for such actual damage as you may find [from] the evidence, that he or she did suffer.
“Actual damage, that means compensatory damage....
“... And it is said in addition to actual damages, the law authorizes a jury to award exemplary or punitive damage as I have defined to you, in fraud and deceit actions if it [is] shown [to the] reasonable satisfaction [of] the jury by the evidence that the fraud was malicious, oppressive and gross or a misrepresentation made with knowledge of its falsity or so recklessly done as to amount to the same thing and committed with the intent to injure or defraud.”

Big 4 argues simply that the evidence failed to establish any evidence supporting actionable deceit which would support either compensatory or punitive damages. Its argument is that the plaintiffs failed to establish a prima facie case and that the trial court erred in submitting the fraud claim to the jury “for compensatory damages, but certainly on the issue of punitive damages.”

We cannot agree. The evidence in this case runs to several hundred pages, making up six volumes. It was in conflict in some, but not all, respects. Basically, Big 4 denied making the statements attributed to it by the plaintiffs’ testimony or contended that the mobile home had been repaired. It clearly was not a case for a directed verdict for either side.

Finally, Big 4 argues that the amount of damages awarded on the fraud claim, $22,500, was excessive. Williams, on the other hand, argues that it was insufficient — although she did not cross appeal. The jury originally returned a verdict in favor of Williams and Gay in the amount of $25,000. When the trial judge read it to the jury and inquired whether it was unanimous, one or more of the jurors pointed out that it was wrong. The jury returned to the jury room and returned a general verdict in favor of Williams and Gay for $22,-500. Williams and Gay argue that they were not entirely compensated for their loss by this amount.

The $22,500 verdict was a general one, and we cannot say that it is entirely punitive. The jury found in favor of Citicorp on its detinue claim and awarded the trailer to Citicorp. It found in favor of Gay and Williams on Citicorp’s suit on the full amount due on the note for the remaining balance due, and against Big 4 for $22,500 on the fraud claim. It found in favor of Boulder on Big 4’s third-party complaint. Suffice it to say that the jury was properly charged on all elements of the case, and that there was evidence to support the several verdicts it returned. We find no error and, thus, the judgment appealed from is affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    PIPER AIRCRAFT CORPORATION v. Mary EVANS, Administratrix of the Estate of David Harem Evans, Deceased.
    81-140, 81-141.
    Supreme Court of Alabama.
    Dec. 10, 1982.

      Harold A. Bowron, Jr., and C. William Gladden, Jr., of Balch, Bingham, Baker, Hawthorne Williams & Ward, Birmingham, for appellant.
    Richard W. Bell and Mickey L. Johnson of Bell, Yeager, Allen & Johnson, Pelham, for appellee.
   ALMON, Justice.

Plaintiffs brought these consolidated actions for the wrongful deaths of their decedents in the crash of an airplane manufactured by defendant Piper Aircraft Corporation (Piper). The primary contention on appeal regards an evidentiary ruling by the trial court which allowed into evidence several reports on exhaust system failures in aircraft. The trial court overruled Piper’s objection to admission of the reports on the grounds, inter alia, that they were hearsay, basing its ruling on its opinion that they were admissible at least to show what knowledge could be imputed to Piper.

On September 7, 1977, David Evans, Kenneth Hendrix, and Francis Bodnar died in the crash of a Piper PA 28-151 airplane, commonly called a Cherokee Warrior. This airplane was registered by the Federal Aviation Administration (FAA) as N-43485. The crash occurred at approximately 11:05 p.m. local time near Danville, Georgia, as the airplane was approaching Macon, Georgia, for a stop en route from Savannah, Georgia, to Birmingham, Alabama.

Toxicology tests showed carbon monoxide in the blood of the deceased men in concentrations high enough to cause death or at least unconsciousness prior to the crash. The aircraft’s muffler had cracks in it which, according to expert witnesses, existed prior to the crash. Such cracks could have introduced carbon monoxide into the cabin air by way of the airplane’s heater or defroster.

The widow of each occupant brought suit as administratrix of her husband’s estate against Piper and others. Mrs. Bodnar’s suit was not consolidated with the two cases at bar; this Court decided an appeal of her case in Bodnar v. Piper Aircraft Corporation, 392 So.2d 1161 (Ala.1980). One of the holdings of that opinion was that the Georgia Wrongful Death Statute would apply to Mrs. Bodnar’s claim.

The suits brought by Mrs. Hendrix and Mrs. Evans were consolidated for trial and tried before a jury from June 3, 1981, through June 16,1981. The jury returned a verdict of $350,000.00 for Mrs. Evans and $450,000.00 for Mrs. Hendrix. These verdicts were entered solely against Piper, as the other named defendants had settled with plaintiffs prior to trial. Piper appeals from the judgments entered on these verdicts and from the denial of its motions for judgment notwithstanding the verdict and in the alternative for new trial.

Under Georgia Code Annotated, §§ 105-1301 and -1302, this case was tried on the issue of negligence. Cf. Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981). Plaintiffs complained that Piper “negligently designed, engineered, manufactured and/or sold said aircraft,” and that this negligence proximately caused the crash and deaths.

The claim of negligence focused on Piper’s use of a particular metal, 321 stainless steel, for the muffler in the Cherokee Warrior. To heat the cabin or defrost the windshield of the airplane, the pilot opens a vent which allows air from outside the plane to pass through an aluminum shroud surrounding the muffler, become heated, and continue into the cabin. Thus, if the muffler develops any leaks, exhaust fumes, in-eluding carbon monoxide, mingle with the air in the shroud and enter the cabin when the heater or defroster is turned on.

The evidence showed that the muffler in this airplane had undergone processes of carburization — combination of carbon molecules with the metal — and oxidation. These processes weakened the muffler, made it brittle, and allowed it to crack. Metallurgical experts demonstrated that at least one crack existed prior to the crash by pointing out that the metal surrounding the crack was carburized all the way through although the sealed portions of the muffler were carburized only on the inside. The plaintiffs contend that Piper negligently selected a metal which would carburize, crack, and permit carbon monoxide to enter the cabin.

Piper responded that 321 stainless steel is the standard metal for mufflers in general aviation aircraft, that the FAA approved the Warrior for airworthiness, and that this particular airplane was negligently maintained. Piper argued at trial that the poor maintenance on this airplane was an intervening cause, both because the engine subjected the muffler to abnormal stress by running too hot or backfiring and because proper inspection would have disclosed damage to the muffler. These factual arguments, however, are for the jury.

The main controversy centers around five reports published by the FAA from 1964 through 1970 about exhaust system failures in general aviation aircraft. The trial court allowed the plaintiffs to introduce these reports as plaintiffs’ exhibits 80 through 84, over Piper’s objection. Piper argued strenuously that the reports were hearsay and that three of them, exhibits 82 through 84, were not provided to Piper before trial as the pre-trial order required. The trial court ruled during an in-chambers discussion as follows:

“I think they are admissible to show what knowledge could be imputed — could possibly be imputed to Piper of what the state of the art was and whatever problems were being encountered with the use of this material if for no other purpose.”

Piper responds that it had never received these reports. Ward Evans, the FAA representative at the Piper plant where Cherokee Warriors were manufactured, testified that he was “fairly certain the FAA never forwarded these to us as a manufacturer,” and that he had never seen them before.

These reports, however, stem from a conference held by the FAA on September 9-10, 1964, on “Engineering and Maintenance Programs Needed to Reduce Carbon Monoxide Hazards in Operation of Personal Type Airplanes.” A summary of this conference, admitted at trial as plaintiffs’ exhibit 79, shows that over 30 representatives of the FAA and the aircraft industry attended, including E.C. Nichols of Piper. This summary, admitted apparently without objection, contains synopses of presentations at the conference. The following two paragraphs are pertinent:

“As part of the NAFEC [National Aviation Facilities Experimental Center] program, metallurgical studies have been made of materials used in exhaust heat exchangers and exhaust systems. Mr. G.L. Snair of Allegheny Ludlum Steel Corporation, the contractor for these studies, gave a report on this work. He discussed the composition and characteristics of a number of the stainless steels used in exhaust systems, including AISI 320,321, and 347. Using slides, Mr. Snair illustrated what had been found through analysis of the materials used in several failed parts. Most of the failed parts showed severe oxidation, carburization, and indications that they had passed through the sigma phase which occurs about 1650 °F. Engines operating at 1600° F., therefore, are approaching the limits of AISI 321 and 347 stainless steels used in exhaust systems.
“Mr. T. McCunn, also of Allegheny Ludlum, spoke and recommended that AISI 310 or Incoloy be used in exhaust systems since these metals are good for 1800 to 1900°F. He indicated that AISI 321 costs about $0.60 per pound while Incoloy costs about $1.00 per pound. Excessive temperature did not contribute to some failures as much as design features which resulted in vibration and thermal stresses. The primary causes for exhaust system failures are overheating and vibration. The work done by Allegheny Ludlum Steel will be published as an official FAA report and become available in the near future.”

By virtue of participating in this conference, Piper had notice not only that 321 stainless steel (AISI 321) was a questionable muffler material, but also that the FAA proposed to publish an official report on the studies.

Documents which would be hearsay if offered to prove the truth of the statements therein are not hearsay if they are given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial. Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976). Cf. Caterpillar Tractor, supra; Pace v. Louisville & Nashville Railroad Company, 166 Ala. 519, 52 So. 52 (1910). Proof that the FAA made statements in the reports that 321 stainless steel was of questionable suitability for aircraft mufflers was relevant to the question of whether Piper was alerted to the possibility that 321 stainless steel might not withstand the stresses in airplane mufflers.

At any rate, the material in exhibits 80-84 is largely cumulative of the matters set out in exhibit 79. While the record is a trifle unclear whether Piper objected to admission of exhibit 79, Piper does not argue on appeal that admission of this exhibit was error. This exhibit being in evidence established some foundation for the proposition that stainless steel 321 was a questionable material, so the following exhibits are cumulative and indicate that Piper should have known that the use of stainless steel 321 was questioned in the industry. Therefore, under the harmless error rule, we are unable to say that admission of exhibits 80-84 was such prejudicial error as to require reversal.

A federal statute, 49 U.S.C. § 1354(b), provides that:

“... Publications purporting to be published by the [Federal Aviation] Administrator shall be competent evidence of the orders, decisions, rules, regulations, and reports of the Administrator therein contained in all courts of the United States, and of the several States, Territories, and possessions thereof, and the District of Columbia, without further proof or authentication thereof.” (Emphasis added.)

Piper makes no response in its reply brief to this citation. Because plaintiffs did not rely on this code section below, the trial court did not rule on it, and the record does not indicate whether these reports are within the import of the section, we choose not to rule on the basis of this section. Plaintiffs offered the reports to show notice to Piper, the judge admitted them on that basis, and we find no reversible error in that ruling.

Nor do we reverse on the basis of the trial judge’s admission of exhibits 82, 83, and 84 even though they had not been produced before trial under the terms of the pre-trial order. The trial judge reaffirmed his decision to admit these documents in denying Piper’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial:

“Piper also argues that the Court erred in admitting over its objection the reports identified as plaintiffs’ exhibits 82, 83 and 84 because those reports had not been produced in advance of trial in compliance with this Court’s pretrial order.
“Plaintiffs’ exhibits 82, 83 and 84 were not produced by plaintiffs’ counsel until after the commencement of the trial. They explained that they had no knowledge of these three reports earlier, although they had requested that the Federal Aviation Administration produce all reports in its custody relating to the testing of aircraft engine exhaust systems. Plaintiffs’ counsel only received the reports themselves from the Federal Aviation Administration during the trial and then immediately notified Piper’s counsel of the existence of the same.
“At the time, this Court examined those reports and concluded that they confirmed the conclusions reached in the first two reports, plaintiffs’ exhibits 80 and 81 which had been produced by plaintiffs’ counsel in compliance with this Court’s pretrial order.
“The failure to produce plaintiffs’ exhibits 82, 83 and 84 was not the result of negligence on the part of plaintiffs’ counsel. Furthermore, the findings and conclusions in those reports were already known to Piper, since they were essentially the same findings and conclusions as those contained in the reports which had been earlier produced to Piper. The Court, therefore, concluded that Piper was not prejudiced by their admission.”

Plaintiffs, through no lack of diligence on their part, only received these reports from the FAA after trial began. Furthermore, these documents are largely repetitive of exhibits 79, 80 and 81. Amendment of a pre-trial order is within the discretion of the trial judge. Stephens v. Central of Georgia R.R. Co., 367 So.2d 192 (Ala.1978). We find no abuse of discretion by the trial judge in admitting these exhibits.

Piper also alleges error in the trial court’s ruling on certain testimony regarding the effect of inflation on damages for wrongful death under Georgia law, citing Edwards v. Southern Railway Co., 52 Ga.App. 557, 184 S.E. 370 (1936). We find the cases cited by plaintiffs, including Henry Grady Hotel Corp. v. Watts, 119 Ga.App. 251, 167 S.E.2d 205 (1969), and Woods v. Anderson, 145 Ga.App. 492, 243 S.E.2d 748 (1978), to be more closely on point. The trial court’s ruling admitting this evidence is due to be upheld.

Finally, Piper appeals from the trial court’s refusal to give several of its requested jury instructions. Some of these were adequately covered by the court and others are not required under the applicable Georgia law.

Instruction number 11 would have charged that if the jury was reasonably satisfied “that the defendant designed and manufactured the said aircraft with that degree of care which a reasonably prudent aircraft designer would have employed under the same or similar circumstances at the time involved,” the jury should find for the defendant. The trial court charged in almost these exact words regarding Piper’s duty, except that it omitted “at the time involved.” We do not find this to be error, because the evidence that Piper should have known of the risks of 321 stainless steel pre-dated the design of the Warrior in 1973. Therefore, the time element omitted by the court was not at issue.

Instructions 12, 19, and 20 state that there is no duty to build the safest possible, or an accident proof, airplane. Piper cites three Georgia cases for the principles stated in these instructions. Hunt v. Harley-Davidson Motor Co., 147 Ga.App. 44, 248 S.E.2d 15 (1978); Stovall & Company v. Tate, 124 Ga.App. 605, 184 S.E.2d 834 (1971); and Wansor v. George Hantscho Company, 595 F.2d 218 (5th Cir.1979) (applying Georgia law). These cases all concern obvious defects or conditions of which the plaintiffs were aware — lack of crash bars on a motorcycle, the possibility of stones thrown from a lawnmower, and a dangerous printing press — and so are distinguishable from this case. The courts in all three cases noted that they were not dealing with latent defects of which the manufacturer had given no warning. The car-burization and oxidation in the airplane mufflers could not be detected even by a mechanic until a crack actually appeared because the corrosion worked from the inside out. The rules in the above-cited cases are therefore not exactly on point. Moreover, we consider if error did occur it would be harmless in view of the entire oral charge to the jury. Rule 45, A.R.A.P.

Instructions 24 and 25 regard defective maintenance as an independent inter-veiling cause. The trial court properly instructed on proximate cause “without the intervention of any other or independent cause.” This adequately covers the requested instructions, and therefore we find no error in the refusal of 24 and 25.

The judgment is therefore affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . See Pub.L. 89-670, § 6(c)(1), Oct. 15, 1966, 80 Stat. 937, regarding the transfer of functions to the Secretary of Transportation, to be exercised by the Administrator.


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    Ralph HARRELSON v. Opel GLISSON, Jack Cooper, G.L. Nelson and Robert Donald Hutto.
    81-476.
    Supreme Court of Alabama.
    Dec. 22, 1982.
    Earl V. Johnson, Andalusia, for appellant.
    John B. Givhan of Albrittons & Givhan, Andalusia, for appellees.
   BEATTY, Justice.

Appeal from the denial of an application for a lounge retail liquor license. We affirm.

Harrelson operated a grocery business in the Carolina Community of Covington County at the intersection of Highway 29 and County Road 31, about five miles south of Andalusia. He made application to the town council of Carolina for a lounge retail liquor license. In due course the council held a hearing, following which it unanimously denied the application. Harrelson then filed in the circuit court of Covington County his petition for a writ of mandamus directed to the Carolina town council. A hearing was held on the petition after which, on December 1, 1981, the trial court denied relief. Harrelson’s motion for a new trial was subsequently denied, and he appealed.

In Black v. Pike County Commission, 375 So.2d 255 (Ala.1979), we reiterated the polestar requirement of an unsuccessful applicant who wishes to reverse the local issuing authority’s denial of a liquor license: the burden is upon the applicant to show that the denial was arbitrary or capricious. Harrelson maintains that the evidence below establishes just that.

The record of the hearing in the trial court discloses that the individual members of the Carolina council restated their original reasons for disapproving Harrelson’s application. One councilperson testified that it was a busy intersection in front of the store, that there had been several wrecks there with people hurt and almost killed; that the school bus ran on both roads; he also indicated concern about school children and possible increased harm to them from increased traffic due to the proximity of whiskey.

Another councilperson testified that the intersection was dangerous, although he could not recount the number of wrecks occurring there within the past five years, or within the past year. Still another council member testified to his concern about young people frequenting a skating rink located about a mile from Harrelson’s place of business, and the potential danger to young people using the road. This council member also mentioned the use of farm equipment and the school bus on the road as having been factors discussed and considered at the council meeting.

Another member of the council, although agreeing with the reasons expressed by the others, also believed that Harrelson’s place was too close to his church, about one and one-quarter miles.

The evidence disclosed that the council hearing lasted from forty-five minutes to one hour, that it was an open meeting, and was attended by several other citizens, at least two of whom spoke against issuing the license.

Harrelson himself testified, recounting his version of the reasons expressed by the council when it denied his application, and generally taking issue with the factual bases entertained by the individual council members.

We are clear to the conclusion that the petitioner has failed to carry his burden of showing that the council acted arbitrarily or capriciously in denying his application. The fact that some of their factual premises might have been erroneous, or that some considerations might have weighed heavier with some of the council members than others, does not make their decision whimsical or unfounded. Indeed, it would appear from the record that considerations of public safety, in view of the possibility of increased highway traffic in the vicinity, were significant to the council in reaching that decision. Such considerations being present, it was not error for the trial court to conclude that arbitrariness was not present in the council’s decision. When the testimony is presented ore tenus, the trial court’s findings and conclusions thereon are given the same weight as the verdict of a jury, and will not be disturbed unless palpably wrong. Goodall v. Ponderosa Estates, Inc., 337 So.2d 726 (Ala.1976).

Let the judgment be affirmed.

AFFIRMED.

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


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    Tom SIMMONS v. SESSIONS PULPWOOD COMPANY, INC.
    81-765.
    Supreme Court of Alabama.
    Dec. 22, 1982.

      P. Richard Hartley, Greenville, for appellant.
    Andrew M. Cromer, Jr., Camden, for ap-pellee.
   JONES, Justice.

This appeal challenges the propriety of the trial court’s overruling of Plaintiff’s objection to Defendant’s proof of the condition of the brakes on Plaintiff’s trailer following an accident in which the trailer was overturned and damaged.

The facts are simple and, for the most part, uncontradicted. Defendant’s log truck became stuck off the paved portion of a public road with the trailer extending across most of the surface of the pavement. Plaintiff, a farmer, was unable to stop his vehicle; and, in his. attempt to pass the Defendant’s trailer by driving off the left side of the highway, his truck and trailer overturned without colliding with the Defendant’s trailer. He suffered personal injuries, incurred extensive property damage, and lost a load of fertilizer.

The triable issues centered around the Defendant’s alleged negligence in blocking the public road and the Plaintiff’s alleged contributory negligence in not keeping his vehicle under control and bringing the same to a safe stop after seeing the Defendant’s trailer across the highway. The jury resolved the issues in favor of the Defendant. Plaintiff appeals.

The single issue presented arises out of the wrecker driver’s testimony to the effect that, during his towing of the Plaintiff’s wrecked trailer, he discovered that its brakes were working only on one wheel. The obvious purpose (and, indeed, the only purpose) of this testimony was to create in the minds of the jury the inference that the Plaintiff was guilty of contributory negligence in operating his truck and trailer with defective brakes.

Simply put, the question is: Whether the party having the burden of proving the defective condition of the place or thing at the time of the accident may meet that burden by offering evidence of its condition before or after the accident? Asked another way and in the context of the instant facts: Was the wrecker driver’s testimony that the damaged trailer’s brakes were defective, at a time subsequent to the accident when being towed from the accident scene, admissible as tending to prove that the brakes were defective immediately before and at the time of the accident? We hold that such evidence was not admissible; thus, we reverse and remand.

J. Russell McElroy’s The Law of Evidence in Alabama, 2nd. ed. § 80.01, (1959), states the general rule:

“If there is direct testimony that condition of the place or thing in suit, which is claimed by the plaintiff to have been defective, was the same at a time prior or subsequent to the accident in suit, evidence of the condition at such prior or subsequent time is admissible as tending to prove the condition of such place or thing at the time of such accident.”

Judge McElroy goes on to point out that direct proof that the condition of the place or thing remained unchanged is not necessary under certain limited circumstances:

“(1) the two occasions are so near together in point of time as to afford a presumption of similarity ... or (2) the facts and dircumstances are such as to disclose a continuing condition.”
The distinguished author then concludes: “When neither of these elements exist, evidence of prior or subsequent conditions is not admissible in the absence of preliminary proof that the material conditions were the same.”

Not only is there no direct proof that the condition of the brakes as testified to by the wrecker driver remained the same as before and at the time of the accident, but the fact of the intervening wreck and the resultant damage to the I-beams and wheels of the trailer (totalling over $5,000) preclude the invocation of either the “presumption of similarity” or “continuing condition” exception to the general rule. Indeed, the facts of this case fall squarely within the prohibition of the rule. Bradley v. Deaton, 208 Ala. 582, 94 So. 767 (1922). See, also, S.H. Kress & Co. v. Barratt, 226 Ala. 455, 147 So. 386 (1933). (It should be noted that these cases, along with our instant holding, are to be distinguished from Leeth v. Roberts, 295 Ala. 27, 322 So.2d 679 (1975), and the line of cases cited therein, permitting testimony of a witness as to the position of the automobiles, or other physical evidence, soon after the collision, although the witness did not know the position of the objects testified to immediately after the collision.)

REVERSED AND REMANDED.

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

      . C. Gamble’s McElroy’s Alabama Evidence, § 80-01 (3d ed. 1977), retains this entire text, updating the Alabama authorities for the propositions quoted herein.


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    J.L. BERDEAUX v. CITY NATIONAL BANK OF BIRMINGHAM, Alabama.
    81-885.
    Supreme Court of Alabama.
    Dec. 22, 1982.
    Richard W. Bell of Bell, Yeager, Allen & Johnson, Pelham, for appellant.
    W.B. Fernambucq of Huie, Fernambucq & Stewart, Birmingham, for appellee.
   SHORES, Justice.

This is an appeal from a summary judgment granted in favor of City National Bank of Birmingham (hereinafter the bank).

Mr. Berdeaux filed a complaint alleging negligence and wantonness by the bank in the maintenance, operation, or control of its premises known as the Oxmoor Road Branch of the City National Bank of Birmingham.

Mr. Berdeaux entered the bank on October 5, 1979, to make a payment on a loan which he owed to City National Bank of Birmingham and to make a deposit. While he was inside the bank, three people robbed the bank and, during the course of the robbery, Mr. Berdeaux was shot by one or more of the robbers.

The bank did not have a security guard on the premises at the time. The sequence video tape cameras and an alarm system to local police were the only security measures in existence.

Both parties agree that Mr. Berdeaux was a business invitee of the bank and was conducting banking business at the time of his injury.

On appeal, Mr. Berdeaux states the issue as follows: Do financial institutions in the business of transacting business by providing an office to pay and receive currency to a customer have a duty to protect customers from third persons who attempt armed robbery of the institution?

He acknowledges that this is a case of first impression in Alabama and concedes, as he must, that other states which have considered the issue have rejected various theories of liability. See annotation at 51 A.L.R.3d 711 (1971), and, particularly, Altepeter v. Virgil State Bank, 345 Ill.App. 585, 104 N.E.2d 334 (1952); and Nigido v. First National Bank, 264 Md. 702, 288 A.2d 127 (1972).

Mr. Berdeaux also concedes that, as a general rule, in the absence of a special relationship or circumstances, a private person has no duty to protect another from a criminal attack by a third person. Parham v. Taylor, 402 So.2d 884 (Ala.1981). He likewise concedes that there is no liability on the part of the bank for the criminal act of a third person when tested by the traditional rule governing the duty of a proprietor to a business invitee. Rather, he asks this Court to adopt a rule which imposes a special duty on the banking industry to protect its customers from injury at the hands of criminal intruders who, he says, are drawn to banks because of their remote locations (branch banks) and the availability of large sums of cash. In support of this argument, the appellant asks us to take judicial notice of the proliferation of branch banking in Alabama and the fact that technology has brought “TV” tellers and twenty-four hour money vending machines, all of which should be considered by the banks and which compels greater security to deter criminals, whom he says the banks indirectly invite by the establishment of branches and other modern banking procedures.

We decline to adopt a rule of “special duty” owed only by the banking industry to its customers.

We are sympathetic with Mr. Berdeaux and do not doubt that he has suffered severe injury and has sustained great damage, but we cannot agree that redress should come by rewriting the law of torts. Whether the revolution in the banking industry justifies a different standard of care, we cannot say. To be able to answer that question would require data that a court is ill equipped to gather, but which the legislature is especially capable of assessing. The issue itself presents a policy matter peculiarly within the province of the legislative as opposed to the judicial branch of government. Not all problems of a complex society can be solved in civil litigation and, while courts do not and should not shrink from performing their constitutional duty, they do and should leave to the executive and legislative branches matters requiring resolution in the body politic.

The trial court did not err in granting summary judgment in favor of the bank under the undisputed facts of this case. Its judgment is affirmed.

AFFIRMED.

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