author: LEE, Justice,

text:
    Linda F. TATE v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Billy Neal D/B/A Billy Neal’s Spud and Sud.
    No. 53200.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Reversed and rendered.

      Barry H. Powell, Jackson, for appellant.
    Fred J. Lotterhos, Jackson, for appellee.
    Before PATTERSON, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Linda F. Tate has appealed from a judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi, affirming the decision of the Mississippi Employment Security Commission Board of Review, which affirmed the decision of the appeals referee, denying benefits to claimant. She has appealed and assigns the following error in the judgment of the lower court:

The court erred in upholding the finding of the Mississippi Employment Security Commission (MESC) that appellant did not have good cause voluntarily to leave her employment when her hours of work were cut to the point that she no longer could pay the necessary expenses of her employment.

'The 24-year-old claimant was employed as a cook for Billy Neal’s Spud & Sud, Jackson, Mississippi for a period of eight weeks. During that time, she worked approximately five and one-half hours per day, five days a week, at an hourly wage of $3.10. During November 1980 her working hours were reduced to the extent that she worked approximately three hours per day, four days a week, at $3.10 per hour. She advised her employer that she was unable to continue working because she could not afford to pay for the care of her children and other living expenses on her income.. She voluntarily quit her job on November 11, 1980. Claimant testified that she was required to pay $50 a week for care of her children while she was working and that her rent amounted to $59 per week. She lived in a government low-income housing complex but was required to pay her own utility bills. After leaving Billy Neal’s Spud & Sud, claimant applied for work at a local Sunflower Food Store without success.

The claims interviewer found that when claimant’s work hours were cut, she had insufficient earnings to provide child care and justify working, that the employer stated claimant had just cause to quit because of the work hours cut, and the claims interviewer recommended payment of benefits to claimant.

The claims examiner reviewed the finding of the claims interviewer and disqualified claimant because she failed to show that she terminated her employment for good cause. On December 23, 1980, a hearing was held before an appeals referee, who sustained the decision of the claims examiner. On February 19, 1981, the MESC Board of Review affirmed the decision of the appeals referee, and that decision was affirmed by the Circuit Court of Hinds County on June 8, 1981.

Mississippi Code Annotated section 71-5-513A (Supp.1981) provides the following:

A. An individual shall be disqualified for benefits:
(1) For the week, or fraction thereof, which immediately follows the day on which he left work voluntarily without good cause, if so found by the commission, and for each week thereafter until he has earned remuneration for personal services (whether performed for an employer as in this chapter defined or otherwise) equal to not less than eight (8) times his weekly benefit amount, as determined in each case, provided that marital, filial, and domestic circumstances and obligations shall not be deemed good cause within the meaning of this subsection. Pregnancy shall not be deemed to be a marital, filial or domestic circumstance for the purpose of this subsection.

Mississippi Code Annotated section 71— 5-3 (1972) states public policy reasons of the Mississippi Employment Security Law to be:

The funds are “to be used for the benefit of persons unemployed through no fault of their own.”

MESC states the question concisely:

The issue in this case was a simple one. Does an unemployment insurance claimant have the right under the law to quit a job when the hours are reduced, and draw benefits? Or should she look for a job with more hours and more pay, and keep the job she had until she found a better one?

Among other cases cited by MESC is the recent case of Mississippi Employment Security Commission v. Benson, 401 So.2d 1303 (Miss.1981), where the Court said:

In certain circumstances an employee who quits his job is entitled to unemployment compensation benefits. As said in 81 C.J.S. Social Security § 232:
“A substantial reduction in earnings is generally regarded as good cause for leaving one’s employment, and, hence, one who leaves for such reason is not disqualified for unemployment compensation on the ground of leaving his work voluntarily without good cause; but in this connection the surrounding circumstances should be considered in determining whether a particular reduction in pay constitutes good cause for leaving one’s employment.” (401 So.2d at 1304)

And:

Undoubtedly, there was work to do at the shop when he quit for which he could have continued drawing his usual compensation. (401 So.2d at 1305) (Emphasis added.)

The Benson case may be distinguished from the case sub judice. There the claimant worked as an automobile body repairman on a 50% commission basis. He was making approximately $200 per week when he advised his employer that he was quitting because the work just got slow. Under the facts of that case, the claimant obviously left his employment without good cause.

Courts of other jurisdictions have held that a claimant leaving employment because of a substantial reduction in earnings constitutes good cause for purposes of unemployment compensation eligibility. In Edwards v. Commonwealth, Unemployment Compensation Board of Review, 35 Pa. Cmwlth. 647, 387 A.2d 510 (1978), a 50% reduction in wages was held to constitute a necessitous and compelling reason for a claimant to leave his employment and still be qualified for unemployment compensation benefits. See also Tombigbee Lightweight Aggregate Corp. v. Roberts, 351 So.2d 1338 (Ala.Civ.App.1977).

In the case sub judice, when the claimant’s work hours were reduced by her employer approximately 50% and below the cost of hiring an individual to care for her children while she worked, common sense dictates that she should return home and keep the children herself rather than work at a loss. She was required to quit her employment under those circumstances as surely as if she had been terminated by her employer because of economic conditions.

The facts are different from those in Mississippi Employment Security Commission v. Stafford, 248 Miss. 95, 158 So.2d 55 (1963). There, the claimant was denied unemployment compensation benefits because she left her employment to take care of her mother who was suffering with cancer. The Court held that she left her work voluntarily as the result of her “marital, filial or domestic circumstances or obligation” and therefore, under Mississippi Code Annotated section 71-5-513A(1), supra, the reason for terminating her employment could not be considered as good cause. In the case sub judice, claimant did not leave her job for the prime purpose of looking after her children, but when her hours were reduced to the point where child care expense exceeded the amount she earned, this factor became a direct part of the employment consideration.

The fact that claimant collected money under the Aid to Dependent Children program, lived in a low-income rental project, and received subsidies from the federal and state governments is not relevant to the question of whether or not claimant left her employment voluntarily without good cause.

We are of the opinion that the lower court erred in affirming the appeal agencies of the Mississippi Employment Security Commission and in declining to reinstate the findings of the claims interviewer. Therefore, the judgment of the lower court is reversed and judgment is rendered here in favor of claimant.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.

BOWLING, J., took no part.

      . The employer stated that his business had decreased to the extent that he was required to reduce the claimant’s work hours.


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    Donald McDANIEL v. MISSISSIPPI POWER & LIGHT COMPANY.
    No. 53101.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    James W. Nobles, Jr., William B. O’Neal, Jim Phyfer, Jackson, for appellant.
    Wise, Carter, Child & Caraway, Jackson, Ellis Bodron, Vicksburg, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Donald McDaniel, a minor, by Claudette McDaniel, his mother and adult next friend, brought a suit in tort in the Circuit Court of Warren County against Mississippi Power & Light Company, hereinafter MP&L, and Smith’s Machine & Welding Company. MP&L was charged with negligence in failing to anticipate that material handling equipment would be used on the construction site in close proximity to the power lines and in failing to take the necessary safety precautions. During the course of trial the suit of Smith’s Machine & Welding Company was settled for $45,000. From a jury verdict for MP&L, McDaniel appeals.

The suit was based on an accident which occurred on June 28, 1978, while McDaniel was employed as a carpenter’s helper for the construction of the Hillman Clinic in Brookhaven. While McDaniel and another employee were hooking the chains of a crane under bundles of sheetrock, the boom of the crane came in contact with a' high voltage power line. The electricity entered McDaniel’s body, rendering him unconscious from the shock. McDaniel was hospitalized for electrical burns in Brookhaven for one week and then transferred to the Baptist Hospital in Jackson, where he remained for a month. While at Baptist Hospital, partial amputation of the left index finger and left ring finger, amputation of the entire long left finger, amputation of the left second toe, and amputation of the right second, third, and fourth toes were performed. Skin grafts with skin taken from Donald’s thighs, were done as secondary repairs to the amputation sites. A third surgical procedure was performed to repair some of the grafts that did not take. The treating plastic surgeon assigned varying percentages of permanent partial disability to the left hand and right and left feet.

The evidence at trial revealed that the property line of the parcel on which the clinic was being built was 35 feet north of the clinic building. A 25 foot strip of property belonging to a third party ran between the clinic property and the Brookmanor property on which the power line was located. Two rows of sheetrock were stacked on the Smith property 8 to 12 feet south of the power line. The stack of sheetrock closest to the power line and farthest from the crane was moved first, over the front row of sheetrock, during which the crane came in contract with the power line.

The power line, consisting of three high voltage wires, was situated 27 feet above the ground. The applicable National Electric Safety Code required that the lines be 20 feet above the ground. There were no warning signs on the poles. The wires of the power line had no covering, insulation, or warning signs. MP&L contended that it had no reason to anticipate that a crane with a 60 foot boom would be used in the construction of a one story frame building, particularly when the power lines were located off the property of the construction site.

McDaniel’s primary assignment of error involves the trial court’s allowing an employee of MP&L to testify about his opinion on MP&L’s compliance with the National Electric Safety Code. The witness, the division manager of the South Central Division for MP&L and responsible for all operations in the particular geographic division, was asked whether in his opinion the power lines were maintained in accordance with the safety code and with good engineering practice. Counsel for McDaniel objected, contending that the witness was being questioned as an expert witness and had not been listed as such in the answer to the interrogatories. The trial judge overruled the objection because Temple was the plant manager charged with the responsibility of maintaining the lines in accord with the safety code.

McDaniel relies on Clark v. Mississippi Power Company, 372 So.2d 1077 (Miss.1979). In that case, Clark answered several interrogatories, including one requesting ' the names of persons expected to be called as expert witnesses, by stating that he could not answer at the present time but would file a supplemental answer. No supplemental answers were filed before trial, even after a demand for supplemental answers had been made by Mississippi Power Company. At trial Clark presented an expert witness to testify, but the trial court refused to allow his testimony because Clark had failed to conform with the discovery rules. We affirmed, reiterating that the trial court has considerable discretion in matters relating to discovery and that we would not disturb an order unless there has been an abuse of that discretion.

In the present case we find no abuse of discretion in the allowance of the testimony of the MP&L employee. The situation is distinguishable from the Clark case. Unlike Clark, MP&L made every effort to fully and accurately answer the interrogatories propounded to it. In his interrogatory to MP&L, McDaniel asked for the name, address,, and other information concerning “any expert witness retained by, for or on behalf” of MP&L. In its answer, MP&L supplied the name and information concerning J. W. Abernathy, further stating that it “had not retained any other outside expert other than Mr. Abernathy.” The MP&L employee, to whose testimony McDaniel objected, was not retained by MP&L, but rather was a full time employee testifying on his personal knowledge of compliance with the safety code, rather than any expertise he possessed.

The cases are further distinguishable by the fact that the allegedly objectionable portion of the witness’ testimony simply reiterated the testimony of the acknowledged outside expert, J. W. Abernathy. Additionally, McDaniel had earlier in the trial twice called this MP&L employee to the stand as an adverse witness. There was no undue advantage to MP&L by failing to list the employee as an expert and no probability of any surprise testimony from the witness in favor of MP&L. Thus, we find no abuse of discretion in the trial’s court’s permitting the MP&L employee to give his opinion on compliance with the National Electric Safety Code.

McDaniel’s other assignments of error are based on his contention that MP&L was negligent as a matter of law. From our examination of the record, the evidence on both the duty of care and breach of that duty was sufficiently conflicting for the question to be decided by the jury. Thus, these assignments of error are without merit.

Having examined all assignments of error and finding no error, this cause is affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: EMBRY, Justice.

text:
    JEFFERSON COUNTY, Alabama, et al. v. Wayne BRASWELL, et al.
    79-956.
    Supreme Court of Alabama.
    Nov. 6, 1981.

      J. Reese Johnston, Jr., of Barber, Johnston, Holmes & Hughes, Birmingham, for appellants.
    Charles E. Clark of Carlton, Boles, Clark, Vann, Stichweh & Caddis, Birmingham, for appellees.
    Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for ami-cus curiae The Ass’n of County Commissions of Alabama.
   EMBRY, Justice.

This appeal is from a final judgment in favor of plaintiffs, several retail beer licensees of Jefferson County, who challenged the validity of Act 689 of the 1977 Regular Session of the Alabama Legislature under several state and federal constitutional provisions and federal antitrust laws.

Act 689 requires each manufacturer of malt or brewed beverages that markets its products in Jefferson County to designate a sales territory for each of its brands sold in that county and to name an exclusive wholesaler for the territory for each such brand. Additionally, the Act makes it unlawful for any retail beer dealer in Jefferson County to purchase any brand of malt or brewed beverage from anyone other than the designated wholesaler of that brand in the county, under penalty of revocation of the retailer’s license for noncompliance.

This action was commenced with the filing of a complaint for declaratory judgment by several retail beer licensees of Jefferson County. Named as defendants were Jefferson County and its three Commissioners, the Alabama Alcoholic Beverage Control Board and its three members, and the state’s Attorney General.

The theories advanced in the numerous counts of plaintiffs’ complaint can be summarized as follows:

(1) Act 689 violates Article 4, Section 105, Alabama Constitution of 1901, because it is a local law covering a subject subsumed by an extant general law;

(2) The Act violates guarantees of due process and equal protection of the law afforded by the Alabama and United States Constitutions; and

(3) The Act violates the Commerce Clause of the United States Constitution and federal antitrust laws.

At the trial without a jury, the thrust of testimony adduced by plaintiffs was that wholesale beer prices in Jefferson County have risen substantially since passage of the Act, that these prices are parallel among the county’s designated wholesalers, and that plaintiffs are no longer able to purchase beer from other counties at competitive prices. Testimony was presented that, but for the Act, plaintiffs could purchase beer from Tuscaloosa County wholesalers, as they had done prior to the Act’s passage, at savings in excess of one dollar per case.

Defendants countered with testimony that prior to enactment of the legislation substantial tax revenues from beer sales were being lost because Jefferson County retailers brought into the county beer purchased from wholesalers outside the county without reporting and paying the applicable tax prevailing in Jefferson County. According to evidence offered by defendants the Act was passed to remedy this situation.

After permitting the parties to file briefs in support of their legal arguments, the trial court rendered judgment in favor of plaintiffs, the retailers.

The trial court’s order does not indicate which ground or grounds of invalidity alleged by plaintiffs the court considered determinative of the issue. Consequently, it is incumbent upon us to consider each of the theories advanced by plaintiffs below in order to determine if the trial court’s judgment can be sustained on one or more of those theories.

To aid us in examining these issues, the Association of County Commissioners of Alabama was granted leave to file amicus curiae briefs.

We initially deal with plaintiffs’ contentions that Act 689 violates Const.1901, § 105. That section provides that “... [n]o special, private or local law . .. shall be enacted in any ease which is provided for by a general law.... ”

The only statutory provisions specifically identified by plaintiffs as being in conflict with Act 689 are Code 1975, §§ 28-3-142 and -167, which concern the licensing of wholesalers and retailers of malted and brewed beverages. Section 28-3-142 authorizes licensed wholesalers to sell or deliver such beverages anywhere within the State of Alabama, while Section 28-3-167 authorizes licensed retailers to purchase from those wholesalers.

Defendants contend section 105 does not operate to invalidate Act 689 in light of the statutes cited by plaintiffs, when 105 is read in conjunction with the preceding section of the constitution. The latter, Const. 1901, § 104, contains an extensive list of particular subject matters which the Legislature may not regulate by way of special, private or local laws. However, 104 concludes as follows:

The legislature shall pass general laws for the cases enumerated in this section, provided that nothing in this section or article shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic; but no such local law shall be enacted unless notice shall have been given as required in section 106 of this Constitution.

Plaintiffs respond that the exemption in 104 from restrictions on local legislation has no application to Act 689. Plaintiffs point to the fact that the exemption covers only local laws, not private or special laws, regulating the liquor traffic. Act 689, plaintiffs maintain, is a private or special law.

A local law is defined in Const.1901, § 110, as “a law which applies to any political subdivision or subdivisions of the state less than the whole,” while a private or special law is defined as “one which applies to an individual, association, or corporation.”

Plaintiffs argue that the Act applies directly and indirectly to individuals or corporations, i.e., the manufacturers, wholesalers and retailers of beer sold in Jefferson County, but does not regulate Jefferson County as a political subdivision. As plaintiffs couch their contention, the Act applies “in a political subdivision, but not to a political subdivision.”

At this point we note that Amendment No. 375 to the Constitution amended § 110 upon its ratification in 1978 and changed the definition of a local law to “a law which is not a general law or a special or private law.” This amendment was not in effect, however, at the time Act 689 was passed. Therefore, the classification of the Act is to be determined under the definitions in the quoted portion of the original 110.

In any case, we do not think resolution of the issue as framed by plaintiffs would be any different as a result of the adoption of Amendment 375 in light of our recent holding that an annexation bill is a local law, within the meaning of the amendment, where it is limited in its application to a single political subdivision of this state. Opinion of the Justices, 381 So.2d 632 (Ala. 1980).

In addition to the contention that the Act does not apply to a political subdivision, plaintiffs maintain the Act cannot be local because it confers authority on the Alabama Alcoholic Beverage Control Board (ABC Board) to revoke retail beer licenses for violation of the Act. Finally, plaintiffs argue that the Act’s requirement of the designation of exclusive wholesalers forecloses the right of other wholesalers throughout the state to sell to retailers located in Jefferson County, thereby causing the Act to have statewide rather than local application.

Plaintiffs’ contentions regarding the ABC Board are without merit. The Act merely states the ABC Board will be notified of a license revocation by the governing body of the county or municipality which has revoked it, and that upon receipt of that notice the ABC Board will give the retailer notice to appear and show cause why his license should not be revoked. Nothing in that provision confers additional authority on the ABC Board to revoke a retail beer license, nor does it require the Board to revoke such a license.

Regarding plaintiffs’ argument that the Act cannot be local because it effectively prohibits wholesalers outside of Jefferson County from selling to retailers within that county; . that indirect effect does not change the local nature of the Act. This argument is actually a disguised restatement of their basic premise with respect to section 105, namely, that the Act conflicts with Code 1975, § 28-3-142, the general law authorizing licensed wholesalers to sell to any retailer in the state.

Finally, we are not persuaded by plaintiffs’ interpretation or construction of the phrase “to a political subdivision” in section 110’s definition of a local law. A local law has been defined as one that applies to a particular locality or particular localities to the exclusion of others, while, in contrast, a private or special law has been defined as one which applies to a particular individual or individuals. 2 C. Sands, Sutherland Statutory Construction § 40.01, at 137 (4th ed. 1973). Also see Connor v. State, 275 Ala. 230, 153 So.2d 787 (1963); Note, Local Legislation in Alabama: The Impact of Peddycoart v. City of Birmingham, 32 Ala.L.Rev. 167 (1980).

We interpret the definitions of a local law and a private or special law in 110 as consistent with this view, as opposed to plaintiffs’ implied position that legislation must directly regulate governmental functions of a political subdivision in order to be classified as a local Act.

We also think it clear from the Act’s language that the legislative intent was to proscribe certain conduct within a particular locality, Jefferson County, rather than to control the conduct of specific persons. Furthermore, “[i]t has long been recognized that an act which was intended to apply to only one county, which is named, is a local act.” Opinion of the Justices, 284 Ala. 626, 227 So. 396 (1969). Accordingly, we conclude that Act 689 is a local law.

Plaintiffs next contend that, even if the Act is a local law, notice of its proposed enactment was not given in accordance with Const.1901, § 106, as required by the terms of the liquor law exemption of 104.

Plaintiffs concede that notice was properly published in Jefferson County. However, the argument is that publication was required in all other counties where licensed wholesalers are situated because the right of these wholesalers to sell to Jefferson County retailers was affected by the Act.

The purpose of 106 is to prevent the deception of those immediately affected by local legislation to the end they may have an opportunity to protest against the proposed enactment. Mitchell v. Mobile County, 294 Ala. 130, 313 So.2d 172 (1975); Burns v. State, 246 Ala. 135, 19 So.2d 450 (1944); Gray v. Johnson, 235 Ala. 405, 179 So. 221 (1938). Any act assailed as unconstitutional under this section is presumed to be constitutional. Gray, supra. The requirements of 106 should receive a broad and liberal construction and avoid so strict a construction as would hamper and embarrass legislation. Wilkins v. Woolf, 281 Ala. 693, 208 So.2d 74 (1968).

Following these guidelines, we do not think 106 mandates notice to persons who might be indirectly affected, however remotely, by enactment of a proposed local law. Creative minds can conceive of some collateral effect which would occur outside of the locality to which the law was intended to apply arising from most any locally applicable legislation. Ingenious arguments, however, cannot be permitted to so easily defeat the legislative process and thus its intended effect.

We opine that the requisites of 106 are satisfied by the giving of notice of a proposed local law to those who would be immediately affected by its enactment: persons within the locality in which the law is intended to, and by its very terms does, operate.

Act 689 does not purport to regulate activity in any phase of beer distribution outside of Jefferson County. Because notice was properly published in Jefferson County, we hold that Act 689 is a local law which was properly published according to the terms of 106 and falls within the exemption for local laws regulating the liquor traffic found in 104.

Having determined 104 to be applicable, it must be construed along with 105 in considering plaintiffs’ challenge under the latter section. Each section of the Constitution must necessarily be considered in pari materia with all other sections. Opinion of the Justices, 333 So.2d 125 (Ala.1976). Plaintiff urges that the decision in Peddycoart v. City of Birmingham should guide our interpretation of these provisions of the Constitution. In Peddycoart, we observed that this court had in the past upheld local laws tested under 105 when it found a “substantial difference” between the local law and general law allegedly covering the same subject matter. After discussing the vagaries of this test, this court indicated that a more restrictive attitude was appropriate when considering interpretation of 105.

However, with respect to the special situation of a local law regulating the liquor traffic, which Peddycoart did not address, the framers of the constitution granted express authority to enact local legislation. Furthermore, in so doing, those framers provided that “nothing in this section or article shall affect the right of the legislature to enact local laws regulating or prohibiting the liquor traffic.” (Emphasis ours.) We here note that both 104 and 105 fall under Article IV of the Constitution of 1901.

When there is a conflict, or apparent conflict, between sections of the Constitution, the more specific will prevail as against a more general statement pertaining to the same subject matter. State v. Stone, 237 Ala. 78, 185 So. 404 (1939). We therefore conclude that by virtue of the specific exemption for local liquor laws in Section 104, Act 689 is not unconstitutional under Section 105 as a local law regulating a subject subsumed by an extant general law.

Turning to the federal constitutional questions, the posture of our examination of these issues is set by observations of the United States Supreme Court, in Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966):

Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” As this Court has consistently held, “That Amendment bestowed upon the states broad regulatory power over the liquor traffic within their territories.”

The Twenty-First Amendment operates to fortify the intrinsic police power of the state to regulate liquor traffic, itself a broad and plenary power. California v. La-Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).

Proceeding with this perspective, we consider plaintiffs’ contention that Act 689 violates guarantees of equal protection of the laws.

Any form of state legislation creating discriminating classifications (1) that concern fundamental constitutional rights, or (2) whose defining criteria are inherently suspect, or (3) that are unnecessarily restrictive and unreasonably related to the legislation’s purported purpose, is subject to challenge and examination as a denial of equal protection of the laws. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1977).

As regards the first two arms of this equal protection standard, the federal district court in Patch Enterprises, Inc. v. McCall, 447 F.Supp. 1075 (M.D.Fla.1978), stated:

It is an intrinsic power of state governments and their subdivisions, fortified by the federal Constitution’s Twenty-first Amendment, to regulate the sale, distribution, importation, and use of alcohol intoxicants, so long as that regulation does not irrationally and invidiously discriminate. California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342, 349-50 (1972); cf. Craig v. Boren, 429 U.S. at 204-05, 97 S.Ct. at 460-61, 50 L.Ed.2d at 411, 413-14, and 429 U.S. at 215, 97 S.Ct. at 466, 50 L.Ed.2d at 417-18 (Stewart, J., concurring in the judgment). There is, furthermore, no fundamental constitutional right of persons to sell or consume alcoholic beverages.
Hence, the question presented by plaintiffs’ equal protection challenge to the ordinance is whether its proscriptive and regulatory classification (1) has a legitimate governmental objective and (2) is a reasonable means to achieve that goal. Zablocki v. Redhail, 434 U.S. 374, 400, 401, 98 S.Ct. 673, 688, 689, 54 L.Ed.2d 618, 639, 640 (January 18, 1978) (Powell, J., concurring in the judgment); Craig v. Boren, 429 U.S. at 211, 97 S.Ct. at 464, 50 L.Ed.2d at 415 (Powell, J., concurring); Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768, 777 (1972); Levy v. Louisiana, 391 U.S. 68, 71, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436, 439 (1968).

In considering this question in the context of a state’s exercise of regulatory authority over intoxicating liquors under the police power and the Twenty-First Amendment, every analysis of the validity of such state regulatory action must proceed from the vantage point of “presumed state power”. California v. LaRue, supra.

As stated earlier, defendants produced testimony at trial that Act 689 was enacted to prevent losses of tax revenue resulting from beer being brought into Jefferson County by retailers who purchased that beer from wholesalers in other areas of the state, and who also failed to report those purchases to Jefferson County tax officials. Defendants’ testimony regarding the purpose of the act cannot, of course, be accepted, without question, as a statement of the legislative intent underlying the Act. However, the statutory purpose as advanced by defendants can be considered under the applicable test. That test is whether the statute in controversy regulating the liquor traffic is “arguably reasonable” under any state of facts. Allstate Beer, Inc. v. Julius Wile Sons & Co., Inc., 479 F.Supp. 605 (N.D. Ga.1979); McDonald v. Brewer, 295 F.Supp. 1135 (N.D.Ala.1968).

In light of the heavy presumption of validity regarding regulatory liquor legislation, we hold that Act 689 is reasonably related to a legitimate state purpose and does not violate principles of equal protection.

Looking to plaintiffs’ contentions regarding due process, the Commerce Clause, and antitrust laws, we observe that Allstate Beer, supra, addressed these very issues in construing a Georgia statute, the critical provisions of which were virtually identical to those of Act 689. The statute in Allstate required designation of territories and exclusive wholesalers for those territories; the only difference being that the Georgia statute regulated the distribution of wine rather than malt or brewed beverages. Additionally, the action in Allstate Beer was brought against state officials as was this action, a factor which was significant in the court’s decision.

We consider the analysis in Allstate Beer directly applicable to the case sub judiee and therefore quote from that opinion at length:

“[Plaintiff] first challenges the Georgia regulations as violative of the Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq., and, thus, the Supremacy Clause of the U.S. Constitution, Art. VI, cl. 2. Because [plaintiff] does not charge that Allstate is acting in violation of the federal antitrust laws, but rather attacks the regulatory program itself, the counterclaim is actually in the nature of a suit against state officials who supervise the distribution of alcoholic beverages....
“This distinction is crucial in an antitrust case. In a line of cases beginning with Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) the Supreme Court has defined the parameters of the ‘state action’ exemption to the federal antitrust laws. If the suit is against state officials individually for violating the antitrust laws in the administration of a certain state program, the Court has routinely held that the ‘state action’ exemption applies. New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 439 U.S. 96, 99 S.Ct. 403, 58 L.Ed.2d 361 (1978); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 98 S.Ct. 2207, 2217-18, 57 L.Ed.2d 91 (1978); Bates v. State Bar of Arizona, 433 U.S. 350, 359-63, 97 S.Ct. 2691, [2696-2698] 53 L.Ed.2d 810 (1977); see also, City of LaFayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978); cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976); Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 71 S.Ct. 745, 95 L.Ed. 1035 (1951)....
“In sum, the Georgia regulations fall within the “state action” exemption to the Sherman Act and, hence, are not vio-lative of that act or the Supremacy Clause.
“[Plaintiff] also contends that the Georgia regulatory scheme violates the Commerce Clause. Citing the Twenty-First Amendment, the Supreme Court made it clear that, ‘a State is totally unconfined by traditional Commerce Clause-limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.’ Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350 (1964).
“_ ' ¿
“[P]laintiff next attacks the Georgia regulations as violative of the due process clauses of both the federal, U.S.Const., Art. XIV, and State, Ga.Code Ann. § 2-101, Constitutions. More specifically, the defendant says that the regulations unduly interfere with his right to enter into contracts and are, therefore, in conflict with substantive due process.
“According to the Court of Appeals for the Fifth Circuit only a ‘clear showing’ of arbitrariness would allow a court to substitute its judgment for that of the state legislature in the area of regulation of the alcoholic beverages industry. If the state’s law is ‘arguably reasonable,’ it should be sustained. Parks v. Allen, supra, [426 F.2d 610] at 613-14. See also, Trustees of Mortgage Trust of America v. Holland, 554 F.2d 237 (1977); Barnes v. Merritt, 428 F.2d 284, 288 (5th Cir. 1970).”

In discussing the equal protection question earlier in this opinion, we determined that Act 689 is reasonably related to a legitimate state purpose. We are in accord with the analysis and holding of Allstate Beer and deem that authority controlling with respect to plaintiffs’ challenge that Act 689 violates federal due process guarantees, the Commerce Clause, and federal antitrust laws.

As to plaintiffs’ claim that Act 689 violates equal protection and due process principles under the Alabama Constitution, the only Alabama case cited in support is Kinmon v. J. P. King Auction Company, Inc., 290 Ala. 323, 276 So.2d 569 (1973), which does mention the constitutional right to contract, but was decided on contract principles having no application to this case. We consider our analysis of the equal protection and due process issues under the United States Constitution equally applicable to those same issues under the Alabama Constitution. This is particularly true in light of the pronouncements of this court regarding the extent of the police power exercisable by the Legislature when regulating the liquor traffic:

The legislative power to regulate the sale of liquor is absolute. The legislature may regulate it as it sees fit, or prohibit it entirely....

Ebony Club, Inc. v. State, 294 Ala. 421, 318 So.2d 282 (1975).

... The State may regulate the manner and circumstances under which the liquor traffic may be conducted and surround the right to pursue it with such conditions, restrictions and limitations as it deems proper, or prohibit it entirely.. . .

Armstrong v. State, 248 Ala. 124, 26 So.2d 874 (1946).

We find Act 689 of the Regular Session of the 1977 Alabama Legislature to be constitutional in all respects under both the state and federal constitutions. Accordingly, the judgment of the trial court is due to be and is hereby reversed and judgment here rendered dismissing this action and ordering that all costs be paid by plaintiffs below.

REVERSED AND RENDERED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, SHORES, BEATTY and ADAMS, JJ., concur.


text:
    OPINION OF THE JUSTICES.
    No. 285.
    Supreme Court of Alabama.
    Nov. 18, 1981.
   To the Members of the House of Representatives

State Capitol

Montgomery, Alabama

Ladies and Gentlemen:

In House Resolution 11 you requested our opinion regarding H. B. 57 which would amend Code 1975, § 17-4-138, to provide that only probate judges who receive compensation on the fee system and prepare lists of qualified electors shall receive $0.05 per name for preparation of such lists. The present § 17-4-138 makes no distinction between judges who are paid on the fee system and those who are not. The question that you have posed is as follows:

“Does Section 1 of H. B. 57, amending Section 17-4-138 of the Code of Alabama 1975, which in part deletes the language, ‘The judge of probate shall receive or such,’ and adds ‘and only those judges of probate, on the fee system who preparé such lists’ fall within the constitutional prohibition of Section 6.09(d) of Amendment No. 328 to the Constitution of Alabama of 1901?”
Our answer is yes.

In pertinent part, Ala.Const.1901, amend. 328, § 6.09(d), provides that “the compensation of a judge shall not be diminished during his official term.” Probate judges are included within the protection afforded by the above-quoted sentence in § 6.09(d). The present wording of § 17-4-138 does not distinguish between judges paid on the fee system and those not paid on the fee system. Presently, all probate judges are entitled to receive compensation of $0.05 per name for the preparation of lists of qualified electors. The proposed amendment would remove this form of compensation from probate judges not compensated on the fee system. It has been remarked that “the constitutional inhibitions against changes in the compensation of judges during their terms of office prohibit any and every kind of change in a judge’s salary, whether direct or indirect.” 46 Am.Jur. 2d Judges § 68, at 139 (1969) (footnote omitted). In the instant matter, the proposed change clearly would reduce the compensation of probate judges who are not compensated on the fee system for work performed in preparation of lists of qualified electors. It, therefore, contravenes amend. 328, § 6.09(d) and is unconstitutional.

Nevertheless, we note that if H. B. 57 were made effective at the expiration of the terms of all probate judges affected, the bill’s objective would be permissible and constitutionally valid. Wilkins v. Woolf, 281 Ala. 693, 208 So.2d 74 (1968).

Respectfully submitted,

C. C. TORBERT, Jr. Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

OSCAR W. ADAMS, Jr. Justices

APPENDIX A

H.R. 11 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO H.B. 57, WHICH AMENDS SECTION 17-4-138 OF THE CODE OF ALABAMA 1975, PROVIDING PAYMENT FOR THE PREPARATION OF LISTS OF QUALIFIED ELECTORS.

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ALABAMA LEGISLATURE, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give their written opinions on the following important constitutional question which has arisen concerning the pending H.B. 57, amending Section 17-4-138 of the Code of Alabama 1975, to provide, inter alia, that only those judges of probate who are compensated on a fee system and who prepare the lists of qualified electors shall receive the $0.05 per name for preparation of such list, copies of which are attached to this resolution and made a part hereof by reference:

1. Does Section 1 of H.B. 57, amending Section 17-4-138 of the Code of Alabama 1975, which in part deletes the language, “The judge of probate shall receive or such,” and adds “and only those judges of probate, on the fee system who prepare such lists” fall within the constitutional prohibition of Section 6.09(d) of Amendment No. 328 to the Constitution of Alabama of 1901?

RESOLVED FURTHER, That the Clerk of the House is hereby directed to send sufficient true copies of the pending H.B. 57, with attachments, to the Clerk of the Supreme Court of Alabama and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.

APPENDIX B A BILL

TO BE ENTITLED AN ACT

To amend Section 17-4-138 of the Code of Alabama 1975, relating to the judge of probate, clerical assistants and certain boards of registrars and the preparation of lists of qualified electors, so as to provide further for the payment therefor.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 17-4-138 of the Code of Alabama 1975, is hereby amended to read as follows:

“Section 17-4-138. (a) The judge of probate may employ such assistants and clerical help as may be necessary to complete and properly prepare the list of qualified electors which the judge or [sic] probate is required to furnish the election inspectors. Such assistants and only those judges of probate, on the fee system who prepare such lists, shall be paid out of the county treasury by warrants, drawn by the county commission on certificate of the probate judge, accompanied by the certificates of the person being paid, showing the amount is due under the provisions of this chapter, but the entire amount spent for the preparation of such lists shall not exceed a sum equal to the amount obtained by multiplying the number of names on said list by $.05 for the preparation of such list.

“(b) The judge of probate in all counties having a population of not less than 100,000 nor more than 350,000 according to the last or any subsequent federal census, is hereby authorized and directed to employ a clerk to assist the board of registrars of said county. The duties of said clerk shall be to submit to the board of registrars revised election lists of said county by placing all persons in their proper ward or precincts and eliminating therefrom all deceased, nonresident and ficticious [sic] persons named upon said roll and those convicted of crime, and shall further attend to all clerical work of the board of registrars. Such clerk shall be paid a compensation out of the county treasury, of not more than $250.00 per month, to be fixed by the judge of probate.

“(c) The board of registrars shall be furnished with not less than 450 square feet of office space by the county governing body. The chairman of the board of registrars is hereby authorized to purchase all necessary office equipment and hire all necessary part time or full time clerical help to perform its prescribed duties.

“(d) At the discretion of the board of registrars, voting machines may be placed in their office.”

Section 2. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

      . Set out in Appendix A.

      . Set out in Appendix B.


author: SHORES, Justice.

text:
    ULTRACASHMERE HOUSE, LTD., a Corporation v. Ted MEYER, d/b/a Alex Rice Company.
    80-391.
    Supreme Court of Alabama.
    Nov. 20, 1981.
    Charles P. Miller, Montgomery, for appellant.
    Albert W. Copeland, Montgomery, for ap-pellee.
   SHORES, Justice.

This is an appeal by a defendant in a lawsuit commenced in March of 1980 and involving a dispute over an agreement by the defendant to deliver a line of clothing to the plaintiff and the plaintiff’s agreement to purchase that line. The specifics of the lawsuit are irrelevant to the issues raised on appeal, which involve the question of whether or not the trial court abused its discretion in imposing sanctions under Alabama Rules of Civil Procedure, Rule 37, for the failure of the defendant to comply with discovery orders issued throughout this protracted proceeding. A history of the defendant’s behavior with regard to discovery is contained in an order entered by the court on September 10, 1980, wherein the following appears:

“On September 8, 1980, a hearing was held on Defendant’s Motion for Relief from the Court’s Order dated August 4, 1980, imposing sanctions against defendant for its failure to comply with court orders to respond to plaintiff’s discovery. The Court heard the oral testimony of Warren S. Reese, who was defendant’s previous attorney, and John R. Matthews, Jr. [plaintiff’s attorney]. After consideration of said testimony, the arguments of counsel and the prior proceedings before this Court, the Court finds and ORDERS as follows:
“1. In April, 1980, the plaintiff filed Interrogatories and a Request for Production of Documents to defendant in this action. A prior Request for Production of Documents had been served on defendant with the original complaint on April 1, 1980.
“2. On June 6, 1980, this Court ordered that defendant respond to said discovery by June 11, 1980. This order was ignored by the defendant. On June 26, 1980, the Court entered a second order requiring that defendant respond to such discovery on or before July 11, 1980, and specifically warning defendant that its failure to do so would result in the imposition of sanctions. This order was also ignored by defendant.
“3. On August 4, 1980, this Court heard arguments on plaintiff’s Motion to Impose Sanctions, and on defendant’s Motion to Extend the Time for Answer to the Complaint and to compel plaintiff to submit to deposition. The defendant had not filed any response to such discovery by the date of this hearing, and the defendant’s present Alabama attorney offered no reason or explanation for such failure. The Court concluded that the defendant had willfully and deliberately refused to comply with its orders, so as to frustrate and delay these proceedings, and, in the belief that this Court could not enforce sanctions across state lines. After examination of the sanctions available under Rule 37, the Court concluded that the sanction imposed in its August 4 Order was the only sanction available under the circumstances.
“4. On August 25, 1980, this Court held a hearing on defendant’s Motion for Relief from the Sanctions imposed by the August 4 Order. Defendant’s attorney requested that the hearing on this motion be continued so that he could produce testimony that his client had never received the Interrogatories and Requests for Production from Mr. Reese and had not been advised of the Court orders requiring response to same. Although defendant had not, even then, filed its responses to such discovery, the Court nevertheless continued the hearing on this motion until September 8, 1980.
“5. In the hearing on September 8, 1980, the uncontroverted testimony established the following:
“ — The original Request for Production of Documents was served on defendant with the original complaint on April 1, 1980.
“ — The Interrogatories and the Second Request for Production of Documents were served by certified mail on defendant on April 28, 1980.
“ — The order dated June 6, 1980, was served by certified mail on the defendant and on its New York counsel on June 12, 1980.
“ — The order dated June 26, 1980, was served by certified mail on the defendant personally on July 1, 1980.
“ — Mr. Reese testified that he advised defendant’s New York attorney on approximately ten occasions that it was imperative that defendant promptly respond to such discovery.
“The defendant’s present Alabama attorney made a tentative offer to supply certain documents in response to the Requests for Production and to provide ‘proposed’ unsigned Answers to certain other Interrogatories. It was apparent from the statement of defendant’s attorney that such responses were not full and complete and that the removal of sanctions and granting of relief would not assure plaintiff the full discovery ordered by the Court, but would most likely necessitate a new series of motions and hearings to assure defendant’s compliance.
“The September 8 hearing simply reinforces the Court’s prior conclusion that the defendant willfully and deliberately engaged in obstructionist tactics to frustrate and delay the proceedings in this court. There have been at least five hearings involving discovery. This has been an unnecessary burden on the Court and an unnecessary expense to plaintiff. The plaintiff’s right to a speedy and inexpensive adjudication has been completely frustrated.
“6. The order imposing sanctions was appropriate under Rule 37, ARCP, and under the Pre-Rules Decisions of the Supreme Court of Alabama. Haas Lumber Co. v. Gibson, 172 Ala. 111, 54 So. 994, 1911; Gordon [Goodwin] v. Harrison, 6 Ala. 438, 1844. They were not imposed arbitrarily or capriciously, but only after repeated efforts by plaintiff’s attorney and two court orders had been deliberately ignored. A rescission of the sanctions on the basis of these facts would not promote respect for the Court. Instead, it would encourage defendant and other litigants to ignore orders with which they did not wish to comply, with full assurance that if they were not successful in exhausting the other party, any sanctions could be removed by a subsequent offer to comply. This would promote contempt for the courts, unnecessary delay and expenses in the prosecution of actions, and general chaos in the disposition of lawsuits.
“It is, therefore ORDERED and ADJUDGED, that Defendant’s Motion for Relief from said Order imposing Sanctions be denied. However, the Court would favorably reconsider a subsequent motion by defendant in the event that defendant complies with the following:
“(a) That it fully respond to plaintiff’s discovery within 10 days from the date of this Order.
“(b) That it file within fifteen days from the date of this order a motion for Relief, under the oath of Barton K. Schwartz, setting forth the specific facts upon which the defendant relies as the reason or excuse for its failure to comply with the orders of the Court. Said motion shall also set forth the names and addresses of the witnesses to be called by defendant in support of said motion. Defendant will attach to such motion copies of all exhibits and documents which the defendant intends to use. Defendant will, if requested by plaintiff, make such witnesses available for a prehearing deposition in Montgomery, Alabama. Such witnesses shall bring to such deposition and produce for plaintiff’s inspection and copy, any and all documents, files and other materials requested by plaintiff, unless otherwise ordered by the Court.
“DONE this 10th day of September, 1980.
“/s/ Sam W. Tavlor
“Circuit Judge”

Notwithstanding the offer of the trial court to entertain a second motion for reconsideration conditioned upon the defendant’s complying with that order, the defendant did not do so, and the trial judge ordered a jury trial on the issue of damages, which was held on December 16, 1980. The trial court entered a judgment on the jury verdict on the same day. Thereafter, the defendant filed a motion for a new trial, raising the same issues presented by this appeal, which was overruled. This appeal followed.

The appellant argues that the trial court abused its discretion in entering its August 4, 1980, order imposing sanctions for the failure of the defendant to comply with previous orders of the court. The 1980 order in pertinent part is as follows:

“On June 6, 1980, the Court ordered that defendant fully answer plaintiff’s interrogatories and fully respond to plaintiff’s requests for production of documents on or before June 11, 1980. The defendant has ignored that order.
“On June 26,1980, the Court entered a second order which provides:
“ ‘Although the defendant has, without adequate excuse, failed to comply with the orders of the court requiring defendant to respond to plaintiff’s discovery by June 11, the court will not impose sanctions at this point. However, if defendant has not appropriately responded to plaintiff’s interrogatories and requests for production of documents on or before July 11, 1980, the Court will impose appropriate sanctions under Rule 37, ARCP.’
“Although the June 26 order was served on the defendant by certified mail on July 1, 1980, defendant has failed to comply with said order or to give any excuse for such failure to comply.
“Plaintiff’s request for production of documents and interrogatories seek to discover facts concerning his contentions that defendant induced plaintiff to enter into a contract to purchase women’s apparel by false and fraudulent misrepresentations.
“The defendant’s refusal to respond to such discovery severely hinders plaintiff in the development of his evidence to support his contentions. No reason was given by defendant’s new attorney as to why the Court Orders had not been complied with. The prior actions of the defendant in this action convince the Court that defendant has no intention of responding to such discovery or complying with the Orders of this Court. The Court has no alternative but to now impose sanctions in accordance with its order dated June 26.
“The Court is of the opinion that the appropriate sanction to be imposed at this time is under Rule 37(b)(2)(A).
“It is, therefore, ORDERED, ADJUDGED and DECREED that it shall be hereafter taken to be established in this action that defendant, for the purpose of inducing plaintiff to execute contracts for the purchase of a substantial amount of clothing, made the following representations to plaintiff:
“1. That defendant had created a line of women’s clothing, with a selection of 10 to 30 styles, which would be available to choose from in April, 1979.
“2. That fabric in said clothing was machine washable.
“3. That it was necessary that plaintiff execute written contracts for the purchase of a dollar amount of goods, in order that plaintiff could be the exclusive dealer for defendant in Montgomery, Birmingham and Columbus, without violating the rules and regulations of the Federal Trade Commission. “4. That the representations described in paragraphs (1), (2) and (3) above were made by defendant, knowing that they were false.
“5. That plaintiff relied on said representations in entering into said contracts with defendant.
“6. That the contracts in question are void because of such misrepresentations.”

We find no abuse of discretion in imposing these sanctions. Rule 37, ARCP, expressly provides for the imposition of such sanctions under the appropriate circumstances. In fact, the rule allows the entry of a default judgment against a defendant for failure to comply with discovery orders and, where the defendant’s action has been dilatory and where a defendant has engaged in contumacious tactics, an appellate court should refuse to set aside such default. Michigan Window Cleaning Co. v. Martino, 173 F.2d 466 (6th Cir. 1949).

As reflected in the orders of the trial court, this defendant was given every opportunity to comply with the trial court’s orders. Although admonished to comply by its attorney, it repeatedly refused to do so. We agree with the trial court that such conduct cannot be sanctioned. The trial court has found that this defendant has willfully disregarded reasonable and necessary court orders and caused the plaintiff considerable delay and expense in having its claim adjudicated. We affirm the trial court’s imposition of these sanctions, including the award of attorneys’ fees, which likewise are expressly authorized in Rule 37. It has been observed that the sanction of judgment by default for failure to comply with discovery orders is the most severe sanction which a court may apply, and its use must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited; however, where one party has acted with willful and deliberate disregard of reasonable and necessary court orders in efficient administration of justice, application of even so stringent a sanction is fully justified and should not be disturbed. Trans World Airlines, Inc. v. Hughes, 332 F.2d 602 (2nd Cir. 1964), cert. dismissed, 380 U.S. 248, 85 S.Ct. 934, 13 L.Ed.2d 87 (1965); 1 Lyons, Ala. Prac., Author’s Comments to Rule 37.

Lastly, the appellant argues that the trial court erred in refusing to grant the new trial on the ground that the jury verdict is excessive. Again, we cannot agree. We have read the entire record in this case and, from the evidence reflected thereby, a jury could conclude that the defendant willfully and falsely misrepresented material facts to the plaintiff and, in addition, included on its order form a printed legend to the effect that the buyer and seller would be subject to the “basic trade provisions now approved and promulgated as of January 15, 1948, by the National Retail Dry Goods Association and the Apparel Industries Inter-Association Committee, including the provisions that all disputes or differences arising between the parties shall be settled by arbitration... . ” There is evidence in this record to the effect that the associations referred to on the order form are bogus and non-existent. Witnesses testified to the effect that they had had decades of experience in the retail sale of women’s clothing and had never heard of these associations. The defendant offered no evidence that they in fact existed.

Under the circumstances of this case, we hold that the trial court was justified under the express provisions of Rule 37, Alabama Rules of Civil Procedure, in imposing the specific sanctions which it did impose, and the jury was justified under the evidence in awarding damages in the amount of the verdict.

The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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

      “1 Plaintiff’s first Request for Production of documents was served on defendant on April 1, 1980. Plaintiff’s second Request for Production of Documents and plaintiff’s Interrogatories were served on defendant’s local counsel on April 23, 1980.” (Footnote in original order.)


author: ADAMS, Justice.

text:
    Lynn Marie THREADGILL v. BIRMINGHAM BOARD OF EDUCATION, et al.
    No. 80-580.
    Supreme Court of Alabama.
    Nov. 25, 1981.

      J. William Thomason of Thomason & Russell, Bessemer, for appellant.
    Stephen A. Rowe of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
   ADAMS, Justice.

Lynn Marie Threadgill (plaintiff) appeals from a grant of summary judgment against her by the Circuit Court for Jefferson County dismissing her action for damages due to personal injury. Plaintiff was injured while a spectator during a football game at Ensley High School in Birmingham. She brought a negligence action against the Birmingham Board of Education and four fictitious defendants. Wilmer S. Cody, Superintendent of the Birmingham Board of Education, later was substituted for one of the fictitious defendants. The circuit court granted motions for summary judgment dismissing plaintiff’s action against both Cody and the Birmingham Board of Education.

In this appeal, plaintiff asks us to re-examine our prior decisions holding that boards of education are not subject to tort actions due to sovereign immunity: Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977); Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala. 1976). We find it unnecessary to re-examine this court’s pronouncements on the enjoyment of sovereign immunity by boards of education. Two issues, and the questions posed thereby, are dispositive of this appeal. The first is: Did plaintiff properly appeal from the decision of the circuit court dismissing its action against the Birmingham Board of Education? The second is: Was defendant Wilmer S. Cody properly substituted for a fictitious defendant under Rule 9(h), Alabama Rules of Civil Procedure, so that the substitution related back by operation of Rule 15(c), A.R.C.P., to the original filing of plaintiff’s action and thereby came within the one-year statute of limitations provided by Code 1975, § 6-2-39? We answer both in the negative and we affirm the judgment of the circuit court.

The Birmingham Board of Education contends that the plaintiff failed to properly appeal from the grant of summary judgment adverse to her on her action against it. We agree. Plaintiff’s action was filed originally on June 17,1980. Defendant Birmingham Board of Education’s motion for summary judgment in its favor was granted on December 17, 1980. Later, on March 12, 1981, the circuit court granted Cody’s motion for summary judgment in his favor. Plaintiff filed a notice of appeal on April 23, 1981, which states in pertinent part:

Notice is hereby given that Lynn Marie Threadgill appeals to the Supreme Court of Alabama from the order of the trial court of March 12, 1981 in granting the motion for summary judgment, said motion being filed on or about the 2nd day of March 1981.
Filed with this Notice of Appeal are security for costs of appeal and docket fee in the amount of $50.00.
FILED: Apr 23, 1981 ....

Nowhere in plaintiff’s notice of appeal does she indicate that she is appealing from the circuit court’s order of December 17, 1980, dismissing the Birmingham Board of Education as a party to plaintiff’s action. The only reference that arguably might be said to include the Birmingham Board of Education in the notice of appeal is the style of the notice which recites “Lynn Marie Threadgill, Appellant vs. Birmingham Board of Education, et al.”

In Edmondson v. Blakey, 341 So.2d 481 (Ala.1976), this court considered a similar situation where the appellant failed to designate an appeal from a grant of summary judgment in favor of one of the defendants. The trial court in Edmondson v. Blakey granted summary judgment in favor of Aetna on September 5,1975, and defendant Blakey received a judgment in his favor on September 30, 1975. After Edmondson’s motion for a new trial was denied, he filed a notice of appeal on January 5, 1976. Ed-mondson’s notice of appeal failed to mention Aetna and indicated only that an appeal was taken from the judgment rendered in favor of Blakey. Edmondson v. Blakey, at 482-3.

This court has observed:

Our ARAP 3(c), like its federal counterpart, provides for a simple notice of appeal specifying the party or parties taking the appeal. The rule says that the notice “... shall designate the judgment, order or part thereof appealed from ...” The federal courts have been very liberal in entertaining appeals even where the notice fails to comply literally with the requirements of Rule 3(c). The test for dismissal for failure to comply seems to be whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice.

Edmondson v. Blakey, at 483 (citations omitted) (emphasis added).

Applying the above-quoted test, the question which next arises is whether plaintiff’s notice of appeal reasonably evidenced an intent to appeal from the trial court’s order dismissing the Birmingham Board of Education as a party to her action. We think that it did not. Plaintiff’s notice of appeal designates only the circuit court’s order of March 12, 1981, which involved only Cody, and not the Birmingham Board of Education. We are aware that one difference does exist between the present appeal and the factual situation considered in Edmondson v. Blakey. The style of plaintiff’s notice of appeal names the Birmingham Board of Education. Appellant’s style in his notice of appeal in Edmondson v. Blakey did not name defendant Aetna. Nevertheless, this distinction does not help plaintiff. Rule 3, Alabama Rules of Appellate Procedure, provides an uncomplicated means of effecting an appeal. It is not designed “to catch the unwary on technicalities.” Edmondson v. Blakey, at 484; Jones v. Chaney & James Construction Company, 399 F.2d 84 (5th Cir.1968). “A simple statement indicating what judgments the appellant appeals from is all that is required.” Edmondson v. Blakey, at 484. The thrust of plaintiff’s notice of appeal is that she is appealing from the circuit court’s order and judgment of March 12, 1981.

Where the appellant notices the appeal of a specified judgment only or a part thereof, however, this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.

C. A. May Marine Supply Company v. Brunswick Corporation, 649 F.2d 1049 (5th Cir. 1981); Elfman Motors, Inc. v. Chrysler Corporation, 567 F.2d 1252 (3d Cir. 1977); Donovan v. Esso Shipping Company, 259 F.2d 65 (3d Cir. 1958). Accordingly, the Birmingham Board of Education’s motion to dismiss the purported appeal concerning it is hereby granted.

Next, we consider plaintiff’s appeal from the circuit court’s order and judgment of March 12, 1981, dismissing plaintiff’s action against Wilmer S. Cody, Superintendent of the Birmingham Board of Education. The trial court in its order dismissing plaintiff’s action against Cody noted that the incident which forms the basis of plaintiff’s action occurred on September 24, 1979, and that plaintiff’s motion to amend her complaint to substitute Cody for a fictitious defendant was not filed until December 16,1980. The circuit court’s order also notes that the identity of defendant Cody was known to plaintiff in advance of the statute of limitations having run.

Citing Fowlkes v. Liberty Mutual Insurance Company, 392 So.2d 803 (Ala. 1981), plaintiff contends that because her original complaint states a cause of action against her fictitious parties, her amendment substituting Cody for a fictitious defendant properly relates back to the filing of her complaint. If that were true, plaintiff’s amendment would then come within the one-year statute of limitations prescribed by Code 1975, § 6-2-39, through the relation back provision of Rule 15(c), A.R. C.P. We cannot agree with, plaintiff’s contention, because the fictitious party provision of Rule 9(h), A.R.C.P., is intended to operate principally in the area of

emergency cases where neither the name nor the identity of the defendant is known, as where the cause of action is known but the party liable is not, and there is urgent need to get service of process upon the party against whom the plaintiff has an action, or there is need for immediate seizure of property.

Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978), cited in Fowlkes v. Liberty Mutual Insurance Company, at 805.

Next, plaintiff submits that the only evidence that she had suggesting Cody’s alleged liability was provided when the Birmingham Board of Education answered plaintiff’s written interrogatories. In one of its answers, the Birmingham Board of Education stated that it was responsible for the care, condition, and maintenance of the site at which plaintiff was injured. Within one week of receiving the answer, plaintiff sought to amend her complaint to substitute Cody for one of the fictitious defendants. Plaintiff argues that these facts excuse her lateness in bringing Cody into her action. In effect, she claims she did not know a cause of action existed against Cody at the time she filed her complaint. Recently this court stated that where the identity of a party is known at the time suit is filed, but where the cause of action against such defendant is unknown, Rule 9(h), A.R.C.P., does not allow a relation back to the original filing of the complaint where the statute of limitations has run. Minton v. Whisenant, 402 So.2d 971 (Ala. 1981). We, therefore, find plaintiff’s argument to be without merit.

In view of our holding, we pretermit discussion of the other issues raised by this appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Gloria R. KEY v. ALABAMA STATE TENURE COMMISSION; Dr. Paul R. Hubbert, ex officio Chairman, Alabama State Tenure Commission, et al.
    Civ. 2684.
    Court of Civil Appeals of Alabama.
    Sept. 9, 1981.
    Rehearing Denied Oct. 14, 1981.

      Winn S. L. Faulk, Dothan, for appellant.
    Charles W. Woodham, Sp. Asst. Atty. Gen., of Halstead, Whiddon & Woodham, Abbeville, Charles A. Graddick, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for appellees.
   BRADLEY, Judge.

This is a teacher tenure case.

In 1976 Gloria Key was employed by the Henry County Board of Education as a kindergarten teacher. In May 1980 she was notified that her contract was to be terminated at the end of the school year. The reason given for the contract cancellation was Key’s failure to achieve parity with her peers in the area of verbal and writing skills. On June 17, 1980 the Board held a hearing to consider the charges made against her. After the hearing Key was notified by the Board that her contract was cancelled on the ground of incompetence. Key appealed to the State Tenure Commission (hereafter Commission) by filing written notice as provided by § 16-24-10, Code 1975.

Section 16-24-10(b) provides a tenured teacher the right to appeal a contract cancellation. The statute provides specified time limits for different portions of the appeal process. Specifically, the statute provides that the board shall deliver a record of the teacher’s hearing to both the Commission and the teacher no later than twenty days after the day upon which the hearing took place. Furthermore, the Commission shall hold a hearing within forty days after the decision of the Board. The rule promulgated by the Commission as to the time period for filing the record with the Commission follows the statute specifically. In this case the termination hearing was held on June 17, 1980. Twenty days from this hearing was July 7, 1980, and the fortieth day was July 28, 1980.

On July 1, 1980 the Board requested that the Commission grant a seven day extension beyond July 7,1980 in which to file its copy of the record of Key’s termination hearing. The reason given for the extension request was the fact that two appeals against the Board were pending at the same time. Key’s attorney objected to the granting of an extension. It was not until July 9, 1980, two days after the Board’s record should have been filed, that the Commission granted a seven day extension. On the same day the Commission also extended its deadline for conducting a hearing beyond the forty day period. The Board filed a partial copy of the record within the seven day period, but failed to submit a copy of its decision and findings until July 18,1980, claiming the omission was inadvertent. The Commission affirmed the Board’s decision while denying Key’s timely motion to strike the Board’s record.

On October 1, 1980 Key petitioned the Circuit Court of Henry County for a writ of mandamus directing the Commission to set aside its decision. Key contended that the extension of time granted by the Commission violated the express requirements of § 16-24-10, Code 1975. The circuit court denied the petition and Key appealed to this court.

The major issue to be decided is whether the Commission had the authority to extend the time periods contained in § 16-24-10. The Commission contends that the use of the word “shall m the statute is meant only to be directory and not mandatory. The Commission also believes that such extensions should be allowed when either party can show necessity for such an extension of time. We agree with the Commission and affirm the judgment.

In this case, as in all cases of statu-toiy interpretation, we must consider the intent of the legislature in enacting the statute. Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978); Drake v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Co., 265 Ala. 444, 92 So.2d 11 (1957). The statute in this case is very clear in its provisions. It precedes every provision with the word “shall.” The word shall is normally considered to be mandatory, but in some cases has been held to be merely directory.

It has been held that where a provision relates only to form or manner, it is directory. Mobile County Republican Executive Committee v. Mandeville, 363 So.2d 754 (Ala.1978); Board of Education of Jefferson County v. State, 222 Ala. 70, 131 So. 239 (1930). In the Mobile County case it was also stated that legislative intent controls over the use of the words “shall,” “may,” or “must.” See also Morgan v. State, 280 Ala. 414, 194 So.2d 820, appeal dismissed, cert. denied, 389 U.S. 7, 88 S.Ct. 47, 19 L.Ed.2d 6 (1967). The use of the word “shall,” therefore, should not be construed as mandatory if the intent of the legislature shows that the term is merely directory.

The purpose of the time periods listed in the act is to insure a speedy disposition of teacher tenure cases. Washington County Board of Education v. Alabama State Tenure Commission, 364 So.2d 338 (Ala.Civ.App.1978). It is clear, however, that extensions of time within which to adequately perform the functions required by the statute are necessary to insure both the Board and the teacher a full and fair hearing. In the present case the Board had two cases at the same time. It surely would have been extremely difficult for the Board to be able to prepare all of the necessary documents and submit them on time. Surely the legislature did not intend for the time limits to be so strictly construed as to preclude some reasonable extension where an undue burden would be placed on the Board or the teacher. Moreover, we do not find the Tenure Commission’s promulgated rule to be contrary to the above assessment of § 16-24-10.

Appellant relies heavily on Washington County Board of Education, supra. That case, however, is clearly distinguishable from the present case because in that case the Washington County Board of Education failed to request an extension of time until after the statutory period had run. In the present case the Board made a timely request for an extension, even though the Commission failed to rule on the request until after the time period had run.

Another purpose of the act is to insure the teacher a full and fair hearing. Due process dictates that the teacher have a full hearing. In Wright v. Board of School Commissioners of Mobile County, 394 So.2d 62 (Ala.Civ.App.1981), we upheld the right of the Commission to adhere to the strict time limitation. In that case, however, we indicated that in certain circumstances an extension might be granted by the Commission although we specifically stated that we would not adhere to a “substantial compliance” doctrine. Due process, however, is not abrogated where no showing of prejudice is made and where the teacher is afforded a full and fair hearing without undue delay.

The purpose of the Tenure Act is clearly to afford the teacher every opportunity to have a complete hearing, and obviously the statute is meant to protect the teacher. However, we feel that in certain circumstances the Commission should be allowed to grant reasonable extensions of time to not only a board of education but also to the teacher.

In the case at bar this court finds that such exigent circumstances were present so as to justify the Commission granting an extension. The Board made the request for an extension in a timely manner. Further, the delay in filing some of the papers due to an inadvertent error surely was not sufficient to prejudice Key’s rights. Finally, the Commission can extend the time for the hearing for a reasonable period where necessary to insure a full and adequate hearing. The teacher has not shown that these extensions in any way prejudiced her rights. There is also no showing that the hearing was unfair. In these cases then it is clear that the legislature did not intend to unduly burden the Commission, but wanted only to insure a speedy hearing. As long as there is not an undue delay in the hearing, the Commission has authority to grant reasonable extensions of time to either party. We therefore conclude that the Commission properly exercised its authority in this case. As a result the judgment of the circuit court is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Barbara AARON v. ALABAMA STATE TENURE COMMISSION, et al.
    Civ. 2837.
    Court of Civil Appeals of Alabama.
    Nov. 4, 1981.

      Gregory B. Stein of Blacksher, Menefee & Stein, Mobile, for appellant.
    Norbome C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appel-lees.
   HOLMES, Judge.

This is a teacher tenure case.

The teacher, Barbara Aaron, taught fourteen years in the Baldwin County school system. For the past nine years she taught physical education at the Baldwin County High School.

On September 3,1980, the Baldwin County Board of Education advised the teacher of the proposed cancellation of her contract. The teacher contested her termination at a hearing before the Board. The Board voted to cancel the teacher’s contract, whereupon the teacher appealed to the Alabama State Tenure Commission.

The Commission sustained the action of the Board of Education. Pursuant to § 16-24-38, Code of Ala. 1975, the teacher filed a petition for mandamus with the Circuit Court of Baldwin County, Alabama. The trial court denied the petition and the teacher appeals.

The teacher, through able counsel, alleges denial of the petition of mandamus was error because: 1) the evidence presented did not prove incompetency or insubordination on the part of the teacher; 2) the person to whom the teacher was allegedly insubordinate did not have supervisory authority over the teacher; and 3) evidence that the teacher received unemployment compensation after she was given notice of termination was improperly received and considered by the Board.

We find no error with the circuit court’s denial of the petition for mandamus and affirm.

Viewed with the attendant presumptions, the record reveals several incidents during the 1979-80 school year which precipitated the Board’s action.

In October, 1979, the teacher did not keep her physical education class dressed out for the entire class period. The Director of Physical Education, Charles McKinney, told the teacher she was required to keep her class dressed out the entire hour. Mr. McKinney testified that the teacher became upset and told him she did not have to obey Mr. McKinney’s instructions. The teacher purportedly told Mr. McKinney she was only required to follow instructions from the principal or the school superintendent.

In April, 1980, the teacher and Mr. McKinney again became involved in a heated discussion over Mr. McKinney’s act of disciplining one of the teacher’s students. Mr. McKinney admitted that he shouted at the teacher. The teacher again told Mr. McKinney in a loud and angry voice she did not have to follow his instructions.

There was other evidence that the teacher often sat down in gym class rather than actively coaching her students. Further, the teacher failed to comply with the grading standards set down for the entire physical education staff. Several members of the physical education faculty testified that these acts, among others, on the part of the teacher disrupted the teaching staff.

The Board of Education gave the teacher timely and proper notice of the proposed cancellation of her contract. The Board stated that the basis for the proposed cancellation was incompetency and insubordination. The Board listed six specific reasons to support its claim that the teacher was incompetent and insubordinate.

As noted above, after hearing oral testimony, the Board voted to cancel the teacher’s contract. The Tenure Commission found the action of the Board was in compliance with the teacher tenure law and was neither arbitrarily unjust nor for political or personal reasons.

The Tenure Commission’s conclusions and judgment will not be reversed on appellate review as being unjust unless it is against the preponderance of the evidence and the overwhelming weight of the evidence. Sumter County Board of Education v. Alabama State Tenure Commission, 352 So.2d 1137 (Ala.1977).

We cannot say, after reviewing the record before us, that the preponderance of the evidence and the overwhelming weight of the evidence is contrary to the conclusion of the Tenure Commission. There is evidence that the teacher was insubordinate in that she willfully refused to follow the reasonable rules and regulations of the Director of Physical Education, Mr. McKinney. See State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968). The teacher in this case refused to follow grading procedures. She engaged in several heated discussions with Mr. McKinney and blatantly refused to submit to his authority.

There is also evidence in the record to support the conclusion that the teacher was incompetent. Incompetency is a term which may be used to mean disqualification, inability, or incapacity. County Board of Education of Clarke County v. Oliver, 270 Ala. 107, 116 So.2d 566 (1959). Here, incompetency is evidenced by the teacher’s failure to actively coach and instruct her pupils.

We find, therefore, the termination of the teacher’s contract on the above mentioned statutory grounds of incompetency and insubordination to be fully supported by the evidence.

The teacher contends she was not insubordinate because Mr. McKinney was not properly exercising supervisory authority over her. We find the recent decision of Heath v. Alabama State Tenure Commission, 401 So.2d 68 (Ala.Civ.App.), cert.denied, 401 So.2d 72 (Ala.1981), to be controlling. The record shows Mr. McKinney was specifically hired to be the Director of Physical Education. The entire physical education faculty, except this teacher, understood Mr. McKinney was in charge of the department. The evidence, then, is sufficient to show that Mr. McKinney did indeed have supervisory authority over the teacher. Her failure to obey his directives, as noted above, amounted to insubordination. Heath v. Alabama State Tenure Commission, supra.

The teacher before this court adamantly contends that the Board’s receipt of evidence concerning her application for unemployment compensation was outside the scope of the charges brought against the teacher and was an improper ground for the cancellation of her contract.

The Board is allowed to admit and consider evidence of probative value even though it might not be admissible in a court of law. Wright v. Marsh, 378 So.2d 739 (Ala.Civ.App.), cert.denied, 378 So.2d 742 (Ala.1979). In the instant action, however, we do not need to determine whether the evidence was properly admitted. Assuming, arguendo, that the Board of Education erroneously allowed evidence concerning the teacher’s unemployment compensation, its admission could amount to no more than mere harmless error. In this instance, the judgment will not be reversed on the ground of the admission of the incompetent evidence if sufficient proper evidence was admitted to sustain the decision of the Tenure Commission. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972). As indicated above, there was sufficient competent evidence to support the Tenure Commission’s determination that the teacher was insubordinate and incompetent.

We find the Tenure Commission’s decision was not against the preponderance of the evidence and the overwhelming weight of the evidence. The circuit court did not err to reversal in denying the teacher’s petition for a writ of mandamus.

In light of the foregoing discussion, we affirm.

AFFIRMED.

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


text:
    Mr. and Mrs. Homer SUTHERLAND and Mr. and Mrs. Paul Buchanan v. Mrs. William B. ROTH.
    Civ. 2881.
    Court of Civil Appeals of Alabama.
    Dec. 2, 1981.
    Mark J. Everest of Collins, Galloway & Smith, Mobile, for appellants.
    David A. Nihart, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This civil action is based upon Alabama’s parental liability act, § 6-5-380, Code of Alabama (1975).

Mrs. Roth filed her complaint against the appellants (the Sutherlands and the Bu-chanans) for damages occasioned to her automobile by their minor children. The Sutherlands are the parents of Allison and Paul and the Buchanans are the parents of Margaret. On January 19, 1980, Allison was five years of age, Paul was seven and Margaret was six.

Mrs. Sutherland and Mrs. Buchanan attended a baby shower at Mrs. Roth’s residence on January 19, 1980, with Mrs. Sutherland being a co-hostess. Mrs. Sutherland brought Paul and Allison with her to the shower, and Mrs. Buchanan brought Margaret, their presence being agreeable with Mrs. Roth.

The Sutherland children were very close friends of Mrs. Roth, and spent the night at her home several times. They had an excellent relationship with her. They adored her. Margaret also got along well with Mrs. Roth and was a student in her kindergarten class. Mrs. Roth testified that there was no reason for the children to dislike her.

After other shower guests arrived, the three children were sent outside to play and were unattended for periods of time. The three children were observed standing and walking on the top of Mrs. Roth’s 1975 . Corvette Stingray automobile. They would go to the top of the car and slide down its windshield. They were laughing, playing, and having a good time.

Subsequently, Mrs. Roth discovered scratches upon her car, and she incurred $188 in expenses in painting the vehicle, hence this litigation.

After an ore tenus trial before the trial court, a judgment was rendered for Mrs. Roth for $188, and the Sutherlands and Buchanans duly appealed. We are indebted to counsel for both sides for exceptional briefs.

Under the common law, the mere fact of parenthood does not render parents responsible for their child’s torts. Winfrey v. Austin, 260 Ala. 439, 71 So.2d 15 (1954). In this case, the liability, if any, of the parents to Mrs. Roth must rest upon § 6-5-380(a) Code (1975), which provides:

The parent or parents of any minor under the age of 18 years with whom such minor is living and who have custody of such minor shall be liable for the actual damages sustained, but not exceeding the sum of $500.00, plus the court costs of the action, to any person, firm, association, corporation and the State of Alabama and its political subdivision for all damages proximately caused by the injury to, or destruction of, any property, real, personal or mixed, by the intentional, willful, or malicious act or acts of such minor.

This is a case of first impression in the appellate courts of this jurisdiction.

The statute in question was probably enacted as a consequence of dissatisfaction with the common law rule of liability, and in an effort to assist in curbing juvenile delinquency, vandalism and malicious mischief. Annot., 8 A.L.R.3d 612, 615, § 1 (1966). In addition to the intent of the legislature certain pertinent rules of construction govern our review of this legislation. Statutes in derogation of the common law are strictly construed and are presumed not to alter the common law in any manner not expressly declared. Arnold v. State, 353 So.2d 524 (Ala.1977); 67A C.J.S., Parent & Child § 123 at 496. When a word has a judicially settled meaning, it is presumed that the legislature, by using that word in a statute, utilized it in that accepted sense, for language is to be given its plain meaning as accepted by usage. 18 Ala. Digest, Statutes, Key no. 188.

“Intentional,’'’ “willful,” and “malicious,” are terms of general and widespread legal usage and have accepted meanings.

In Continental Casualty Co. v. Cunningham, 188 Ala. 159, 66 So. 41 (1914), an “intentional act” was defined as follows:

If the actor has intelligence enough to understand the physical nature and consequences of his act, and . . . consciously directs his action so that the injury of the insured is the natural or probable consequence thereof, then that injury is the result of an intentional act. Of course, the injury of the person must be intended, as well as the act which causes such injury.” (Citation omitted.)

There must be a knowledge of the danger together with a design or purpose to inflict injury in order to constitute a willful or intentional injury; it must be shown that it was intentionally and designedly done. Porterfield v. Life & Casualty Co. of Tennessee, 242 Ala. 102, 5 So.2d 71 (1941); Feore v. Trammel, 212 Ala. 325, 102 So. 529, 533 (1924).

“Malice implies the intentional doing of an unlawful act to the injury of another.” United States Fidelity & Guaranty Co. v. Miller, 235 Ala. 340, 179 So. 239 (1938). When a person, without just cause or excuse, intentionally does a wrongful act, it constitutes malice. Parker v. Sutton, 47 Ala.App. 352, 254 So.2d 425 (1971).

The connotation of the word “willful” as we used it and as it appears almost invariably in legal phraseology is one of premeditated wrong, an act done with evil intent or bad motive or purpose, unlawful, and without legal justification. It implies not only the voluntary and intentional doing of an act, but also the intending of the result which follows from the doing of the act. Such is the meaning of the word as it is found in our penal statutes and as it is used in describing a tortious act or injury. (Citations omitted.)

Parker v. Sutton, 47 Ala.App. at 359, 254 So.2d at 431. See, also, A.P.J.I., Civil, Charge 29.03 at 478 (1974).

Here, the evidence failed to prove that any of the minors committed any intentional, willful or malicious act, as those terms are defined by law.

The learned trial court erred in the foregoing respects in rendering its final judgment, and this case is reversed and remanded.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code (1975), and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.