author: ALMON, Justice. FAULKNER, J.,

text:
    Erskine MITCHELL v. ARAB STOCKYARDS, INC., et al.
    80-180.
    Supreme Court of Alabama.
    July 9, 1982.
    Hubert Taylor, Gadsden, and R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham, for appellant.
    Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee Arab Stockyard, Inc.
    Finis E. St. John, III of St. John & St. John, Cullman, for appellees Mr. and Mrs. Raymond Lipe.
   ALMON, Justice.

This is an appeal from a judgment based on a directed verdict in favor of defendants/appellees at the close of the plaintiff/appellant’s evidence. We affirm.

On May 8,1975, Mr. Keith Rice purchased a cow from Arab Stockyards, Inc., for Mr. Erskine Mitchell. He was paid a $10 commission by Mr. Mitchell. The cow was bought as a dairy cow. Mr. Rice took the cow to his farm that night and delivered it to Mitchell the next day.

Mr. and Mrs. Lipe had brought the cow from Illinois along with several other cows, to be sold at the stockyard.

In July of 1975, the Department of Agriculture tested the milk from Mitchell’s herd and it indicated the presence of brucellosis. Brucellosis is an infectious disease of animals and man. Its common name is Bang’s disease. Brucellosis impairs the breeding efficiency of cows and causes some of them to abort their calves. It also can infect a cow’s udder and be transmitted to anyone drinking the raw milk of the cow so infected. Shortly after the Department of Agriculture’s test, Dr. Pass came to Mitchell’s farm and tested his herd. Dr. Pass tested all of Mitchell’s cows that were 18 months of age or of breeding age except several “cull” cows that had been removed from the herd. The results indicated that the cow bought from Arab Stockyards was the only cow to test positive for brucellosis. Mitchell’s herd was quarantined until late 1978 or early 1980 as a result of the spread of the disease. Mitchell had to sell 73 cows for slaughter because of the disease.

Mitchell brought suit against Arab Stockyards, seeking damages for breach of implied warranties and breach of contract. Mitchell specifically alleged that the cow was warranted by implication to be fit and suitable for the purpose for which it was intended to be used, Le., use as a healthy, dairy cow. It was also alleged that the cow was warranted by implication to be of merchantable quality. The Lipes, Mr. Rice and Hubert Tolleson were added as defendants by amendment to the complaint. Mr. Tolle-son was the chairman of the board of Arab Stockyards, Inc. Mr. Rice was later dismissed as a defendant.

When the plaintiff rested his case, the defendants, Arab Stockyards, Tolleson and the Lipes, filed motions for a directed verdict. The trial judge granted the motions on two grounds: (1) there was not a scintilla of evidence that the cow was diseased with brucellosis when sold on May 8, 1975, and (2) there was insufficient or no notice under the implied warranty of merchantability statute.

Appellant Mitchell asserts the trial court erred in granting the motions for directed verdict.

The trial judge stated in his order that it would only be a “guess, surmise or conjecture” that the cow was diseased when sold. We agree.

Even viewing the evidence in a light most favorable to the party opposing the directed verdict, we find Mitchell did not meet his burden of proof and therefore any verdict in his favor would necessarily be based on conjecture or speculation.

In Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505 (1946), this Court stated:

“ ‘As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to why an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a judicial basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.’
“The proof in this case, in our opinion, goes no further than to show that the force with which the truck hit the curb wall could have been caused by defendants’ truck driver driving at an excessive rate of speed. But we do not think that the proof warrants the conclusion that it did so occur, since from the same proof the force of the impact can with equal probability be attributed to mechanical failure of the truck. As we view the evidence, it is without selective application to either of the theories of causation and, therefore, they remain conjectures only. The evidence does not point to any one theory of causation indicating a logical sequence of cause and effect.”

Even though the Court in Harper was speaking in relation to a truck accident, we think the same principle applies equally well here. The evidence presented by the plaintiff goes equally to show the cow contracted the disease after the sale as it does to show the cow was diseased at the time of sale.

“When the burden of proving a fact rests upon a party, and the evidence leaves the fact in a state of doubt and uncertainty, it cannot be regarded as established.” Ex parte Acton, 283 Ala. 121, 214 So.2d 685 (1968).

According to the evidence, brucellosis can be transmitted in many ways. The testimony at trial was to the effect that the disease could be transmitted by saliva from one cow to another. It can be transmitted by a feed or water trough. It can be spread through breeding and artificial insemination. The brucellosis bacteria can live, depending on the conditions, from a very short time to sixty days. This testimony illustrates the speculative nature of the plaintiff’s evidence. The cow in question, after being purchased by Mr. Rice, was transported in his trailer, which had also transported other cows. The cow was kept overnight in Mr. Rice’s barn, where it was fed and watered. There had been other cows in Mr. Rice’s barn. The next day, Mr. Rice transported the cow to the plaintiff’s farm, again using the trailer that had been used for other cows. Once at the plaintiff’s farm, the cow was put with the rest of the herd. Prior to the test of the herd by the Department of Agriculture, some cows were removed from the herd and were never tested for the disease.

The cow was tested in Illinois on May 5, 1975, for brucellosis and again on the date of sale. Both tests were negative for bru-cellosis. The blood taken from the cow on the date of sale was also sent to the State Laboratory in Auburn. Another test for brucellosis was conducted there, which test also was negative.

The plaintiff had the burden of proving the cow had the disease on the date of sale or at least that it was more probable than not that it was diseased on the date of sale. The plaintiff did not meet this burden and therefore the trial court was correct in directing a verdict for the defendants.

There were other issues presented for our review but we do not reach them due to our holding above. However, we do wish to say that there was a great deal of evidence favorable to the plaintiff that was excluded by the trial court. We have examined all the excluded evidence and have determined that if there was any error in the exclusion of evidence it was harmless error and therefore would not require reversal.

The judgment of the trial court is affirmed.

AFFIRMED.

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

FAULKNER, J.,

dissents (without opinion).


source: Caselaw Access Project

author: ALMON, Justice. TORBERT, Chief Justice JONES, Justice

license: Public Domain

text:
    Hoyt LANKFORD, Bonnie Lankford, Posey O. Pace and Nadean Pace v. SULLIVAN, LONG & HAGERTY, a Corporation; Can Tex Industries, a Division of Harsco Corporation; and Texas Vitrified Manufacturing Company.
    80-459.
    Supreme Court of Alabama.
    July 9, 1982.

      George White, Gadsden, and R. Ben Hogan, III, of Hogan, Smith & Alspaugh, Birmingham, for appellants.
    Charles E. Sharp and John F. Whitaker, of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee Sullivan, Long & Hagerty.
    Larry W. Harper, of Porterfield, Scholl, Clark & Harper, Birmingham, for appellees Can Tex Industries and Texas Vitrified Mfg. Co.
    Lanny S. Vines, Birmingham, for amicus curiae The Alabama Trial Lawyers Assn.
    L. Murray Alley, Fournier J. Gale, III, and Cathy S. Wright, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amicus curiae Associated Industries of Alabama.
   ALMON, Justice.

This is a products liability case. At issue is the constitutionality of Code 1975, § 6-5-500 et seq. This appeal is from the granting of summary judgment in favor of the defendants/appellees. We reverse.

On May 27, 1980, Hoyt Lankford and Posey O. Pace, employees of the City of Gadsden Waterworks and Sewer Board, were injured when a manlift (a type of elevator) upon which they were riding suddenly collapsed and fell. The accident occurred at the 6th Street South pumping station in Gadsden, Alabama. The two employees and their wives filed suit, alleging that the appellees were negligent in the design, manufacture, installation and inspection of the manlift and that the appel-lees were negligent as a matter of law under the Alabama extended manufacturer’s liability doctrine. The appellees filed a motion for summary judgment based on Code 1975, § 6-5-502.

Section 6-5-502 provides in part:

(a) All product liability actions against an original seller must be commenced within the following time limits and not otherwise:
(1) Except as specifically provided in subsections (b), (c) and (e) of this section, within one year of the time the personal injury, death or property damage occurs; and
(2) Except as specifically provided in subsections (b), (c) and (e) of this section, each element of a product liability action shall be deemed to accrue at the time the personal injury, death or property damage occurs;
(b) Where the personal injury, including personal injury resulting in death, or property damage (i) either is latent or by its nature is not discoverable in the exercise of reasonable diligence at the time of its occurrence, and (ii) is the result of ingestion of or exposure to some toxic or harmful or injury-producing substance, element or particle, including radiation, over a period of time as opposed to resulting from a sudden and fortuitous trauma, then, in that event, the product liability action claiming damages for such personal injury, or property damage must be commenced within one year from the date such personal injury or property damage is or in the exercise of reasonable diligence should have been discovered by the plaintiff or the plaintiffs decedent, and in such cases each of the elements of the product liability action shall be deemed to accrue at the time the personal injury is or in the exercise of reasonable diligence should have been discovered by the plaintiff or the plaintiff’s decedent; and
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, a product liability action against an original seller must be brought within 10 years after the manufactured product is first put to use by any person or business entity who did not acquire the manufactured product for either resale or other distribution in its unused condition or for incorporation as a component part in a manufactured product which is to be sold or otherwise distributed in its unused condition.

The undisputed facts submitted by the appellees showed that the manlift was installed in late 1964 or early 1965 by Sullivan, Long & Hagerty. The accident occurred some fifteen years later and as a result this suit would be barred by subsection (c) of § 6-5-502.

Appellants contend that § 6-5-500 et seq. (Act No. 79-468) violates Article I, § 13, of the Alabama Constitution. Section 13 provides “[t]hat all courts shall be open; j and that every person, for any injury done ¡ him, in his lands, goods, person, or reputa-1 tion, shall have a remedy by due process of [ law; and right and justice shall be adminis- ¡ tered without sale, denial, or delay.” '

Section 13 has been considered at length by several recent opinions of this Court. The standards of review and the results of cases decided on the basis of § 13 have been somewhat divergent. We trust that this opinion will make clear this Court’s review of § 13.

I

APPROPRIATE STANDARD OF REVIEW

The principles set out by Justice Shores in her concurring opinion in Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980), best describe what we perceive to be the appropriate standards of review and also the rationale for the review. Due to the importance we attach to the principles stated by Justice Shores, we quote at length from her opinion:

“The language of the provision [§ 13] is not unique. Thirty-seven other states include a similarly-worded provision in their constitutions, A. E. Dick Howard, The Road from Runnymede, Appendix; indeed, its origins can be traced back to the Magna Charta. 2 Coke, Institutes, Cap. 29, p. 56. Although its language is broad enough to be subject to varying interpretations, it can generally be said to incorporate into our constitution a fundamental principle of fairness, a perhaps vaguely conceived but important notion of limitation on the power of government to infringe upon individual rights, and to act arbitrarily. What those rights are, what degree of infringement is permitted, and with how much justification, are inquiries which have been the subject of long-standing debate, and have puzzled minds more perspicacious than mine. Underlying all of these inquiries is the oft-unstated but all pervasive question of who is to answer them: legislature or courts? How do courts supply content to the provision without overstepping their traditional role and legislating themselves? The answers to these questions are important, for too literal a reading of the prohibitions of § 13 may effectively preclude governmental action in areas of crucial public concern; too broad a reading eviscerates the very rights the section was intended to protect.
“. .. The rights guaranteed include those possessed at common law by individuals injured by wrongful acts of others, and their redress must be sought through the courts....
“Legislation which abolishes or alters a common-law cause of action, then, or its enforcement through legal process, is automatically suspect under § 13. It is not, however, automatically invalid. Grant-ham, [v. Denke, 359 So.2d 785 (Ala. 1978) ], itself restates the established rule that such legislation will survive constitutional scrutiny if one of two conditions is satisfied:
1. The right is voluntarily relinquished by its possessor in exchange for equivalent benefits or protection, or
2. The legislation eradicates or ameliorates a perceived social evil and is thus a valid exercise of the police power.
I find it helpful to think of these alternatives as two different aspects of the quid pro quo concept: Thus, a right may be abolished if the individual possessor receives something in return for it (the individual quid pro quo dwelt upon in Grantham), or if society at large receives a benefit (thereby justifying exercise of the police power.)
“Of the dozens of cases decided under § 13, however, there are many which involve no deprivation of common-law causes of action, and in which the Court has declined to exercise a stricter than normal standard of review.... In this type of case, § 13 is construed as a general prohibition against arbitrary and capricious governmental action. The Court quite properly exhibits a high degree of deference to the legislative decision-making process in these situations because the guidelines for review are so vague. Where common-law causes of action for injury are impaired, however, the mandate of § 13 is explicit.”

The review articulated by Justice Shores is a two-tiered approach. Where common-law rights are altered or abolished, this Court will review such legislation more strictly than normal. Where no common law right is affected, a judicial deference to the legislature is required; however, the legislation may not be arbitrary or capricious.

It is argued by the appellees that because privity was required at common law to maintain an action such as this one, no common law right is altered and hence we should not apply the more strict standard of review. However, the statute of repose contained in § 6-5-502(c) is a bar to all actions whether or not there is privity. To base our review on whether or not there is privity would be to avoid the real issue; and because we would reach the same result under either standard of review, we do not think the issue of privity is determinative.

II

REVIEW OP A COMMON LAW RIGHT

Proceeding with our § 13 review, we must be mindful of the fact that it is not for the courts to determine the wisdom of legislation. The only provision for the court is one of power. Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944). Justice Shores further stated in her concurring opinion in Fireman’s Fund, supra:

“In short, the power of the legislature is plenary, except where limited by the constitution. Where legislation infringes upon a right protected by § 13, however, we are dealing with a limitation on the power of the legislature. By determining the validity of such legislation, we do not pass judgment on its wisdom, but follow our own supreme mandate to uphold the constitution of this state.
“When examining statutes which have an impact on rights protected by § 13, then, our scrutiny must be sharper than that exercised in cases which involve no constitutionally guaranteed rights. While the legislature must make the initial determination that the benefits provided by a statute to society or to the injured individual justify the infringement on common-law rights, we must exercise a meaningful review of that decision.”

A. Quid Pro Quo

In applying the guidelines we have herein set out to § 6-5-502(c), it is easily decided, as the trial judge found, that there is no quid pro quo which can sustain it. We, therefore, must determine if the challenged statute eradicates a perceived social evil.

B. Eradication of a Social Evil

In this regard, it is not enough for the legislature to merely characterize the problem as a “social evil” and then recite in the enacting clause that the legislation is directed to that evil. There must be a substantial relationship between the act and the eradication of the evil. The trial judge applied a somewhat more lenient test in upholding the statute.

The “social evil”, as perceived by the legislature and as set out in § 6-5-500, is:

“.. . that product liability actions and litigation have increased substantially, and the cost of such litigation has risen in recent years. The legislature further finds that these increases are having an impact upon consumer prices, and upon the availability, cost and use of product liability insurance, thus, affecting the availability of compensation for injured consumers. Therefore, it is the intent of the legislature to provide a comprehensive time framework for the commencement and maintenance of all product liability actions brought in this state.”

As we have previously stated, it is not our place to review the legislature’s decision as to what is a “social evil”; rather our review is directed to the question whether a substantial relationship exists between the evil and the legislature’s attempt to eradicate the evil. It is in this regard that we find § 6-5-502(c) violative of § 13.

To say that barring claims involving products that have been used for more than 10 years will eradicate and ease the cost increases in consumer prices and product liability insurance is unreasonable in our opinion.

At the outset of our analysis, we wish to acknowledge that Professor Francis McGovern’s article, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579 (1981), has been quite helpful and informative in our deliberation.

“Although a statute of repose certainly would reduce recoveries by persons injured by products, there may not be a corresponding reduction in insurance premium rates. An eight-to-ten year statute of repose, for example, would be too long to improve the predictability of insurance claims.” McGovern, supra, page 595, citing the Final Report of the Federal Interagency Task Force on Product Liability.

The Federal Interagency Task Force was established by the Economic Policy Board of the White House after claims by manufacturers that a products liability crisis had developed that rendered products liability insurance unaffordable or even unavailable. The Task Force undertook a study during 1976 and 1977. It sponsored symposiums, sought information from numerous insurance and manufacturing organizations, analyzed data collected from congressional hearings, and commissioned studies by independent contractors. The final report was published on November 1, 1977. On January 12, 1979, the Commerce Department published a draft of a Model Uniform Product Liability Act. A final .version of the Act was published on October 31, 1979. 44 Fed.Reg. 62,714 (1979). [The above information on the Task Force was taken from Note, Alabama’s Products Liability Statute of Repose, 11 Cum.L.Rev. 163 (1980) ].

Even though the Task Force and others have alluded to the “long-tail” claims problem, as far as this Court can ascertain the problem has not been documented. See Massery, Date-of-Sale Statutes of Limitation—A New Immunity for Product Suppli ers, 1977 Ins.L.J. 535, 546. Indeed, the ap-pellees point us to no manifestation of an insurance crisis. Even if there was evidence of a national crisis, that still would not provide the necessary relationship to uphold the statute. The effect of the crisis on this State would still have to be shown. As was noted in Note, The Utah Product Liability Limitation of Action: An Unfair Resolution of Competing Concerns, 1979 Utah L.Rev. 149, a survey by the Utah Manufacturers’ Association suggested that insurance rate increases are not the result of the number of product liability claims in Utah. The author concluded that the Utah tort-litigation system had not contributed to the increase in insurance costs. “Although assuring the availability of reasonably priced products liability insurance is an admirable goal, it will not be accomplished or even furthered by limiting access to courts in this State where such access is seldom sought.” 1979 Utah L.Rev. 149, 151.

In § 101 of the Model Uniform Product Liability Act proposed by the U. S. Department of Commerce, it is stated that:

“Product liability insurance rates are set on the basis of countrywide, rather than individual state, experience. Insurers utilize countrywide experience because a product manufactured in one state can readily cause injury in any one of the other states, the District of Columbia, or the Commonwealth of Puerto Rico. One ramification of this practice is that there is little an individual state can do to solve the problems caused by product liability.”

44 Fed.Reg. 62,714, 62,716 (1979).

The findings listed after § 101 of the Model Act indicate that studies done by the states of Maine and Georgia emphasize that individual state tort reforms can do little to affect the product liability problem and will not stabilize product liability insurance rates. 44 Fed.Reg. 62,714, 62,716 (1979).

“The limited available data show that insurers’ apprehension about older products may be exaggerated. See “ISO Closed Claims Survey” at 105-08 (indicating that over 97 percent of product-related accidents occur within six years of the time the product was purchased and, in the capital goods area, 83.5 percent of all bodily injury accidents occur within ten years of manufacture). Nevertheless, as the “Task Force Report” indicated, the underwriters’ concern about potential losses associated with older products may be an important factor in the recent increase in liability insurance premiums for manufacturers of durable goods. See “Task Force Report” at VII-21. [The word ‘potential’ was emphasized in the original; other emphasis added.]”

Analysis to § 110 of the Model Act, 44 Fed.Reg. 62,714, 62,733.

The Insurance Services Office (ISO), Closed Claim Survey, cited above, indicated that only 2.7 percent of the products involved in products liability actions were purchased more than six years prior to the injury-causing event.

“The results of this study cannot be overemphasized. Initiated by the insurance industry and conducted by the Insurance Services Office, the ratemaking arm of the industry, the study encompassed 7,800 claims closed between July 1 and November 1, 1976 by 23 of the largest property and casualty insurance companies in the country.”

Massery, supra, at 542.

The Task Force also determined that “[pjroduct insurance usually provides coverage on what is called ‘occurrence’ basis, whereby coverage is provided for all product-related damages that occur during the policy period. Neither the time of manufacture of the product nor the time at which the claim is made determines whether the policy provides coverage.” Task Force Final Report, supra, at V-5.

The appellees also make note of the fact that the machine in question operated without incident for 15 years and that this fact alone must be seen as proof that at the time of sale it was in fact a safe design. We do not think that fact establishes or could establish the necessary relationship between the statute and the perceived social evil. It is interesting to note that according to the 1974 Census of U. S. Civil Aircraft, the average age of a Boeing 707 then in use was 10 years. Massery, supra, at 543. Massery also cites the case of Adams v. General Dynamics Corp., 405 F.Supp. 1020 (N.D.Cal.1975), as an example of the harshness of a products liability statute of repose. In that case, 12 Air Force personnel were killed in a crash of a 20-year-old Convair T-29. Discovery in the case revealed that the manufacturer had long been aware of the incidence of defective frame castings in this model aircraft, which resulted in the crash, yet failed to warn of the danger. If an absolute statute of repose had been in force, the plaintiffs would have been barred from suit, despite the fact that the manufacturer may have hidden the defect from the aircraft’s users.

“Manufacturers are right in asserting that they should not be held liable for injuries that occur simply because a product wears out. But no uniform wearing-out time should be enacted for all products alike by means of a statute of limitations. The lives of different products vary widely, as do the lives of similar products depending on the extent of their use and maintenance.”

Phillips, An Analysis of Proposed Reform of Products Liability Statutes of Limitations, 56 N.C.L.Rev. 663 (1978).

One study revealed that 50 percent of all tractors surveyed had a lifespan of more than 10 years. Doss & Tfister, Nature and Extent of Farm Machinery Use in Relation to Frequency of Accidents in Michigan and Ohio, 1972 (Agricultural Engineering Department, Michigan State University).

The Task Force Report found the existence of insurance problems, but not problems amounting to an insurance crisis. The Task Force identified three causes of the problems: (1) insurance rate-making procedures; (2) uncertainties in tort law; and (3) unsafe manufacturing practices. Task Force Report at 1-21. So even though the Task Force identified insurance problems, it did not indicate that a statute of repose was a solution to any of the problems encountered. We conclude that there is not a sufficient relationship between the statute and the perceived social evil to sustain the statute.

nr

REVIEW OF A NON-COMMON LAW RIGHT

This leads us to the review of statutes which do not abrogate a common law right. Under this review, the statute must not be arbitrary or capricious. In this regard we find the statute quite arbitrary. Section 6-5-502(c) states that a product liability action must be brought within .ten years after' the first use of the product..

The statute, by tying the period to date of use, as opposed to the accrual date of the cause of action, would permit a purchaser of a defective product to sue for injuries received nine years and eleven months after the first use, whereas it would bar the action of a purchaser who was injured by the same defective product ten years and one month after he first used the product.

Another arbitrary aspect of the statute, which might more properly be classified as. a due process problem, is that it does not provide for an extension of the limitation period for someone injured shortly before the expiration period. Suppose a person was injured on the last day of the ten-year period; presumably he would have to file suit that very day or else be barred - by the statute. Thus the limitation period effected by the statute ranges from one day to one year, depending upon when the injury occurs. This is clearly arbitrary. The- statute has no savings clause to provide for those injuries occurring near the expiration of the ten-year period.

The harshness of an absolute date-of-use limitation period is evident when compared to the Model Uniform Product Liability Act proposed by the Commerce Department. Section 110(B)(1) of the Act states:

“In claims that involve harm caused more than ten (10) years after time of delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by clear and convincing evidence.” (emphasis added)

The Model Act merely creates a presumption and does not provide for an absolute cut-off date.

Even though we have characterized our standard of review, under § 13, of laws not affecting common law rights, as one of judicial deference to the wisdom of the legislature, a law which is arbitrary on its face cannot be upheld.

IV

CONCLUSION

It is therefore the judgment of this Court that Code 1975, § 6-5-502(c), is unconstitutional as violative of Article I, § 13, Constitution 1901.

This decision should not be interpreted, however, as a holding that all limitations on the liability of manufacturers of products are prohibited by § 13.

The order of the circuit court granting summary judgment is hereby reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., and JONES and BEAT-TY, JJ., concur specially.

FAULKNER, J., concurs in the result.

TORBERT, Chief Justice

(concurring specially).

I agree that § 6-5-502(c) should be struck down as unconstitutional for the reasons set out in section III of the majority opinion. By stating that a product liability action must be brought within ten years after the first use of the product, without providing some kind of “grace” period for those injured in the last year or so of the ten-year period of repose, § 6-5-502(c) arbitrarily deprives those persons, whose cause of action has accrued, of their right to bring that action, and thereby denies them due process and equal protection of the laws. See, U.S.Const. amend. XIV, § 1; Ala.Const. art. I, §§ 1, 6, 13.

Several problems arise in this context. Statutes of repose, such as § 6-5-502(c), make an unreasonable distinction between similarly situated manufacturers, in that the makers of long-lived products may be insulated from liability, while makers of short-lived products are singled out for product liability. While the Legislature would be entitled to make such classifications among various types of products, the present statute makes the class into which an individual manufacturer or plaintiff may fall a matter of chance. This deprives both plaintiffs and manufacturers of equal protection under the laws. See, McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579, 606-612 (1981). See also, Twerski & Weinstein, A Critique of the Uniform Product Liability Law — A Rush to Judgment, 28 Drake L.Rev. 221, 234-44 (1978).

The United States Supreme Court recognized this problem in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), when it stated:

“In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways... . The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” [Citations omitted.]

404 U.S. at 75-76, 92 S.Ct. at 253-254. These same principles have been followed by this Court. Harrison v. Buckhalt, 364 So.2d 283 (Ala.1978); City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala.1977); Ex parte Rice, 259 Ala. 570, 67 So.2d 825 (1953). Thus, Alabama courts have held that the “essence of the theory of equal protection of the laws is that all similarly situated be treated alike. An individual cannot be subjected to arbitrary exercise of governmental power.” City of Hueytown v. Jiffy Chek Co., 342 So.2d at 762. See also, Vernon v. State, 245 Ala. 633, 18 So.2d 388 (1944).

If the Legislature is to properly make classifications in statutes, specific guidelines should be followed. This Court, in Opinion of the Justices, 252 Ala. 527, 41 So.2d 775 (1949), commented upon these standards:

“While the due process and equal protection guaranties are not coterminous in their spheres of protection, equality of right is fundamental in both. Each forbids class legislation arbitrarily discriminatory against some and favoring others in like circumstances. — Beeland Wholesale Co. v. Kaufman, 234 Ala. 249,174 So. 516; Washington Nat. Ins. Co. v. Board of Review, [1] N.J. [545] 64 A.2d 443. It is essential that the classification itself be reasonable and not arbitrary, and be based upon material and substantial distinctions and differences reasonably related to the subject matter of the legislation or considerations of policy, and that there be uniformity within the class.— Washington Nat. Ins. Co. v. Board of Review, supra.

252 Ala. at 530, 41 So.2d 775. Applying these standards to § 6-5-502(c), it becomes apparent that it is arbitrary and capricious, thus violating the rights of these plaintiffs to equal protection under the law.

One scholarly commentator has stated: “Alabama’s statute of repose creates a seemingly arbitrary distinction between those individuals who are injured immediately prior to and those individuals who are injured immediately subsequent to the termination of the ten-year period. Therefore, the statute may also be amenable to suit on equal protection grounds.”

Comment, Alabama’s Products Liability Statute of Repose, 11 Cum.L.Rev. 163, 177 (1980). While this commentator states this as an equal protection violation, I consider it to also give rise to due process problems. Without a savings clause to provide for those injuries occurring near the expiration of the ten-year period, this ten-year period of repose is a violation of due process. While there is no constitutional rule that prohibits a legislature from abolishing a right of action before it accrues, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 87 — 88, 98 S.Ct. 2620, 2637-38, 57 L.Ed.2d 595 (1978); Street v. City of Anniston, 381 So.2d 26 (Ala.1980), a cause of action that has accrued (such as a product liability-related injury to a party nine years and eleven months from the first use of the product) is squarely within the protection of the due process clause and is thus protected from arbitrary interference. Gibbes v. Zimmerman, 290 U.S. 326, 54 S.Ct. 140, 78 L.Ed. 342 (1933); Barr v. Preskitt, 389 F.Supp. 496 (M.D.Ala.1975). When a right of action accrues, it becomes the property of the injured party and its subsequent destruction is subject to the due process clauses of the United States and Alabama Constitutions. Barr v. Preskitt, 389 F.Supp. at 498.

It is within the province of the Legislature to modify an accrued right of action if it provides a reasonable alternative by which to enforce that right, but where, as here, a statute does not do so, it violates due process. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Second Employers’ Liability Cases, (Mon-dou v. New York, NH & HR) 223 U.S. 1,32 S.Ct. 169, 56 L.Ed. 327 (1911). Legislation of this type should incorporate the time periods of other statutes of limitations, for without such incorporation, an injury occurring near the end of the ten-year period of respose effectively denies a reasonable time in which to seek a remedy. Due process requires that statutes of limitation allow an individual a reasonable time in which to bring suit. Anderson Nat. Bank v. Luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed. 692 (1944); Capitan Grande Band of Mission Indians v. Helix Irrigation District, 514 F.2d 465 (9th Cir. 1975). Likewise, a statute of repose that does not embody a flexible outer limit to allow a reasonable time for suit when an injury occurs near the end of the statutory period also denies constitutionally required due process. Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804 (1902); Oole v. Oosting, 82 Mich. App. 291, 266 N.W.2d 795 (1978).

In Oole v. Oosting, the Michigan Court of Appeals addressed this issue. The court stated:

“As to causes of action which accrue prior to the expiration of six years, the statute is one of limitation, because it requires that the action be brought within a specified period of time. If a cause of action accrued near the end of the six-year period, and a discovery period could not be read into the statute, a person may not have a reasonable period of time within which to bring suit, and the statute may operate to deprive that person of his cause of action without due process.”

266 N.W.2d at 799. Where a party’s injuries occur subsequent to the date set by the statute of repose, there is no due process violation, because, as stated, that is within the province of the Legislature. Limitations upon a right that has not yet accrued, when uniformly and equally applied, are constitutional. Parton v. City of Huntsville, 362 So.2d 898 (Ala.1978); Parker v. Jefferson County Commission, 347 So.2d 1321 (Ala.1978). In Wilson v. Iseminger, 185 U.S. 55, 22 S.Ct. 573, 46 L.Ed. 804 (1902), the United States Supreme Court stated:

“It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; though what shall be considered a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice. Cooley, Const.Lim. 451.
“Thus, in Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365, it was said per Chief Justice Waite:
“ ‘This court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect. Hawkins v. Barney, 5 Pet. [30 U.S.] 457, 8 L.Ed. 190; Sohn v. Waterson, 17 Wall. [84 U.S.] 596, 27 L.Ed. 737.’ ”

185 U.S. at 62-63, 22 S.Ct. at 575. From these authorities it becomes apparent that when a person is injured, for instance, nine years, eleven months, and three weeks after the product was first put into use, that person is deprived of a reasonable time to pursue his remedy. Thus, without an incorporation of other statutes of limitations, the party would have one week or less in which to pursue his remedy. This is clearly not a reasonable time as defined by the United States Supreme Court and the statutory time period is therefore an arbitrary denial of rights and a violation of due process.

It is my view that the Legislature should provide by statute so that no manufacturer should be held liable for an indefinite period of time. Yet, an arbitrary ten-year period, without more, such as that set out by § 6-5-502(c), is a denial of equal protection under U.S.Const. amend. XIV, § 1, and Ala. Const, art. I, § 1. “A manufacturer should be required to produce a product that can be safely used during the period of its intended use, not for some arbitrary period of time that is applied to all products. A statute that would take into account the period of the product’s intended use would not favor some groups of manufacturers to the exclusion of others, nor would it be unfair to injured individuals.” Comment, Alabama’s Products Liability Statute of Repose, 11 Cum.L.Rev. 163, 180 (1980).

Likewise, I further bélieve that § 6-5-502(c) violates the due process clauses of the United States and Alabama Constitutions. U.S.Const. amend. XIV, § 1; Ala.Const. art. I, §§ 6, 13. For these reasons, I feel that the requirements of due process and equal protection of the law compel me to concur with the majority in its holding that § 6-5-502(c) should be struck down as unconstitutional.

BEATTY, J., concurs.

JONES, Justice

(concurring specially).

I agree with the majority opinion, both as to its holding and as to its rationale. I write specially to explain that I have no quarrel with the majority’s reference to “common law” as the source of those rights protected by § 13, so long as “common law” is used and understood in its broadest sense. A right of such fundamental character as contemplated by § 13 may have its source in the legislative process, customs and practice, or in the judicial process. It is the nature and character of the right, i.e., its being so engrained into the fabric of the law as to acquire a fundamental and basic status, rather than its source, that dictates § 13’s protective applicability.

By the same token, not every right which evolved through the “common law,” as that term is used in its narrower sense, is protected under § 13. Again, the test is whether the right sought to be abolished or modified has acquired such a basic and fundamental status as to constitute an indelible thread in the fabric of our law. And even what is fundamental, as that term is here used, is determined by an evolving standard subject to the changing mores and social climate of our society. For example, the right to seek redress for breach of promise, which was once well established as a common law right, was reduced through changing societal values to something less than a fundamental right and was abolished without offense to § 13. On the other hand, the right of privacy, apart from its influence on other fundamental rights guaranteed by the Constitution, such as the prohibition against unreasonable searches and seizures, may some day evolve into a right of such fundamental status that civil remedies for its breach will fall under the protective umbrella of § 13.

      . The author would like to note that the case of Mayo v. Rouselle Corp., 375 So.2d 449 (Ala. 1979), did not help in developing a clearly recognized standard of review for § 13. In Mayo, the statute was upheld against a § 13 attack, on the authority of Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939). That rationale is questionable at best. It should also be noted that the remedies sought in Mayo were not enjoyed at common iaw.

      . As indicated by Justice Almon, we are appreciative of Professor McGovern’s scholarly and fair analysis of the law concerning statutes of repose.


author: ALMON, Justice.

text:
    Idree BEARD, Charles Beard, Forestine Holloway, James L. Beard, Leonard E. Beard, Carol Hill and Catherine Hazen-wood v. Augustine LITTLE, d/b/a Little Realty and Leonard C. Wyatt, jointly and severally.
    80-554.
    Supreme Court of Alabama.
    July 9, 1982.

      Irvin Grodsky of Grodsky & Wilson, Mobile, for appellants.
    Maury Friedlander of Marr & Friedlan-der, Mobile, for appellees.
   ALMON, Justice.

This appeal comes to us from a summary judgment in favor of defendant realtors on a claim for breach of fiduciary duty. We reverse and remand.

Alonzo Beard died intestate on January 31,1977, possessed of fee simple title to two parcels of land in Mobile County. He was survived by his widow, Idree Beard, seven children, and two grandchildren by a deceased child. In April of 1977 Mrs. Beard contracted with Leonard C. Wyatt of Little Realty Company for him to act as her agent in selling one of these parcels, referred to as the Trinity Gardens lot. The other parcel comprises forty acres in Moffattsville, Alabama.

Mr. Wyatt asked Mrs. Beard if she and the children would be interested in selling the Moffattsville property. She replied that they would not because the family had lived there and one of her sons intended to move back when he retired. Nevertheless, while obtaining the signatures of the two grandchildren on the deed conveying the Trinity Gardens lot, Mr. Wyatt bought their fractional interests in the Moffattsville property for $1500 each. He immediately offered to sell these interests to Mrs. Beard and her children for $5,000.

Mrs. Beard and six of the children filed this action, seeking $50,000 compensatory and punitive damages for breach of fiduciary duty. Defendants answered and later moved for summary judgment, which the court granted. The Beards appealed.

The evidence of record is contained in depositions of Mrs. Beard and Mr. Wyatt and an affidavit of Mrs. Beard’s attorney. Mr. Wyatt admits that he bought the grandchildren’s interest without first telling Mrs. Beard. He claims to have told Mrs. Beard that the grandchildren wanted to sell their interest, but she denies this.

Wyatt contends on appeal that he was an agent for the Beards only with respect to the sale of the Trinity Gardens lot and so owed no duty to the Beards with respect to the Moffattsville parcel. He relies on the rule that “[a]n agent employed for a specific purpose is a special agent and the fiduciary relationship of principal and agent applies only to the acts within the agreement.” Caldwell v. Caffey, 269 Ala. 543, 546, 114 So.2d 560 (1959). See also, Gurley v. Bank of Huntsville, 349 So.2d 43 (Ala.1977); Gilmore Industries, Inc. v. Ridge Instrument Company, 288 Ala. 127, 258 So.2d 55 (1972). Wyatt thus argues that he committed no actionable wrong by purchasing the grandchildren’s interests in the Mof-fattsville property and offering to sell to Mrs. Beard and her children at a substantial profit.

The Beards contend that Wyatt’s actions constitute a breach of fiduciary duty and are thus actionable. We agree. The cases decided by this Court on self-dealing by an agent and acquisition of an interest adverse to the principal have been limited to property which is the subject of the agency. See, e.g., Lauderdale v. Peace Baptist Church, 246 Ala. 178, 19 So.2d 538 (1944). We have found no controlling case directly on point, but the Beards have cited two cases involving similar fact situations.

The first is Nye v. Lovelace, 228 F.2d 599 (5th Cir. 1956), a case arising out of a transaction in Alabama property. Lovelace, as agent for Nye, had bought substantial mineral acreage for his principal and simultaneously bought adjoining acreage for himself. When Nye sued to recover the adjoining tract, the District Court for the Southern District of Alabama granted judgment for Lovelace. The Fifth Circuit reversed and rendered judgment for Nye:

“Here, an unfaithful servant, whose activities from the inception were in breach of his heavy duties, undertook, with circumstances strongly suggesting a studied furtiveness, to capitalize upon the information which had come to him under an obligation of trust, and in doing so, he sought to make decisions and resolve questions for his principal in which he stood to gain or lose as self-interest prevailed or was submerged. That which he has obtained by these means, he must restore.”

Id., at 603 (footnote omitted).

The second ease cited by the Beards is Chalupiak v. Stahlman, 368 Pa. 83, 81 A.2d 577 (1951). Chalupiak bought a 50-acre tract of land, had a survey and plan drawn up, and subdivided the property. Stahlman, a justice of the peace and tax collector, discovered while helping Chalupiak prepare deeds to subdivision lots that Chalupiak mistakenly claimed an extra 30 acres. Stahlman bought these 30 acres at a tax sale. The trial court held that Stahlman had breached no duty to Chalupiak, but the Supreme Court of Pennsylvania reversed:

“Defendant secured during the course of his service to plaintiff, the knowledge that plaintiff was attempting to convey land which plaintiff did not own. It was this knowledge that defendant utilized against the interests of plaintiff. Defendant, on the basis of this knowledge, went to a commissioners’ sale and purchased the land which he knew or suspected that plaintiff mistakenly thought he had already validly conveyed to others. It is manifest that had plaintiff never dealt with defendant the latter would never have been led to purchase the land in question. Defendant was no chance purchaser. True, defendant expressed doubt to plaintiff concerning the validity of his title and also told plaintiff that the property had been exposed for sale by the commissioners. What defendant failed or omitted to inform plaintiff was that defendant intended to bid at the sale in his own behalf and later to inform him that he had actually purchased the land. It is to be particularly observed that the purchase by defendant, either for himself, as agent for his sister who lived in Asheville, North Carolina, or for himself and his sister, was not a purchase by a bona fide buyer but was for the sole purpose of requiring the plaintiff or his grantees to purchase defendant’s interests at a price. Before defendant bought the real estate he was fully aware that some of plaintiff’s grantees had made valuable improvements upon the land and others had commenced building thereon. It is a transparent attempt by defendant to profit through knowledge obtained from one who had employed him, either as agent, scrivener, conveyancer or combinations thereof.”

Id., 81 A.2d at 580-581 (emphasis omitted).

The Pennsylvania court noted that Chal-upiak was unlettered, while Stahlman was a man of some education. The same appears to be the case here, with the 78-year-old Mrs. Beard being victimized by Wyatt’s attempt to profit by his knowledge that he could force a sale for division if she did not purchase his interest in the land which he knew she wanted to keep intact.

Wyatt says that the agency relationship was terminated when he bought his interest because he had already obtained the grandchildren’s signatures to the Trinity Gardens deed before he bought their interest in the Moffattsville property. While we acknowledge that an agent may in certain circumstances compete with his principal after termination of the agency, Gilmore Industries, Inc. v. Ridge Instrument Company, 288 Ala. 127, 258 So.2d 55 (1972), such is not the case here. Whether the agency was terminated is a factual question, and so summary judgment is inappropriate; furthermore, there is evidence that Wyatt dealt unfaithfully with Mrs. Beard during the course of his negotiations with the grandchildren and by not informing her of their desire to sell their interest in the Moffattsville property.

Therefore, we find there is at least some question whether Wyatt has breached his fiduciary duty to the Beards, and so the trial court erred in granting summary judgment. The judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, EMBRY and ADAMS, JJ., concur.

      . The complaint also refers to defendants’ conduct in regard to a third piece of property not the subject of this appeal.

      . While not all plaintiffs-appellants are named “Beard,” for convenience we refer to them by that name.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Mack KIRBY and Sureties v. STATE of Alabama.
    81-203 A, B and C.
    Supreme Court of Alabama.
    July 9, 1982.

      Robert B. French, Jr., Fort Payne, for appellants.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   FAULKNER, Justice.

On January 19, 1981, Mack Kirby was arrested and charged with three counts of possession of controlled substances and with possession of a pistol after being convicted of a crime of violence.

Friends and relatives of Kirby posted four bonds to allow him to be released from custody, pending trial. The bondsmen are the appellants in this case.

On March 23, 1981, the defendant-principal Kirby failed to appear in court. The court granted the State’s requests for an alias writ of arrest for defendant and a forfeiture of the bonds. The court issued scire facias against the bondsmen and ordered that the conditional judgment against them would be made final on April 24,1981, unless they appeared and were able to show good and sufficient cause for defendant’s default. On March 30, 1981, defendant-principal was arrested by Jackson County deputies. At the trial on April 1, 1981, the defendant was convicted in one case and entries of nolle prosequi were made in three others.

The hearing was held on April 24,1981, to allow defendant and appellant bondsmen to show cause why the judgment of forfeiture should not be made final. The court ruled that no sufficient cause was shown and a final judgment was issued against the bondsmen.

Appellants filed a motion for a new trial and rehearing, and a hearing was held on August 5, 1981. The judge denied the appellants’ motion. We affirm.

The court below was correct in entering the conditional judgment against the appellant bondsmen. According to Code 1975, § 15-13-80, bail is forfeited by the failure of the defendant to appear in court at the time and place mentioned in the bond. The bond executed by appellants states that the bondsmen agree to pay the State of Alabama “... unless the said defendant appears before the Circuit Court of Jackson County on the Next day of -, 1981, and from day to day, and from term to term, thereafter, until discharged by due course of law, to answer a criminal prosecution for the offense of Possession of Controlled Substances.” (R.I.). The bond states that the defendant must appear from day to day of the next term (which began on March 23, 1981). When bail is forfeited by the failure of a defendant to appear as required, a conditional judgment must be entered against the bondsmen. Code 1975, § 15-13-81. The defendant’s absence when his case was called for trial constituted a default. Pursuant to the above mentioned code sections, the trial judge was required to issue the conditional judgment.

Appellants argue that since defendant appeared during the same term of court in which his case was originally set for trial, the appearance fulfilled the condition of the bonds and that the bondsmen should be exonerated. Code 1975, § 15-13-63, sets out the requirements which a surety must fulfill before being discharged after a conditional judgment is entered. First, the surety must arrest and deliver the defendant to the sheriff. In addition, the surety must give a good and sufficient excuse for the failure of the defendant to appear at the time the conditional judgment was entered. The statute clearly states that the trial judge is to rule on the issue of the sufficiency of the excuse.

The bondsmen assert that they had no opportunity to arrest and deliver the defendant because he was arrested by the deputies of Jackson County. This allegation is irrelevant, because even if they had arrested and delivered the defendant to the sheriff themselves, they were still required to fulfill the additional requirement of a good and sufficient excuse. The sufficiency of the excuse, as stated above, is for the trial judge to decide. “Matters resting in the sound discretion of the trial court will not be disturbed on appeal unless there is a clear abuse of discretion.” Williamson-Johns Co. v. Johns, 355 So.2d 706, 707 (Ala.1978).

Likewise, a motion for a new trial is a matter within the discretion of the trial judge. Watson v. State, 389 So.2d 961, 965 (Ala.Cr.App.1980). The appellants in this case had a hearing but not a trial, so the purpose for this motion is unclear. Apparently, appellant bondsmen are asking for another hearing to show cause why the conditional judgment against them should not be made final. Again, this issue has already been decided by the trial judge, and the ruling will not be reversed on appeal without a showing of abuse of discretion. Williamson-Johns Co. v. Johns, 355 So.2d at 707. There is no evidence that the trial judge abused his discretion, and therefore appellants’ request for relief must be denied.

Although the State declined to prosecute three of the cases pending against the defendant-principal, the sureties bound themselves for the appearance of the defendant and they were liable for his default. The bondsmen were not released from liability merely because the cases were nol-prossed. United States v. Sulvani, 4 F.Supp. 775, 776 (W.D.N.Y.1933); Busby v. State, 18 Ala.App. 549, 550, 93 So. 372, 373 (1922); Fly v. State, 550 S.W.2d 684, 686 (Tex.Cr.App.1977). The appellants request that the amount of the forfeiture be decreased by $20,000.00 (representing the three cases which were nol-prossed). This request is denied, and therefore the sureties are responsible for the total amount of the four bonds which they signed, which is $35,-000.00.

AFFIRMED.

EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially with opinion, in which ALMON, J., joins.

TORBERT, Chief Justice

(concurring specially):

The only issue before this Court is whether the trial court erred in denying Appellants’ motion for a new trial. I concur with the decision of the majority that the trial court is due to be affirmed. However, I feel it appropriate to refer to certain additional facts from the record which the trial court could have considered in denying the motion for new trial after the forfeiture was made final.

In 1977, several of the bondsmen in this case signed bonds for Mack Kirby on at least five different criminal charges. All of the bonds were forfeited when Kirby failed to appear in court on the prescribed date. Additionally, there was evidence that Kirby attempted to excuse his absence in those prior cases by sending the court a note purporting to be a medical excuse.

Code of Alabama 1975, § 15-13-82(a), governs the proceedings to be conducted by the court in determining whether the conditional judgment should be made permanent. It is as follows:

“(a) If the defendants appear and show sufficient cause for their default on bail, to be determined by the court, the conditional payment must be set aside; but, if the excuse is not sufficient or if they fail to appear, such judgment must be made absolute for the entire sum expressed in the undertaking, or any portion thereof, according to the circumstances.”

Clearly the determination is within the discretion of the court.

In light of these facts, I agree the trial court did not abuse its discretion in denying Appellants’ motion for a new trial.

ALMON, J., concurs.


author: BRADLEY, Judge.

text:
    STATE of Alabama v. Charles COX.
    Civ. 2965.
    Court of Civil Appeals of Alabama.
    March 3, 1982.
    Rehearing Denied April 7, 1982.
    Certiorari Denied, July 23, 1982 Alabama Supreme Court 81-594.
    J. Richard Piel of Piel, Bright & Goggans, Montgomery, for appellant.
    Robert E. Sasser and John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellee.
   BRADLEY, Judge.

This is a paternity case.

On November 21, 1979 Betty Henderson charged Charles A. Cox with paternity. The child had been born September 25,1979 in Atlanta, Georgia.

The facts indicate that Henderson met Cox in February of 1978 while she was taking flight training at Montgomery Aviation. They began dating at this time. Cox became a pilot for Braniff Airlines in December 1978. At this time he moved away from Montgomery.

In January 1979 Cox was staying at a motel in Denver, Colorado. At that time Henderson flew to Denver to see Cox. She stated this visit was at his invitation; however, he denied this. In any event, when she arrived she had a man she met on the plane drive her to Cox’s motel.

It is unclear whether she arrived in Denver on January 2 or 3. Nevertheless, Cox stated upon her arrival he allowed her to stay in his motel room because it was late. He further stated that he had sexual relations with her that night at her insistence. She testified, however, that she and Cox had sexual relations every night of her stay. She finally left Denver on January 6, 1979 because Cox bought her a plane ticket so she could return home.

Henderson told Cox that she was pregnant in mid-January. She went to see Dr. Conrad Walters on January 30, 1979. A pregnancy test was run with negative results. On February 19 another pregnancy test was run which was positive. A test conducted on March 19 indicated that Henderson was over two months pregnant. The child was born on September 25, 1979.

The paternity charge was prosecuted by the state in the District Court of Montgomery County. On October 31, 1980 the district court found Cox guilty of paternity. Cox appealed to the circuit court on November 7, 1980.

On July 27, 1981 the circuit court sitting without a jury found Cox not guilty of paternity. A motion for new trial was filed August 21, 1981. The motion was denied September 3, 1981. From that judgment the state appeals to this court.

Four issues are raised in this appeal. The first issue concerns whether the trial court erred in striking twelve pages from the record on appeal to this court. The second issue is whether the trial court erred in excluding certain blood tests. The third issue involves the admission of letters written by the mother to the reputed father. The final issue is whether the trial court’s finding that Cox was not the father is against the clear weight of the evidence.

As its first issue, the state argues that the circuit court erred in striking from the record on appeal twelve pages which concern matters that were considered by the district court. These twelve pages contain the pleadings and order of, and the notice of appeal from, the district court suit, as well as doctors’ reports concerning the results of various blood tests ordered by the court. A motion to strike the pages from the record was filed in the circuit court by Cox after an appeal to this court had been taken by the state. The circuit court granted the motion to strike, and the state contends that this was error.

From a review of the record before us, we cannot find any indication that the state attempted to offer the results of the various blood tests into evidence at any time during the course of the trial in the circuit court. In the absence of an offer on the part of the state of the blood test results and a subsequent ruling by the circuit court on that offer, there is nothing for this court to review. See Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). The circuit court could properly have excluded those pages from the record on appeal.

We note, however, that among those pages excluded from the record there were a number of documents which would establish the disposition of the case in the district court and the jurisdiction of the circuit court to hear the case. These matters could rightfully remain in the record on appeal. The ruling of the court in this matter, although error in part, does not affect the substantial rights of the parties, and thus does not constitute reversible error. See A.R.C.P. 61.

As its second issue on appeal, the state argues that it was error for the trial court to exclude the results of a blood test known as the Human Leucocyte Antigen (HLA) test. Again, we cannot find any indication in the record that the state attempted to offer the results of that blood test into evidence during the course of trial at the circuit court level. There is consequently no ruling by the trial court to be considered on appeal. See Parker v. Parker, supra.

As its third issue the state contends that the court erred in admitting certain letters written by Henderson to Cox. During the course of the trial, counsel for defendant Cox attempted to offer into evidence certain sentences contained in those letters, apparently for the purpose of proving that Henderson became pregnant before her visit to Cox in January of 1979. These sentences were read into evidence, and Henderson’s testimony concerning those statements was elicited. At the close of the evidence, however, before rendition of judgment, there was apparently some discussion concerning the censoring of the letters to exclude all other parts of the letter not germane to the issue. At that time counsel for Cox withdrew the offer of those letters and the statements contained therein. As a result, the statements of which the state complains were not before the trial court for consideration. We can find no reason for objection here.

Finally the state argues that the finding that Cox was not the father is against the clear weight of the evidence. Where a case is heard without a jury, there is a presumption in favor of findings of fact made by the trial court, and this court will not reverse such findings unless plainly and palpably wrong. Aetna Life Insurance Co. v. Martin, 386 So.2d 468 (Ala.Civ.App.1980). In this case we cannot find that the trial court erred.

The evidence in this case was hotly disputed. Henderson testified that the only time she had had sexual intercourse during the period of gestation was when she visited Cox in January. Cox, however, tried to show that Henderson had been alone with other men during the same period of time. He showed that she went dancing quite often. Also he showed that while she was in Denver she went out alone with another man.

Further, the trial court had the opportunity to observe the witnesses and their demeanor. We cannot say that there was such a plain abuse of discretion in this case as to warrant reversal.

As a result, the judgment is affirmed. AFFIRMED.

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


text:
    George S. RUSH v. DEPARTMENT OF REVENUE OF the STATE OF ALABAMA.
    Civ. 3147.
    Court of Civil Appeals of Alabama.
    March 24, 1982.
    Rehearing Denied April 28, 1982.
    Certiorari Denied, July 23, 1982 Alabama Supreme Court 81-651.

      Thomas J. Knight, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Herbert U. Burson, Jr., Chief Counsel, Dept, of Revenue, and Asst. Atty. Gen., and B. Frank Loeb, Asst. Counsel., Dept, of Revenue, and Asst. Atty. Gen., for appellee.
   BRADLEY, Judge.

This is a tax case.

George Rush was a general contractor who constructed two plants for the treatment of water to be placed in municipal water systems. He claimed that these two plants were tax exempt because they removed pollution from water. The Department of Revenue (hereinafter Department) disallowed these exemptions and assessed sales and use taxes against Rush.

Rush appealed these final assessments of tax to the Circuit Court of Calhoun County. He demanded a trial by jury, but the Department moved to strike this demand. The Department’s motion was granted, and the case was heard by the court sitting without a jury. On April 20, 1981 a final judgment was entered in favor of the Department.

A motion for new trial was filed by Rush on May 20,1981. On July 29, 1981 the trial court amended its final judgment. On September 8, 1981 Rush appealed to this court.

The major issue in this appeal is whether the trial court erred in finding that these water plants were not exempt from taxation under §§ 40-23-4(16) and 40-23-62(18), Code 1975. Further, Rush raises the issue of whether he is entitled to a jury trial in a tax case.

In addressing the jury trial issue, we find that there is no right to trial by jury in a tax case. Our courts have held that since there was no right to jury trial in tax assessment cases when our constitution was adopted, the right to a jury trial never operated in such a proceeding except as provided by statute. State v. Overby, 265 Ala. 39, 89 So.2d 525 (1956). There is no statutory provision allowing for a jury trial in these cases. As a result, the trial court did not err in striking the jury demand.

The major issues in this appeal concern the correct interpretation of exemptions from sales and use taxes provided by §§ 40-23-4(16) and 40-23-62(18), Code 1975. Section 40-23-4(16) provides the following exemption from sales tax:

(16) The gross proceeds from the sale of all devices or facilities, and all identifiable components thereof or materials for use therein, acquired primarily for the control, reduction or elimination of air or water pollution and the gross proceeds from the sale of all identifiable components of or materials used or intended for use in structures built primarily for the control, reduction or elimination of air and water pollution. [Emphasis supplied.]

Section 40-23-62(18) provides the following exemption from use tax:

(18) The storage, use or consumption of all devices or facilities, and all identifiable components thereof or materials for use therein, used or placed in operation primarily for the control, reduction or elimination of air or water pollution, and the storage, use or consumption of all identifiable components of or materials used or intended for use in structures built primarily for the control, reduction or elimination of air or water pollution. [Emphasis added.]

Rush contends that the term “pollution" as used in these statutes would include plants such as his which make water potable. However, the Department contends that the exemption is applicable only to facilities designed to remove human or industrial waste from water prior to its being discharged back into the environment.

In its final judgment the trial court found that the facilities in question processed raw, unpotable water into safe drinking water for human consumption and that pollutants were removed from the water. The court then held that § 40-23-4(16), Code 1975, was intended to apply solely to facilities designed for the removal of human or industrial waste from water before it was returned to the environment, and not to those designed and operated as water treatment plants.

Courts can only learn what the legislature intended by what it has said and where language of a statute is unambiguous the clearly expressed intent must be given effect. Drake v. Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Co., 265 Ala. 444, 92 So.2d 11 (1957). In determining legislative intent, courts will give words and phrases the same meaning they have in everyday usage. Fuller v. Associates Commercial Corp., 389 So.2d 506 (Ala.1980). In the absence of statutory definition, the commonly accepted definition of a word must be applied. State v. Wallis, 48 Ala.App. 652, 267 So.2d 172 (1972).

The pertinent language in the code sections in question is “structures built primarily for the control, reduction or elimination of air or water pollution.” Inasmuch as we do not find this language ambiguous, we must give the words, particularly the word “pollution,” their common, everyday meaning since the legislature failed to define them. The term “pollute” is defined as “to make physically impure or unclean.” Webster’s Seventh New Collegiate Dictionary (1976). Thus, pollution would include any impurity.

Rush argues that the plants in this case are designed to eliminate all types of impurities from water in order to make it potable, and, since these facilities remove pollution from water, they are not taxable. The Department, however, contends that the statute is intended to apply only to the removal of pollutants from the water by industries before the water is returned to the environment.

The Department relies on a Tennessee ease, King- Construction Co. v. Tollett, 599 S.W.2d 797 (Tenn.1980). In that case the Tennessee court held that water distribution plants were not exempt from taxation. We note, however, that the Tennessee statute is completely different from Alabama’s in that it limits its application to stream pollution control and sewage systems. Therefore, the Tennessee statute specifically excludes water treatment plants from an exemption.

The meaning of the word “pollution” as used in the Alabama statutes is not limited just to industrial or man-made waste, it includes any impurity. In the present case the plants in question removed all types of impurities from the water. The wording of the statute is clear on its face, and this court must apply the plain meaning of the statute. See Alabama Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970).

The Alabama legislature has not seen fit to limit the application of the exemption in question; therefore, we cannot find that the statute limits its application to only industrial pollution or impurities being returned to the environment. We hold, therefore, that the statute does allow an exemption for the type of plants involved in the present case. As a result, the judgment below is reversed and the case remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    SHADYBROOK HOMEOWNERS ASSOCIATION v. Theodore J. BAUMAN, et al.
    Civ. 3128.
    Court of Civil Appeals of Alabama.
    March 31, 1982.
    Rehearing Denied May 12, 1982.
    Certiorari Denied, July 23, 1982 Alabama Supreme Court 81-701.
    James A. Ward, III, Dothan, for appellant.
    Richard H. Ramsey, III, Dothan, for ap-pellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This a zoning case.

An ordinance of the City of Dothan provides that if a drafting error was made in the location of a district boundary line in the city’s 1977 zoning map, the board of zoning adjustment (board), after a public hearing, is authorized to direct the correction of the error in order to show its correct location. It contains this provision:

The procedure outlined in this ordinance for correcting drafting errors on the zoning map shall apply to the zoning map adopted November 8, 1977, only. Any corrections to previously adopted zoning maps shall be made in accordance with procedures established prior to adoption of this ordinance.

The board rendered an adverse decision to the request of Mr. Bauman and the other owners of certain property (owners) to correct drafting errors in zoning maps and an appeal was duly taken by them to the circuit court. After an ore tenus trial de novo, that court found “that a drafting error was made by the City of Dothan affecting the zoning status of Plaintiffs’ [owners’] subject property prior to the time that the zoning map of 1974 was adopted. That same error was carried over when the zoning map of 1977 was adopted. The Court finds that the error changed the zoning of the parcel of real estate hereinafter described from GA-2 (Group Apartments) to Agricultural-Conservation and R-100-S (Residential-Low Density) zoning.” The board was directed to correct the error by restoring the zoning status of GA-2 to the particular property upon the zoning maps of 1974 and 1977.

The Shadybrook Homeowners Association (association), who had been permitted to intervene as a party in the circuit court, filed a motion to alter, amend or vacate the judgment. In substance they contended that, since the trial court ascertained that the drafting errors occurred prior to the adoption of the zoning map of 1974, the trial court had no authority to correct such mistakes inasmuch as the provisions in the ordinance for the correction of drafting errors applied only to the 1977 map. The association insisted that any correction to the 1974 zoning map had to be accomplished pursuant to procedure established prior to the 1977 ordinance. The trial court overruled that motion and the association appealed. We affirm.

While it is clear from the evidence that some of the drafting errors concerning zoning boundaries relating to the owners’ property occurred prior to the preparation of the 1977 official zoning map, it is uncon-troverted that those errors were carried over to and incorporated in the 1977 map. A drafting error thus occurred in the 1977 zoning map which altered the permitted zoning use of the property in question. Albeit, some of the mistakes in drafting occurred in at least one prior official zoning map, nevertheless, those same errors, and possibly other errors in that respect, were repeated in, and were a part of, the 1977 map. Accordingly, the correction of the 1977 map was authorized by the ordinance, for a drafting error was made therein. Since, as corrected, the 1977 zoning map will govern the present authorized zoning utilization of the owners’ particular property, it matters not whether the 1974 map is presently altered in that regard so as to make it speak the truth. Any present correction of the 1974 map is now immaterial in its application, and whether the trial court’s judgment as to the 1974 map is authorized by the procedure there used is of no present consequence and is hereby treated as mere surplusage.

Even though a trial court makes a special finding of fact, an appellate court, in reviewing the case, will look to the entire evidence to ascertain whether that court’s judgment itself was sufficiently sustained by proof. Shepherd v. Scott’s Chapel, A.M.E. Zion Church, 216 Ala. 193, 112 So. 905 (1927); United States Fidelity & Guaranty Co. v. Yeilding Bros. Co. Department Stores, 225 Ala. 307, 143 So. 176 (1932). A witness, in testifying as to drafting errors, stated that the pre-1977 maps were more nearly correct, with the major error as to this particular property happening in the 1977 zoning map. The judgment of the trial court was very adequately sustained by the evidence, and the trial court’s overruling of the association’s posttrial motions bolsters its judgment in correcting the 1977 map.

Since the trial court’s judgment was valid in correcting the drafting errors on the 1977 zoning map as to this particular property, a determination is not necessary as to other issues raised in the association’s brief by their learned counsel.

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), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Arthur David PODY v. Carol W. PODY.
    Civ. 3070.
    Court of Civil Appeals of Alabama.
    April 14, 1982.
    Rehearing Denied May 19, 1982.
    Certiorari Denied July 30, 1982 Alabama Supreme Court 81-733.
    Michael W. Landers, Sylacauga, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case concerns a successful postdi-vorce effort by the wife to require the husband to reimburse her for the payment of certain debts which the husband was required to make by virtue of their divorce proceedings. The trial court rendered a monetary judgment for the wife. The husband appealed. We affirm.

The case was originally scheduled for trial on July 28, 1981, but, for reasons undisclosed by the record, was not tried until October 15, 1981. Just prior to the commencement of the nonjury trial, the husband’s attorney sought a continuance by utilizing a written motion to which was attached the brief printed disability certificate of a South Carolina physician which was dated October 12, 1981. That certificate stated that the husband was under the professional care of the doctor “10/12/81 to _inclusive, and was totally incapacitated during this time.” It further certified that the patient had recovered sufficiently to be able to return to regular work duties on October 19, 1981. The trial court overruled that continuance motion stating that if the husband, at a later time, could show to the court what his circumstances were as of the trial date, the court would consider it. No posttrial motion pertaining to the husband’s health as of October 15, 1981 was filed.

The unsworn certificate of the doctor was very general in nature. It does not appear therefrom as to whether the husband was ill or whether he was injured, or the nature or extent thereof, or that the husband was not physically able to attend the trial on October 15, 1981.

Trial delays are not favored and the granting or refusal of a continuance is within the judicial discretion of the trial court, whose ruling in that respect will not be upset on appeal except where a clear and palpable abuse of discretion appears in the record. Marshall v. Howze, 387 So.2d 808 (Ala.1980); Perdue v. Mitchell, 373 So.2d 650 (Ala.1979); Blair v. York Engineering Co., 380 So.2d 878 (Ala.Civ.App.1980). Here, the trial court did not obviously and palpably abuse its discretion in failing to grant a continuance under the circumstances.

Over the husband’s attorney’s objection, which was predicated upon the best evidence rule, the wife was allowed to testify that she had paid certain debts which the husband was due to pay under the terms of the divorce agreement of the parties and as was provided by the divorce judgment which approved the agreement.

The transcript discloses that the records of a bank as to the largest alleged indebtedness were introduced into evidence and that the husband’s attorney had the opportunity to examine many minor original bills from various open account creditors. The best evidence rule had no application to any of these matters.

As to the mortgage indebtedness to Associates Financial Services, the wife had the means of knowing from her own participation therein as to whether she made certain payments, together with the amounts thereof and the dates that they were so paid. She had firsthand knowledge of such matters. It was correct to allow her to so testify. The husband’s objection that the creditor’s records constituted the best evidence of such payments was properly overruled.

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), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Sandra D. SAXON v. Joseph Robert SAXON.
    Civ. 3107.
    Court of Civil Appeals of Alabama.
    April 28, 1982.
    Rehearing Denied June 2, 1982.
    Certiorari Denied July 30, 1982 Alabama Supreme Court 81-769.

      Palmer Norris, Gardendale, for appellant.
    Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a Rule 60(b), A.R.C.P., motion to set aside a final decree of divorce.

The original decree of divorce was entered on September 7, 1979, dissolving the marriage of Joseph Robert Saxon and Sandra D. Saxon pursuant to a complaint by the husband, an answer, waiver and acceptance of service by the wife and an agreement between the parties. All documents were filed on September 7, by the husband’s attorney. The papers, according to the husband, were signed by the wife at his place of business and were witnessed by two of his employees who testified to that effect. The wife was not represented by counsel. She received a copy of the final decree in the mail a few days after the judgment was entered.

Subsequently, Mrs. Saxon retained counsel and moved under Rule 60(b), A.R.C.P., to set aside the final decree of divorce on November 20, 1979. Her motion was based on her averment that she never signed any papers for a divorce, but that her signature thereon was forged. She also stated that the court’s jurisdiction was invoked by fraud on the part of the husband and that she never received a copy of the divorce complaint. Following Mr. Saxon’s answer to the 60(b) motion on November 26, 1979, the parties apparently reached an agreement in the form of a “consent modification.” A joint motion by the parties to dismiss the 60(b) motion, and the consent modification were entered by the trial court on April 29, 1980. Both parties complied with and relied on the consent modification order until August 27, 1981, when the husband brought a petition to modify to gain custody of the children. Mrs. Saxon then brought a second 60(b) motion on September 1, 1981, to set aside the final decree of divorce and the consent modification ordered by the court in April of 1980.

The grounds for the second 60(b) motion included those set out in the first motion and that the husband threatened the lives of Mrs. Saxon, her children, her parents and her attorney if she persisted in the 1979 60(b) motion. She averred that her former husband stated that he could buy any judge hearing the motion or any lawyer she obtained. She also set out that she.believed that Mr. Saxon was involved with organized crime and could carry out his threats. Thus, under coercion and duress, Mrs. Saxon said she instructed her attorney to dismiss the earlier 60(b) motion.

After numerous amendments and pleadings by the parties, the trial court heard testimony on the motion on October 29, 1981. The trial court denied the 60(b) motion on November 3, 1981, and ratified and confirmed the original decree and its modification. The wife’s petition for rehearing was denied. From the denial of the 60(b) motion, Mrs. Saxon appeals.

Rule 60(b) provides that such a motion must be brought within a reasonable time and if for fraud under 60(b)(3), within four months after entry of the judgment or order. The wife’s motion, if considered under 60(b)(3), was filed untimely. Assuming arguendo that the motion here could be construed as an independent action based on fraud upon the court and brought within three years, we find no abuse of discretion by the trial court. That is our only consideration when reviewing the denial of a 60(b) motion. McSween v. McSween, 366 So.2d 293 (Ala.Civ.App.1979). Thus, we affirm.

The wife argues that the trial court should be reversed for not allowing her motion to produce documents of the husband’s assets. The trial court was correct since the records were not relevant to the 60(b) motion. Such records appear relevant only if a new trial were ordered. Her contention that the original decree should have been vacated because of her lack of representation by counsel is also not well taken. She was represented by counsel at the time of the dismissal of the first 60(b) motion and entry of the consent modification. She has accepted the benefits from - the judgment of modification and may be considered equitably estopped to claim at this point that the judgment is void. Levine v. Levine, 262 Ala. 491, 80 So.2d 235 (1955).

Mrs. Saxon also contends that the husband had the burden to prove there was no fraud since the parties were in a fiduciary relationship, and she cites an Indiana case. The burden under Rule 60(b) is on the moving party to prove the grounds alleged. See, Frazier v. Malone, 387 So.2d 145 (Ala.1980).

We find no prejudicial error in any of the trial court’s rulings further complained of and discern no benefit in discussing them. This cause is dué to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . These papers were apparently prepared by a disbarred attorney in the employ of the husband’s corporation, and delivered to the attorney who subsequently filed them.

      . The husband remarried in December of 1980.

      . We note that an independent action must also be brought within a reasonable time.


text:
    Arnold PARSONS v. STATE of Alabama BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS.
    Civ. 3229.
    Court of Civil Appeals of Alabama.
    May 12, 1982.
    Rehearing Denied June 9, 1982.
    Certiorari Denied July 30, 1982
    Alabama Supreme Court 81-783.

      Ronald W. Wise and Ira De Ment, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for appel-lee.
   WRIGHT, Presiding Judge.

The registration of Arnold Parsons, appellant herein, to practice professional engineering and land surveying in the State of Alabama was suspended for four years by the State Board of Registration for Professional Engineers and Land Surveyors (Board). Parsons was found guilty by the Board of several ethical violations set out by the Rules of Professional Conduct adopted by the Board as well as misconduct under § 34-11-11, Code (1975). Parsons appealed the Board’s decision pursuant to § 34-11-13, Code (1975) which states that:

Any person who shall feel aggrieved by any action of the board in denying, suspending or revoking his certificate of registration may appeal therefrom within 60 days to the circuit court of Montgomery county, Alabama; and, after full hearing, said court shall make such judgment sustaining or reversing the action of the board as it may deem just and proper.... (Emphasis ours.)

A hearing was held August 4, 1981, as to whether the Board’s order would be stayed during the pendency of Parson’s appeal. Such a stay under § 34-11-13 is within the discretion of the trial court. At that hearing, oral testimony was allowed over objection of the Board’s attorney that such testimony was beyond the limited scope of review under the aforementioned provision. After that hearing, the court denied the requested stay and also determined that Parsons’ appeal was not de novo. The court held that Parsons had “the right to show, by independent or extraneous evidence, that the Board acted unlawfully or arbitrarily or in such a manner as to deny due process to the Petitioner.” The trial court then limited its consideration of the evidence taken on August 4 to those parameters. In a final order August 17, 1981, the Board’s findings were affirmed. Parsons appeals.

The issues on appeal are:

(1) Whether the circuit court erred in finding that the statute in question does not entitle one to hearing de novo, and
(2) Whether the circuit court erred in limiting the evidence to whether the Board acted unlawfully or arbitrarily or in such a manner as to deny due process.

We note that there is no case law under this statute. Both parties discuss cases and statutes pertaining to other professions. See, Title 34, Code (1975). We do not find authority in those cases or statutes on which to base our decision. Where a special statutory provision is provided as an exclusive method of review for a particular type case, no other statutory review is available. Howie v. Alabama State Milk Control Board, 265 Ala. 189, 90 So.2d 752 (1956). We find the provision in question here to be such a special statute, and fail to see the correlation between it and other review provisions.

Parsons must be allowed “full hearing” in the circuit court. Having no relevant definition of the term “full hearing,” but viewing it in context of the entire appeals section (34-11-13), we conclude that it does not mean “de novo.” We say that because the circuit court is empowered therein only to “sustain or reverse” the action of the Board. It is not empowered to render its own judgment as to discipline. Such limitation would not appear consonant with a “de novo” appeal. However, we consider that a “full hearing” is broader than that permitted by the trial court in this case.

Recognizing that we are “construing” closely akin to “legislating,” as did the trial court, we nevertheless proceed in order to provide guidance where little has been given in the statute. There is no provision in the statute for making a record of the proceedings before the Board nor filing such record in the circuit court to which an appeal may be taken. Therefore, it is reasonable that at a “full hearing,” evidence is necessary. Whether in the form of recorded testimony and exhibits taken before the Board or in the same evidence repeated and perhaps added to in the circuit court, relevant evidence is required if the circuit court is to either sustain or reverse the action of the Board.

It is the opinion of the court that the parameters within which the learned trial judge confined the hearing were too narrow to meet the test of a “full hearing” as we have herein described. We therefore reverse the judgment below and remand for further proceedings not contrary to this opinion as may be required.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

ON REHEARING

Appellee correctly points out in its brief on rehearing an error made by this court in its opinion of May 12, 1982, as to the hearings held in the circuit court in review of proceedings before the State of Alabama Board of Registration for Professional Engineers and Land Surveyors (Board). The first hearing was held August 3, 1981, for the purpose of determining whether a stay should be granted Parsons pending his appeal. See, § 34-11-13, Code (1975). Argument was also heard as to whether the appeal was de novo. As stated in our May 12 opinion, “The court held that Parsons had ‘the right to show, by independent or extraneous evidence, that the Board acted unlawfully or arbitrarily or in such a manner as to deny due process to the Petitioner.’ ”

Appellee correctly points out that at a second hearing on August 13, 1981, testimony was taken and evidence entered under the above parameters. It was at that hearing that evidence was allowed over appel-lee’s objection that such evidence was beyond the scope of review. The Board contends on rehearing that the August 13, 1981, hearing complied with the “full hearing” requirement under the statute. We apparently did not make clear in our May 12,1982, opinion that the problem lies in the circuit court’s restrictive parameters upon its consideration of the evidence as set out in the August 4, 1981, order. The language used there is not appropriate under § 34-11-13. If the scope of review was meant to be so restricted, the legislature could have used such language. See, § 34-9-25, Code (1975) for an example. No other statute in Title 34, Professions and Occupations, uses the term “full hearing.” Appellee apparently agrees that there is no precedent which construes § 34-11-13. That it is a first construction is no reason to try to fit it into another statute with different provisions. As set out in our original opinion, “Where a special statutory provision is provided as an exclusive method of review for a particular type case, no other statutory review is available.” Howie v. Alabama State Milk Control Board, 265 Ala. 189, 90 So.2d 752 (1956).

We discussed § 34-11-13 in our opinion and noted the absence in the statute of a provision for certification of the Board record to the reviewing court. We did not mean to imply that the Board record was not made available to the circuit or to this court on appeal. That discussion was meant to point out the differences in the review statutes in Title 34, See, § 34-13-31, Code (1975) (where certification of the record is required). Our decision is that Parsons has a right to present evidence to the circuit court whether or not such evidence is contained in the Board record. Such record may or may not be introduced in such “full hearing.” The restriction of consideration of the evidence, presented from whatever source, to unlawfulness, arbitrariness or denial of due process by the Board was too narrow a review and was the error requiring reversal.

APPLICATION FOR REHEARING DENIED; OPINION EXTENDED ON REHEARING.

BRADLEY and HOLMES, JJ., concur.