author: JONES, Justice. EMBRY, Justice JONES, Justice. MADDOX, Justice EMBRY, Justice

text:
    Joseph I. HARPER, Jr., Tula Ann Harper, Raymond Youngman, Margaret J. Youngman, Elizabeth S. Staggs, Lillian L. Wilson, Linda Watts v. REGENCY DEVELOPMENT COMPANY, INC., Champion Construction Co., Inc., Ellard Contracting Co., Inc.
    80-19.
    Supreme Court of Alabama.
    May 1, 1981.
    Rehearing Denied June 5, 1981.

      Rodney A. Max of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appellants.
    John F. Whitaker of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for ap-pellees.
    Fournier J. Gale, III, and H. Thomas Wells, Jr., of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for Drum-mond Coal Co.
   JONES, Justice.

The claims upon which this appeal is based arise out of Appellees’ blasting operations on Red Mountain in Birmingham, Alabama, during the months of June, July and August of 1978.

Plaintiffs-Appellants are members of a residential community located on the slope of Red Mountain. Plaintiffs initiated these claims in 1979 in the district court, seeking compensation for property damage allegedly caused by Appellees’ blasting operations during development of a condominium complex near the crest of the mountain.

Subsequent discovery revealed that the actual costs of repairs to Plaintiffs’ residences were in excess of the jurisdictional amount of the district court ($5,000). By the time the amount of actual damages became known, however, expiration of the statute of limitations prevented dismissal and refiling of the actions in the circuit court. Consequently, Appellants amended their claims so as to remain within the district court’s jurisdiction.

Upon a finding for Appellees in the district court, Appellants appealed to the circuit court and amended their complaints to claim their actual damages. Thereupon, the circuit court granted Appellees’ objections to the amendments and motions to dismiss Count 1 of each of Appellants’ complaints. Dismissal of Count 1 of each complaint was predicated upon grounds that it was based solely upon “strict liability” (Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539 (1969)), while denial of Appellants’ amendments to the ad damnum clauses was based upon ARCP 13(j). We affirm as to the order denying the amendments; we reverse and remand as to the order dismissing Count 1 of each complaint.

APPELLEES’ CONTENTIONS FOR AN APPLICABLE LIABILITY STANDARD

Understandably, the position advanced by Appellees is a plea for application of the doctrine of stare decisis: To establish liability for damage allegedly caused by blasting operations, the burden is upon the Plaintiff to allege and prove that such damage was the result of Defendant’s negligence and not the result of blasting conducted in accordance with usual methods and a reasonable standard of care. Mitchell v. Richardson, 277 Ala. 651, 173 So.2d 814 (1964); Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So.2d 229 (1963); Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748 (1958).

As a corollary, Appellees urge that strict liability is an unnecessary and unreasonable standard to impose in blasting cases in that: 1) Blasting is a reasonable and necessary activity in developing land, Cratty v. Samuel Aceto & Co., 151 Me. 126, 116 A.2d 623 (1955); 2) Liability without fault is an unreasonable and unnecessarily restrictive doctrine, Klostermann v. Houston Geophysical Co., 315 S.W.2d 664 (Ct.App.Tex.1958); 3) Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), as proposed by Appellants, arguably adopts a negligence standard as opposed to one of strict liability, Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939); 4) To apply a standard of liability without fault would amount to judicial legislation, Coalite, Inc. v. Weeks, 284 Ala. 219, 224 So.2d 251 (1969); 5) Proof of negligence is not an unreasonable burden in blasting cases, Crawford Coal Co. v. Stephens, 382 So.2d 536 (Ala.1980).

HISTORY

The history of this State’s application of standards of liability in blasting cases is succinctly and aptly set forth in Appellants’ brief:

“Since 1907, persons injured or damaged ... by the concussion or vibration caused by blasting have been without a remedy, unless they could show that the blaster was negligent in his blasting operations. In effect, blasters in Alabama have been allowed to cause injury and damage to surrounding property so long as they do it carefully. This .. . approach to liability for blasting is derived from traditional common law dichotomies of trespass/negligence (trespass on the case) and direct injury/indirect injury. These dichotomies may be explained as follows: If rocks are thrown onto plaintiff’s property, there is a trespass because of the direct injury, and the defendant is liable without fault!! If, however, the damage was caused by concussion in the air or vibration in the ground, the injury is caused indirectly, and the remedy lies in trespass on the case for which the plaintiff must prove negligence in the blasting.[] ”

See, also, Rendlemen, More on Procedure Reform, 33 Ala.Law. 37, 44 (1972).

A majority of states now characterize blasting, under certain conditions, as an abnormally dangerous activity and apply a strict liability approach for injury or damage caused thereby. Restatement (Second) of Torts, §§ 519-524A (1977). This Court, in Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979), hinted at the need to reconsider this State’s application of the trespass/trespass on the case dichotomy associated with damage caused by blasting operations.

Under a traditional standard of negligence approach, the plaintiff must specifically show negligent conduct in the operative blasting procedures that proximately caused damage. In essence, the plaintiff’s evidentiary hurdles are two-pronged: 1) proving that the defendant’s conduct fell below the industry’s acceptable standard of care; and 2) proving that such conduct proximately caused the damage suffered.

Both prongs of proof set the stage for a battle of the experts. The first prong, in the absence of statutory or regulatory guidelines, places the plaintiff’s expert against the defendant’s expert in a contest to determine the industry’s empirical standard of care. Republic Steel Corp. v. Peoples, 217 F.2d 236 (5th Cir. 1954). The latter prong pits the plaintiff’s evidence of before and after damage — in the context of circumstantial cause and effect — against the defendant’s expert, who testifies that the damage is not the result of the blasting.

In light of the subjective nature of any scientific criteria, fostered by disagreement among industry experts, creation of an acceptable standard of conduct becomes extremely difficult. At any rate, the present status of the law, when strictly applied, leaves the fact finder bound by standards established and practiced by the very industry sought to be held accountable, and not by any consideration of the abnormally and inherently dangerous character of the instrumentality or substance employed and the intrinsic risk of harm to others.

In recognition of the harshness of the traditional negligence standard of liability, this Court has relaxed the requisite standard of proof in blasting cases. In Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So.2d 748 (1958), a plaintiff’s judgment was affirmed where the expert testimony showed only that if plaintiff’s “damage was done ... in the obtaining of chert from this pit by the use of dynamite ..., it would be because it was not done properly, was done in a negligent manner.” Admittedly, such conclusionary evidence, even by an expert— without any predicate as to the usual and customary practice in the industry or as to the manner in which defendant’s conduct deviated therefrom — falls far short of the requisite standard of proof in traditional negligence cases. See, also, Crawford Coal Co. v. Stephens, 382 So.2d 536 (Ala.1980), and the cases cited therein.

Additionally, this Court has consistently treated blasting claims as actions in trespass, thus applying absolute liability, where rocks or other debris were thrown upon plaintiff’s property without any differentiation between the precise damage caused by the trespassing objects and any simultaneous damage caused by concussion or vibration. See Milford v. Tidwell, 276 Ala. 110, 159 So.2d 621 (1963); Ex parte Birmingham Realty Co., 183 Ala. 444, 63 So. 67 (1913); Bessemer Coal, Iron and Land Co. v. Doak, 152 Ala. 166, 44 So. 627 (1907).

While this accommodation to plaintiff’s heavy burden of proof has not overtly altered the standard of liability, at the very least it has tended to treat the dangerous condition created by the ultrahazardous activity as the basis for testing the requisite proof of fault. Indeed, the Doak Court observed that where blasting takes place in the midst of “a thickly settled city,” one “acts at his peril.”

STRICT LIABILITY IN TORT

In the now famous case of Rylands v. Fletcher, supra, the defendants were mill owners who had constructed a reservoir on their land. Water escaped therefrom into an abandoned coal mine through connecting passages and into the adjoining mine of the plaintiff. In the absence of trespass (the flooding damage being indirect) or the existence of any nuisance, the English court applied the doctrine of strict liability in tort to hold defendants liable, saying:

“We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.”

Fletcher v. Rylands, L.R. 1 Ex. 265, 279-80 (1866).

This holding was somewhat restricted upon review by the House of Lords, wherein the strict liability principle was made applicable only to “non-natural” uses of defendant’s land, as distinguished from “any purpose for which it might in the ordinary course of the enjoyment of land be used.” Rylands v. Fletcher, supra.

“After a long period during which Ry-lands v. Fletcher was rejected by the large majority of American courts which considered it, the pendulum has swung to acceptance of the case and its doctrine in the United States.” W. Prosser, Handbook of the Law of Torts, § 78 (4th ed. 1971).

Adherence to the strict liability doctrine has been approved by the Restatement (Second) of Torts (1977), § 519 of which provides:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

AN ABNORMALLY DANGEROUS ACTIVITY CONSTITUTES NEGLIGENCE

We believe our adoption of the Restatement lightens the requisite burden of proof without abandoning the time-honored fault philosophy. Whether we adopt, by name, strict liability in tort for damages caused by blasting operations, or whether we perceive our holding as a mere expansion of prior cases, is relatively unimportant. What is important, in our view, is the preservation of our fault-based tort concept in the context of a modified standard of liability which no longer perpetuates what Professor Prosser terms “a marriage of legal technicalities with scientific ignorance.” W. Prosser, Handbook of the Law of Torts, § 78 (4th ed. 1971).

The fault concept is preserved simply by transposing the basis for testing culpability from the degree of care exercised in the manner in which the blasting operation is conducted to the conduct of the blaster in carrying on an abnormally dangerous activity which subjects innocent parties to an unreasonable risk of harm. To treat the discharge of an abnormally dangerous substance under ultrahazardous conditions as wrongful conduct is not violative of the duty/breach of duty principle of tort law. The use of the explosives under abnormally dangerous conditions is negligence, and thus actionable if such conduct proximately causes damage to another.

Our holding today is strikingly similar, both in kind and degree, to the Alabama extended manufacturer’s liability doctrine. Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976). There, we lessened the consumer’s burden of proof, but retained the fault concept, by transposing the basis for testing culpability from the degree of care exercised in the manufacturing process to the product’s defective condition at the time of sale. Here, we simply shift the culpability test from the degree of care exercised in the discharge of the explosives to the carrying on of an abnormally dangerous activity. See Henderson v. Wade Sand and Gravel Co., Inc., 388 So.2d 900 (Ala.1980), which altered the requisite burden of proof from that of traditional negligence to that of nuisance in the context of property damage caused by a continuing activity involving use of underground water.

While our law no longer permits, as a defense, proof of the degree of care with which a defective product was made and sold to the public, neither will it permit the blaster to defend on the ground that he carefully prepared and detonated the explosive. In either case, to carefully injure another is no longer an acceptable exercise of one’s legal duty of due care.

In neither case, however, is the claimant exempt from definitive standards of proof both as to culpability and as to proximate cause. Just as the plaintiff must prove the defective condition of the product and an injury or damage proximately resulting therefrom, one claiming blasting damage can establish liability of the blaster only by proving that such damage is the proximate result of an abnormally dangerous activity.

AN ABNORMALLY DANGEROUS ACTIVITY

The Restatement (Second) of Torts, § 520 (1977), sets forth the following factors to be .considered in determining whether an activity is abnormally dangerous:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f)extent to which its value to the community is outweighed by its dangerous attributes.

It is apparent that liability for an abnormally dangerous activity arises out of the intrinsic danger of the ultrahazardous activity itself and the risk of harm it creates to those in the vicinity. Restatement (Second) of Torts, § 519, Comment d (1977). The basis for liability is that one who for his own purposes creates an abnormal risk of harm to his neighbors must be responsible for relieving that harm when in fact it does occur. Id.

The rule of strict liability, however, only applies to that harm which is within the scope of the abnormal risk upon which liability is based. In other words, one who detonates explosives on his own property may be responsible for the risk of harm to persons or property in the vicinity. If, however, no explosion takes place, but someone trips over the dynamite and breaks a leg, strict liability will not apply. Restatement (Second) of Torts, § 519, Comment e (1977).

Our adoption of the Restatement is not a holding that the mere act of blasting — anytime, anywhere — will subject one to liability without fault. The Restatement (Second) of Torts, § 519 (1977), speaks of “abnormally dangerous activities.” Thereafter, § 520 provides guidelines against which to test the appropriateness of the blasting operations. Each case will present its own set of facts against which the § 520 guidelines will apply.

A finding, guided by a consideration of factors outlined in the Restatement, that the blaster was “one who carries on an abnormally dangerous activity” is a finding of negligence — the breach of a legal duty— and, a further finding that such conduct proximately damaged another, renders the blaster liable therefor. Ordinarily, both of these determinations will be issues of fact for the jury.

We hold, therefore, that the trial judge’s dismissal of Count 1 of each of Appellants’ complaints was reversible error.

AD DAMNUM CLAUSE AMENDMENTS

The trial court’s rejection of claimants’ offered amendments to increase their prayer for damages above the jurisdictional level of the district court is mandated by ARCP 13(j). Plaintiffs had the right to claim only a portion of their damages in order to remain within the jurisdiction of the district court; but, by doing so, they destroyed their right, on appeal to the circuit court, to claim the excess. See Hardy v. Tabor, 369 So.2d 559 (Ala.Civ.App.1979).

The constitutional issue raised by Appellants is without merit. Therefore, that portion of the trial court’s order sustaining the Appellees’ objection to Appellants’ amendments is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MADDOX, FAULKNER, SHORES and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., dissent.

EMBRY, Justice

(dissenting):

Before addressing the substantive bases for my views contrary to those of the majority, I feel compelled to express my incredulity that these cases involving an amount in controversy of five thousand dollars each are being considered by this court rather than the Court of Civil Appeals. Affirmance by the majority of the order denying the amendments to plaintiffs’ complaints seeking more than five thousand dollars as damages is positive concession that these appeals are not within the jurisdiction of this court. To rule otherwise, the majority would, perforce, repeal Rule 13(j), ARCP.

Regarding the substantive holding and content of the majority opinion, I would summarize my views by stating: If it ain’t broke, don’t fix it. I do not think the law in Alabama regarding liability for blasting needs changing; therefore, I would not tamper with it.

It seems to me that adopting a rule of strict liability in cases of the nature of those here before us, is not only unnecessary and undesirable but will inevitably lead to severe inhibition of needed development of natural resources vital to the survival of a viable industrialized economy and a society with adequate energy, food, shelter, and creature comforts to make life in that society more than mere organic existence.

Under our system of accountability for one’s acts that damage another, we have studiously attempted to adhere to the concept of fault; even when it became necessary to balance the burden between the injured and those responsible for the injury in the case of manufactured goods. See Casrell and Atkins, cited in the majority opinion.

I see no need for a prolix convoluted discussion of the various approaches taken by the courts to determine the nature of the cause of action accruing as the result of damage in consequence of blasting depending upon whether that damage results from vibration, concussion or from casting inanimate objects upon the person or property of another. The simple fact is that the negligence standard as applied in Alabama is a reasonable one and neither places an undue burden of proof on the plaintiff nor presents him with anything approaching an impossible task. No plaintiff is bound by a standard of care of defendant that merely conforms to an acceptable standard to those industries engaged in blasting activities. Proof of proximate cause of damage from blasting is a common sense matter which can be shown by any relevant and material evidence, even if it be circumstantial. E. g., see Cratty v. Samuel Aceto & Co., 151 Me. 126, 116 A.2d 623 (1955).

As aptly put by appellees: “It, therefore, becomes clear that the negligence standard as applied to blasters is not just an empirical standard, but involves matters of location, severity, necessity, propriety and techniques, among others. In other words, negligence ‘according to the relative circumstances’ is a much sounder and more applicable standard.” Illustrating the ease of carrying plaintiffs’ burden and the liberality of proof required to sustain that burden are the facts of Crawford Coal Co. v. Stephens, 382 So.2d 536 (Ala.1980).

In conclusion: the decision of the majority in this case is not needed; it departs from a well settled body of law with which the bench and bar are familiar; it raises new questions to be resolved without justifiable or desirable results to be served by their resolution, and last but not least, it places an undue burden upon industry without achieving a concomitant desirable social or economic objective.

TORBERT, C. J., and ALMON and BEATTY, JJ., concur.

APPENDIX

Chapter 21

ABNORMALLY DANGEROUS ACTIVITIES

Section

519. General principle

520. Abnormally dangerous activities

520A. Ground damage from aircraft

520B. Liability to trespassers

520C. Liability to licensees and invitees

521. Abnormally dangerous activity carried on in pursuance of a public duty

522. Contributing actions of third persons, animals and forces of nature

523. Assumption of risk

524. Contributory negligence

524A. Plaintiff’s abnormally sensitive activity

§ 519. General Principle

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Comment:

a. The general rule stated in this Section is subject to exceptions and qualifications, too numerous to be included within a single Section. It should therefore be read together with §§ 520 to 524A, by which it is limited.

b. As to the factors to be considered in determining whether an activity is abnormally dangerous, see § 520.

c. The word “care” includes care in preparation, care in operation and skill both in operation and preparation.

d. The liability stated in this Section is not based upon any intent of the defendant to do harm to the plaintiff or to affect his interests, nor is it based upon any negligence, either in attempting to carry on the activity itself in the first instance, or in the manner in which it is carried on. The defendant is held liable although he has exercised the utmost care to prevent the harm to the plaintiff that has ensued. The liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity. It is founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur. The defendant’s enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.

Comment on Subsection (2):

e. Extent of protection. The rule of strict liability stated in Subsection (1) applies only to harm that is within the scope of the abnormal risk that is the basis of the liability. One who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on. For example, the thing that makes the storage of dynamite in a city abnormally dangerous is the risk of harm to those in the vicinity if it should explode. If an explosion occurs and does harm to persons, land or chattels in the vicinity, the rule stated in Subsection (1) applies. If, however, there is no explosion and for some unexpected reason a part of the wall of the magazine in which the dynamite is stored falls upon a pedestrian on the highway upon which the magazine abuts, the rule stated in Subsection (1) has no application. In this case the liability, if any, will be dependent upon proof of negligence in the construction or maintenance of the wall. So also, the transportation of dynamite or other high explosives by truck through the streets of a city is abnormally dangerous for the same reason as that which makes the storage of the explosives abnormally dangerous. If the dynamite explodes in the course of the transportation, a private person transporting it is subject to liability under the rule stated in Subsection (1), although he has exercised the utmost care. On the other hand, if the vehicle containing the explosives runs over a pedestrian, he cannot recover unless the vehicle was driven negligently.

Illustration:

1. A, with reasonable care, carries on blasting operations in a closely settled rural district. A has no reason to know of the presence of B’s mink ranch nearby. The noise of the blasting frightens the mink and the fright causes them to kill their young. A is not subject to strict liability to B for the loss of the mink.

§ 520. Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Comment:

a. This Section deals only with the factors which determine whether an activity is abnormally dangerous. The general principle of strict liability for abnormally dangerous activities is stated in § 519. The limitations upon strict liability for abnormally dangerous activities are stated in §§ 521-524A.

b. Distinguished from negligence. The rule stated in § 519 is applicable to an activity that is carried on with all reasonable care, and that is of such utility that the risk which is involved in it cannot be regarded as so great or so unreasonable as to make it negligence merely to carry on the activity at all. (See § 282). If the utility of the activity does not justify the risk it creates, it may be negligence merely to carry it on, and the rule stated in this Section is not then necessary to subject the defendant to liability for harm resulting from it.

c. Relation to nuisance. If the abnormally dangerous activity involves a risk of harm to others that substantially impairs the use and enjoyment of neighboring lands or interferes with rights common to all members of the public the impairment or interference may be actionable on the basis of a public or a private nuisance. (See § 822, and Comment a under that Section). The rule of strict liability stated in § 519 frequently is applied by many courts in these cases under the name of “absolute nuisance,” even when the harm that results is physical harm to person, land or chattels.

d. Purpose of activity. In the great majority of the cases that involve abnormally dangerous activities the activity is carried on by the actor for purposes in which he has a financial interest, such as a business conducted for profit. This, however, is not necessary for the existence of such an activity. The rule here stated is equally applicable when there is no pecuniary benefit to the actor. Thus a private owner of an abnormally dangerous body of water who keeps it only for his own use and pleasure as a swimming pool is subject to the same liability as one who operates a reservoir of water for profit.

e. Not limited to the defendant’s land. In most of the cases to which the rule of strict liability is applicable the abnormally dangerous activity is conducted on land in the possession of the defendant. This, again, is not necessary to the existence of such an activity. It may be carried on in a public highway or other public place or upon the land of another.

/. “Abnormally dangerous.” For an activity to be abnormally dangerous, not only must it create a danger of physical harm to others but the danger must be an abnormal one. In general, abnormal dangers arise from activities that are in themselves unusual, or from unusual risks created by more usual activities under particular circumstances. In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily. Because of the interplay of these various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence.

Comment on Clauses (a) and (b):

g. Risk of harm. An activity that is abnormally dangerous ordinarily involves a high degree of risk of serious harm to the person, land or chattels of others. The harm threatened must be major in degree, and sufficiently serious in its possible consequences to justify holding the defendant strictly responsible for subjecting others to an unusual risk. It is not enough that there is a recognizable risk of some relatively slight harm, even though that risk might be sufficient to make the actor’s conduct negligent if the utility of his conduct did not outweigh it, or if he did not exercise reasonable care in conducting it. If the potential harm is sufficiently great, however, as in the case of a nuclear explosion, the likelihood that it will take place may be comparatively slight and yet the activity be regarded as abnormally dangerous.

Some activities, such as the use of atomic energy, necessarily and inevitably involve major risks of harm to others, no matter how or where they are carried on. Others, such as the storage of explosives, necessarily involve major risks unless they are conducted in a remote place or to a very limited extent. Still others, such as the operation of a ten-ton traction engine on the public highway, which crushes conduits beneath it, involve such a risk only because of the place where they are carried on. In determining whether there is such a major risk, it may therefore be necessary to take into account the place where the activity is conducted, as to which see Comment j.

Comment on Clause (c):

h. Risk not eliminated by reasonable care. Another important factor to be taken into account in determining whether the activity is abnormally dangerous is the impossibility of eliminating the risk by the exercise of reasonable care. Most ordinary activities can be made entirely safe by the taking of all reasonable precautions; and when safety cannot be attained by the exercise of due care there is reason to regard the danger as an abnormal one.

There is probably no activity, unless it is perhaps the use of atomic energy, from which all risks of harm could not be eliminated by the taking of all conceivable precautions, and the exercise of the utmost care, particularly as to the place where it is carried on. Thus almost any other activity, no matter how dangerous, in the center of the Antarctic continent, might be expected to involve no possible risk to any one except those who engage in it. It is not necessary, for the factor stated in Clause (c) to apply, that the risk be one that no conceivable precautions or care could eliminate. What is referred to here is the unavoidable risk remaining in the activity, even though the actor has taken all reasonable precautions in advance and has exercised all reasonable care in his operation, so that he is not negligent. The utility of his conduct may be such that he is socially justified in proceeding with his activity, but the unavoidable risk of harm that is inherent in it requires that it be carried on at his peril, rather than at the expense of the innocent person who suffers harm as a result of it. Thus the manufacture in a city of certain explosives may involve a risk of detonation in spite of everything that the manufacturer may reasonably be expected to do; and although he may not be negligent in manufacturing them at all, he is subject to strict liability for an abnormally dangerous activity-

A combination of the factors stated in Clauses (a), (b) and (c), or sometimes any one of them alone, is commonly expressed by saying that the activity is “ultrahazardous,” or “extra-hazardous.” Liability for abnormally dangerous activities is not, however, a matter of these three factors alone, and those stated in Clauses (d), (e), and (f) must still be taken into account.

As to strict liability for ground damage resulting from aviation, see § 520A.

Comment on Clause (d):

i. Common usage. An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community. It does not cease to be so because it is carried on for a purpose peculiar to the individual who engages in it. Certain activities, notwithstanding their recognizable danger, are so generally carried on as to be regarded as customary. Thus automobiles have come into such general use that their operation is a matter of common usage. This, notwithstanding the residue of unavoidable risk of serious harm that may result even from their careful operation, is sufficient to prevent their use from being regarded as an abnormally dangerous activity. On the other hand, the operation of a tank or any other motor vehicle of such size and weight as to be unusually difficult to control safely, or to be likely to damage the ground over which it is driven, is not yet a usual activity for many people, and therefore the operation of such a vehicle may be abnormally dangerous.

Although blasting is recognized as a proper means of excavation for building purposes or of clearing woodland for cultivation, it is not carried on by any large percentage of the population, and therefore it is not a matter of common usage. Likewise the manufacture, storage, transportation and use of high explosives, although necessary to the construction of many public and private works, are carried on by only a comparatively small number of persons and therefore are not matters of common usage. So likewise, the very nature of oil lands and the essential interest of the public in the production of oil require that oil wells be drilled, but the dangers incident to the operation are characteristic of oil lands and not of lands in general, and relatively few persons are engaged in the activity.

The usual dangers resulting from an activity that is one of common usage are not regarded as abnormal, even though a serious risk of harm cannot be eliminated by all reasonable care. The difference is sometimes not so much one of the activity itself as of the manner in which it is carried on. Water collected in large quantity in a hillside reservoir in the midst of a city or in coal mining country is not the activity of any considerable portion of the population, and may therefore be regarded as abnormally dangerous; while water in a cistern or in household pipes or in a barnyard tank supplying cattle, although it may involve much the same danger of escape, differing only in degree if at all, still is a matter of common usage and therefore not abnormal. The same is true of gas and electricity in household pipes and wires, as contrasted with large gas storage tanks or high tension power lines. Fire in a fireplace or in an ordinary railway engine is a matter of common usage, while a traction engine shooting out sparks in its passage along the public highway is an abnormal danger.

Comment on Clause (e):

j. Locality. Another factor to be taken into account in determining whether an activity is abnormally dangerous is the place where it is carried on. If the place is one inappropriate to the particular activity, and other factors are present, the danger created may be regarded as an abnormal one.

Even a magazine of high explosives, capable of destroying everything within a distance of half a mile, does not necessarily create an abnormal danger if it is located in the midst of a desert area, far from human habitation and all property of any considerable value. The same is true of a large storage tank filled with some highly inflammable liquid such as gasoline. Blasting, even with powerful high explosives, is not abnormally dangerous if it is done on an uninhabited mountainside, so far from anything of considerable value likely to be harmed that the risk if it does exist is not a serious one. On the other hand, the same magazine of explosives, the hugh storage tank full of gasoline or the blasting operations all become abnormally dangerous if they are carried on in the midst of a city.

So likewise, the collection of large quantities of water in irrigation ditches or in a reservoir in open country usually is not a matter of any abnormal danger. On the other hand, if the reservoir is constructed in a coal mining area that is honeycombed with mine passages, or on a bluff overhanging a large city or if water is collected in an enormous standing tank above the same city, there is abnormal danger and strict liability when, without any negligence, the water escapes and does harm.

In other words, the fact that the activity is inappropriate to the place where it is carried on is a factor of importance in determining whether the danger is an abnormal one. This is sometimes expressed, particularly in the English cases, by saying there is strict liability for a “non-natural” use of the defendant’s land.

There are some highly dangerous activities, that necessarily involve a risk of serious harm in spite of all possible care, that can be carried on only in a particular place. Coal mining must be done where there is coal; oil wells can be located only where there is oil; and a dam impounding water in a stream can be situated only in the bed of the stream. If these activities are of sufficient value to the community (see Comment k), they may not be regarded as abnormally dangerous when they are so located, since the only place where the activity can be carried on must necessarily be regarded as an appropriate one.

Comment on Clause (f):

k. Value to the community. Even though the activity involves a serious risk of harm that cannot be eliminated with reasonable care and it is not a matter of common usage, its value to the community may be such that the danger will not be regarded as an abnormal one. This is true particularly when the community is largely devoted to the dangerous enterprise and its prosperity largely depends upon it. Thus the interests of a particular town whose livelihood depends upon such an activity as manufacturing cement may be such that cement plants will be regarded as a normal activity for that community notwithstanding the risk of serious harm from the emission of cement dust. There is an analogy here to the consideration of the same elements in determining the existence of a nuisance, under the rule stated in § 831; and the Comments under that Section are applicable here, so far as they are pertinent.

Thus in Texas and Oklahoma, a properly conducted oil or gas well, at least in a rural area, is not regarded as abnormally dangerous, while a different conclusion has been reached in Kansas and Indiana. California, whose oil industry is far from insignificant, has concluded that an oil well drilled in a thickly settled residential area in the city of Los Angeles is a matter of strict liability.

In England, “a pluvial country, where constant streams and abundant rains make the storage of water unnecessary for ordinary or general purposes,” a large reservoir in an inappropriate place has been found to be abnormally dangerous. In west Texas, a dry land whose livestock must have water, such a reservoir is regarded as “a natural and common use of the land.” The same conclusion has been reached by many of the western states as to irrigation ditches.

Comment:

1. Function of court. Whether the activity is an abnormally dangerous one is to be determined by the court, upon consideration of all the factors listed in this Section, and the weight given to each that it merits upon the facts in evidence. In this it differs from questions of negligence. Whether the conduct of the defendant has been that of a reasonable man of ordinary prudence or in the alternative has been negligent is ordinarily an issue to be left to the jury. The standard of the hypothetical reasonable man is essentially a jury standard, in which the court interferes only in the clearest cases. A jury is fully competent to decide whether the defendant has properly driven his horse or operated his train or guarded his machinery or repaired his premises, or dug a hole. The imposition of strict liability, on the other hand, involves a characterization of the defendant’s activity or enterprise itself, and a decision as to whether he is free to conduct it at all without becoming subject to liability for the harm that ensues even though he has used all reasonable care. This calls for a decision of the court; and it is no part of the province of the jury to decide whether an industrial enterprise upon which the community’s prosperity might depend is located in the wrong place or whether such an activity as blasting is to be permitted without liability in the center of a large city.

On Rehearing

JONES, Justice.

On application for rehearing, Appellees (supported by amicus curiae brief) contend, inter alia, that the Court of Civil Appeals and not this Court has exclusive jurisdiction of this appeal. Because the dissent and not the majority opinion addressed this jurisdictional issue, we accede to Appellees’ insistence that we do so.

The Court of Civil Appeals jurisdiction is fixed by Code 1975, § 12-3-10:

“The court of civil appeals shall have exclusive appellate jurisdiction of all civil cases where the amount involved, exclusive of interest and costs, does not exceed $10,000.00 ...”

In the context of the instant case, the key phrase is “where the amount involved .. . does not exceed $10,000.00." One of the substantive issues presented by this appeal was the propriety of the trial court’s order disallowing Plaintiffs’ amendments in circuit court. If allowed, each of the Plaintiff’s claims would exceed $10,000. Not until this Court entertained the appeal and ruled adversely to Plaintiffs on this issue could it be said that each of the consolidated claims did not exceed $10,000 in amount. Either this Court had jurisdiction in the first instance (and, if so, retained jurisdiction for the purpose of full disposition of the appeal) or it did not have the power to decide any issue presented.

We are aware that Appellees’ position is supported by the following sentence from the dissenting opinion: “Affirmance by the majority of the order denying the amendments to plaintiffs’ complaints seeking more than five thousand dollars as damages is positive concession that these appeals are not within the jurisdiction of this court.” By way of authority the dissent concludes: “To rule otherwise, the majority would, perforce, repeal Rule 13(j), ARCP.”

The minority’s proposition is self answering. “Affirmance by the majority” of the issue relating to the amendments necessarily (and “perforce,” if you please) means that this Court assumed jurisdiction of an appeal where the amount involved exceeded $10,000. Such “affirmance” constitutes an enforceable order only if this Court acted with jurisdiction. To be sure, once the appeal was entertained and the trial court’s order disallowing the amendments was affirmed, each of the claims involved an amount less than $10,000. But we know of no authority (nor have we been aided by Appellees, amicus curiae, or the dissenters in this regard) for the splitting of appellate jurisdiction under these circumstances. This Court cannot take jurisdiction for the disposition of one issue, and then, in light of its holding, dismiss (or transfer) the appeal for lack of jurisdiction.

Suppose, for example, that a jury verdict were rendered, and judgment entered thereon, for $15,000. On motion for J.N. O.V., defendant’s only ground insists that $9,000 is the highest award supported by the evidence. On appeal, the only issue presented is the propriety of the trial court’s order overruling defendant’s motion. Under the rationale urged by appellees, this Court’s reversal (thus fixing the plaintiff’s judgment at $9,000) would strip it of jurisdiction and mandate dismissal of the appeal, thus leaving the $15,000 judgment undisturbed; and this for the reason that, if this Court has no jurisdiction, it had no power to reverse on the damage issue.

Likewise, here, if we have no jurisdiction, we have no power to affirm on the amendment issue. And we have been careful to note that Appellees’ lack of jurisdiction argument is premised on the validity of our order affirming the trial court’s denial of the amendments to the ad damnum clause of each of Plaintiff’s claims. In the absence of a judgment fixing the amount of recovery, the amount claimed in the pleadings is the only guide by which jurisdiction as between this Court and the Court of Civil Appeals may be determined. Although unsuccessful in their efforts to assert a higher claim on their appeal to circuit court, Plaintiffs’ proffered amendments put in controversy amounts in excess of $10,000 for each claim. Jurisdiction of this consolidated appeal is with this Court.

OPINION EXTENDED AND APPLICATION FOR REHEARING OVERRULED.

FAULKNER, SHORES and ADAMS, JJ., concur.

TORBERT, C. J., concurs to deny application for rehearing on the jurisdictional issue; but he would grant rehearing on the substantive issue.

MADDOX, J., concurs specially.

ALMON, EMBRY and BEATTY, JJ., dissent.

MADDOX, Justice

(concurring specially).

The applicants for rehearing ask:

“What pressing reasons clamor for adopting of the rule of liability without fault, and the abandonment of the rule of negligence?”

The appellees also state that given this state’s scintilla rule, there is no need for changing the standard of negligence as applied to blasting. They say: “It is axiomatic that in light of this state’s scintilla rule, a properly prepared case demonstrating even the slightest gleam or glimmer of negligence is a case to be submitted for jury determination. There are many blasting cases that have come before this Court that demonstrate the ease with which this can be done.” They then cite Crawford Coal Company v. Stephens, 382 So.2d 536 (Ala.1980). The applicants for rehearing also state that the decision of the majority was made without the necessary scientific and empirical data required for a comprehensive decision and without the input necessary to determine what effect the decision would have on the development of Alabama and the growth of its industry.

The applicants for rehearing, of course, raise some interesting questions, questions which I wrestled with conscientiously before concurring in the original opinion. Let me now state the reasons why the present state of the law compelled me to take the position I took.

.As the applicants correctly point out, Crawford Coal is an example of the ease with which negligence can be proved. If the majority opinion totally abolished the fault concept in blasting cases, as applicants for rehearing fear it does, and as some of the dissenters contend it does, then the majority opinion would be bad law, but the majority opinion clearly retains the fault concept by requiring proof of proximate causation. A close reading of Crawford Coal against the backdrop of Coalite’s Inc. v. Weeks, 284 Ala. 219, 224 So.2d 251 (Ala.1969), shows that the step taken by this decision is indeed only a short one. It certainly is not a giant leap.

I share some of the same concerns the applicants have about the role of this Court when faced with a rule which no longer serves the public good. In Henderson v. Wade Sand and Gravel Corp., 388 So.2d 900 (Ala.1980), I dissented on the ground that if the rule of law stated in prior decisions of this Court no longer served the public good and did not strike a balance between the competing interests, the remedy should come from the Legislature which was best suited to consider and evaluate the competing rights, duties and societal interests. The question may be asked, and appropriately so, why this case is different.

I think this case is different, because in Crawford Coal, supra, this Court affirmed a judgment based upon proof which essentially only connected the blasting as the proximate cause of the injury.

The majority decision still requires a plaintiff to show that blasting was the proximate cause of the plaintiff’s injury and damage. While the decision does lighten plaintiff’s burden of proof quantitatively, it does not necessarily do so qualitatively-

EMBRY, Justice

(dissenting):

The reasoning of the majority opinion on rehearing regarding the jurisdictional question turning on “the amount involved” is even more incredible than that employed upon original deliverance! By a convoluted and contorted illogic, the amount involved suddenly becomes not what was actually claimed in the ad damnum clause of the dismissed Count One of each of the complaints but rather what was claimed in the impermissible and disallowed amendments to those counts. This being the case, this court had no jurisdiction. This fact should have been noted at the time the record reached this court and the cases should have thereupon been transferred to the Court of Civil Appeals. See Williamson v. Birmingham Transit Corp., 344 So.2d 489 (Ala.1977); cf. Great Central Insurance Company v. Edge, 292 Ala. 613, 298 So.2d 607 (1974). Under this state of the law, anytime a litigant wishes to bypass the Court of Civil Appeals, all that need be done is to proffer some known illegal or impermissible claim or amendment that recites a sum in excess of ten thousand dollars and in spite of it being properly stricken or disallowed, behold, you now have direct access to this court. What more specious reasoning can there be?

I reiterate my views concerning the merits, previously expressed in the original dissent.

ALMON and BEATTY, JJ., concur.

      . Five separate claims were consolidated in the trial court and on appeal.

      . See, e. g., Coalite Inc. v. Weeks, 284 Ala. 219, 224 So.2d 251 (1969); Milford v. Tidwell, 276 Ala. 110, 159 So.2d 621 (1963); Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So.2d 229 (1963); Central Iron & Coal Co. v. Vandenheuk, 147 Ala. 546, 41 So. 145 (1906).

      . See, e. g., Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968); Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So.2d 229 (1963); Bessemer Coal, Iron & Land Co. v. Doak, 152 Ala. 166, 44 So. 627 (1907).

      . We note with interest that the legal scholars’ debate in this field centers not on the trespass/trespass on the case dichotomy; rather, as J. Fleming, The Law of Torts 40 (4th ed. 1971), states:
      “In many American blasting cases, it has been held that damage from flying rocks is trespass, but from vibration or concussion at most nuisance. This proposition, which has been castigated as a marriage of legal technicality with scientific ignorance, is nonetheless commendable because any encroachment of trespass on the field traditionally occupied by nuisance would lead to undesirable restrictions on users of land.” (Emphasis added.)

      . Blasting regulations are specifically promulgated under the Coal Surface Mining Reclamation Act in § 9-16-41, Code 1975. Of course, those in the blasting industry argue that these regulations are far too restrictive to apply in any context other than mining.

      . Because of its utility in the management of a blasting case in the trial court, we append hereto a copy of the Restatement (Second) of Torts, §§519 and 520, with Comments.

      . We note that this aspect of our holding, particularly the determination of the issue of “abnormally dangerous activity,” is at odds with Comment (1) of the Restatement. Consistent with our holdings in Casrell and Atkins, we adhere to the traditional rule of submitting both the issue of culpability and proximate cause to the jury except where no dispute of fact is presented on the issue by the evidence.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Cecil Deron YOUNG v. STATE of Alabama.
    80-22.
    Supreme Court of Alabama.
    May 1, 1981.
    Rehearing Denied, May 28, 1981.

      C. B. Caine, Jr., Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   FAULKNER, Justice.

This case, on its first trip to this Court, was reversed because the trial Court did not state in its order transferring Young, a juvenile, from the Juvenile Court to the Circuit Court for trial as an adult, that there was probable cause to transfer. See Young v. State of Alabama, 387 So.2d 825 (Ala.1980). On remand, the trial court finds probable cause, and has complied with § 12-15-34(d), Code 1975. The Court’s order dated September 12, 1980, transferring the case to the Circuit Court, Criminal Division, is due to be and is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    James R. TYSON, et al. v. JOHNS-MANVILLE SALES CORPORATION, et al.
    79-144 to 79-153, 79-323 and 79-518 to 79-523.
    Supreme Court of Alabama.
    May 15, 1981.

      M. Clay Alspaugh and R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham, for appellants.
    Albert H. Parnell and A. Lane Young of Freeman & Hawkins, Atlanta, Ga., and Lyman H. Harris of Lorant, Harris & Yearout, Birmingham, for Johns-Manville Sales Corp.
    James L. Clark of Lange, Simpson, Robinson & Sommerville, Birmingham, for ap-pellee Owens-Corning Fiberglass Corp.

      Thomas W. Christian of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee Celotex Corp.
    James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee Forty-Eight Insulation, Inc.
    John H. Morrow and Walter J. Sears, III, Birmingham, Henry G. Garrard, III of Erwin, Epting, Gibson & McLeod, Athens, Ga., for appellee Pittsburgh Corning Corp. and Combustion Engineering, Inc.
    Wilbur J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellee Eagle-Picher Industries, Inc.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellee Fibreboard Corp.
    William B. Eyster of Eyster, Eyster, Key & Tubb, Decatur, for appellee Keene Corp.
    Eugene D. Martenson of Huie, Fernam-bucq, Stewart & Smith, Birmingham, for appellee Unarco Industries, Inc.
    Joe R. Wallace of Davies, Williams & Wallace, Birmingham, for appellee Armstrong Cork Co.
    William E. Hereford of Hereford & Blair, Pell City, for appellee Nicolet Industries.
    John W. Clark, Jr. of Porterfield, Scholl, Clark & Harper, Birmingham, for appellee Rock Wool Manufacturing Co.
    Sydney F. Frazier, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellee GAF Corp.
    William J. Sullivan, Jr. of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee Flintkote Company, Inc.
    Robert D. Norman of Norman, Fitzpatrick & Wood, Birmingham, for appellee Standard Asbestos Manufacturing and Insulating Co., Inc.
    W. Michael Atchison of Stranes & Atchi-son, Birmingham, for appellee Raybestos-Manhattan, Inc.
   PER CURIAM.

This is a consolidated appeal by plaintiff asbestos workers, from an order entered in favor of the defendant manufacturers of asbestos products allegedly causing asbestosis injury to the plaintiffs, which held Act No. 80-566, Acts of Alabama 1980, to be inapplicable to these cases and unconstitutional. We reverse the judgment appealed from and remand the several cases for reconsideration in light of this opinion.

The plaintiffs are or have been asbestos insulation workers with the exception of one plaintiff, who was a mason and used asbestos cement in constructing coke ovens. The plaintiffs filed suit on separate dates from November, 1977, to October, 1978. The cases were consolidated for appeal. The plaintiffs sought recovery under the Alabama Extended Manufacturer’s Liability Doctrine and for defendants’ alleged wantonness and negligence.

Defendants moved for summary judgment, which motions were granted to several defendants on the grounds that the actions were barred by the one-year statute of limitations in § 6-2-39, Code of Alabama 1975, as the plaintiffs had failed to prove exposure to defendants’ products within the year preceding the suit. On October 5, 1979, the court entered final summary judgment on these grounds as to the claims of some of the plaintiffs in favor of some of the defendants.

These plaintiffs appealed the final judgments in March, 1980. On May 19, 1980, Act No. 80-566, Acts of Alabama 1980, became effective. The Act amended § 6-2-30, Alabama Code 1975, stating that a “civil action for any injury to the person or rights of another resulting from exposure to asbestos, including asbestos-containing products, shall be deemed to accrue on the first date the injured party, through reasonable diligence, should have reason to discover the injury giving rise to such civil action” and that the provisions of the Act “shall apply retroactively to all pending causes of action.”

We remanded the cases to the circuit court “to make a determination as to the applicability, if any, of this Act to each case and also as to the constitutionality of the Act.” The circuit court ruled that:

Act No. 80-566 is not applicable to these cases and is unconstitutional for the following reasons:
(1) The legislature has expressly exempted these sixteen actions from the retroactive reach of Act No. 80-566 which applies only to causes of action.
(2) Application of a statute of limitations which would revive actions already barred is constitutionally impermissible under the Constitution of Alabama of 1901, Sec. 95.
(3) Act No. 80-566 violates the Constitution of Alabama of 1901, Sec. 45 because the retroactive feature of the Act is not expressed in the title of the Act.
(4) Since it relates only to asbestos exposure, Act No. 80-566 is void in that it violates the equal protection guarantees of both the Alabama and the federal constitutions, as well as Sec. 105 of the Alabama Constitution.

The plaintiffs appealed the circuit court ruling, stating that the court erred in holding Act No. 80-566 to be inapplicable and unconstitutional.

We remand all these claims to the trial court for reconsideration in the light of this opinion. If certain plaintiffs did not refute or take issue with defendants’ proof on summary judgment by raising a genuine issue as to plaintiffs’ exposure, then summary judgment is appropriate. Even if there is a factual question as to a plaintiff’s exposure, if, before the effective date of Act No. 80-566, one year had elapsed between the date of plaintiff’s exposure and the date on which plaintiff’s action was commenced, then that claim is nevertheless barred by the statute of limitations.

Constitutionality of the Act

We now turn to the constitutionality of Act No. 80-566. We hold that the Act is constitutional under §§ 45, 105, and the equal protection guarantees of the Alabama Constitution of 1901 and the Federal Constitution, and reverse the court’s ruling on those issues. However, we hold the Act unconstitutional under § 95 of the Alabama Constitution, as applied to actions which were time barred by the statute of limitations at the time Act No. 80-566 was passed.

A. Constitutionality under § 95 of the Alabama Constitution.

Section 95 of the Alabama Constitution of 1901 states in pertinent part that “the legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.”

Until May 19, 1980, § 0-2-30 of the Alabama Code of 1975, and Garrett v. Raytheon, 368 So.2d 516 (Ala.1979), dictated the limitations period and date of accrual of causes of actions for injury due to radiation and other insidious agents.

Under §§ 6-2-30 and 6-2-89 of the Alabama Code of 1975, all actions for injury to the person not arising from contract must be commenced within one year after the cause of action has accrued. In Garrett v. Raytheon, supra, the Court held that a cause of action for radiation injury accrued and “the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiff’s ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered.” 368 So.2d at 521. Asbestos injury, like radiation injury, results from a latent, insidious agent and, prior to the passage of Act No. 80-566 and Act No. 79-468, Alabama Acts of 1979, following Raytheon, a claim based on asbestos injury would have accrued on the last date of plaintiff’s exposure to defendant’s product.

It is true that the legislature has the inherent power to determine the period within which an action may be brought, provided that the time fixed is reasonable. Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972); Plant v. Reid, Inc., 294 Ala. 155, 313 So.2d 518 (1975). It also has the power to retroactively alter, extend, or curtail an existing limitations period. However, this power “can only be exercised so as to apply ... where the bar was not complete before the enactment of the statute, for, if the action was ... barred [before enactment], its effect would be to revive a cause of action already barred and would violate § 95....” Floyd v. Wilson, 171 Ala. 139, 141, 54 So. 528 (1911); see, Martin v. Martin, 35 Ala. 560 (1860). Such a statute may be made applicable to “an existing cause of action not then barred, provided it is clear that it was intended to be retroactive.... Cronheim v. Loveman, 225 Ala. 199, 201, 142 So. 550 (1932). [Emphasis added.] However, the Act cannot be permitted to apply retroactively to claims, such as the ones at hand, which had not been brought within one year of the date of last exposure and which, therefore, had been barred under the statute of limitations in existence at the time the action was commenced, because such application would revive a time-barred remedy in contravention of § 95.

This is not the first time that the Court has considered the question of which of two successive statutes of limitations should be applied. We have held that the statute in effect at the time of commencement of action should apply rather than that in effect at the time the cause of action arose. U. S. Veterans Administration v. Walker, 356 So.2d 631 (Ala.1978); Street v. City of Anniston, 381 So.2d 26 (Ala.1980). However, in those cases, the later statute had been enacted before the action was time barred by the previous statute.

Such, however, is not the case here. Here, the bar was complete, the plaintiffs’ remedies had been time barred and, therefore, Act No. 80-566 is unconstitutional under § 95, insofar as it is applied to their claims.

We also hold that, as applied to these time-barred claims, Act No. 80-566 offends the “existing defense” provisions of § 95. We have held that this provision applies “only to matters of substance and not to matters of form or to statutes which are remedial in nature;” that “ ‘no person has a vested right in a particular remedy ... or in particular modes of procedure’,” State Board of Optometry v. Lee Optical Company of Alabama, 284 Ala. 562, 565-566, 226 So.2d 623 (1969); and that a statute of limitations is a remedial statute that does not destroy any vested rights, Barrington v. Barrington, 200 Ala. 315, 76 So. 81 (1917). However, we have not heretofore addressed the question of whether the running of a statute of limitations creates a vested right in that defense. The weight of American authority holds that the bar does create a vested right in the defense.

Although there is some authority to the contrary with regard to actions which do not involve or affect title to property, the great preponderance of authority favors the view that one who has become released from a demand by the operation of the statute of limitations is protected against its revival by a change in the limitation law. According to this view, after a cause of action has become barred by the statute of limitations the defendant has a vested right to rely on that statute as a defense, the defense in such case being considered a vested right or property which cannot be taken away by legislation.. .. Especially is such legislation invalid if the removal of a completed statutory bar is prohibited by the state constitution.

51 Am.Jur.2d Limitation of Actions § 44 (1970) (footnotes omitted, emphasis added). See also, Dobson v. Quinn Freight Lines, 415 A.2d 814 (Me.1980); Hockman, “The Supreme Court and the Constitutionality of Retroactive Legislation,” 73 Harv.L.Rev. 692, 696 (1960); Smith, “Retroactive Laws and Vested Rights,” 5 Texas L.Rev. 231, 242-244, 248 (1927).

In the closely related area of ex post facto legislation, cases and authorities are “in agreement that if the statutory period of the statute has fully run and the bar has once attached so that the defendant could not be prosecuted under the existing statute, the law cannot be changed by future legislation so as to extend the period of limitation as to past offenses, already barred. Such a law would violate the ex post facto clause.” Black, “Statutes of Limitation and the Ex Post Facto Clauses,” 26 Kentucky Law Journal 41, 42 (1937); Moore v. State, 43 N.J.L. 203 (1881); Falter v. United States, 23 F.2d 420 (1928).

Although this area of the law is concerned with criminal matters, it is analogous to the cases before us. Our own case law recognizes this similarity. In Henry v. Thorpe, 14 Ala. 103, we stated that “statutes of limitation, it has often been held, do not enter into the contracts of parties, or affect their rights, until the presumption is complete.” Id., 14 Ala. 103, 112 (1848). Once an action is barred by a statute of limitations in existence at the time of commencement of the action, rights vest in the limitations defense which cannot be destroyed by subsequent legislative act because § 95 of the Constitution restricts the legislative power to do so.

We thus hold that Act No. 80-566 is violative of both provisions of § 95 as it is applied to these ten cases or to others which were time barred prior to the enactment of the Act.

B. Constitutionality under § 45 of the Alabama Constitution.

We now turn to the circuit court’s holding that Act No. 80-566 is unconstitutional as violative of § 45 of the Alabama Constitution of 1901, which provides in part that “each law shall contain but one subject which shall be clearly expressed in its title. ...” We disagree with this holding.

. Act No. 80-566 has only one subject and is entitled “[a]n Act to amend Section 6-2-30 of the Code of Alabama, 1975, which relates to the commencement of civil actions, so as to specify the date on which a civil action for injury to the person or rights of another resulting from exposure to asbestos shall first be deemed to accrue.” There is no statement in the title that the law is retroactively applicable to pending causes of action. Defendants contend that this omission violates § 45.

The general rules with respect to the “clear expression” requirements of § 45 are:

“[WJhen the title is so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment, it is insufficient.” Pillans v. Hancock, 203 Ala. 570, 84 So. 757, 759 (1919).
“ ‘The title must be such, at least, as fairly to support or give a clue to the subject dealt with in the act, and unless it comes up to this standard, it falls below the constitutional requirements.’ ” Clutts v. Jefferson County Board of Zoning Adjustment, 282 Ala. 204, 210, 210 So.2d 679, 684 (1968).. ..

Opinion of the Justices, 294 Ala. 555, 319 So.2d 682 (1975).

We hold that the Act’s title is not misleading and that legislators and citizens would be sufficiently informed of the purpose and contents of the Act, including its possible retroactive scope.

C. Constitutionality under § 105 of the Alabama Constitution and Equal Protection Guarantees of the Alabama and Federal Constitutions.

We now turn to the lower court’s holding that, as Act No. 80-566 relates only to asbestos exposure, it violates § 105 of the Alabama Constitution of 1901, as well as equal protection guarantees of the Alabama and Federal Constitutions. Both assertions are premised on the fact that the Act relates only to asbestos exposure. The defendants assert that as § 6-5-502, Alabama Code of 1975, supra, footnote 2, provides for a discovery rule in cases of injury resulting from “exposure to some toxic or harmful or injury-producing substance, element or particle, including radiation,” § 6-5-502(b)(ii), it is a general law which provides for asbestos injury and bars passage of Act No. 80-566 as a special law. Defendants also assert that Act No. 80-566 arbitrarily and unequally discriminates against these defendants as manufacturers or dealers of asbestos-containing products in that it subjects them to a retroactive discovery rule.

We will first consider whether the Act is constitutional under § 105 of the Alabama Constitution of 1901. Section 105 states that “[n]o special, private or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law. ... ” A general law is a “law which applies to the whole state,” and a special or private law “is one which applies to an individual, association or corporation.” Alabama Constitution of 1901, § 110.

“[I]t is the duty of the court to uphold a law when it is fairly susceptible of two interpretations, one of which maintains its constitutionality and the other strikes it down, though the adoption of the former be the less natural.... ” State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473 (1928). It is our duty to construe an act as a general one when it is so worded and framed as to be reasonably susceptible to interpretation as such, in order to save its constitutionality. Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667 (1968); Young v. State, 283 Ala. 676, 220 So.2d 843 (1969). Act No. 80-566 clearly applies to the whole state. There is no provision reserving it to asbestos workers from a particular family, construction company, union, city, or county. On the contrary, the legislature expressly intended it to apply to “any” and “all Alabama citizens suffering the effects of” asbestos exposure, Act No. 80-566, § 1. Regardless of whether the Products Liability Act, Act No. 79-468, Alabama Acts of 1979, is construed as a general law, Act No. 80-566 is itself a general, not a special, law and, thus, is constitutional under § 105.

Nor do we find Act No. 80-566 to be unconstitutional under the Fourteenth Amendment of the Federal Constitution or under the equal protection guarantees of the Alabama Constitution of 1901, §§ 1, 6, and 22, Peddy v. Montgomery, 345 So.2d 631 (Ala.1977). As a prefatory note, it is important to state that we cannot find the Act invalid “because [we] think there are elements therein which are violative of natural justice, ... harsh or in some degree unfair ... or ... of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expedience are held exclusively for the legislative bodies.. . . [T]he only question for the court to decide is one of power, not of expediency or wisdom.” Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810 (1944); Ferguson v. Skrupa, 372 U.S. 726, 729, 83 S.Ct. 1028, 1030, 10 L.Ed.2d 93 (1963). Whether in fact the Act will efficaciously or wisely accomplish the purposes of the Act is not the question; the equal protection clause is satisfied by our conclusion that the legislature could rationally have decided that it would do so. Minnesota v. Clover Leaf Creamery Co.,-U.S.--, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981).

[The legislature is] not required to convince the courts of the correctness of [its] legislative judgments. Rather “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111 [99 S.Ct. 939, 950, 59 L.Ed.2d 171] (1979). See also Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 425 [72 S.Ct. 405, 408, 96 L.Ed. 469] (1952); Henderson Co. v. Thompson, 300 U.S. 258, 264-265 [57 S.Ct. 447, 450, 81 L.Ed. 632] (1937).
Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U.S. 144, 153-154 [58 S.Ct. 778, 784, 82 L.Ed. 1234] (1938), they cannot prevail so long as “it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.” Id., at 154 [58 S.Ct. at 784]. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering- evidence in court that the legislature was mistaken....
... [I]t is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature.

Minnesota v. Clover Leaf Creamery Co., supra, 101 S.Ct. at 724 and 727.

The defendants assert that the Act unreasonably discriminates against manufacturers and sellers of asbestos products by singling them out as a class. However, the Fourteenth Amendment does not deny to the states the power to treat different classes of persons in different ways. The classification must not be unrelated to the objective of the statute and “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.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).

Classification is an inherent power of the Legislature but it must not be arbitrary or unreasonable. In order to justify interference by the courts with the wide discretion which the Legislature has in such matters, it should appear that the interests of those generally affected by the act, as distinguished from those of a particular class, require such interference. In Re: Opinion of the Justices, 252 Ala. 559, 561, 42 So.2d 56 (1949).

Sellers v. Edwards, 289 Ala. 2, 6, 265 So.2d 438, 439 (1972).

A statutory discrimination between classes is held to be relevant to a permissible legislative purpose if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); State v. Pure Oil Company, 256 Ala. 534, 55 So.2d 843 (1951).

The health, safety, and the provision of a remedy for Alabama citizens who are exposed to asbestos and thereby suffer injury are legitimate and reasonable objectives of the legislature. The classifications specified in the Act are Alabama citizens “suffering the effects of any long-term disease process ... caused by exposure to asbestos” and “a third party tortfeasor ... proximately causpng]” the damages, Act No. 80-566, § 1. These classifications bear a “fair and substantial relation” to the above legislative objectives.

Although Act No. 80-566 does benefit persons injured by exposure to asbestos as opposed to those injured by other latent and insidious agents, the legislature’s approach is supportable under precedent. The Supreme Court has made it clear that the legislature need not “strike at all evils at the same time or in the same way,” Minnesota v. Clover Leaf Creamery Co., supra, 101 S.Ct. at 725, citing Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086 (1935). It is legitimate for the legislature to proceed “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); Minnesota v. Clover Leaf Creamery Co., supra, 101 S.Ct. at 725; New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). See, also, Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966); Railway Express Agency v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949). As the solution of the instant problem is a legitimate legislative objective and the classification used to achieve that objective is a reasonable one, the legislature here is not exceeding its constitutional prerogative in addressing asbestos injury alone in Act No. 80-566.

We uphold the constitutionality of Act No. 80-566 insofar as it establishes a discovery rule for the accrual of asbestos injury actions in Alabama and allows one year after discovery for the commencement of actions. We hold, however, that § 95 prevents its application to claims time barred under § 6-2-30, Alabama Code of 1975, and Garrett v. Raytheon, supra, at the time of passage of Act No. 80-566. We reverse and remand these cases for reconsideration in light of this opinion.

REVERSED AND REMANDED.

All the Justices concur.

      . Act No. 80-566, Acts of Alabama 1980, is entitled:
      [An Act] [t]o amend Section 6-2-30 of the Code of Alabama, 1975, which relates to the commencement of civil actions, so as to specify the date on which a civil action for injury to the person or rights of another resulting from exposure to asbestos shall first be deemed to accrue.
      The Act states in full as follows: .

        Be It Enacted by the Legislature of Alabama:

      Section 1. Legislative Intent. The purpose of this amendment is to assure that the statute of limitations for injuries or deaths caused by exposure to asbestos, including asbestos-containing products, does not run on any Alabama citizen before that citizen has at least the opportunity to discover that cause of action.

        It is the intent of the Legislature that all Alabama citizens suffering the effects of any long-term disease process covered by this Bill should not be prevented by any statute of limitations from recovering the full measure of damages proximately caused by a third party tortfeasor which are allowable under any civil theory of liability, provided action is . brought within the statutory period of limitation from the date of accrual.
      Section 2. Section 6-2-30 of the Code of Alabama 1975, is hereby amended to read as follows:
      “§ 6-2-30. All civil actions must be commenced after the cause of action has accrued within the period prescribed in this article and not afterwards, unless otherwise specifically provided for in this Code.
      “A civil action for any injury to the person or rights of another resulting from exposure to asbestos, including asbestos-containing products, shall be deemed to accrue on the first date the injured party, through reasonable diligence, should have reason to discover the injury giving rise to such civil action. This Act shall not apply to or affect in any way, actions referred to in Section 6-5-482 of the Code of Alabama 1975.”
      Section 3. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law, and shall apply retroactively to all pending causes of action. Laws or parts of laws inconsistent with this Act are repealed.

      . Act No. 79-468, Acts of Alabama 1979, added § 6-5-500, et seq., to the Alabama Code of 1975, and established “a comprehensive system consisting of the time for commencement of actions, for discoverability of actions based on insidious disease and the repose of actions” for products liability actions. Section 6-5-502 provides limitation periods for products liability actions and states in part:
      (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 plaintiffs 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.
      Section 6-5-502 applied only to actions wherein each element accrued after the effective date of the section (July 30, 1979) and expressly does not have retroactive application, § 6-5-503. Therefore, this statute has no application in these cases, and its constitutional validity is not before us.


author: MADDOX, Justice.

text:
    Russell MATHIS v. The EMPLOYERS’ FIRE INSURANCE COMPANY.
    80-63.
    Supreme Court of Alabama.
    May 27, 1981.
    Joseph Daniell Whitehead, Dothan, for appellant.
    Connie R. Phillips and Jack J. Hall of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee.
   MADDOX, Justice.

Russell Mathis was injured when the motorcycle he was riding collided with an automobile operated by an uninsured motorist. Mathis claims that he was an “insured” under the uninsured motorist provisions of an automobile liability insurance policy issued by Employers’ Fire Insurance Company to his stepfather, Don Hollis, even though he was not living in the same house with his stepfather, but was living in a house with his mother, who at the time of the accident was separated from, and later divorced from, Hollis. The trial court concluded, as a matter of law, that Mathis was not an “insured” and granted the insurance company’s motion for summary judgment. We reverse.

The crucial issue is whether there was a scintilla of evidence that Mathis qualified as a “relative of the named insured who is a resident of the same household.”

The facts presented in support of and in opposition to the motion for summary judgment show that Russell Mathis’s mother, Juanita Cunningham Mathis, married Don Hollis in 1974 or 1975, and that Russell Mathis resided with his mother, stepfather and twelve-year-old sister, Jo Anne Mathis, at his stepfather’s home in Dothan. He used his stepfather’s address on his social security card, driver’s license and employment records. In September or October of 1976, Russell moved out of his stepfather’s house and went to live with his older brother, Kenneth Allen Mathis. Russell never lived in the same house with Don Hollis after that time.

In May of 1977, Russell’s mother separated from Hollis, and she and her daughter moved to a separate residence in Dothan. Subsequently, Russell and his older brother moved into the same residence to live with their mother and sister. On July 11, 1977, Russell was involved in the accident for which he filed a claim for benefits under the uninsured motorist provisions of the policy now being considered.

In order to decide the fundamental issue it is necessary for us to consider certain terms in the policy which define “relative,” “named insured” and “resident of the same household.” In deciding this issue, we apply the rule of law applicable in summary judgment cases, viz., that summary judgment is proper only when “there is no genuine issue as to a material fact and the movant is entitled to judgment as a matter of law.” Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

The policy issued to Don Hollis provides:

Coverage J — Uninsured Motorists (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile, provided for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. [Emphasis added.]

The term “insured” is defined under the uninsured motorist provisions of the policy as “the named insured and any relative.” The term “named insured” is, in turn, defined under the general definitional section of the policy as “the individual named in Item 1 of the declarations [in this case, Don Hollis] and also includes his spouse, if a resident of the same household.” (Emphasis added.) Likewise, the term “relative” is defined as “a relative of the named insured who is a resident of the same household.” (Emphasis added.) By virtue of these definitions, appellant’s potential status as an “insured” under the policy in question is dependent upon two factors, viz., (1) his place of residence on the date of the accident and (2) his relationship to the named insured.

In State Farm Mutual Automobile Insurance Co. v. Hanna, 277 Ala. 32, 166 So.2d 872 (1964), this Court considered the possible meanings of the nebulous term “residing” as that term appeared in a similar automobile liability insurance policy. In that case the policy contained a family exclusion provision which excluded coverage for:

Bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.

At 277 Ala. 37, 166 So.2d 876, the Court opined:

The word “residing” is an ambiguous, elastic, or relative term, and includes a very temporary, as well as a permanent, abode. Phillips v. South Carolina Tax Comm., 195 S.C. 472, 12 S.E.2d 13. It means a dwelling place for the time being, as distinguished from a mere temporary locality of existence. Drew v. Drew, 37 Me. 389. It indicates some intent of permanency of occupation as distinguished from boarding or lodging, but does not require the intent of permanency to the degree required in domicile. 2 Kent’s Comm. (10th Ed.) 576. While residence is a necessary component of domicile, residence is not always domicile. One may have a legal domicile with his family, and reside actually and personally away from his family. In such event the word “reside” may correctly denote either the technical domicile, or the actual personal residence. The word “reside” is often used to express a different meaning according to the subject matter. In re Seidel, 204 Minn. 357 [283 N.W. 742].

See also, Crossett v. St. Louis Fire and Marine Insurance Co., 289 Ala. 598, 269 So.2d 869 (1972). In the instant case, we are confronted with the construction and application of similar terminology. The term “resident,” like the term “residing,” is “an ambiguous, elastic, or relative term.” Tencza v. Aetna Casualty & Surety Co., 21 Ariz.App. 552, 521 P.2d 1010 (1974), citing Crossett, supra. It is defined in 77 C.J.S. Resident p. 305 (1952) as follows:

The word “resident” is in common usage, and many definitions of it are to be found in the decisions. It is, nevertheless, difficult to give an exact, or even a satisfactory, definition, for the term is flexible, elastic, slippery and somewhat ambiguous.
“Resident” has no technical meaning, and no fixed meaning applicable to all cases, but rather it has many meanings, and is used in different and various senses, and it has received various interpretations by the courts. Generally the construction or signification of the term is governed by the connection in which it is used, and depends on the context, the subject matter, and the object, purpose, or result designed to be accomplished by its use, and its meaning is to be determined from the facts and circumstances taken together in each particular case.

Courts have recognized that to be a “resident” of a named insured’s household an individual must be more than a temporary or transient visitor, and must actually live with others in the same household for a period of some duration. Hardware Mutual Casualty Co. v. Home Indemnity Co., 50 Cal.Rptr. 508, 241 Cal.App.2d 303 (1966); Pamperin v. Milwaukee Mutual Ins. Co., 55 Wis.2d 27, 197 N.W.2d 783 (1972). This determination is simplified when the purported “resident” is actually living in the named insured’s home and intends some permanency of occupation; however, a more difficult question arises when, as in the present case, persons who claim to be “residents of the same household” are not, in fact, living together under one roof. In such instances, the trier of fact must ascertain the respective intentions of the parties.

In Southern Farm Bureau Casualty Insurance Co. v. Kimball, 552 S.W.2d 207 (Tex.Civ.App.1977), the court, citing cases from several jurisdictions, stated the rule as follows:

The controlling test of whether persons are residents of the same household at a particular time, within the meaning of the policy in question is not solely whether they are then residing together under one roof. The real test is whether the absence of the party of interest from the household of the alleged insured is intended to be permanent or only temporary — i. e., whether there is physical absence coupled with an intent not to return. In American States Ins. Co. v. Walker, 26 Utah 2d 161, 486 P.2d 1042, 1044 (1971), the court said that the residence in question “emphasizes membership in a group rather than an attachment to a building”; and that it is “a matter of intention and choice” rather than one of location. Under proper facts, it has been held that separations from the common roof by college students, by members of the military services, and by spouses (albeit with divorce actions pending) did not, per se, destroy their household membership with their families and spouses. See, Crossett v. St. Louis Fire and Marine Ins. Co., 289 Ala. 598, 269 So.2d 869 (1972); Manuel v. American Employers Insurance Company, 228 So. 321 (La.App., 1939); Giese v. Karstedt, 30 Wis.2d 630, 141 N.W.2d 886 (1966); Allstate Ins. Co. v. Jahrling, 12 N.Y.2d 943, 238 N.Y.S.2d 517, 188 N.E.2d 791 (1963); Doern v. Crawford, 36 Wis.2d 470, 153 N.W.2d 581 (1967); American Casualty Co. v. Harleysville Insurance, 238 Md. 322, 208 A.2d 597 (1965); Lumbermen’s Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104 (Alaska Sup., 1963). Related annotations are found in 173 A.L.R. 901,1 A.L.R.2d 557, 78 A.L.R.2d 1395, and 46 A.L.R.3d 1024.

The Court in Tencza v. Aetna Casualty & Surety Co., supra, came to a similar conclusion and determined that “[residence emphasizes membership in a group rather than an attachment to a building — it is a matter of intention and choice rather than one of geography.”

Focusing solely upon the relationship between Russell and his stepfather, we perceive no factual basis upon which appellant might be considered a “resident” of his stepfather’s household. To the contrary, Russell’s action in moving out of his stepfather’s home to live with his brother manifested an intention on his part to establish a separate residence. Nevertheless, Russell may still be entitled to insurance benefits if his mother qualifies as a “named insured” under the policy. Here again, this depends upon whether, on the date of the accident, Russell’s mother was a resident of Don Hollis’s (i. e., the individual named in Item 1 of the declarations) household. If so, Russell’s mother would be a “named insured” under the policy and appellant would be a relative of the “named insured” who is a resident of the same household.

We hold that there is at least a scintilla of evidence to support a finding that Russell’s mother was a resident of Don Hollis’s household on the date of the accident, although it is undisputed that on the date of the accident she was separated from her husband. As noted previously, living under the same roof is not the sole test for determining a common residency. Although Mrs. Hollis eventually filed for divorce in September of 1977, she stated in an affidavit that on the date of the accident, she was uncertain about her relationship with Mr. Hollis. There had been previous separations between the Hollises which ended in reconciliation and Mr. Hollis was seeking a reconciliation on this occasion. These facts constituted at least a scintilla of evidence that Mrs. Hollis had not, on the date of the accident, formed a definite intent to permanently remove herself from her husband’s household.

There are numerous cases in which appellate courts have considered the factual question of whether a husband and wife remain residents of the same household during a marital separation. See generally, Annot, 96 A.L.R.3d 804 (1980); Annot., 93 A.L.R.3d 420 (1979). In resolving this question, courts have focused upon a variety of factors in striving to ascertain the intention of the parties. In the instant case, we perceive the possibility of reconciliation as a highly significant factor. As noted by the Court in Hawaiian Insurance & Guaranty Co. v. Federated American Insurance Co., 13 Wash.App. 7, 534 P.2d 48 (1975):

From the cases which have dealt specifically with coverage during the period that one spouse has separated from the other, the basic inquiry is whether the separation was intended to be permanent without the prospect of reunion or temporary with reconciliation a possibility. Coverage continues where a spouse leaves in hope that a reconciliation may take place; but where the fixed intent is to depart permanently and reconciliation is not contemplated, coverage ceases... . [Emphasis added.]

Cf., Lumbermans Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104 (Alaska 1963); American Cas. Co. v. Harleysville Ins., 238 Md. 322, 208 A.2d 597 (1965). Indeed, there are other factors indicating that Mrs. Hollis did intend to establish a separate residence. For example, the fact that she subsequently sought and obtained a divorce is highly relevant. Cf., Neidhoefer v. Automobile Ins. Co., 182 F.2d 269 (7th Cir. 1950) (subsequent divorce relevant in establishing wife’s intention to make separation permanent); Zurich Ins. Co. v. Monarch Ins. Co. of Ohio, 247 Md. 3, 230 A.2d 330 (1967) (subsequent reconciliation relevant in establishing wife’s intention to make separation temporary). A trier of fact may well conclude that Mrs. Hollis’s separation from Don Hollis was permanent; however, that question cannot be resolved by the trial court on a motion for summary judgment.

The trial court’s action in granting appel-lee’s motion for summary judgment is due to be reversed and remanded.

REVERSED AND REMANDED.

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