(concurring in part, dissenting in part).
I would affirm the judgment and therefore I dissent in part and concur in part.
As to the first issue, the unconstitutionality of SDCL 15-2-12.1 in light of art. VI, § 20 of the South Dakota Constitution, the majority’s reference to “this court’s reputation for constancy, consistency and reasoned elaboration” has a hollow ring when the decisions on this issue are studied. Furthermore, to suggest that such reputation is strengthened by the legislature’s reaction to Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D.1984) by enactment of SDCL 15-2-12.2, is mindful of the cook, who, having split the cake layer in removing it from the pan, solves the problem by covering the flaw with icing.
To examine this issue, we must first recognize that statutes of the nature of SDCL 15-2-12.1, denominated as “supplier’s statutes” and statutes of the nature of SDCL 15-2-9, denominated as “builder’s statutes,” are commonly considered together for the purpose of constitutional analysis under “open court” provisions of state constitutions, such as art. VI, § 20 of the South Dakota Constitution. As the majority correctly notes, these statutes are not, strictly speaking, statutes of limitation, but rather operate as statutes of repose in cases such as this. This distinction was discussed in our decision in McMacken v. State, 320 N.W.2d 131, 139 (S.D.1982), aff'd on rehearing, 325 N.W.2d 60.
The record on constancy and consistency reflects that the first time this genus of statute was considered in the light of art. VI, § 20 was in McMacken, supra. The majority opinion and the dissents in that case reflect the divergency of views on the issue across the nation. The views reflected in the McMacken decision were the views of the five justices then on this bench. The McMacken decision was then followed in the decision of Mitchell Sch. Dist. No. 17-2 v. Welfl Const., 329 N.W.2d 138 (S.D.1983). The same five justices sat on that case and the same three-two decision resulted. The McMacken decision was also followed by the federal courts in Ven Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504 (8th Cir.1983).
The departure from the McMacken authority came about in Daugaard, supra, when the two dissenters in McMacken were joined by two circuit court judges in declaring the statutes in violation of art. VI, § 20 on the same theory as had been expressed in the dissents in McMacken. Daugaard was then followed in Salem School Dist. 43-3 v. Puetz Const., Inc., 353 N.W.2d 51 (S.D.1984).
It was between the McMacken and Dau-gaard cases that this case came on for trial. As the majority correctly notes, the trial court correctly followed the McMacken decision in giving the instructions to the jury. This is just such a situation that calls out for the constancy and consistency that the majority espouses. It was Daugaard that created the inconstancy and inconsistency and I suggest that the correct response is to be constant and consistent with the rule that can best stand critical scrutiny. That would be appropriate to the majority’s call for “reasoned elaboration.”
“Reasoned elaboration” is redundant because by definition “elaboration” is the art or process of elaborating, which in turn is defined as expansion, development or perfection especially by analysis or reasoning. Let us then compare the controverting decisions for their respective analytical or reasoning processes.
We must first begin this reasoning process by recognizing the long-standing rules of constitutional law that one who seeks to have a statute declared unconstitutional bears the burden of proving beyond a reasonable doubt that the statute violates a state constitutional provision. There is a strong presumption that laws enacted by the legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the *143statute violates a provision of the South Dakota Constitution. Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 72 (S.D.1979). These basic tenets of constitutional construction were wholly absent from the Daugaard decision, nor do we find them mentioned in the majority opinion.
The analysis and reasoning of the Dau-gaard decision was stated in the quotation noted by the majority:
Our constitution, as enacted by our forefathers and occasionally amended, is solid core upon which all our state laws must be premised. Clearly and unequi-vocably, our constitution directs that the courts of this state shall be open to the injured and oppressed....
SDCL 15-2-9 and SDCL 15-2-12.1 are a locked deadbolt and shackle on our courtroom doors_ SDCL 15-2-9 and SDCL 15-2-12.1 are statutes of nullification which stamp out our citizens’ causes of action before they accrue. SDCL 15-2-9 and SDCL 15-2-12.1 have transgressed constitutional limitations and therefore it is our duty to declare these two statutes unconstitutional.
In this regard, the Daugaard decision followed closely the dissents of Justices Dunn and Henderson in McMacken; Henderson, J., being the author of Daugaard.
The strident, jingoistic language of the dissenters in McMacken was rejected by the McMacken majority. The McMacken opinion examined several of the decisions supporting unconstitutionality including Lamb v. Powder River Live Stock Co., 132 F. 434 (8th Cir.1904), Overland Const. Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979), and Saylor v. Hall, 497 S.W.2d 218 (Ky.1973). The majority, however, found a Pennsylvania case, Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978), to be better reasoned.
“[N]o one ‘has a vested right in the continued existence of an immutable body of negligence law_ [T]he practical result of a [contrary] conclusion would be the stagnation of the law in the face of changing societal conditions.’ ...
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This Court would encroach upon the Legislature’s ability to guide the development of the law if we invalidated legislation simply because the rule enacted by the Legislature rejects some cause of action currently preferred by the courts. To do so would be to place certain rules of the ‘common law’ and certain noncon-stitutional decisions of courts above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law.”
McMacken, 320 N.W.2d at 137 (quoting Freezer Storage, 476 Pa. at 279-81, 382 A.2d at 720-21) (brackets in original).
This reasoning is particularly pertinent in the case we have before us. In 1951, the time of manufacture of the wheel in question, Zacher’s cause of action in strict liability was not known. Not until 1973 did South Dakota adopt strict liability as a viable cause of action in product liability cases. Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973) (adopting Restatement (Second) of Torts, § 402A as a rule of strict liability). Part of the justification for applying strict liability to the sellers of products is that public policy dictates that the burden of injuries caused by products be placed upon those who market the product and be treated as a cost of production against which liability insurance can be obtained. Restatement (Second) of Torts § 402 comment c (1977). As one author has noted, this basic premise of strict liability may not be applicable in a case involving an “old” product. Note, Daugaard v. Baltic Cooperative Building Supply Association: Statutes of Limitation Held Unconstitutional, 30 S.D.L.Rev. 157 (1984).
A basic predicate for strict liability— the ability of a manufacturer to distribute the cost of injuries in the price of his product — may not apply in cases of this kind. When the machine was sold, the manufacturer could not “cost in” tort *144liability on the basis of a standard that would evolve 20 years in the future.
Id. at 166 (quoting U.S. Dep’t. of Commerce, Interagency Task Force on Product Liability Final Report, VII-22 (1977)).
This case presents the type of scenario envisioned by the commentators when looking at the purposes behind strict liability vis-a-vis statutes of repose. Why should Budd Company be held strictly liable for a multi-piece wheel manufactured in 1951 when (1) multi-piece wheels were the only type of wheel being manufactured at that date; and (2) a cause of action in strict liability was not recognized by South Dakota courts until some twenty-two years after manufacture of the wheel?
The McMacken decision also relied on South Dakota case authority. In Behrns v. Burke, 89 S.D. 96, 229 N.W.2d 86 (1975), in examining art. VI, § 20 of the South Dakota Constitution, this court said that the provision
“is a guarantee that ‘for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy.’ ” Simons v. Kidd, 1949, 73 S.D. 41, 38 N.W.2d 883. The guest statute declares that injuries suffered by a guest •because of a host’s negligence are not caused by “ ‘wrongs as recognized by the law of the land.’ ”
Behrns, 89 S.D. at 100, 229 N.W.2d at 88. “Where no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none.” Simons v. Kidd, 73 S.D. 41, 47, 38 N.W.2d 883, 886 (1949). Conversely, where a cause of action is implied or exists at common law without statutory abrogation, a plaintiff has a right to litigate and the courts will fashion a remedy. Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669 (1959); Swanson v. Ball, 67 S.D. 161, 290 N.W. 482 (1940); Moberg v. Scott, 38 S.D. 422, 161 N.W. 998 (1917). In the very recent case of Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D. 1986), we set forth the proper application of art. VI, § 20, the “open courts” provision. In Oien, we refused to allow the legislature to extend sovereign immunity to destroy a cause of action that existed at common law. There is no common law claim in the case at hand, since strict liability was not recognized in South Dakota until 1973.
Does this new line of decisions also overrule our decision in Alberts v. Giebink, 299 N.W.2d 454 (S.D.1980), wherein we refused to adopt a discovery rule and held that a cause of action for medical malpractice must arise within two years of occurrence? Henderson, J., the author of Daugaard, concurred in the Alberts decision. Moreover, does this line of cases overrule our decision in Hunt v. Hunt, 309 N.W.2d 818 (S.D.1981), wherein this court purported to abolish the common law tort of criminal conversation? See Daugaard, 349 N.W.2d at 427 (Wollman, J., dissenting).
And, under the analysis and reasoning of this line of cases, what does the future hold for the statute of repose relating to animal trespass, SDCL 48-18-10; the statute of repose dealing with contracts for sale under the UCC, SDCL 57A-2-725; the statute of repose concerning medical malpractice actions, SDCL 15-2-14.1, or legal malpractice actions, SDCL 15-2-14.2? It appears that any abrogation or diminution of a potential cause of action would violate art. VI, § 20 under the broad stroke of Dau-gaard.
The majority cites us to two cases that have followed Daugaard: Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984) and Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985). With respect to the Arizona case, a medical malpractice action, the Arizona court adopted the Daugaard theme as supportive of the Arizona open courts provision which the decision then pointed out to be stronger than the South Dakota provision.* If our provision were as strong as *145Arizona’s, I might well agree that the Dau-gaard theme is appropriate; however, that is not the case. That is also the danger of comparing cases based solely on results, without regard to the similarity of statutory and constitutional provisions.
The Utah case, on the other hand, does involve an identical open courts provision. I concede that it numbers Utah among the states which hold statutes of repose unconstitutional. It is of more than passing interest that the opinion also goes on to discuss the affect the decision will have on previous decisions including a medical malpractice action. I further give the Utah court credit for having examined the issues with respect to both sides of the equation.
Finally, I do take issue with the majority’s suggestion that the legislative reaction to Daugaard by amending SDCL 15-2-12.1 to provide a three-year statute of limitations amounts to approval of the Daugaard theme. It is noteworthy that the same legislature also enacted SDCL ch. 15-2A, dealing with limitation of actions for construction deficiencies. SDCL 15-2A-1 sets out at great length the legislative reasoning for the necessity of a statute of repose. While it appears that the statute is nevertheless doomed to extinction under the Daugaard line of cases, it does clearly demonstrate that the legislature did not intend to “impliedly affirm the decision in Daugaard by adopting the Daugaard rationale.”
With regard to the second issue, I agree with the majority that the trial court erred in giving instruction No. 20 rather than Zacher’s proposed instruction. I would hold, however, that Zacher was not prejudiced inasmuch as, at the time of manufacture, all truck wheels manufactured in this country were multi-piece wheels. I would, therefore, not reverse on that issue.
Finally, with respect to the third issue on failure to instruct, I would not reach those issues under my argument on the constitutionality of SDCL 15-2-12.1. I concur in the balance of the issues discussed except that I would affirm the taxation of the costs as allowed by the trial court.
In Kenyon, 142 Ariz. at 74, 688 P.2d at 966 (1984), the court noted:
“Instead of an open court provision, Arizona has a more specific and stronger requirement. Art. 18, § 6, provides as follows:
*145The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”