text:
    Savannah WINDSOR et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION et al.
    SC 1294.
    Supreme Court of Alabama.
    Nov. 20, 1975.
    J. Wm. Thomason, Bessemer, for appellants.

      Huie, Fernambucq, Stewart & Smith, Birmingham, for appellees.
   MERRILL, Justice.

This appeal is from a judgment in favor of the defendants in a suit arising out of the repossession of an automobile by the finance company. We affirm.

On September 27, 1969, Savannah Windsor purchased a 1970 Buick Skylark from Jim Burke Buick in Birmingham. She signed an installment sales contract which was later assigned to General Motors Acceptance Corporation (GMAC). She made a downpayment of $525.00 and agreed to pay the balance in thirty-six monthly installments of $141.93. The debt was refinanced on December 10, 1971. Between December, 1971 and February, 1973, her payments were delinquent repeatedly. On February 16, 1973, GMAC repossessed the automobile.

Savannah Windsor then brought an action against GMAC for conversion of her automobile, invasion of privacy, and conversion of certain miscellaneous personal property. Lue Bertha Windsor, Savannah’s mother, brought an action against GMAC for “injuries suffered as a result of the Defendants intentionally engaging in a campaign to harass and intimidate her in connection with alleged arrearage of her daughter’s installment agreement with General Motors Acceptance Corporation.” The two actions were consolidated for trial. The trial judge directed a verdict in favor of the defendant in Lue Bertha’s case. The only issue submitted to the jury in Savannah’s case was whether or not there was a conversion of the personal property which Savannah claimed was in the car at the time it was repossessed. The jury returned a verdict in favor of GMAC. Savannah and Lue Bertha Windsor appeal.

Assignments of Error 4, 6, 10, and 19 are that the trial judge erred in granting defendants’ motion for a directed verdict in Lue Bertha Windsor’s case. Lue Bertha contends that GMAC harassed her and invaded her privacy in its efforts to collect Savannah’s debt.

In Norris v. Moskin Stores, 272 Ala. 174, 132 So.2d 321, it was said:

“The mere efforts of a creditor, in this case the appellees, to collect a debt cannot without more be considered a wrongful and actionable intrusion. A creditor has and must have the right to take reasonable action to pursue his debtor and collect his debt. But the right to pursue the debtor is not a license to outrage the debtor. The problem of defining the scope of the right of privacy in the debtor-creditor situation is the problem of balancing the interest of the creditor in collecting his debt against that of the debtor in his own personality. Some courts appear to have struck that balance on the so-called ‘rule of reason.’ Thus in the recent case of Housh v. Peth, 99 Ohio App. 485, 135 N.E.2d 440, 449, affirmed 165 Ohio St. 35, 133 N.E.2d 340, the Ohio appellate courts asserted that ‘a creditor has a right to take reasonable action to pursue his debtor and persuade payment, although the steps taken may result to a certain degree in the invasion of the debtor’s right of privacy,’ but that the debtor has a cause of action for injurious conduct on the part of the creditor which exceeds the bounds of reasonableness. We approve this statement.”

The pertinent evidence produced at trial is as follows: Savannah Windsor lived at home with her mother, Lue Bertha. Bill Davis, a GMAC representative in charge of accounts, contacted Savannah, either by telephone or in person at her home, about fifteen or twenty times over a one or two-year period prior to repossession about her delinquent payments. Davis did not call or come by except when Savannah was behind on her payments. Sometimes Davis would call when Savannah was not at home. He came by the house several times in spite of the fact that Lue Bertha had told him over the telephone that Savannah was not there. Lue Bertha testified that 'he “would talk down” to her, that after he called she “just went crazy, like to have died,” and that on one occasion she “went to the hospital and stayed there.” On cross-examination, Lue Bertha testified as follows:

“Q (BY MR. FERNAMBUCQ) How many times did he call you on the telephone over the period of time we’re talking about?
“A Well, it was several times, I don’t remember.
“Q As a matter of fact, when we took your deposition, you said three or four times ?
“A That’s the way it was.
“Q Three or four times ?
“A That’s right.
“Q That took place over a period of months, is that right ?
“A That’s right.
******
“Q And these three or four times when this Mr. Davis called, all he ever called you and talked to you about was the bill, about the car payment ?
“A That’s right.
“Q Did you ever talk to him face to face out there at your house ?
“A Well, I would see him, I had a window, would look out the window and see when he would get there.
“Q You were hid?
“A Yes, sir.
“Q And the only contact he made with you was three or four or maybe five times when he called you on the phone?
“A That’s right.”

From all the evidence, the trial court was convinced that there was not a scintilla of evidence in support of Lue Bertha’s allegation that GMAC unreasonably invaded her privacy in an attempt to collect Savannah’s debt. A directed verdict in favor of GMAC naturally followed and we find no error in that action.

Assignments of Error 12 and 13 are that the trial judge erred in Savannah Windsor’s case when he, in effect, directed a verdict in favor of GMAC as to the invasion of privacy issue.

In Norris v. Moskin, supra, we cited with approval Gouldman-Taber Pontiac v. Zerbst, 213 Ga. 682, 100 S.E.2d 881, and Tollefson v. Safeway Stores, (Colo.) 142 Colo. 442, 351 P.2d 274. In Zerbst, it was held that a single letter written by the defendant-creditor to the plaintiff-debtor’s employer, merely notifying him of the debt, did not constitute an actionable invasion of plaintiff’s privacy. In Safeway, a defendant bill collector informed plaintiff’s wife that if the debt were not paid, plaintiff’s job would be in jeopardy. He also contacted plaintiff’s superiors, seeking to bring pressure on plaintiff to pay. The Supreme Court of Colorado held that on these facts, plaintiff had no cause of action for invasion of privacy, pointing out that “there was no campaign of continuous harassment, no attempt to vilify or expose plaintiff to public ridicule, and no effort to cause plaintiff to lose his position.”

In the present case, after Bill Davis repossessed the car, he drove to the Alabaster police station. He told the dispatcher what he had done in the event the car was reported as having been stolen. Later that same day, a policeman went by the school where Savannah was employed. There, in the presence of the assistant principal, she was informed that her car had been repossessed. The evidence also showed that Bill Davis asked James McQueen, who was not a regular employee of GMAC, to inventory and return Savannah Windsor’s personal property which was in the car at the time it was repossessed.

From the foregoing authority and the facts presented at trial, it is evident that there was not á scintilla of evidence in support of the claimed invasion of privacy. There was no error in directing the verdict on the invasion of privacy issue.

Assignments of Error 11 and 21 are that the trial judge erred in charging the jury that “from all the evidence in the case the repossession of the automobile was not wrongful.”

Title 7 A, § 9-503, UCC, gives a secured party the right to take possession of collateral after default. Savannah Windsor admitted that she was one payment behind at the time that the automobile was repossessed. There was no error in this instruction.

Plaintiff, Savannah Windsor, also contended that some of her personal belongings in the car were not returned.

The installment sales contract provided as follows:

“[In the event of default] * * *
* * * seller or any sheriff or other officer of the law may take immediate possession of said property without demand, and without process including any equipment or accessories thereto; and for this purpose seller may enter upon the premises where said property may be and remove same. Seller may take possession of any other property in the hereinbefore-described motor vehicle at time of repossession, wherever such other property may be therein, and hold same for buyer at buyer’s risk without liability on the part of seller, buyer to be liable for any charges for storing such property incurred by seller. * * * ”

Since the removal of personal property was authorized by contract, the original taking was not wrongful per se, and the jury found in favor of defendant on this issue.

Some assignments of error deal with portions of the trial court’s oral charge. ARCP 51 provides, in part, as follows :

“ * * * No party may assign as error the giving or failing to give a written instruction, (not here applicable) or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. ‡ ‡ >{c ft

The record fails to show compliance with this part of ARCP 51 and any error connected with these charges must be deemed waived. See Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267.

Affirmed.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JT., concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Dorothy DaPonte TRABITS v. The FIRST NATIONAL BANK OF MOBILE, Alabama, a corporation.
    SC 1182.
    Supreme Court of Alabama.
    Nov. 26, 1975.

      Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellant.
    Hamilton, Butler, Riddick & Latour, Mobile, for appellee.
   BLOODWORTH, Justice.

This appeal is from a judgment of the Circuit Court of Mobile County granting appellee-trustee’s motion to dismiss appellant-beneficiary’s complaint for failure to state a claim upon which relief can be granted.

The complaint sought a declaratory judgment construing the terms of a trust under which appellant is the sole life beneficiary and appellee-bank is the named trustee. Under the terms of the trust, the beneficiary is to receive a monthly payment of $400.0 for life. After her death, the remaining corpus is to be distributed to her children and grandchildren or, if she dies childless, to the executor or administrator of her estate.

In her complaint, the beneficiary makes specific claims for relief in the alternative:

“1. Terminate said Trust Agreement because it violates the rule against per-petuities ;
“2. Terminate said Trust Agreement because of the impossibility in carrying out the material purpose or object of the Settlor to provide for successive beneficiaries, including Complainant, which material purpose or object will not now come about;
“3. Terminate said Trust Agreement because the beneficial interest in said Trust Agreement has become vested solely in Complainant and she desires and consents to said termination;
“4. Modify said Trust Agreement to order Respondent to distribute all of the income generated by the principal amount of said Trust Agreement on a monthly basis to Complainant;
“5. Modify said Trust Agreement to increase the monthly benefits paid to Complainant by an amount which the Court finds the Settlor would have done if he still lived;
“6. Complainant prays for such other, further, different and general relief as the Court deems fit and proper and offers to do equity.”

The instrument in question is dated February 23, 1943. On that date appellant, the settlor’s only child and the life beneficiary under his trust, was 26 years old. Under the original terms of the trust, the life beneficiary was to receive monthly payments in the amount of $100.00, payable out of trust.income or principal, if necessary. Pri- or to his death in 1968, the settlor twice exercised a reserved power to increase the monthly payment to the beneficiary, by first raising the monthly payment to $150.00 and by later raising it to the present level at $400.00.

This power to increase the monthly payment to the life beneficiary was reserved by the following provision in the trust: “upon delivery of any additional securities, monies, property, or other evidences of indebtedness to the trustee, [the settlor] may amend the instructions with reference to the monthly payments to be made to the beneficiary by instructing in writing the additional amount of monthly payments to be made because of the additions to the corpus of the trust.” In addition, the trust reserves to the settlor the power to add additional assets to the trust fund at any time.

In brief, the life beneficiary estimates that the trust corpus is “in excess of $150,-000.00” and that $7,000.00 in excess trust income is being added annually to the corpus. The beneficiary argues that the present accumulation of corpus and the amount of annual excess trust income added to corpus are circumstances that were not foreseen by the settlor and that, in order to effectuate the original trust purpose, it has become necessary and proper either to increase the size of the monthly payment to the beneficiary or to terminate the trust. As appellee, the trustee insists that the beneficiary’s estimates as to the value of the trust corpus and excess trust income are substantially greater than the actual market values.

In further support of her cause, the life beneficiary argues that her lack of offspring and her inability to have offspring [she has undergone a hysterectomy] foreclose the possibility of eventual distribution to remaindermen since the only remainder-men specified under the terms of the trust are the life beneficiary’s “children and grandchildren.” The life beneficiary theorizes that because she is the present owner of a beneficial interest in the trust and that because such ownership will pass to her estate upon her death, all beneficial interests under the trust have been merged under what is her common ownership, for all practical purposes.

The life beneficiary relies on case law from various jurisdictions to support her contention that merger in the same party of both a life interest and a remainder interest in the res of a trust compels the termination of the trust. Along the same line she also argues that a trust may be terminated if all parties holding beneficial interests in the trust agree to its termination.

Whether the beneficiary is entitled to the relief she requests is not an issue raised by the instant appeal. Rather, the crucial question presented is whether the court was in error in granting the trustee’s Rule 12(b) (6) motion to dismiss for failure to state a claim upon which relief can be granted. We think this was error and reverse and remand.

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) is the case most often referred to in the federal cases as setting out the proper test of the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. [That rule is exactly the same as Rule 12(b)(6), A.R. C.P.] In that case, the Supreme Court of the United States stated that:

“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed. 2d at 84. This test has been followed by this Court in the case of Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974). In Watwood, v. R. R. Dawson Bridge Co., 293 Ala. 578, 307 So.2d 692 (1974), this Court again indicated its adoption of the rule set out in Conley v. Gibson: “[I]n reviewing the sufficiency of a complaint, it should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 293 Ala. at 581, 307 So.2d at 693-94.

Under the facts of the instant case, the beneficiary claims to be entitled to a declaratory judgment in favor of the modification or termination of the trust in question. This Court has held that the proper test of the sufficiency of the complaint in a declaratory judgment proceeding is whether “the complaint states the substance of a bona fide justiciable' controversy which should be settled.” City of Bessemer v. Bessemer Theatres, Inc., 252 Ala. 117, 120, 39 So.2d 658, 660-61 (1949). The rule set out in Corretti v. First Nat’l Bank, 290 Ala. 280, 276 So.2d 141 (1973) is even more directly on point in the instant appeal. In Corretti this Court held that the sufficiency of the complaint in a declaratory judgment proceeding involving a trust is to be determined by the absence or presence of “bona fide doubt as to the true meaning and intent of the provisions of the instrument creating the trust or as to the particular course which the trustee should pursue.” 290 Ala. at 286, 276 So.2d at 146.

The trustee in this cause insists that a justiciable controversy involving’ a trust can exist only where the terms of the instrument are unclear or ambiguous. Without venturing to comment on the ambiguity vel non of the instrument involved here, we point out that there are circumstances under which a court may exercise jurisdiction over a trust instrument in the absence of any ambiguity in the terms of the instrument itself. For example, deviation from the unambiguous terms of a trust is sometimes allowed under the doctrine of equitable deviation. See Thurlow v. Berry, 249 Ala. 597, 32 So.2d 526 (1947).

The successful assertion of the theories upon which the beneficiary relies in seeking a modification or termination of the trust is dependent upon a judicial finding that the objects of the trust are those set out in her complaint. According to the Restatement (Second) of Trusts § 337, comment e at 159 (1959), if the trust purposes are expressed in the trust instrument, “a different purpose cannot be shown by extrinsic evidence.” On the other hand, if the trust purposes are not expressly stated, they may be construed from the language of the trust instrument with the aid of extrinsic evidence of circumstances surrounding the creation of the trust. Id. Our reading of the trust instrument in this case has not revealed an express statement of the purposes of the trust. Moreover, it would be inappropriate at this juncture for this Court to speculate as to the settlor’s possible purposes, • since that is a matter properly reserved for resolution in the trial court in the first instance.

We are, of course, cognizant of the long-standing general rule that “neither the settlor, trustee, or beneficiaries can change the terms of the trust” unless such changes are expressly authorized in the trust instrument. G. Bogart, Handbook of the Law of Trusts § 145, at 573 (4th ed. 1963). Likewise, we are familiar with the prevailing American rule that if compliance with the trust terms “is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination.” Restatement (Second) of Trusts § 337(2) (1959).

Although the foregoing rules represent well-settled principles of law, they are not controlling of the issues raised by this appeal. The determinative issue on this appeal is what standard should govern a motion for dismissal under Rule 12(b) (6) in a declaratory judgment proceeding. We think that the proper standard is the one set out in our case of Robinson v. Robinson, 273 Ala. 192, 136.So.2d 889 (1962), although Robinson was rendered prior to the adoption of the Alabama Rules of Civil Procedure.

In Robinson, this Court held that “[t]he test of the sufficiency of [a complaint for declaratory relief] is not whether the complaint shows that the complainant will succeed in getting a declaration of rights in accordance with his theory or contention, but whether he is entitled to a declaration of rights at all.” 273 Ala. at 195—96, 136 So.2d at 891 (emphasis added). Our application of the Robinson standard compels us to the conclusion that the beneficiary in this case was entitled to a determination of her cause, on its merits. We cannot say that, as a matter of law, it is beyond doubt that the beneficiary could not prove any set of facts which would entitle her to some part of the relief requested in her complaint. Conley v. Gibson, supra.

In considering an issue involving a 12(b) (6)motion, the Fifth Circuit Court of Appeals has admonished that “the more extreme or even far-fetched is the asserted theory of liability, the more important it is that the conceptual legal theories be explored and assayed in the light of actual facts, not a pleader’s supposition.” Shull v. Pilot Life Ins. Co., 313 F.2d 445, 447 (5 Cir., 1963) (emphasis added). This Court’s decision in Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974), follows the policy advocated in the Shull case. In Bowling, members of this Court upheld the plaintiff’s right to a determination on the merits of his cause in spite of the Court’s feeling that, “It may well be that the plaintiff has an extraordinarily hard road to travel to convince the trial court that he is entitled to have the trier of facts determine whether any part of the letter was understood in a defamatory sense . . ." 293 Ala. at 187-88, 301 So.2d at 64.

The policy mandating restraint in the granting of motions under Rule 12(b) (6), adopted by both the federal and the Alabama systems, can be implemented by application of the standard set out in Conley v. Gibson. That standard requires that the Court first determine whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id., 355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84. If the Court finds itself in doubt as to whether the plaintiff could prove such a set of facts, the motion to dismiss for failure to state a claim upon which relief can be granted must be denied. Of course, by denying a Rule 12(b) (6) motion under these circumstances and then considering the cause on its merits, the Court is not precluded from a later determination that the complainant is not entitled to the relief he seeks. In that event; the appropriate ruling is a summary judgment. We agree with the text book authorities that “[t]he motion for summary judgment provides a more expeditious and effective procedure [as contrasted to the motion for dismissal for failure to state a claim upon which relief can be granted] for quickly terminating an action that does not appear to merit relief on its substantive merits.” 5 Wright and Miller, Federal Practice and Procedure § 1357, at 603-04 (1969).

Dismissal for failure to state a claim for which relief can be granted is a tool which should be used sparingly. In view of our inability to rid ourselves of all doubt that the beneficiary cannot prove any set of facts which would entitle her to relief, we reverse the ruling of the lower court in this cause and remand the cause for further consideration in the light of this opinion.

Reversed and remanded.

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


author: MADDOX, Justice.

text:
    Doyle TRAUGHBER v. Homer RODDAM, d/b/a Roddam’s Trailer Park.
    SC 1151.
    Supreme Court of Alabama.
    Dec. 4, 1975.

      Trawick & Calhoun, Birmingham, for appellant.
    Lyman Harris, Birmingham, for appellee.
   MADDOX, Justice.

The owner of a trailer park was sued by an insurance salesman who was injured while he was calling upon one of his customers who rented a lot in the trailer park. The trailer park owner moved for summary judgment and filed with his motion a deposition of the injured party, his own deposition, and an affidavit made by him. This evidence, submitted with the motion, in substance, showed that the plaintiff was a life insurance salesman and was calling on one of his customers who rented a trailer lot from the defendant. On the customer’s rented lot, there was a concrete block which was used as a step from the top of a retaining wall to the area adjacent to the customer’s trailer. The concrete block was not secured in any way, and when the plaintiff stepped on the block on his way into the trailer, he noticed that it “quivered” with him. Later, the salesman went back to his car to get a copy of the insurance policy, and on his way back into the trailer, he stepped from the retaining wall to the concrete block. The block rolled with him, he fell, and was injured.

The trailer park owner’s deposition and his affidavit state that he and his wife own the trailer park and they rent lots to tenants under oral leases. .It is undisputed that the accident occurred on the leased lot. The landowner denied that he placed the concrete block next to the retaining wall and he said that he did not know who did. He also denied that he had entered into any covenant to repair the premises. The trial court granted summary judgment.

The plaintiff argues that a genuine issue of material fact was presented in that there was at least a scintilla of evidence that the defendant maintained some control over the improvements made on his property. The trailer park owner did testify that the tenants were free to make improvements on their lots “if they passed the Health Department inspection and the Zoning Board inspection.” Plaintiff says that this testimony indicated that the owner of the trailer park did exercise some control over what improvements were made. Plaintiff also points to the fact that the defendant built a step on the premises after plaintiff’s fall and that this evidence shows that the trailer park owner exercised some control over the improvements which could be made on the trailer lots.

We have viewed the evidence in a light most favorable to the plaintiff, as required by Rule 56, Alabama Rules of Civil Procedure, and we find that there is no genuine issue as to any material fact. The judgment of the trial court, in granting summary judgment, is affirmed.

Affirmed.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


author: BRADLEY, Judge.

text:
    W. J. SPEIGLE v. CHRYSLER CREDIT CORPORATION, a Corporation, et al.
    Civ. 617.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1975.
    Rehearing Denied Oct. 22, 1975.

      John Martin Galese, Birmingham, for appellant.
    William B. Hairston, Jr., Birmingham, for appellees.
   BRADLEY, Judge.

This case involves the repossession of an automobile under the provisions of Uniform Commercial Code, Section 9-503. Plaintiff-appellant entered into a contract with defendant-appellee Chrysler Credit Corporation to finance the purchase of a new 1973 Dodge Dart. Plaintiff fell behind in his payments, and on October 10, 1974, defendants Terry Savage and Ricky Norris repossessed the car on behalf of their employer, Chrysler Credit Corporation.

Plaintiff filed suit in the Circuit Court of Jefferson County, alleging that the repossession amounted to conversion and demanding money damages and return of the vehicle. The complaint sought declaratory judgments holding that plaintiff was not in default on the contract and that defendants’ conduct was inequitable and in breach of the peace. Additionally, plaintiff sought to have the repossession declared a deprivation of plaintiff’s property without due process of law and asked the court to declare such practices under Title 7A (Uniform Commercial Code), Section 9-503, Code of Alabama 1940, as Recompiled 1958, in violation of the fifth and fourteenth amendments to the United States Constitution. The defendants answered by denying the allegations of the complaint. Trial was had before the court sitting without a jury. A judgment was rendered for defendants.

The trial court found that plaintiff had breached the contract and that defendants were entitled to take possession of the vehicle; that there was no breach of the peace or trespass committed by defendants in the repossession of the vehicle; that there was no conversion of the vehicle by defendants inasmuch as defendants had legal title and right to possession at the time the vehicle was repossessed, nor was there unlawful detention of the vehicle for the same reason; and that plaintiff was not entitled to declaratory relief for the reason that the acts and practices of defendants in taking possession of the 1973 Dodge Dart did not deprive plaintiff of any due process rights under the State and Federal Constitutions and that self-help repossession of personal property pursuant to Title 7A, Section 9-503 is constitutional. The appeal is from that judgment.

The plaintiff’s first contention in his assignments of error is that the trial court erred in finding that at the time of the repossession of the vehicle, he was in default on his contract.

It is undisputed that plaintiff entered into an agreement with Chrysler Credit in 1973 whereby he agreed to pay for the Dodge Dart in thirty-six payments of $125.12 each, beginning on July 14, 1973 and due each month thereafter until paid for. The contract provided that if plaintiff failed to make the payments as agreed, the holder of the contract could, at its option, declare the balance remaining immediately due and repossess the automobile. The contract also provided that a waiver of any default would not be deemed as a waiver of any other default. Plaintiff failed to make his September 14, 1974 payment when it came due. Defendant Norris talked to plaintiff by telephone on October 9, 1974, and reminded him that his September 14, 1974 payment was delinquent, and asked when he was going to take care of it. Plaintiff replied that he was out of work and did not know when he would be able to make further payments. Plaintiff testified that he was then told that upon payment of a $15.00 fee, the delinquent September payment would be extended for thirty days. Norris, however, testified that he told plaintiff to pay both the September installment and an additional $15.00 in order that the October 14th payment, which was due in three or four days, could be extended.

The next day plaintiff went to defendants’ office and offered to pay $15.00 but not the September 14 payment. He was told at that time by Norris that the car was being repossessed for failure to make the September 14 payment.

After a careful review of the record in this case, we are convinced that the evidence amply supports the court’s finding that the plaintiff, having breached his contract with Chrysler Credit by failure to make the payments as agreed therein, was in default, and no error infected such finding.

Plaintiff next contends that the trial court erred in holding that no breach of the peace accompanied the repossession of the automobile. We said in Ford Motor Credit Co. v. Ditton, 52 Ala.App. 555, 295 So.2d 408, cert. den., 292 Ala. 423, 295 So. 2d 412, that:

“ . . . It has long been the law in this state that the title holder under a conditional sales contract, who becomes entitled to repossess for conditions of the contract broken, may take possession of the property, provided he does not in doing so use force or threats of violence against the person having possession or control or does not breach the peace. Street v. Sinclair, 71 Ala. 110; Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89; Folmar & Sons v. Copeland & Brantley, 57 Ala. 588; McGill v. Holman, 208 Ala. 9, 93 So. 848; Singer Sewing Machine Co. v. Hayes, 22 Ala. App. 250, 114 So. 420; Crews & Green v. Parker, 192 Ala. 383, 68 So. 287; American Discount Co. v. Wyckroff, 29 Ala.App. 82, 191 So. 790; McWaters v. Gardner, 37 Ala.App. 418, 69 So.2d 724; Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893. Title 7A, § 9-503, Uniform Commercial Code.
“The gist of the action of trespass is an injury to the possession of personal property by use of unlawful force. Unlawful force is the essential element of the action. Cox v. Stuart, 229 Ala. 409, 157 So. 460; Webb v. Dickson, 276 Ala. 553, 165 So.2d 103. Such force may be actual physical force or it may be constructive force. Constructive force in such cases has been defined in a general way as that sort, such as threats or intimidation, to compel the submission of plaintiff against his will to the appropriation of what he asserts to be his property. Jones v. Americar, Inc., supra. The threats or intimidation referred to are those which if carried out would amount to a breach of peace or if resisted would tend to promote a breach of peace. We have found no case in which such threats and intimidation did not occur in the presence of the plaintiff and at the time of the taking . . . .”

The evidence shows that plaintiff drove the car in question to defendants’ office in Mountain Brook, Alabama, although there is no evidence that he was asked to do so, and sought to negotiate some solution to his contractual default. While in the office discussing the matter, he was informed by defendant Norris that he was in default on his contract and, since he could not make the delinquent payment, the car was being repossessed. As plaintiff was being told this, and while he was still in the office, defendant Savage, another employee of Chrysler Credit, went outside and parked another automobile behind plaintiff’s car, blocking' it in so that it could not be moved. Plaintiff went outside, unaccompanied by any of Chrysler Credit’s employees, and, upon discovering this situation, went back in defendants’ office and asked for an explanation. He was again told that the vehicle had been repossessed and that he would not be allowed to drive it away. Plaintiff then called his mother to come get him. As illustrated above, the record presents no evidence of any threats or rude language spoken by defendants or their agents during the repossession, and can thus be distinguished from Crews &, Green v. Parker, 192 Ala. 383, 68 So. 287, cited by plaintiff. Furthermore, it should be noted that the repossession took place at defendants’ office and not at plaintiff’s home as occurred in the cited case. Since there is no evidence that any actual physical force or constructive force was exercised by defendants in carrying out the repossession of the vehicle or that a breach of the peace occurred during that time, the trial court’s finding to that effect is not erroneous.

Plaintiff next argues that the repossession of his automobile by defendants pursuant to the provisions of Title 7A, Section 9-503, Code of Alabama 1940, as Recompiled 1958, violated the due process clause of the fourteenth amendment to the United States Constitution, and that the failure of the trial court to so hold was error.

Title 7A, Section 9-503, Code of Alabama 1940, as Recompiled 1958, provides in part as follows:

“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. . ■ . . ”

The text of this provision is identical with the Official Text of Section 9-503 of the Uniform Commercial Code promulgated by the National Conference of Commissioners on Uniform State Laws and no;w in effect in most states. In the wake of Sniadech v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972), Section 9-503 of the U.C.C. has been challenged in a number of jurisdictions as a pre-judgment taking of property lacking in due process. In virtually every case the constitutionality of the provision has been upheld. Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973), cert. den., 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974); James v. Pinnix, 495 F.2d 206 (5th Cir. 1974); Brantley v. Union Bank & Trust Company, (dec’d. jointly with Baker v. Keeble, same citation), 362 F.Supp. 355 (M.D.Ala., 1973), aff’d. 498 F.2d 365 (5th Cir. 1974); Kirksey v. Theilig, 351 F.Supp. 727 (D. Colo., 1972).

The Alabama Supreme Court, in Rainey v. Ford Motor Credit Company, 294 Ala. 139, 313 So.2d 179, said:

“It is well-settled that the Fourteenth Amendment is directed against state action and not private action. Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253; New York Times Co. v. Sullivan, 273 Ala. 656, 144 So.2d 25, reversed 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412, motion denied, 376 U.S. 967, 84 S.Ct. 1130, 12 L.Ed.2d 83, So, in order to find a violation of due process in this case, we must first determine that §§ 9-503, 9-504 involve ‘state action.’
“In Baker v. Keeble, 362 F.Supp. 355 (D.C.1973), affirmed, 5 Cir., 498 F.2d 365, the Federal District Court listed the situations where private conduct has traditionally been deemed ‘state action’:
“ ‘As a general rule, action by a non-state official fulfills the requirement of “state action” in only three circumstances: (1) Where a state official is acting in concert with a private individual; (2) where the state compels such action; and (3) where the state law creates a power which has no common law or contractual origin. * * * ’ (Emphasis Supplied).
“ ‘At common law no judicial proceeding was necessary to foreclose a mortgage of personal property; but the mortgagee, after a forfeiture, might seize and sell the property in satisfaction of his .debt * * *.’ 11 C.J., Chattel Mortgages, § 486, p. 695; Freeman v. Freeman, 17 N.J.Eq. 44.
“The right of a creditor to repossess and resell collateral after default, where provided for by contract, was recognized in Alabama long before the adoption of §§ 9-503, 9-504. See Street v. Sinclair, 71 Ala. 110; Burns v. Campbell, 71 Ala. 271; Harmon v. Dothan Nat. Bank, 186 Ala. 36, 64 So. 621; DeMoville v. Merchants & Farmers Bank, 237 Ala. 347, 186 So. 704; Lineville National Bank v. Weaver, 16 Ala.App. 431, 78 So. 461. Thus, we find no state action, and need not reach the constitutional due process issue.”

In the present case, repossession was accomplished pursuant to the provisions in the contract authorizing this remedy in cases of default, and, as was stated in Rai-ney, this type of creditor’s self-help was recognized long before Title 7A, Section 9-503 was enacted. Thus, since no state action was involved in the repossession, no fourteenth amendment rights are violated. There was no need really for the trial court to pass on such a contention.

By several assignments of error plaintiff contends that it was inequitable for defendants to enforce plaintiff’s default for failure to make the September 14 payment because plaintiff had been allowed to make late payments in the past.

Plaintiff says that he had made fourteen monthly payments on a thirty-six month contract and several of these payments had been made after the due date. He says that defendants, by accepting several late payments, had lulled him into believing that he could make his payments at times other than the times set out in the contract and defendants should now be estopped from claiming a contractual default. Plaintiff cites us to Shaddix v. Bilbro, 220 Ala. 657, 127 So. 227. In that case a lessor’s course of dealing in collecting rental notes was held to have created a belief in his lessee that a delay of three days was not such a default as would be insisted upon for a forfeiture. That course of dealing consisted of a regular grant of two months’ grace in payments, indefinite deferral of half of one installment, and an oral statement that some installments could be paid whenever lessee had the money. As a result, the lessor’s enforcement of the forfeiture without notice and an opportunity to cure the default was held inequitable.

The facts of the case before us are less favorable to plaintiff than were the facts in the Shaddix case. The sales contract provided for a payment schedule of $125.12 per month for thirty-six months. It also provided that the holder of the contract upon a default in the payment schedule could, at its option, declare the entire remaining balance due and repossess the automobile. There was another provision in the contract proclaiming that a waiver of any default should not be considered as a waiver of any other default.

Granted, the evidence shows that there had been some late payments made by plaintiff prior to the default in question. But the default now in question was almost a month old, the plaintiff was out of work, had no money, and another payment was due in three or four days. A reasonable assessment of these facts would be that plaintiff was in default on one payment, was in imminent danger of being in default of a second payment and had no reliable prospects for making any future payments. These developments certainly presented defendants with new grounds of insecurity as to the likelihood of collecting payments legitimately owed them. Defendants’ declaration of default is not inequitable or unjust in such a situation; consequently, the trial court was not in error in so holding.

Plaintiffs last objection is directed to certain evidence which was admitted over his objection and, he says, prejudicially infected the court’s decision.

One of the counts of the complaint sought damages for the conversion of the automobile, and at trial defendant Norris was asked to testify as to the balance of plaintiff’s account at the time of the repossession. Objection was made to this question by plaintiff and the court overruled. The witness answered that to the best of his recollection the balance was $2,900. The witness was shown an account card and asked if that refreshed his recollection as to the balance due. The witness answered, “Yes, sir, Twenty-nine, sixty-four, forty five.”

Three pages later in the transcript of testimony, the same witness was asked the following:

“Q. Now, Mr. Norris, you say that this balance is effective 9-30^74 and let me ask you whose handwriting is this in?
“A. That would be, it looks like Becky’s handwriting.
“Q. And this isn’t the original document kept by your office. I believe you testified that this was a microfilm document, this is taken from microfilm records?
“A. Yes, sir.
“Q. All right, sir. And your testimony regarding the amount shown here is not your independent recollection is it, but in fact was shown on this statement?
“A. Yes, sir.
“MR. GALESE: Well, Judge, we would move to exclude it now on the grounds that there hasn’t been a proper predicate laid for the testimony. There is higher and better evidence such as the microfilm records, that this is not the best records under the Alabama Business Records Act and his testimony by his own admission is not an independent recollection. It’s based on what someone else has written down here from a business record.
“THE COURT: Overrule.
“MR. GALESE: We except.
“Q. Now, I notice that this is dated ‘Payoff quoted through 10-11-74’?
“A. Yes, sir.
“Q. Not September 30, 74?
“A. That is correct.
“Q. So which date is it, September 30th or October the 11th ?
“A. September the 30th shows a balance on account at that particular time. The payoff was quoted on October the 11th because that is what time — that is the day that the payroff was finished.
“Q. Now, let me ask you this.
“Does this payoff that you are reflecting, I notice down here it says, ‘Net balance, Twenty-five, twenty-seven, fifty-two’, is that assuming the loan was paid off then and that is the rebate of interest, right above it, $436.00 ?
“Now, this $2900 figure is the gross balance, that is the balance you paid out over the next number of months left in the loan?
“A. Yes, sir.
“Q. So on September the 30th or October the 11th, is it not a fact that the principal balance is substantially less than the $2900 figure you just testified to?
“A. Yes, sir, it would be.
“Q. I see. So the amount owed on this loan had it been paid off on October the 11th, would not have been $2900 but substantially less than that ?
“A. Yes, sir, twenty-five — whatever it is.
“Q. All right. Now, is it also not true that this statement reflects the charges for the repossession, the cost or the expenses of repossessing that vehicle ?
“A. That, I don’t know because I don’t know how to figure a payoff.
“Q. You don’t know how to figure a payoff?
“A. No.
“Q. So all of your testimony then is based on what someone else has figured from an original record ?
“A. Yes, sir.
“MR. GALESE: Judge, again we move to exclude this. He has testified not only does he not have an independent recollection but that he doesn’t even know how to figure a payoff.
“MR. HAIRSTON: Judge, I wasn’t the one that asked him about the payoff.
“MR. GALESE: It’s establishing his testimony.
“THE COURT: All right. Overrule.
“MR. GALESE: We except.”

Plaintiff says this witness’ testimony concerning the balance due should have been excluded for the reason that the witness had no independent recollection of the balance due, and was testifying from a memo prepared by someone else from Chrysler Credit’s original books and records.

Defendants reply that the witness testified from independent recollection that the balance due was $2,900; then, when shown the account card, testified, after having his memory refreshed, that the amount was $2,964.45 as of September 30, 1974. Defendants also say that the testimony sought to be excluded was based on the refreshed recollection of the witness and was due to be admitted. Reliance for this position is grounded on Title 7, Section 415, Code of Alabama 1940, as Recompiled 1958, and the case of Mitchell v. City of Mobile, 244 Ala. 442, 13 So.2d 664. In that case, a ledger sheet was held admissible upon the deposition of a chief clerk that the ledger was a record of his department, kept in the regular course of business. The clerk disclaimed any personal knowledge of the accuracy of the data entered thereon, but did testify that he supervised the clerks who maintained the ledger.

The principle to be gleaned from the statute and the Mitchell decision is that, where a witness can establish that a record is kept in the regular course of business, that record is admissible, even though the maker or entrant has no personal knowledge of the truth of the matter recorded. We do not believe the witness here established the predicate necessary for admissibility. In the case at bar the witness testifying from the contents of the record did not prepare the record. Furthermore, the memo which the witness used to refresh his recollection was not the original business record kept by Chrysler Credit in its office. In these circumstances, the principle espoused in Mitchell does not apply. However, we do not believe that this conclusion would warrant our finding that the refusal of the trial court to exclude this testimony requires a reversal of the case for a new trial.

For a case to be reversed due to an error of the trial court, it must appear that substantial rights of appellant have been prejudiced thereby. In the present case no prejudice resulted to plaintiff because of the trial court’s refusal to exclude the complained of testimony. One of the counts of the complaint alleged that there had been a conversion of plaintiff’s car. The evidence in question here related to the balance due on the account on the day of repossession and could only serve the purpose of proving damages. We have upheld the trial court’s finding that no conversion had occurred, hence evidence of damages for the conversion is inconsequential. We therefore do not believe that any substantial rights of plaintiff were injured by the admission into evidence of the complained of testimony.

No prejudicial error having been argued, the judgment of the trial court is affirmed.

Affirmed.

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


text:
    In re W. J. SPEIGLE v. CHRYSLER CREDIT CORPORATION, a corporation, et al. Ex parte W. J. Speigle.
    SC 1543.
    Supreme Court of Alabama.
    Nov. 26, 1975.
    John Martin Galese, Birmingham, for petitioner.
    No appearance for respondent.
   BLOODWORTH, Justice.

Petition of W. J. Speigle for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Speigle v. Chrysler Credit Corp., a Corp. et al., 56 Ala.App. -, 323 So.2d 360.

Writ denied.

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


author: HOLMES, Judge.

text:
    ALLEN TRUCKING CO., INC. v. Joel D. ADAMS.
    Civ. 542.
    Court of Civil Appeals of Alabama.
    July 30, 1975.
    Rehearing Denied Aug. 13, 1975.

      A. Pope Gordon, Montgomery, for appellant-petitioner.
    Luther H. Waller, Jr., Montgomery, for appellee-respondent.
   HOLMES, Judge.

The dispositive issue on this appeal is whether Alabama’s attachment law, to wit, Tit. 7, § 845 et seq., is constitutional. We hold that it is under the facts as presented in the instant appeal.

The record which consists in the main of pleadings and affidavits reveal the following:

The appellant-trucking company filed suit against the appellee on February 17, 1975, claiming approximately $4,000 due by open account. On the same day appellant filed an affidavit commencing an attachment proceeding against property owned by appellee. The basis of the attachment was the nonresidency of the appellee. The circuit clerk issued the writ of attachment and the sheriff took possession of a truck and trailer.

Thereafter, appellee filed a motion to dissolve the attachment. The learned trial judge entered the following order dissolving the attachment:

“ORDER
“This cause coming on to be heard on Motion by Defendant’s attorney, and it appearing from the record that no notice or hearing was afforded the Defendant prior to the issuance of Writ of Attachment, it is therefore
“ORDERED that Writ of Attachment in case numbered 41233-L be, and it hereby is, dissolved.
“DONE this 3rd day of March, 1975.
“s/ Frank Embry Circuit Judge”

From this order appellant has perfected this appeal or, in the alternative, petitioned for writ of mandamus.

At the outset we note that an order dissolving a writ of attachment will not support an appeal. See Tit. 7, § 759, Code of Ala.1940; First National Bank of Russellville v. Welch, 22 Ala.App. 615, 118 So. 675. However, the writ of mandamus is due to issue unless within thirty days the trial judge enters an order vacating his order of March 3, 1975.

In reaching the conclusion that Alabama’s attachment statute is unconstitutional in that it does not provide for notice and an opportunity for hearing prior to the “taking” of the property, the trial judge, as well as able counsel for appellee, obviously relies on the recent line of U. S. Supreme Court cases which include Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L. Ed.2d 556; and Mitchell v. W. T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406. These cases require notice and a prior hearing in certain prejudgment seizure procedures.

Alabama’s attachment law reads as follows in pertinent parts:

“§ 845. For what demands issued.— Attachments may issue:
“1. To enforce the collection of a debt, whether it be due or not, at the time the attachment is taken out.
“2. For any moneyed demand, the amount of which can be certainly ascertained.
“3. To recover damages for a breach of contract, when the damages are not certain or liquidated.
“4. When the action sounds in damages merely.
“§ 846. Cases in which issued. — In the following cases attachments may issue :
“1. When the defendant resides out of the state.
“2. When the defendant absconds.
“3. When the defendant secretes himself so that the ordinary process of law cannot be served on him.
“4. When the defendant is about to remove out of the state.
“5. When the defendant is about to remove his property out of the state, so that the plaintiff will probably lose his debt, or have to sue for it in another state.
“6. When the defendant is about fraudulently to dispose of his property.
“7. When the defendant has fraudulently disposed of his property.
“8. When the defendant has moneys, property, or effects, liable to satisfy his debts, which he fraudulently withholds.
“ § 847. By what officers issued. — In the first and second cases mentioned in the first section of this article, an attachment may be issued by any judge of the circuit court, or court of like jurisdiction, returnable to any county in the state; or by the- clerk of the circuit court, judge of probate, or any justice of the peace or a notary public exercising the jurisdiction of a justice of the peace, within their respective counties; in the third and fourth cases, only by a judge of the circuit court, or court of like jurisdiction, or judge of probate, returnable to any county.
§ 848. Oath to be made. — The officer, before issuing the attachment in the first two cases mentioned in the last section, must require the plaintiff, his agent, or attorney, to make oath of the amount of the debt or demand, and that it is justly due, or to become due, and that one of the causes enumerated in the second section of this article exists; and that the attachment is not sued out for the purpose of vexing or harassing the defendant; and such oath must be reduced to writing and subscribed by the party making it.
“ § 852. Notice to nonresident defendant. — When an attachment is sued out against a nonresident of the state, the writ shall be returned to the clerk of the court as soon as levied upon the property of the defendant, and thereupon the clerk shall cause a notice of the attachment and levy on the defendant’s property to be advertised, once a week for three successive weeks, in some newspaper, a copy of which must be sent by mail to the defendant, if his residence is known or can be ascertained; and when such publication is perfected, the case shall stand for trial at any time after the expiration of thirty days thereafter.”

The Supreme Court of Alabama has stated that the purpose of the attachment statute is that the jurisdiction of the court in the ulterior proceedings may be more effectual and to afford the plaintiff security for satisfaction of the judgment which he may obtain. Phillips v. Ash, 63 Ala. 414.

Furthermore, attachment, when the original process serves a dual purpose; first, giving notice to the defendant to appear and defend; and second, creating a lien upon the thing attached, affords security to the plaintiff if he succeeds in obtaining judgment. Pullman Palace Car Co. v. Harrison, 122 Ala. 149, 25 So. 697.

Additionally, attachment proceedings against a nonresident are proceedings in rem. Jennings v. Wysonq, 276 Ala. 692, 166 So.2d 420.

The U.S. Supreme Court specifically held constitutional a prejudgment Delaware foreign attachment law in Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L. Ed. 837.

Despite the aforementioned recent line of Supreme Court cases holding certain ex parte prejudgment seizure procedures as being in violation of the 14th Amendment of the Constitution of the United States for depriving a person of property without notice and prior hearing, we read nothing in these cases to persuade this court that Ownbey, supra, is no longer the law. None of these recent U.S. Supreme Court cases is concerned with foreign attachment laws. In fact, as we read these cases, they appear to reaffirm the principle established in Ownbey.

In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, the Supreme Court held unconstitutional a Wisconsin prejudgment garnishment procedure. Even though finding the Wisconsin procedure of prejudgment garnishment of wages unconstitutional as a taking of property without notice and an opportunity to be heard, the Court stated that such summary procedure may well meet the requirements of due process in extraordinary situations and cited Ownbey, supra, as an example. The Supreme Court further pointed out that petitioner was a resident of Wisconsin and in personam jurisdiction was readily obtainable. The case before us deals with a nonresident defendant.

In Fuentes v. Shevin, supra, the Supreme Court ruled unconstitutional a prejudgment replevin statute. However, the Supreme Court again acknowledged that there are “extraordinary situations” that justify postponing notice and opportunity for a hearing, The Court noted that these situations must be truly unusual and that only in a few limited situations has the Supreme Court allowed outright seizure without opportunity for a prior hearing. A footnote in the opinion indicated that Own-bey, supra, was one such instance. In fact, the Court made the following statement in this footnote pertinent to our appeal:

“[Ajnother case involved attachment necessary to secure jurisdiction in state court — clearly a most basic and important public interest. Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837. ...” (407 U.S. at 91, 92 S.Ct. at 1999)

The Supreme Court, in Fuentes, supra, pointed out that in each of these limited situations the seizure has been, first, directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the state has kept strict control over its monopoly of legitimate force: The person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.

A look at Alabama’s law and procedure convinces this court that under the facts as presented to us by this appeal, our law meets all three of these criteria.

The most recent opinion by the Supreme Court in this area is North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751, in which the Georgia garnishment statute was held unconstitutional. The case was not concerned with the issue of foreign attachments.

In fact, not all prejudgment seizure procedures recently before the Supreme Court have been ruled unconstitutional as depriving property without notice and an opportunity to be heard. In Mitchell v. W. T. Grant Company, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, the Supreme Court held constitutional Louisiana’s sequestration procedure which makes available to a mortgage or lien holder a writ of sequestration obtainable ex parte and without notice to the debtor or opportunity for hearing. The Supreme Court also referred to earlier cases in which prejudgment attachment liens were acceptable, citing Ownbey, supra, and cases following it.

We do not find persuasive the cases of McClellan v. Commercial Credit Corp., D.C.R.I., 350 F.Supp. 1013, holding Rhode Island’s prejudgment attachment statute unconstitutional, or Randone v. Appellate Dept. of S. Ct. of Sacramento Co., 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13, cert. den. 407 U.S. 924, 92 S.Ct. 2452, 32 L.Ed. 2d 811, declaring California’s prejudgment attachment statute unconstitutional. Both of these cases are clearly distinguishable from the case before us, and neither involved a nonresident debtor.

We do find persuasive the recent decisions in Lebowitz v. Forbes Leasing and Finance Corporation, 3 Cir., 456 F.2d 979; and Balter v. Bato Company, Inc., D.C.Pa., 385 F.Supp. 420, holding the foreign attachment law of Pennsylvania constitutional, even after Sniadach, supra, and Fuentes, supra. In fact, a reading of Lebowitz, supra, indicates to this court a more narrowly drawn and stringent Alabama statute than the Pennsylvania one held to be constitutional. And, as pointed out in Lebowitz, notice as a precondition to an attachment might well defeat the purpose behind an attachment, to wit, to compel an appearance.

We also find that the following quote from Lebowitz adequately answers appellee’s contention that in light of Alabama’s long arm statute jurisdiction over a nonresident is no longer a major problem.

“Although the long-arm statute does replace the necessity for quasi-in-rem jurisdiction in some instances, it does not necessarily obviate the need for attachment prior to a nonresident defendant’s general appearance. A plaintiff employing the long-arm statute may face extended litigation as to whether a particular defendant is as a matter of law subject to that process. Indeed, ultimately it may be determined that no jurisdiction exists. In contrast, to the extent of the nonresident’s property subject to the state’s jurisdiction, foreign attachment provides an immediate and certain basis on which to exercise jurisdiction over a nonresident defendant. It thereby constitutes a greater inducement for such a defendant to appear and consequently, accomplishes one of the principal objectives underlying enactment of foreign legislation.” (456 F.2d at 982)

See also Hutchison v. Bank of North Carolina, D.C.N.C., 392 F.Supp. 888, fn. 7 at page 895.

In view of the above and in light of the often stated rule that courts must indulge every reasonable presumption in favor of the validity of acts of the legislature, Opinion of Justices, 247 Ala. 195, 23 So.2d 505, 4A Ala.Dig., Constitutional Law, ^48, we accordingly hold Alabama’s attachment statute as it applies to nonre-siding defendants, whereby quasi-in-rem jurisdiction is obtained, not unconstitutional for failure to provide for a hearing.

We further find no merit in appel-lee’s argument that the statute is infirmed because of the difference in bond requirements. Under § 849 a writ of attachment sued out upon the ground of nonresidency may be issued without bond, unless the defendant makes an unqualified appearance before the return date. In that case the plaintiff must make a bond payable to defendant in double the amount sued for. However, the defendant, in order to re-plevy the goods, must make a bond for double the value of the property. Appellee contends this is unequal protection.

We note that this issue has not been raised below in either the appellee’s motion to dissolve writ of attachment or motion to dismiss. It is also clearly not the basis for the lower court’s action in dissolving the writ of ATTACHMENT. It is well settled law that this court will not consider issues raised for the first time on appeal. Penn Mutual Life Ins. Co. v. State, 223 Ala. 332, 135 So. 346. In any event, we would find no constitutional infirmity in this legislative act.

Appellee additionally contends that the Alabama statute is unconstitutional because the writ was issued by the court clerk and not a judge. We find no merit with this argument. As mandated by § 847 the clerk may issue the writ only in a limited number of circumstances. The issuance by the clerk is a judicial act. Matthews v. Ansley, 31 Ala. 20. See also Hutchison v. Bank of North Carolina, supra. In any event, the writ can only be issued in the cases set out in § 845 and § 846

and after an oath in compliance with § 848 has been made by the plaintiff.

The petition for writ of mandamus is granted and a writ of mandamus is due to issue, directed to Honorable Frank Embry, Circuit Judge, unless he shall set aside his order of March 3, 1975.

Writ of mandamus awarded conditionally.

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


author: FAULKNER, Justice.

text:
    In re ALLEN TRUCKING CO., INC. v. Joel D. ADAMS. Ex parte Frank B. EMBRY.
    SC 1435.
    Supreme Court of Alabama.
    Nov. 26, 1975.
    Luther H. Waller, Jr., Montgomery, for petitioner.
    A. Pope Gordon, Montgomery, for respondent.
   FAULKNER, Justice.

Petition of Frank B. Embry for Certio-rari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Allen Trucking Co., Inc. v. Adams, 56 Ala.App. -, 323 S.2d 367.

Writ quashed.

All the Justices concur.


text:
    Harold A. WEBB v. PIONEER INSURANCE CO.
    Civ. 638.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1975.

      Crenshaw & Minor, Montgomery, for appellant.
    Smith, Bowman, Thagard, Crook & Cul-pepper, Montgomery, for appellee and cross-appellant.
   HOLMES, Judge.

This is an appeal from a judgment rendered in the Circuit Court of Montgomery County. The trial judge found in favor of defendant-appellee and against plaintiff-appellant.

The issues on this appeal are whether the lower court erred in admitting into evidence photographic or photostatic copies of the corporate defendant’s business records, and whether defendant is legally obligated to pay plaintiff certain termination pay. We find the answer in both instances to be negative.

Examination of the record reveals the following information necessary for an understanding of this lawsuit:

The defendant-appellee Pioneer Insurance Company is a Nebraska corporation. In the spring of 1973, defendant encountered certain difficulties with the Nebraska Department of Insurance, concerning its financial condition. By October 16, 1973, an agreement had been reached whereby, under the terms of a voting trust to come into being in November, the control of defendant would effectively be taken over by the Department of Insurance and certain creditor banks.

On October 29, defendant’s board of directors adopted a plan providing termination pay for certain employees. Under this plan, five top level officers of defendant, including plaintiff Webb, were granted ninety days of termination pay aggregating, approximately $40,000. On November 15, a new board of directors, elected under the voting trust, assumed management of defendant. This new board, on November 28, resolved to take no action with respect to providing termination pay for the old officers. Put another way, the new board resolved not to make any additional payments of termination pay.

Plaintiff-appellee received one payment of thirty days’ termination pay on November 14, the day before the new board of directors took control of defendant. It can be noted that this was .the only disbursement of termination pay made under the plan of the old board. This suit was instituted by plaintiff-apppellee to recover the remaining $5,200 of termination pay.

At the outset, we note the contention of plaintiff-appellant’s distinguished and experienced counsel that the lower court erred to reversal in admitting into evidence photographic or photostatic copies of minutes taken at meetings of defendant’s board of directors.

Rule 44(h) ARCP, pertinent here, provides in applicable part as follows:

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if it was made in the regular course of any business, profession, occupation, or calling of any kind, and it was the regular course of the business, profession, occupation or calling to make such memorandum or recorcl at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. Such a writing may be photostated, or it may be photographed or microphotographed on plate or film, and such photostat, photographic or microphotographic plate or film, or prints thereof, whether enlarged or not, shall be deemed to be an original record and shall be presumed to be a true and correct reproduction of the original record it purports to represent. The circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, and the circumstances of making such photostat or other photographic copy thereof, may be shown to affect its weight but they shall not affect its admissibility.

The cases cited by plaintiff-appellant concerning the application of the best evidence rule are inapposite here, in that none of them treat the admissibility of photostatic or photographic copies of original records made in the regular course of a business. The materials which ran afoul of the best evidence rule in the cited cases were copies made from summaries, memo-randa of original records, and copies of instruments which were not regularly kept business records.

The pertinent copies in this instance were identified by an officer of the company, who was custodian of the corporate records and who was present at the meetings in question. He identified the documents as being true and correct copies, and as actually reflecting what transpired at the board meetings. Under such circumstances, clearly Rule 44(h) allows photostatic or photographic copies to be introduced.

As seen from the above, no error was committed by the lower court in allowing the copies of the minutes into evidence. However, even if error is presumed, any such error would be harmless. The only pertinent fact which the copies in controversy served to prove was the refusal of defendant-insurance company to award plaintiff-appellant any further severance pay, which fact was sufficiently evidenced by the instant lawsuit itself.

In order for plaintiff-appellant to recover the remainder of the termination pay, he must show that he has a vested right thereto. This is so because a corporate board of directors may rescind action taken by a predecessor board unless that rescission would disturb a vested right. 19 Am.Jur.2d, Corporations, § 1159, p. 586. The only theories by which plaintiff-appellant can demonstrate a vested right to the termination pay, are that defendant has either contracted to pay him or is estopped to not pay him. Neither theory can avail plaintiff in this instance.

Viewed with the attendant presumptions of correctness, the tendencies of the evidence are that the October 29 resolution made an unconditional award of monies to plaintiff. While plaintiff indicated his willingness to provide consultant services to defendant after his departure, the evidence indicates that plaintiff was not required to perform any act in return for the award of termination pay.

It cannot be ascertained when plaintiff stated he would consult with defendant, but his receipt of termination pay does not appear to have been predicated upon his holding himself in readiness to perform such services. As such, the trial judge could have found that the award of termination pay and plaintiff’s willingness to consult were not bargained for and given in exchange for each other. There was thus no consideration, and consequently no contract. See 17 Am.Jur.2d, Contracts, § 92; Roberts v. Lindsey, 242 Ala. 522, 7 So.2d 82; 8A Words and Phrases, “Consideration,” at p. 276.

The award of termination pay being a mere gratuity under the above line of reasoning, plaintiff in order to prevail must show defendant is estopped to deny him payment. The party seeking to claim the benefit of an estoppel must show detrimental reliance of a substantial character on his part. 28 Am.Jur.2d, Estoppel and Waiver, § 78, at p. 716; Mitchell v. Friedlander, 246 Ala. 115, 19 So.2d 394. Here, plaintiff has testified that his only-reliance upon the award of monies was that he would have participated more strenuously in salary negotiations with his present employer. We find this conduct, under the circumstances of this case, to be too speculative for imposition of the doctrine of es-toppel.

Plaintiff, in this regard, relies upon the fact that his salary during his first three months with his present employer was somewhat lower than he would have desired. However, by his own testimony plaintiff stated that this was due to certain internal problems with his employer’s organization.

We finally note that plaintiff had been employed with defendant for only twenty months, that he had no contract of employment but was employed on a month to month basis, and that there was considerable testimony to the effect that not only did the Nebraska Department of Insurance not desire plaintiff’s consultant services, but actively distrusted and was hostile to him. Under these circumstances, we cannot say that the action of defendant-insurance company, in refusing to carry out the termination pay resolution, was in such bad faith or so unreasonable as to warrant judicial intervention.

There being no error in the record, the case is due to be affirmed.

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    Louise Bynum TURNER v. William D. BYNUM.
    Civ. 622.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1975.
    Rehearing Denied Dec. 3, 1975.
    Burns, Shumaker & Davis, and Otis J. Goodwyn, Gadsden, for appellant.
    Nash, NeSmith & Walker, Oneonta, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment denying modification of child custody.

The parties were divorced by decree of January 2, 1969. By agreement custody of the minor son, Randy, was equally divided between the parties on an alternate week basis. The original decree was modified at the request of plaintiff here on February 23, 1971 and June 18, 1971. After hearing ore tenus on petition and cross-petition for permanent custody by plaintiff and defendant, the court on August 28, 1973, granted permanent custody of Randy to defendant with liberal visitation rights to plaintiff. Plaintiff appealed that judgment, to this court. We affirmed on April 24, 1974. Bynum v. Bynum, 52 Ala.App. 633, 296 So.2d 722.

Plaintiff on October 21, 1974, filed the petition for modification which gave birth to the present appeal. The petition alleged change of circumstances since the decree of August 28, 1973. It averred that Randy had become unhappy living with his father and now desired to live with his mother. Testimony on the petition was again heard orally by the court and judgment denying modification entered November 22, 1974.

The substance of testimony submitted by plaintiff was that since the decree of August, 1973, Randy had reached the age of seven years; that she and her husband had moved to a larger home; that the husband had a substantial increase in income; the home was near a good school in Etowah County; Randy had expressed unhappiness in living with his father and stepmother and requested plaintiff to file for his custody.

Randy was permitted to be examined and cross-examined by counsel in chambers but out of the presence of the parties. The import of his testimony was that he was “pretty” happy and did “pretty” good in school, but he wanted to carry his lunch to school rather than buy it in the lunchroom; that his stepmother had “hollered” at him about changing his clothes and shoes and he thought she corrected him too much. There was some indication that Randy understood his mother to tell him that he didn’t have to obey his stepmother, and that she would fix his lunch to carry to school. The child stated he preferred to live with his mother full-time rather than visit her alternate weekends and during school vacation.

There was much testimony relating to the fitness of the mother with opinions that the interest of the child would be better served by living with the mother. Neighbors, teachers, preachers and others reported their observations that Randy appeared happy and well-adjusted in the home of his father.

This court observed in the prior appeal that the fitness of either parent for custody was unquestioned. It therefore appears that the sole issue here is whether the expression of Randy that he would be happier living with his mother than with his father is sufficient change of circumstances to require the trial court to modify a prior decree of custody.

We cannot hold failure to modify under the state of the evidence to be error. Modification of a prior decree must be based upon allegata and probata showing a material change of circumstances occurring since that decree affecting the best interests of the child. Stephens v. Stephens, 47 Ala.App. 396, 255 So.2d 338. The judgment of the trial court after orally hearing the testimony is presumed correct and may be overturned on appeal only if determined to be clearly wrong and manifestly unjust. Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598. Preference of a child as to his custody is a factor to be considered but is not controlling upon the discretion of the court. Stairs v. Stairs, 283 Ala. 263, 215 So.2d 591.

This case is like many others where after divorce children are pulled between loving and good-intentioned parents. There never has seemed to be a good solution to the problem. It is not to the best interest of the child that it be continually involved in litigation and required to make a choice between its parents. Each parent here is fully capable of providing love and material necessities for the child. Randy needs to love and be loved by each parent. The parents must subjugate their own needs and desires to the welfare of Randy. A trial court must keep the interest of the child uppermost in mind and not be swayed by the importuning of either parent. Each case must be decided upon its own facts. In this case this court cannot hold that the learned trial judge abused his discretion by denying change of custody merely because Randy feels he would be happier living with his mother than with his father. A child of seven forms feelings of happiness and unhappiness daily. The cause stated by Randy to be the basis of his desire to live with his mother is as immature as his age. The court did not err in denying modification for such cause.

Affirmed.

BRADLEY and HOLMES, JJ., concur.


text:
    In re James L. FLETCHER v. Jeanne Barber FLETCHER. Ex parte Jeanne Barber FLETCHER.
    Civ. 680.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1975.
    William B. McCullough, Jr., Birmingham, for petitioner.
    Corretti, Newsom & Rogers, Birmingham, for respondent.
   HOLMES, Judge.

This is a petition for writ of mandamus to compel respondent-judge to vacate his order restraining petitioner from instituting further garnishment proceedings.

The issue in this proceeding is whether a circuit judge may issue an order which restrains and/or enjoins an ex-wife from instituting garnishment proceedings to collect past due alimony.

We answer in the negative and the petition for writ of mandamus is granted.

The facts pertinent to this appeal are as follows:

In October of 1973, petitioner and her then husband were divorced. The decree of divorce was rendered by The Honorable William H. Cole and required the husband to pay petitioner $1,200 per month as alimony. The husband failed to make the alimony payments as required. The petitioner, in order to collect the past due alimony, issued garnishments directed to the husband’s employer. Garnishments were issued in January, April, and July of 1975. Each garnishment resulted in sums of money being collected by petitioner.

In September of 1975, the husband petitioned the Circuit Court of Jefferson County for the issuance of a temporary restraining order. The husband alleged that as a result of the garnishment all of his income had been withheld from him and he had in effect no funds to provide for his needs. Specifically, the petition prayed that a temporary restraining order issue enjoining and restraining the petitioner-wife from instituting further garnishment proceedings for the collection of past due alimony against the income or wages of the husband.

Upon the presentation of the aforesaid petition to The Honorable William Barber, a temporary restraining order was issued. Judge Barber’s order in pertinent part is as follows:

“That the Defendant, Jeanne Barber Fletcher, is hereby restrained from instituting further garnishment proceedings for the collection of past due alimony against the income of the Plaintiff.”

The court further ordered that:

“[Tjhis Restraining Order shall remain in full force and effect until such time as the Court issues its formal order dismissing the said Restraining Order or converts said Restraining Order into a temporary and/or permanent injunction.”

The petitioner thereafter moved to dismiss the temporary restraining order. This motion was overruled, hence this proceeding.

The law in Alabama is clear that past due installments of alimony and child support payments become a debt of record, i. e., a judgment in favor of the wife. See Epps v. Epps, 218 Ala. 667, 120 So. 150; Blackwood v. Kilpatrick, 52 Ala.App. 505, 294 So.2d 753. Such judgments may be collected in the same way as are other judgments. See Armstrong v. Green, 260 Ala. 39, 68 So.2d 834.

Tit. 7, § 996, Code of Ala. 1940, provides that garnishment is an appropriate method of collecting a judgment.

Therefore, in this instance, under the facts as presented by the petition for the temporary restraining order, the learned trial judge erred in restraining petitioner from exercising her statutory right to effectuate collection of her judgment by garnishment proceedings.

Financial hardship constitutes the only reason presented to the learned trial judge to justify restraining petitioner from exercising her statutory right to execute or collect on her judgment. Such reason is insufficient to justify the trial court’s action.

The petition for writ of mandamus is granted and a writ of mandamus will issue within ten days directed to The Honorable William Barber, Judge of the Circuit Court of Jefferson County, unless he sets aside his order of September 19, 1975.

Writ of mandamus awarded conditionally.

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


text:
    Lillie Mae White CLARY v. Francis O. CLARY.
    Civ. 592.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1975.

      Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellant.
    Hubbard, Waldrop & Jenkins, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of divorce, alimony and property settlement.

Parties herein were married in 1938, reared four children, accumulated a substantial estate of real property and separated in March, 1971. The husband brought suit for divorce June 19, 1973. The wife filed counter-claim seeking divorce, alimony and division of property. Trial was held in July, 1974. Judgment granting divorce to the wife, awarding alimony in gross of $26,500.00, and property settlement of $50,000.00 was entered October 21, 1974. The property award was directed to be paid in installments of $400.00 per month for a period of 125 months, without interest or security except for any past due installment. All real and personal property was given to the husband except for an automobile and an interest in an estate inherited by the wife from her father. The wife appeals from the award of alimony and property settlement. We affirm in part and reverse in part with directions.

Having carefully reviewed the testimony presented, and considered the judgment rendered thereon after oral hearing with the presumption of correctness required by law, we conclude that the amount of alimony and property settlement awarded to the wife is not plainly erroneous. However, we find that the manner of payment of the property settlement is unfair and unjust and is due to be corrected.

The testimony presented to the trial court tends to show the following in brief summary:

The parties married at an early age and without means of support. The father of the wife was a large landowner and farmer in Hale County, Alabama. Housekeeping was begun in a tenant house of the wife’s father with the husband attempting share-cropping. A child was born. Husband entered the army in 1940 and remained until 1945. The wife and child lived with her parents. Allotment for support was made to the wife and child. Other monies were sent by the husband from time to time. The wife lived frugally and accumulated a bank account of some $4,500.00. In 1948, using the money saved by the wife, the parties began to purchase land. They purchased 40 acres and a Ys interest in the 3,500-acre White estate in 1948, 20 acres in 1949, and in 1951, purchased a gin from the wife’s father. In subsequent years the father forgave interest on the purchase price of the gin, and after his death in 1958 the remaining balance of $5,700.00 was never paid. In 1954, an additional 1.7 acres was purchased adjoining the gin property. In 1956, a new gin was purchased and a building constructed for it. Subsequently lint cleaners were installed. The total cost of the new installation came to some $73,000.00. In 1958, wife’s father died and she inherited a Ys interest in the White estate. In 1968, a contract was executed selling the standing timber on the White estate for $265,265.00, and leasing the timber land for 50 years at an annual rent of $16,752.00. From this contract, the parties here jointly received a total of $22,790.00 prior to the separation in March, 1971. In 1970, they purchased the Clary estate consisting of over 590 acres for $90,000.00. Later 240 acres of the tract were sold for $30,000.00 and full payment for the whole tract was made. Various other tracts were purchased and subsequently sold at considerable profit. During all of the marriage the husband was farming large acreage. All monies went into a joint account and all purchases were made from that account. The wife reared the children, sewed their clothes, annually made a large garden, canned, preserved and froze food for the family. She kept the books on the gin and farming operations, worked at the gin in season, aided in the farming and advised with her husband in all business transactions. The income from and assets of her inherited estate went into the common fund. In addition to the real property, large amounts of farming equipment were purchased, used and accumulated.

At the time of separation, the assets were free from debt except for a small unpaid balance on the new gin. There was over $9,000.00 in the joint account. This account when closed by the husband some months after the separation contained $6,765.12.

In the 1960’s the husband began to use alcohol excessively and to be abusive to his wife. Their son was killed in 1969. His wife was subsequently killed the same year, leaving a small daughter. These parties obtained legal custody of that child and she is now with the wife. Prior to the wife leaving the home in 1971, the husband physically abused her severely, accused her of adultery and threatened to kill her and her daughter. The husband has furnished no support to the wife or his granddaughter since she left and has physically assaulted her on one occasion since the separation and, according to the wife, forced her to have sexual intercourse with him. He has been arrested and jailed at least twice and has been hospitalized several times for intoxication and related ailments.

According to our best calculations from the evidence, the husband, since the separation and through 1974, has received from rents, subsidies, timber leases and from the balance in the bank account over $96,000.-00. Income from his large farming operations during this time was not shown by the evidence. Though the ginning operation was shown to suffer losses after deducting large depreciation, a financial statement furnished by the husband to the government in 1973 stated a net worth of $351,833.31. At the time of hearing, the husband stated he had accumulated debts of $95,000.00, secured by security interests in farming equipment and trucks.

The wife has subsisted since the separation on the income from the timber sale and lease on the White estate. From this income she has managed to live and accumulate some savings. It is to be noted here that the husband received the same amount of income from his equal interest in the White estate. It is further to be noted that the annual payment on the .timber sale expires in 1978. After that the only income will be slightly over $2,000.00 annually to the wife from the timber lease.

We find no need in this opinion to discuss the various tables of valuations exhibited by each of the parties in brief. The trial judge had all these figures before him when rendering judgment.

We have considered them in light of the whole evidence as summarized here-inabove. Applying principles of law and equity common to divorce cases wherein alimony and property settlement is requested and granted, recognizing that these are matters largely addressed to the discretion of the trial court, subject to change on appeal only for clear abuse and injustice, we find the amount of alimony in gross and the sum of the property settlement not so clearly erroneous or unjust as to require reversal.. However, in light of the fact that the assets of the husband are largely in real estate subject to encumbrance or even sale, we find the manner of payment of the property settlement unfair and too subject to loss in part or total to be permitted to stand. It is clearly evident that the wife has greatly contributed in labor, actual cash, frugality and other means to the accumulation of the marital estate. In securing her interest therein she is entitled to every protection available to the court to insure that she receives the sum allotted to her either in present cash value or in property of such present value. It just happens that such means are clearly available to the court.

It is without dispute that the 1/8 interest of the White estate to which the husband holds title has a present value of $50,000.00. It is further evident that it provides a small income which will supplement the equally small income which the wife receives from her inherited 1/8 interest in the same estate. Such combined income will serve to provide for the wife and assist her in providing for the small grandchild for which she has responsibility of rearing. The awarding of the interest of the husband will prevent further prosecution by him of his suit for sale and division of the White estate which is presently pending according to the evidence.

We therefore reverse the decree insofar as it awards the sum of $50,000.00 as a property settlement, such award to be paid, at the rate of $400.00 per month, without interest, for a period of 125 months. In lieu of such award, we direct the court to award to Lillie Mae White Clary the 1/8 interest of Francis O. Clary in the property known as the White estate, requiring the said Francis O. Clary to execute a deed to said property to Lillie Mae White Clary of his said interest free of all encumbrances. We further direct that the court declare and impose a lien upon the property awarded to Francis O. Clary, to secure the payment of the sum of alimony in gross awarded to Lillie Mae White Clary and the payment of the sum awarded to her as attorney fees. All other portions of the decree below are affirmed.

The request for attorney’s fees by appellant on appeal is considered and is hereby, denied.

Affirmed in part, reversed in part with directions.

BRADLEY and HOLMES, JJ., concur.

      . Body v. Body, 47 Ala.App. 443, 256 So.2d 184; Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308.

      . Hewitt v. Hewitt, 285 Ala. 516, 234 So.2d 283; Title 34, Section 32, Code of Alabama (1940).


text:
    NATIONAL SECURITY INSURANCE CO., a corporation v. Dennis INGALLS.
    Civ. 649.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1975.
    Cassady & Fuller, Enterprise, for appellant.-
    Farmer & Farmer, Dothan, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Houston County. Plaintiff-appellee Dennis Ingalls suffered the loss of a foot while covered by an accident insurance policy issued to him by defendant-appellant National Security Insurance Company. The trial judge found this loss to be com-pensable under the policy to the extent of $6,000.

The issues for our determination are whether plaintiff-appellee’s injury was caused by accidental means, and the construction to be accorded language excepting certain risks from the-full coverage of the insurance policy issued by defendant-appellant.

The accident resulting in the injury to plaintiff-appellee occurred in the following manner:

Plaintiff-appellee regularly kept a loaded shotgun on the rear floorboard of his 1957 Chevrolet. At the time of the accident, appellee was in the vehicle, attempting to fasten together radio speaker wires. He had the rear seat pulled out and was kneeling on it in a stooped position, reaching over to the far side of the automobile behind the front seat on the passenger side. Appellee’s left foot was resting on the floorboard. While appellee was so engaged, the seat on which he was kneeling tilted, causing a cotton bar to roll off the seat and strike the shotgun. The shotgun discharged when struck by the bar, hitting appellee in the left leg between the knee and ankle.

The aforementioned insurance policy indemnified appellee against injuries effected through accidental means. For the loss of one foot, appellant was to pay one-half of the full amount payable, or $6,000. Among the list of exceptions from the policy’s coverage was the following:

“For losses covered by the provisions of this Policy, the amount payable shall be twenty-five (25%) per cent of the amount otherwise payable if the loss results from . . . shooting accidentally self-inflicted.”

After hearing the cause, the trial judge issued the following order:

“This cause was submitted upon the bill of complaint of the Plaintiff, answer of the Defendant, and the documentary evidence presented, and the testimony. Upon consideration thereof, it is the judgment and opinion of the Court that the Plaintiff is entitled to relief, therefore,
“IT IS ORDERED, ADJUDGED, AND DECREED that the Plaintiff lost a foot through accidental shooting, not self-inflicted.
“IT IS FURTHER ORDERED that the Defendant be taxed with the costs herein, for which let execution issue.
“DONE AND ORDERED this 5th day of February, 1975.
“/s/ Forrest L. Adams
“Judge, 20th Judicial Circuit of Alabama.
“Filed in Office this 5th day of February, 1975.”

Appellant by his assignments of error argues that appellee’s injury was not effected through accidental means, and even if so, that his recovery is limited to $1,500 by the policy provision quoted above.

We initially hold that the instant injury was caused by accidental means and is within the coverage of the policy. Generally, where an injury is caused by a mishap or slip in an action of the insured, it is caused by accidental means. In Emergency Aid Insurance Co. v. Dobbs, 263 Ala. 594, 83 So.2d 335, the court said:

“There is a distinction between an accidental death or injury, and one caused by accidental means. Such a distinction is treated by the law writers. It is an accidental death or injury if the result is an accident whether or not due to accidental means; but it is caused by accidental means, although the means employed were voluntarily rendered, if, in the act preceding the injury, something unforeseen, unusual and unexpected occurs which produces the result. Pledger v. Business Men’s Accident Ass’n, Tex. Com.App., 228 S.W. 110; 45 C.J.S., Insurance, § 753, p. 778.” (263 Ala. at 599, 83 So.2d at 338.)

In accord are the cases of Inter-Ocean Casualty Co. v. Jordan, 227 Ala. 383, 150 So. 147; Aetna Life Insurance Co. v. Beasley, 272 Ala. 153, 130 So.2d 178; Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635.

Appellant has apprised us of the general rule that actions which reach a certain threshold level of danger or recklessness cannot constitute accidental means. However, we are not prepared to say that ap-pellee’s actions reached such a level.

We are thus brought to the determinative issue on this appeal, whether the language “shooting accidentally self-inflicted” relegates appellee to a recovery of 25% of the amount otherwise payable. We hold that it does not, and that the order of the trial judge was correct.

The terms “accidental” and “self-inflicted” are terms of art in insurance law. “Accidental” means that which is unexpected and unintended, happening by chance. Words and Phrases, “Accidental”; 45 C.J.S. Insurance § 753; Prudential Casualty Co. v. Curry, 10 Ala.App. 642, 65 So. 852, and cases cited, supra. An injury is “self-inflicted” only when the insured wills it or intends to cause it. Words and Phrases, “Self-inflicted Injuries”; 45 C.J. S. Insurance § 773; Freeman v. Metropolitan Life Ins. Co., 35 Ga.App. 770, 134 S.E. 639.

The two terms can thus be seen to be antonymous. As such, the phrase “shooting accidentally self-inflicted” appears to be a meaningless contradiction. Two modifiers with opposite meanings are jointly used to describe the same subject. However, simply by virtue of its use in the policy, we must assume the phrase in question to have a rational meaning, rather than being a mere cryptic nullity.

While it can be seen to be of little benefit to apply the legal definitions with which these terms have been invested, there are tenets of interpretation which may properly be resorted to in instances such as this.

Ambiguities in insurance contract exceptions are to be strictly construed against the insurer. American Liberty Insurance Co. v. Soules, 288 Ala. 163, 258 So.2d 872; Couch on Insurance 2d, § 15.92. In construing the instant phrase, it is thus imminently reasonable to use that plain and ordinary meaning which the policy holder would from his perspective ascribe to it. Universal Underwriters Ins. Co. v. Marriott Homes, Inc., 286 Ala. 231, 238 So.2d 730.

The contract clause in question, to this court, would be construed by the insured to mean accidentally shooting oneself. In ordinary parlance, to shoot oneself connotes that the injury results from direct, immediate, and conscious employment of a firearm by the victim.

Therefore, within the meaning of the exception used in this particular policy of insurance, a self-inflicted injury is one caused by such means. Here, the injury resulted not from direct and knowing employment of a firearm, but rather from the inadvertent application of an intervening force, to wit, the cotton bar. It can thus be readily seen that plaintiff-appellee’s injury, while accidental, was not self-inflicted. The trial judge accordingly did not err in his entry of judgment or in his order denying defendant-appellant’s motion for a new trial.

There being no error in the record, the case is due to be affirmed.

Affirmed.

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