author: MADDOX, Justice.

text:
    James Michael SOMACH v. Marcelle NORRIS and Marvin A. Norris. James Michael SOMACH v. Donna NORRIS, a minor who sues by her next friend and father Marvin A. Norris; and Marvin A. Norris, an individual.
    SC 2656, SC 2708.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied Aug. 25, 1978.

      J. Russell Gibson, III and Sam M. Phelps of Phelps, Owens, Jenkins & Gibson, Tuscaloosa, for appellant.
    Sam L. Webb, Jr. of Callahan, Nichols & Webb, Tuscaloosa, for appellees.
   MADDOX, Justice.

The question presented is whether the defendant is entitled to a new trial because of the injection into the case of the fact that the defendant had insurance. We find prejudicial error and reverse.

The matter first arose when the defendant’s attorney sought to cross-examine the plaintiff about a statement contained in a letter which plaintiff’s doctor had furnished to plaintiff’s attorney, but which plaintiff denied having seen:

“MR. PHELPS: Now, Mrs. Norris, I show you a medical report that is marked Defendant’s Exhibit 2, dated November 10, 1975. And that is addressed to your attorney, Mr. Nichols, and signed by Dr. William R. Shamblin. Have you seen that report before?
“THE WITNESS: This one (indicating)?
“Q. Yes, sir.
“A. No, sir.
“MR. NICHOLS: And I object to any further discussion about this, because she could not possibly know what is in there. There is no way for him to cross examine her on this, Your Honor.
“THE COURT: I overrule.
“MR. NICHOLS: I except.
“MR. PHELPS: I will ask you, did Dr. Shamblin, rather than saying what you said on direct examination, did he not in fact, tell you that, T understand that she was in an automobile accident about three months prior to my seeing her for the first time. From my medical standpoint, I find no evidence of injury, and have so advised her. I see no evidence of a sequela related to a previous injury.’
“MR. NICHOLS: Your Honor, I want to renew my objection. I have never run into this before. This is surprise to me that a lawyer would use a medical report to another lawyer, now; if we are going to start doing that, we can go to all pre-trial negotiations, everything that Mr. Phelps’ insurance company has done in trying to settle this case, if we are going to start doing that.
“MR. PHELPS: Now, we move to strike that for the record, and ask the jury to disregard that statement, and move for a mistrial. He knows that is improper, and he knows—
“MR. NICHOLS: You know this is improper, too.
“MR. PHELPS: The Court has ruled this is proper, Mr. Nichols. I don’t have to argue with you about it.
“THE WITNESS: Can I tell what Dr. Shamblin told me about it?
“THE COURT: No, ma’am. You just be quiet, please.
“THE WITNESS: Okay.
“THE COURT: Do you want to insist on your motion for a mistrial, Mr. Phelps?
“MR. PHELPS: Judge, I would ask you to instruct the jury that that was an improper statement by counsel for plaintiff, and it should be disregarded.
“THE COURT: Mr. Nichols, I understand that you do not agree with my ruling. I have made a ruling, and I don’t wish to argue with you about it. Now, ladies and gentlemen, the statement of Mr. Nichols, the last statement here, would you please disregard that. Do not consider it.
“MR. NICHOLS: Well, let me move for a mistrial, then, to protect the record, because I think this is highly improper and highly prejudicial.
“THE COURT: Motion is denied.
“MR. NICHOLS: We except.”

On redirect examination of the plaintiff, Marvin Norris, insurance was again injected into the case, as follows:

“Q. Did he make any statements to you about how the accident happened?
“A. Yes, sir.
“Q. What did he say?
“A. He apologized to me about it, and said he was real sorry. And he said, T just did not see her.’ He said, T was coming out of the intersection, and she was coming up the road, and I just didn’t see her.’ And he said, ‘I’m sorry; I don’t know how it happened.’ And he told me that he had Allstate Insurance Company, and that he was going to call them the next day.
“MR. PHELPS. We move to exclude that.
“THE COURT: I sustain.”

Then in closing arguments, defendant’s counsel stated:

“She got on the stand, and she said Dr. Shamblin told her, ‘There is not anything I can do.’ Her lawyer asked her, said, ‘Did he tell you that it wasn’t anything he could do for you, it would just take time to heal it?’ And she said yes, sir. What had Dr. Shamblin told her and told her lawyer? Here is the medical report; read it, don’t take my word for it. November 10, 1975: (Reading) ‘William R. Shamblin to Mr. George W. Nichols, Jr. In regard to my medical treatment of Mrs. Marcelle Norris, I submit the following information: I saw her on September 11, 1975, in consultation with Dr. John Buckley.’ He tells what all he did to her. He ends up with this paragraph: ‘I understand that she was in an automobile accident about three months prior to my seeing her for the first time. From my medical standpoint, I find no evidence of injury and have so advised her. I see no evidence of sequela related to her previous injury.’ That is what he told her. He did not tell her that she was hurt, but there was nothing he could do for her. And ladies and gentlemen, they knew that. They knew that when they testified in court yesterday. Is that being fair, being candid? Is that, as was said in an opening statement here, not trying to ‘pull the wool over your eyes’? Think about that. Is that the way we want justice dispensed in our courts? ‘From my medical standpoint, I can find no evidence of injury and have so advised her.’ ”

Plaintiff’s counsel countered:

“ * * * I have known the problems in this lawsuit, and that is why I say you have been selected, hoping that you would bear with me and understand these people right here (indicating), and consider their case, and listen to this evidence, because we ain’t trying to pull any wool over your eyes. No, sir, and I resent Mr. Phelps saying there has been a lack of candor in this case.”
“Ladies and gentlemen, I have furnished Mr. Phelps everything I have. Do you know where he got that letter from Dr. Shamblin? Mr. Callahan fussed at me for giving it to him, but George Nichols gave Mr. Phelps’ company a copy of that letter.
“MR. PHELPS: We object to that statement, Judge.
“MR. NICHOLS: George Nichols furnished it. Now, he brought it out—
“THE COURT: I am going to sustain, Mr. Nichols.
“MR. NICHOLS: I except, Your Hon- or. I furnished them Dr. Shamblin’s report, and I told you about it. And I told you about it when I made my opening statement. I made no bones about it; I did not try to hide it. But I furnished them the letter, and under the guise — In my judgment, this was an incorrect procedure; His Honor disagreed with me, so I am certainly abiding by the Court’s ruling. But Mr. Phelps uses a letter sent to me to impeach my client on the stand, which I furnished him to acquaint them of the nature of the lawsuit. And now he comes and reads it to you, and says there is a lack of candor. Where could he get it? He could not get the letter. If this was a lack of candor, do you think George Nichols would have furnished it to them? No, sir, I would have torn it up. Anyway, I gave it to them. A lack of candor? No, sir.”

Dr. Shamblin, who allegedly wrote the letter which caused all the conflict, was not called by the defendant to testify at trial, in person or by deposition.

In our view, had the only reference to insurance been the plaintiff’s counsel’s initial reference to it, which occurred during the plaintiff’s cross-examination, a serious question of waiver of the objection to the reference to the “insurance company” would have been presented. Indeed, the trial court specifically asked defense counsel whether he insisted on his motion for a mistrial and received what was, in effect, a negative response. See generally 29 Am.Jur.2d § 407, at 463. In this case, however, the references to insurance went far beyond that initial exchange and thus leaves us no alternative but to invoke the underlying principle of Sars, Inc. v. Nichols, 275 Ala. 17, 19, 151 So.2d 739 (1963). By reversing this case, however, we are not to be understood as approving the trial court’s action in overruling plaintiff’s objection to the admissibility of testimony concerning the letter from Dr. Shamblin. We note that plaintiff’s counsel also asked for a mistrial at that time.

In our opinion, this case has to be reversed so that it can be tried in an atmosphere free of the prejudicial influence of insurance, and also according to the traditional rules of evidence, free of extraneous matters being injected by either side.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    ANCORA CORPORATION, a corporation v. MILLER OIL PURCHASING COMPANY, a corporation and Ancora-Citronelle Corporation, a corporation, et al.
    SC 2811.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied Aug. 25, 1978.

      Robert E. Gibney of Kilborn & Gibney, Mobile, for appellant, Ancora Corp.
    Irvin J. Langford and John L. Lawler of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee, Miller Oil Purchasing Co.
    Willis C. Darby, Jr. and Paul D. Myrick of Darby & Carrigan, Mobile, for appellee, Ancora-Citronelle Corp.
    A. Charles Freeman, Asst. Atty. Gen. of Ala., University, Ala., for amicus curiae, State Oil and Gas Board of Alabama.
   MADDOX, Justice.

In February 1975, Miller Oil (a Mississippi corporation) (hereinafter Miller), initiated this litigation against (a) Ancora-Citronelle Corporation (hereinafter Ancora-Citro-nelle), (b) Ancora Corporation (hereinafter Ancora), and (c) numerous other parties who were sued collectively as a defendant and who owned an overriding royalty interest in certain wells situated in the East Citronelle Unit of the Citronelle Oil Field in Mobile County (hereinafter referred to as Royalty Owners).

Miller, in its complaint, sought a declaratory judgment of its right to recover from one of the three defendants identified above, monetary damages in the approximate amount of $83,000, representing an alleged overpayment for oil purchased by it from Ancora-Citronelle, as unit manager of the East Citronelle Unit, which had appropriated the oil from the wells in which Ancora and the Royalty Owners owned an interest in the East Citronelle Unit. Miller alleged, alternatively, different theories of relief which in its opinion authorized recovery against one of the defendants.

In support of its legal position that An-cora-Citronelle was liable for such overpayment, Miller alleged that Title 26, Section 179(72)(g) of the Code of Alabama (Recomp. 1958), now Title 9-17-83(7) of the Code of Alabama of 1975 (hereinafter sometimes referred to as the appropriation statute), which requires the State Oil and Gas Board of Alabama (hereinafter referred to as Board) in approving any unitization of oil and gas properties to include within its order a provision for appropriation of oil without prior notice or opportunity to be heard, was unconstitutional as being in violation of due process of law and that An-cora-Citronelle, as the party who ordered the unlawful appropriation, was responsible to Miller.

In the event the statute was found to be constitutional, Miller alleged that Ancora was responsible for the overpayment inasmuch as the funds paid for the appropriated oil were applied to an indebtedness allegedly owed by Ancora to Ancora-Citronelle and that Ancora should reimburse Miller for such payment.

Finally, Miller alleged that in the event neither Ancora-Citronelle nor Ancora was responsible that it had paid the royalty owners their interest when it was not legally obligated to do so, and was hence entitled to recover back from them collectively the overpayment.

Furthermore, in its complaint, Miller admitted and has at all times during this litigation admitted owing to Ancora the approximate sum of $63,000 for oil purchased unassociated with and not produced from the East Citronelle Unit, and in the event the trial court determined Ancora not to be responsible to Miller, Miller offered to return the money to Ancora. In the event Ancora was found legally liable, Miller offered to offset its indebtedness to Ancora.

All the defendants who answered Miller’s complaint denied all liability to Miller, and Ancora filed a counterclaim seeking to recover compensatory damages from Miller, including the monies Miller admitted it owed to Ancora. In an amended counterclaim, Ancora also sought the imposition of punitive damages. In its amended answer, Ancora joined in with Miller in asserting that the appropriation statute was unconstitutional.

Miller, Ancora-Citronelle and Ancora all filed motions for summary judgment seeking specific relief in this matter: Miller seeking to recover from Ancora; Ancora-Citronelle seeking to be dismissed from the litigation; and Ancora seeking to recover its monies from Miller. No royalty owner, individually or on behalf of all royalty owners, filed for summary judgment. No testimony was offered at the hearing conducted on the motions, and the trial court’s ruling is based upon the pleadings, affidavits and other documents within the record.

On June 23, 1977, the trial court entered an order finding (1) that the appropriation statute was constitutional, specifically holding on the basis that no “state action” was involved in the oil appropriation, and (2) granting summary judgment to Ancora-Ci-tronelle and dismissing it from the litigation. In its order of June 1977, the court reserved for future determination the claims between Miller and Ancora. Upon reconsideration of its June order, the trial court on August 3, 1977, entered its final order and judgment on Miller’s behalf against Ancora for the sum of $22,677.97, being the difference between the alleged overpayment and the money owed by Miller to Ancora plus interest.

This appeal is taken from the final order and judgment entered by the trial court in the circuit court of Mobile County, Alabama, on August 3, 1977.

We reverse and remand.

The trial judge entered a lengthy order in which he made extensive findings of fact and conclusions of law. In this he erred. While the record in this case is quite voluminous and there was much evidence filed in support of the motion for summary judgment, it is axiomatic that a summary judgment is granted only if the pleadings, depositions and affidavits show that there is no genuine issue of material fact, and that as a matter of law, the moving party is entitled to the relief sought. Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975). The moving party must clearly show that the other party could not recover under any discernible set of circumstances and that there is an absence of a genuine issue of material fact. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

In this case, Ancora’s pleadings deny the validity of the asserted debt, as do the affidavits filed by Ancora, and the depositions taken of Ancora’s employees. Also, Ancora-Citronelle and Miller Oil attempted to set up the res judicata effect of a California judgment in an action between An-cora and Ancora-Citronelle to estop Ancora from contesting the correctness of the charges arising from the appropriations. The trial court expressly found and held that both the correctness of the appropriation and the amount appropriated was settled in the California judgment. Whether a particular judgment is res judicata can sometimes present a question of law; however, the record here precludes such a result. In our review of the record, it is evident that extrinsic evidence was resorted to in an effort to explain the terms of the California settlement. When extrinsic evidence must be resorted to, a question of fact emerges, 50 C.J.S. Judgments § 846, p. 420, and a summary judgment becomes improper.

Because we have found sufficient error to require reversal, we pretermit further discussion of whether there were several other instances where questions of fact were said to be raised.

Also, because we are reversing the trial court for granting summary judgment, we refuse to address several other issues raised by the parties; specifically, we refuse to decide whether Section 9-17-83(7), Code, 1975, is unconstitutional.

In reversing the case, we note that if the parties desire to consent, in writing, the trial judge could decide the issues of fact on the evidence presented in connection with the motion for summary judgment. However, that is not the course of action followed here. The parties moved for summary judgment and we accordingly must apply the rules regarding the granting of summary judgment.

MOTION TO DISMISS APPEAL

BY ANCORA-CITRONELLE

Ancora-Citronelle moves to dismiss the appeal on the ground that a final judgment was entered against Miller Oil on June 23, 1977, pursuant to Rule 54(b), A.R. C.P., in favor of it and against Miller, and that Miller did not file an appeal within forty-two days from the date of the circuit court’s decision on Miller’s motion for reconsideration of the June 23,1977, order, or within fourteen days from the date of the notice of appeal filed by Ancora on September 13, 1977. The notice of appeal filed by Ancora on September 13,1977, included An-cora-Citronelle as a party to the appeal, but Ancora-Citronelle claims that this notice of appeal which was filed by Ancora in no way presents for review the judgment entered June 23,1977, in favor of Ancora-Citronelle, and against Miller, and that since Miller has not appealed that judgment, its correctness is not before this Court. Suffice it to say, that Ancora-Citronelle is so intertwined in this case that its absence would create an injustice. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276 (1936). Ancora-Citro-nelle’s motion to dismiss the appeal is therefore denied.

REVERSED AND REMANDED; MOTION TO DISMISS APPEAL DENIED.

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


text:
    Frederic L. HENDERSON, a non compos mentis, who sues by and through his general guardian and next friend, Barbara H. Henderson v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, a corp.
    SC 2825.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied Aug. 25, 1978.

      John W. Haley, Birmingham, for appellant.
    Robert Land of Roberts & Davidson, Tuscaloosa, for appellee.
   MADDOX, Justice.

This appeal questions the validity of the settlement of a personal injury claim entered into by the plaintiff’s guardian and next friend, Barbara H. Henderson, and the defendant, Illinois Central Gulf Railroad Company.

Plaintiff, Frederic L. Henderson, was a passenger in an automobile which collided with a train on November 14, 1975. As a result of the severe injuries he sustained in the accident, Henderson was declared a non compos mentis. His wife, Barbara Henderson, was appointed as guardian and she filed this suit on January 23, 1976.

The case was set for trial on October 18, 1976. Prior to trial, the attorneys conducted settlement negotiations and it was agreed between them that the case would be settled for $30,000. Circuit Judge Edgar P. Russell, Jr., conducted a hearing on the settlement agreement.

Barbara Henderson was called as a witness by the plaintiff and testified that she was the plaintiff’s wife and guardian and that he had been involved in an automobile-train accident; that he was hospitalized and was confined to a wheelchair. She further testified that she had authorized Richard Shelby to settle the lawsuit for $30,000, and when asked by the court:

“Do you feel like a judgment in the amount of thirty thousand dollars in view of all the circumstances of which you have been made aware, all the aspects of this case — do you feel that it is in his best interest to agree to that thirty thousand dollar judgment rather than take a chance of what you might, or might not, get if the case went to trial.”

She responded:

“From what I heard here today, yes.”

Before entering a judgment, the trial judge heard the testimony of several witnesses and the depositions of other witnesses were also introduced. The parties, as well as the court, questioned plaintiff’s wife, Barbara Henderson, concerning the settlement offer and the record reflects that an extensive discussion of the settlement was held in the trial judge’s chamber. The trial judge approved the settlement offer, and made a notation of the judgment on his bench notes.

On November 18, 1976, Mr. James M. White, who had been appointed guardian ad litem for Frederic L. Henderson by the probate court of Bibb County, filed a motion for a new trial. The said guardian ad litem alleged in his motion that the agreement entered into for the sum of $30,000 was grossly inadequate to compensate the plaintiff for his injuries. On November 19, 1976, the defendant filed a motion to strike or deny plaintiff’s motion for a new trial alleging that the time for a motion for new trial had expired. On the 22nd day of November, 1976, the trial court entered the following Order:

“WHEREAS, on the 18th day of October, 1976, in open court, the Attorneys for the Plaintiff and the Attorneys for the Defendant agreed to a Consent Judgment in the above styled cause for the Plaintiff and against the Defendant in the amount of Thirty Thousand Dollars ($30,000.00); and further, at the time of the above agreement, a memorandum or notation of such Consent Judgment was made on bench notes of said agreement and entry of said Judgment. It is, therefore,
“ORDERED, ADJUDGED AND DECREED by this Court that the Clerk of this Court enter on the minutes of the Court nunc pro tunc a Judgment for the Plaintiff and against the Defendant in the amount of Thirty Thousand Dollars ($30,000.00); that the costs of this action be taxed to the Defendant; and further, that the records of this Court show that said Judgment was entered on the 18th day of October, 1976, as evidenced by the bench notes on record in this cause.
“DONE this the 22nd day of November, 1976.
/s/ Edgar P. Russell. Jr.
CIRCUIT JUDGE”

After the Court had heard the motion for new trial, it denied the motion on the ground that the time in which to file a motion for a new trial had expired.

The Plaintiff argues that the judgment entry and the Entry of Judgment Nunc Pro Tunc above-quoted are void and that the judgment on its face shows an apparent error. He says that it is evident from the entries of judgment that the judgment was rendered pursuant to an agreement entered into between the attorneys for the plaintiff and defendant, and without a finding by the court that the settlement was in the best interest of the non compos mentis plaintiff.

He relies on Tennessee Coal, Iron & RR Co. v. Hayes, 97 Ala. 201, 12 So. 98 (1892), and Colquett v. Williams, 269 Ala. 383, 113 So.2d 347 (1959), arguing that a guardian cannot consent to a release nor submit to the arbitration or settlement of the claim of a non compos mentis; only the court, upon being advised of the facts and hearing evidence, may enter a valid judgment for the agreed amount if the same is determined to be just and fair and conservative to the ward’s best interest. We think the court followed the requirements of both cases. Henderson would have this court take Hayes and Colquett a step further by reading into those cases the requirement that the order or judgment specifically state that the sum agreed to is fair and just and conservative to the ward’s interest. The better procedure would be for the order to contain the determination made by the court, but the order is not void, if a court determination was, in fact, made.

A reading of the record before us shows that the trial court heard extensive testimony, and thereafter determined that the $30,-000 settlement was both fair and just. The mere fact that the court did not expressly state in its order that the required finding was made does not take away from the reality of the proceedings and determinations of the trial court. Our decisions do not require more.

In addition to his attack on the correction of the judgment, plaintiff argues that even assuming the judgment is valid, it is unfair and unjust and should be set aside. The determination of whether to grant or deny relief pursuant to Rule 60(b) is largely a matter within the judicial discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Wilger v. Department of Pensions & Security, 343 So.2d 529, 532 (Ala.Civ.App.1977). We are not persuaded that the trial court abused his discretion by refusing to set aside the $30,000 judgment as being unjust.

AFFIRMED.

FAULKNER, JONES, EMBRY and BEATTY, JJ., concur.


text:
    Marie Fallin STEVENS, as Administratrix of the Estate of Mark Stevens, Deceased v. Robert FLOYD, Jr. and Bonitz Insulation Company, a Corp.
    77-141.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied Aug. 25, 1978.
    James H. Lackey, Mobile, for appellant.
    John D. Richardson and Robert M. Mon-tiel of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   MADDOX, Justice.

Plaintiff, as administratrix of the Estate of Mark Stevens, her deceased husband, filed this action for wrongful death, claiming damages for negligence and for wantonness due to her husband’s death on February 2, 1976, in Jackson County, Mississippi, as the result of an automobile accident. Both parties are Alabama residents, and the case was tried in Mobile Circuit Court. The accident happened on Highway 90, just west of the Alabama state line.

Plaintiff gave notice, pursuant to Rule 44.1, A.R.C.P., that she intended to raise an issue concerning the law of the State of Mississippi.

The sole issue presented for review is’ whether the trial court erred in refusing several charges requested by the plaintiff.

“PLAINTIFF’S REQUESTED CHARGE NO. 6
“The Court charges the jury that if you are reasonably satisfied from the evidence in this case that the defendant suddenly and without proper warning brought his motor vehicle to a stop, and there was insufficient time and distance to permit the plaintiff’s deceased to bring his motor vehicle to a stop without running into the rear of the motor vehicle of the defendant, then the defendant was negligent, and if you are further reasonably satisfied that this negligence proximately caused the death of the plaintiff’s deceased, then your verdict should be for the plaintiff.”
“PLAINTIFF’S REQUESTED CHARGE NO. 7
“The Court charges the jury that if the defendant suddenly and without proper warning brought his vehicle to a stop, and there was insufficient time and distance to permit the Plaintiff’s deceased to bring his vehicle to a stop without running into the rear of the vehicle of the defendant, then the defendant was negligent.”
“PLAINTIFF’S REQUESTED CHARGE NO. 8
“If you are reasonably satisfied from the evidence in this case that the defendant driver negligently failed to keep a proper lookout for other motor vehicles also using the street and highway, or if you are reasonably satisfied from the evidence in this case that he negligently failed to continuously give a signal to indicate his intention to stop or to make a left turn, for a reasonable distance before stopping, or if you find that he negligently stopped his motor vehicle too suddenly without allowing sufficient time for the plaintiff’s deceased vehicle behind him to reduce speed and to stop; and if you are reasonably satisfied from the evidence in this case that any one or more of these negligent acts on his part, if you find one, were the sole proximate cause of the collision, you should bring your verdict for the plaintiff.”
“PLAINTIFF’S REQUESTED CHARGE NO. 4
“If a person, without fault of his own, is faced with a sudden emergency, he is not to be held to the same correctness of judgment and action as if he had time and opportunity to fully consider the situation, and the fact, if it be a fact, that he does not choose the best or safest way of escaping peril or preventing injury is not necessarily negligence, but the standard of care required in an emergency situation is that care which a reasonably prudent person would have exercised under the same or similar circumstances.”
“PLAINTIFF’S REQUESTED CHARGE NO. 2
“The duty owed by the defendant to the plaintiff’s deceased was to exercise reasonable care not to injure or damage the plaintiff’s deceased; that is, to exercise such care as a reasonably prudent person would have exercised under the same or similar circumstances.”

The accident occurred on a four-lane, uncontrolled access highway. Each of the parties involved was traveling toward Pas-cagoula, Mississippi. Plaintiff contended that the evidence showed that the defendant missed the entrance to truck scales which he was required to enter, that he then signaled a change to the left lane, changed lanes, that the signal went off, and then, without proper warning, he made a sudden and unexpected stop in the left lane of a four-lane roadway. Plaintiff further contends that the evidence showed that there was to the defendant’s immediate rear a vehicle which avoided a collision by going to the left into a grass median and almost instantaneously the plaintiff’s deceased slammed into the rear of the trailer which defendant was pulling.

The plaintiff relies almost solely on the testimony of one John Beitzel, who was traveling in the left lane immediately behind the defendant’s trailer, and who avoided a rearend collision with the trailer by swerving to his left and entering the median. There was no direct testimony concerning the distance between the defendant’s vehicle and the plaintiff’s vehicle. Neither was there any testimony regarding the speed at which the plaintiff’s deceased was traveling. Beitzel did testify that he heard the collision a split second after his vehicle left the road. Beitzel further testified that the defendant had brought his vehicle to a sudden stop.

I

The plaintiff argues that requested charges 6, 7 and 8, stated correct principles of law concerning the negligent failure of a driver to signal his intention to stop and should have been given. Plaintiff contends that these charges were taken almost verbatim from a federal case, Box v. Swindle, 306 F.2d 882 (5th Cir. 1962), which construes Mississippi law. It is noted that the charges are not verbatim copies of those given in the Box case. We need not decide whether the difference between the language of these charges is controlling, because in this case, we find that the failure of the trial court to give these charges did not constitute prejudicial error.

We have examined the court’s oral charge and the plaintiff’s requested written charges which were given by the court, and we are of the opinion that the court adequately charged the jury on the issues presented to the jury by the evidence. The court orally instructed the jury as follows:

“The court charges the jury that it is the law of the State of Mississippi that a signal of intention to turn right or left shall be given continuously for a reasonable distance before turning. This is a law relating to the operation of a motor vehicle. It provides that a motorist is not only under a duty to keep a proper lookout for other vehicles using the highway, but also not to turn his vehicle from a direct course upon the highway unless such movement can be made with reasonable safety, and then after giving a proper signal by hand or proper signal mechanically so that the other vehicle will not be affected by such movement.”

At plaintiff’s request, the court also gave the following charge:

“PLAINTIFF’S REQUESTED CHARGE NO. 11
“The Court charges the jury that a motorist is not only under a duty to keep a proper lookout and be on the alert for other vehicles using the highway, is also under a duty not to turn his vehicle from a direct course upon the highway unless such movement can be made with reasonable safety, and then only after giving an appropriate signal by hand, arm or other signal device, in the event that any other vehicle might be affected by such movement.”

We think that the jury in this case was substantially and fairly charged on the law concerning the issues presented by the evidence. We look to the total effect of the entire charge to see if there is reversible error. Alabama Power Company v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975); Rule 51 A.R.C.P.

II

The court did not err in refusing to give plaintiff’s requested charge on the sudden emergency doctrine. That charge has no applicability to the facts of this case. As was stated in Peel v. Gulf Transport Co., 252 Miss. 797, 174 So.2d 377 (1965).

“The doctrine of sudden emergency is not available as a defense of one who is solely or partially to blame for causing the emergency. It follows that the doctrine is not available as a defense to acts of negligence, originating prior to the sudden emergency and which directly contributed to the cause of the accident.
* * * * * *
“. . . Most accidents happen suddenly, and are sudden emergencies, but the sudden emergency doctrine under the law of negligence is not available as a defense in all negligent actions merely because there is an impending danger at the time of the accident. The doctrine is only available to explain why a party should not be held to the same strict accountability of ordinary care required of a reasonably prudent person acting under ordinary circumstances.”

Cf. Garvin v. Robertson, 289 Ala. 60, 265 So.2d 602 (1972).

The trial court did not err in refusing to give requested charges on “sudden emergency.” See Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1976).

Ill

The trial court did not err in refusing to give requested written charge # 2. This particular written charge was substantially and fairly covered by the trial court’s oral charge. Rule 51, A.R.C.P., State Farm Mutual Automobile Insurance Co. v. Humphres, 293 Ala. 413, 304 So.2d 573 (1974).

The judgment of the trial court is due to be affirmed.

AFFIRMED.

JONES, ALMON, SHORES and BEAT-TY, JJ., concur.


author: BEATTY, Justice.

text:
    Robert F. JAKOB v. FIRST ALABAMA BANK OF MONTGOMERY.
    77-155.
    Supreme Court of Alabama.
    June 30, 1978.
    Rehearing Denied Aug. 25, 1978.

      Allen W. Howell, Montgomery, for appellant.
    J. E. Dillard of Steiner, Crum & Baker, Montgomery, for appellee.
   BEATTY, Justice.

This is an appeal by the plaintiff, Sergeant Robert Jakob, from a summary judgment granted in favor of the defendant, First Alabama Bank of Montgomery, N.A.

Sergeant Jakob (Jakob), an active duty non-commissioned Air Force officer, applied for membership at the Maxwell Air Force Base Non-Commissioned Officers’ Open Mess (NCO Club) by executing a membership application on January 23, 1973. The pertinent portions of that agreement are:

(1) Air Force regulations require dues to be payable in advance for each month and accounts become delinquent on the 15th day of the month following the month in which they were incurred.
(2) Should I desire to resign, my resignation must be submitted in writing to avoid incurring dues charged to my account.
(3) I understand that I am liable for dues from this date forth and agree to abide by the above stated terms.

Thereafter, he and his wife received NCO Club cards. The reverse side of the cards issued to Jakob and his wife stated:

THE MEMBER FOR WHOSE BENEFIT THIS CARD IS ISSUED, ASSUMES FULL RESPONSIBILITY FOR ALL PURCHASES MADE BY USE OF THIS CARD PRIOR TO ITS SURRENDER TO THE MESS OR GIVING THE MESS NOTICE IN WRITING THAT THE CARD HAS BEEN LOST OR STOLEN.

In June, 1974 the management of the NCO Club and the First National Bank of Montgomery, N.A. (now the First Alabama Bank of Montgomery, N.A.) (Bank) made an agreement which included an assignment of the NCO Club accounts and contract rights to the Bank. Jakob was later notified of this assignment at an NCO Club meeting and through the mail by a newsletter dated 4 June 1974:

Dear Member:
Management of the club is constantly trying to cope with all expenses necessary for the club operation. Careful research indicates that we can effect a substantial savings by converting our accounts receivable from our present internal system to First National Bank (FNB) BankAm-ericard. Therefore, effective 1 July 1974, we are adopting this system. This is a management tool that has been developed to continue our effort to meet rising costs and hold the line on monthly dues.
There is no difference in the present billing system and the new system, except that you will receive your bill from FNB BankAmericard and payments will be sent to the FNB BankAmericard Center. Present FNB BankAmericard holders will automatically receive a new card with the Maxwell-Gunter membership designation. Each active duty NCO who does not already have a FNB BankAmericard will also receive, by mail, his Maxwell-Gunter Non-Commissioned Officers’ Club Ban-kAmericard, on or about 26 June 1974. Effective 26 June, 1974, charge purchases will be made on BankAmericard’s or white card issued by BankAmericard only, and the present white club card should be destroyed or turned in.
See attached for questions and answers concerning this system.

Among the questions and answers referred to in the letter were these:

1. Q-Must all club members make formal applications for credit?
A-No. Present NCO members (E4 and above with good credit rating) will automatically receive their FNB BankAmeri-eard on or about 20 June 1974. All other current members will receive a white club card issued by BankAmericard (FNB) and may apply for regular BankAmericard. Applications may be obtained from either Maxwell or Gunter NCO Clubs, or any First National Bank Branch.
3. Q-How will I be billed for my monthly dues and charges?
A-You will receive a bill from Ban-kAmericard each month that will be due 25 days from the date of your statement, however, if you prefer, you may choose to use the revolving account by making a minimum payment and pay the one and one/half percent (1V2%) finance charges on your average daily balance.
4. Q-Can I still pay my bill in cash at the club?
A-No. You may send a check directly to BankAmericard or pay the teller at the Maxwell First National Bank or any other First National Bank Branch in town.
13. Q-What if my credit privileges are denied by the club or FNB, or if I decline credit?
A-You will be issued a white card by FNB with the right top corner cut.
15. Q-When will my dues be posted to my account?
A — All dues will be posted by BankAm-ericard prior to the third Tuesday of each month.
16. Q-When is the last day I can use my present club card to charge?
A-25 June 1974.
17. Q-When is the last day I can pay my bill at the NCO Open Mess?
A-30 June 1974.

Thereafter, Jakob received his BankAmeri-card in the mail. Apparently NCO Club dues were charged automatically on the First National BankAmericard (BankAmer-icard).

After notice of the effective date of the assignment, Jakob attempted to pay his NCO Club dues to the cashier at the club. With the exception of that first attempt, his proffered dues were refused and he was told that they were required to be made to the bank. Jakob wrote a letter in June, 1974, apparently to the NCO Club, stating that he was forced to accept convenience credit to maintain his membership in the NCO Club and that he believed this requirement was illegal. He stated further that he would accept the BankAmericard as a membership identification but would offer his monthly dues to the NCO Club cashier. The record shows that Jakob accepted his BankAmericard for identification purposes to cash checks at the NCO Club.

Beginning in July, 1974 the bank sent Jakob monthly statements of his account. Jakob never paid these statements. In January, 1975 the NCO Club notified the bank that Jakob’s club membership was revoked. In March, 1975 when Jakob’s account was seven months past due, the bank determined that it was uncollectible and charged it off as a loss. When the accounts charged to the profit and loss statement for that reporting period were reported to the Credit Bureau of Montgomery in March, 1975, Jakob’s account was one of those listed. The Credit Bureau then gave a report of Jakob’s credit rating to Sears, Roebuck and Company. Jakob alleges, in addition, that about December 1, 1976 a bank employee made a communication to the Credit Bureau that Jakob had a BankAmericard account that was charged off as a bad debt.

In January, 1977 Jakob brought this action against the First Alabama Bank of Montgomery and the Credit Bureau of Montgomery for personal defamation of character and for defamation of his credit reputation. He alleged that the defama-tions occurred from a false communication and he claimed $50,000.00 in general damages and $500,000.00 punitive damages. After several motions for summary judgment the Credit Bureau was granted its motion; later the bank was granted its motion for summary judgment. Jakob appeals from the summary judgment granted to the bank.

The principal issue raised oh appeal is whether or not the trial court erred in granting the bank’s motion for summary judgment, i. e., was there a scintilla of evidence that there was an actionable defamatory communication, that it was not truthful, not privileged or that actual malice was present?

On appeal the plaintiff insists that there is a scintilla of evidence in the record that about December 1, 1976 an officer, agent or employee of the defendant bank made a slanderous communication to the Credit Bureau. The communication was that Jakob had a BankAmericard account which was charged to the bank’s profit and loss statement due to its nonpayment. The plaintiff maintains that this statement was false because the BankAmericard was not an “accepted credit card" under law and therefore, he asserts, he incurred no bona fide debt through it because of his nonpayment of his dues.

The Consumer Credit Protection Act of 1968, 15 USCS § 1602, defined “credit cards” and “accepted credit cards:”

(k) The term ‘credit card’ means any card, plate, coupon book or other credit device existing for the purpose of obtaining money, property, labor, or services on credit.
(l) The term ‘accepted credit card’ means any credit card which the cardholder has requested and received or has signed or has used, or authorized another to use, for the purpose of obtaining money, property, labor, or services on credit.
(m) The term ‘cardholder’ means any person to whom a credit card is issued or any person who has agreed with the card issuer to pay obligations arising from the issuance of a credit card to another person.

The Code of Federal Regulations, 12 Banks and Banking § 226.13, which supplements the statute, mandates that:

(b) Issuance of credit cards. Regardless of whether a credit card is to be used for personal, family, household, agricultural, business, or commercial purposes, no credit card shall be issued to any person except:
(1) In response to a request or application therefor, or
(2)As a renewal of, or in substitution for, an accepted credit card whether such card is issued by the same or a successor card issuer.

This Act was designed to put borrowers in possession of standards by which they could decide for themselves the reasonableness of credit terms so that they could shop for credit more easily. Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d 257 (C.A.Pa.1975). The credit cardholder is protected against charges for unauthorized use of his or her credit card, and liability for any unauthorized use is limited to a maximum of fifty dollars. First National City Bank v. Mullarkey, 87 Misc.2d 1, 385 N.Y.S.2d 473 (1976). Enforcement of the Act’s provisions lies within the authority of both federal and state courts. Lewis v. Delta Loans, Inc., 300 So.2d 142 (Miss.1974).

We are convinced that Sergeant Ja-kob’s objections to the procedures initiated by the NCO Club, which led to his being billed for dues by the defendant, were made in good faith. Nevertheless, he is mistaken in his view of the character of the BankAm-ericard in question. There is no question that it was a card within the meaning of § 1602(k), nor is it questionable that he was a cardholder under § 1602(m). The record justifies the conclusion, moreover, that his was an “accepted credit card” within the meaning of the statute and regulations. He applied for membership in the NCO Club shortly after arriving at Maxwell, and requested and received membership cards from the Club primarily for the convenience of check cashing, although he occasionally obtained food or refreshments there. The record discloses that he cashed forty-one checks at the NCO Club between March, 1973 and November, 1974. Thus it is clear that he requested and received a Club card which, as a cardholder, was for his purpose of obtaining admission to the Club on a deferred dues-payment basis, and for obtaining other Club services, such as check cashing. This qualified his Club card as an “accepted credit card.” Following the billing agreement between the NCO Club and the defendant bank, the latter’s BankAmer-ieard, with ample notice to Sergeant Jakob, was issued in substitution for his “accepted (Club) credit card” by the bank as a successor card issuer. Thus it was true that the plaintiff had an account with the bank which, because of its nonpayment, was charged off as a bad debt. For this reason alone the trial court’s order granting summary judgment was proper. Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899 (1941) (truth is a complete defense); Imperial Group, Ltd. v. Lamar Corp., Ala., 347 So.2d 988 (1977) (summary movant must show that other party could not recover under any discernible circumstances).

Having reached the conclusion that summary judgment was proper, it is unnecessary to discuss the other issues raised on appeal. The judgment is affirmed.

AFFIRMED.

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


author: BEATTY, Justice. BLOODWORTH, Justice

text:
    Brenda C. MANN, etc. v. FRANK HRUBETZ AND CO., INC., a corporation.
    77-287.
    Supreme Court of Alabama.
    Aug. 4, 1978.
    Rehearing Denied Sept. 8, 1978.

      Robert B. Roden of Jones, Arnold & Ro-den, Birmingham, for appellant.
    Robert D. Norman of Norman, Fitzpatrick & Wood, Birmingham, for appellee.
   BEATTY, Justice.

The plaintiff appeals from the trial court’s order dismissing her action. We reverse and remand.

The basic legal question is whether Alabama has in personam jurisdiction oyer an Oregon manufacturer who sold its product in Oregon to a customer having a business address in Alabama but who accepted delivery in Wisconsin, and whose product allegedly caused injury while being operated by the purchaser in Alabama.

The plaintiff is the mother of Marla D. Pierce, a deceased child. While riding on a centrifugal amusement machine known as “The Round Up,” Marla suffered injuries which allegedly caused her death. Her mother brought this action under Code of Ala. 1975, § 6-5-391 against the operator and owner of the machine, Century 21 Shows, the manufacturer of the machine, Frank Hrubetz and Company, Inc. (Hru-betz), and another. The defendant Hrubetz moved to dismiss the action, alleging a lack of in personam jurisdiction, and in support of its motion submitted an affidavit of its vice-president from which we quote a relevant portion:

[H]e knows that the amusement ride designated as ‘The Round Up’ in the complaint in said suit was manufactured in Salem, Oregon, and delivered and set up in Superior, Wisconsin; that the contract for the ride in question was not made in the State of Alabama, and Frank Hru-betz & Company, Inc. had no maintenance contract in regard to it, maintains no offices, warehouses, employees, parts or equipment in the State of Alabama, does not transact any business in the State of Alabama, has no contract to supply services or goods in this State, nor solicits business by agent herein [sic], or engage in any other persistent course of conduct as to goods manufactured by it for sale.

On the basis of the motion and this affidavit the trial court dismissed Hrubetz as a party defendant. Whether that ruling was correct depends upon whether the conduct of Hrubetz under these circumstances accords with the requirements of Rule 4.2, ARCP. In other words, did Hrubetz have sufficient minimum contact with this state “so that the prosecution of the action against [it] in this state is not inconsistent with the constitution of this state or the Constitution of the United States . ..” Rule 4.2(a)(1)(B) supra.

We have dealt with this principle in two recent decisions. In DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447, 450 (Ala.1977) we quoted from McGee v. International Life Insurance Co., 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957) which summarized the principle recognized by the United States Supreme Court:

‘[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ . . . [Quoting from International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)].

In that case we held that a foreign corporation which sent its president into Alabama on at least five occasions, culminating in a contract for the purchase of hosiery, the performance of which occurred for approximately one year, represented “minimum contacts” sufficient to satisfy due process requirements justifying substituted service under our then Tit. 7, § 199(1), Alabama Code (Recomp.1958).

And in Semo Aviation, Inc. v. Southeastern Airways Corp., 12 ABR 1363 (May 19, 1978), after reviewing the federal decisions dealing with the constitutional efficacy of ‘long-arm’ statutes, this Court acknowledged that Rule 4.2, ARCP makes our substituted service “as broad as the permissible limits of due process.” Id. at 1368. Sufficient minimum contacts were found to exist in that case because the defendant seller contracted to deliver the products in Alabama, the defendant’s agent came to Alabama to deliver the invoices and to collect payment, the defendant assisted in the financing arrangements by contacting an Alabama bank, and the defendant seller was conducting business operations of its own in Alabama.

At bottom, when this question is presented the inquiry must center upon considerations of fairness and convenience. As the Court stated in International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed.2d 95 (1945):

Since the corporate personality is a fiction, although a fiction intended to be acted upon as though it were a fact, Klein v. Board of Tax Supervisors, 282 U.S. 19, 24, 51 S.Ct. 15, 16, 75 L.Ed. 140, 73 A.L.R. 679, it is clear that unlike an individual its ‘presence’ without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it. To say that the corporation is so far ‘present’ there as to satisfy due process requirements, for purposes of taxation or the maintenance of suits against it in the courts of the state, is to beg the question to be decided. For the terms ‘present’ or ‘presence’ are used merely to symbolize those activities of the corporation’s agent within the state which courts will deem to be sufficient to satisfy the demands of due process. L. Hand, J., in Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, 141. . . .

The answer is not furnished by the application of a mechanical formula, Id. 66 S.Ct. at 159, but by a consideration of the facts of each case. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952).

This constitutional requirement was explored in Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). In that case an Illinois plaintiff brought an action for personal injuries against an Ohio manufacturer. Jurisdiction was sought under a section of the Illinois Civil Practice Act which allowed service upon nonresidents outside the state who had submitted to that jurisdiction by committing a tortious act within the state. (Cf. Rule 4.2(a)(2)(C), ARCP). The defendant Titan Valve Manufacturing Company constructed safety valves for use in water heaters. It did no business in Illinois, had no agents there, and maintained no office there. It sold a completed valve to a Pennsylvania manufacturer who incorporated it into a hot water heater. In the due course of business that water heater was sold to the Illinois consumer who alleged that injuries were sustained from the explosion of the water heater which was caused by the negligent construction of the defendant’s safety valve. After reviewing federal and state decisions on the issue of due process the court observed at 176 N.E.2d 761, 765:

'The relevant decisions since Pennoyer v. Neff show a development of the concept of personal jurisdiction from one which requires service of process within the State to one which is satisfied either if the act or transaction sued on occurs there or if [the] defendant has engaged in a sufficiently substantial course of activity in the State, provided always that reasonable notice and opportunity to be heard are afforded. As the Vermont court recognized [in] the Smyth case [Smyth v. Twin State Improvement Corp., 116 Vt. 569, 80 A.2d 664 (1951)], the trend in defining due process of law is away from the emphasis on territorial limitations and toward emphasis on providing adequate notice and opportunity to be heard: from the court with immediate power over the defendant, toward the court in which both parties can most conveniently settle their dispute.

The Illinois court recognized the likelihood that this particular sale was not an isolated instance; however its finding that due process was satisfied was not based upon “substantial use and consumption” of consumer products in that state:

As a general proposition, if a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products. Advanced means of distribution and other commercial activity have made possible these modern methods of doing business, and have largely effaced the economic significance of State lines. By the same token, today’s facilities for transportation and communication have removed much of the difficulty and inconvenience formerly encountered in defending lawsuits brought in other States. Id., 176 N.E.2d at 766.

Noting that “[T]he principles of due process relevant to the issue in this case support jurisdiction in the court where both parties can most conveniently settle their dispute[.]” the court concluded that Illinois was the proper forum because the injury occurred in Illinois, Illinois law would govern the substantive questions, and that the witnesses on such issues as the injury, the damages, and other aspects of the occurrence would likely be found in Illinois.

A similar case is Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir. 1969). There a Hawaiian plaintiff brought an action for personal injuries in Hawaii against a British manufacturer of motor coach bodies, alleging that the bus in which plaintiff was riding overturned, and that its roof collapsed due to negligent manufacture. The defendant was served under Hawaii’s “long-arm” statute which provided for out-of-state service upon one for “The commission of a tortious act within this State[;].” The defendant maintained that the manufacture having occurred in England, no tort had been committed in Hawaii. That issue was resolved against the defendant under the rationale of Gray, supra which held that the resulting injury was inseparable from the negligent act, and thus the act was said to have occurred in Hawaii. Id. at 233; Gray, supra, 176 N.E.2d at 762-3.

The defendant also contended that “minimum contact” requirements were not met because it maintained no representatives in Hawaii, had not registered to do business there, owned no property there, and except for the coach bodies on the coaches sold to the tour company in this instance, its products were not used in Hawaii.

The facts disclosed a typical integrated sales transaction. The purchase order for the tour buses was placed in Hawaii by Maui Island Tours with Haleakala Motors who transmitted it to Vauxhall Motors, Ltd. (in England). Vauxhall manufactured the chassis and sent them to Duple who manufactured the coach bodies, installed them on the chassis, and re-shipped them to Vaux-hall who shipped them to Haleakala Motors who sold them to Maui Island Tours.

In finding that the requirement of minimum contact was met, the Ninth Circuit Court of Appeals stated at 235:

In our judgment, the presence of Duple’s coach bodies in Hawaii, brought about by Duple’s sale to Vauxhall with knowledge that the product was destined for Hawaii, was sufficient contact with Hawaii to meet the requirements of due process.
We do not regard it as offensive to fair play or substantial justice or an undue burden on foreign trade to require a manufacturer to defend his product wherever he himself has placed it, either directly or through the normal distributive channels of trade. If it is clearly foreseeable as a result of trade with a foreign state that injury from a defective product (if it occurs) would occur in that state, the hardship of defending the product in that state in our judgment must be assumed as an attribute of foreign trade . (emphasis added).

Sells v. International Harvester Co., 513 F.2d 762 (5th Cir. 1975) represents another integrated interstate transaction in which “minimum contact” requirements were satisfied. Brookside Corporation, one of the defendants, manufactured fan blades which were used by another defendant, International Harvester Company, on its truck engines. The plaintiff was driving an International Harvester-made truck upon an Alabama highway when the fan blade broke away from the engine and penetrated the truck’s floorboard, injuring the plaintiff. He sued both Brookside and International. Ultimately Brookside’s motion to dismiss International Harvester’s cross complaint for indemnity, on the ground of lack of in personam jurisdiction, was granted by the district court. On appeal, however, that action was reversed. On the aspect of due process the Fifth Circuit Court of Appeals held at 763:

Where, as here, a manufacturer sells its product to a national distributor, knowing the product will be used in all states, it does not violate due process to require the manufacturer to defend a products liability suit in that state where the accident occurs (citations omitted). .

When we consider the nature of the transaction here and the circumstances of its occurrence we are convinced that a sufficient “minimum contact” has occurred making it reasonable to require the defendant Hrubetz to defend this action in an Alabama forum. Notwithstanding an absence of evidence of more than this one instance of dealing, ef. McGee v. International Life Ins. Co., supra (jurisdiction upheld on the basis of one business transaction when minimum contacts otherwise found), this contract was made by Hrubetz as seller with Century 21 Shows, Inc. of P. 0. Box 5485, North Birmingham, Alabama as purchaser. Although the machine was physically delivered to the purchaser in Wisconsin, nevertheless from the fact that its inherent nature and commercial utility required that it be used by carnival-type operations which attracted members of the public at large, we may infer that the defendant knew, or reasonably should have known, that it would be used as a public attraction in the several states, including Alabama. In theory this case is not unlike Gray v. American Radiator & Standard Sanitary Corp., supra, for here the defendant has sold its product (an “attraction” instead of a safety valve) to another company who integrated that product into a larger product (a carnival or “show” instead of a finished hot water heater) and ultimately sold it to a consumer in another state (a patron of the entertainment provided by the machine instead of a purchaser of the heater). The Duple case is also applicable. Except for the fact that the order here was placed in Oregon, while in Duple it was placed in Hawaii where the accident occurred, the facts are closely aligned. In effect, Century 21 Shows, Inc. took delivery of this machine in Wisconsin and integrated it into its carnival operation which later operated in Alabama. Likewise, Vauxhall Motors took Duple’s coach body which was integrated with its coach chassis and shipped it to Hawaii. Under the circumstances created by the parties’ business operations, the nature of this equipment, and the business address of Century Shows, Inc., was it not clearly foreseeable as a result of Hrubetz’s trade with a company with an Alabama business address that if an injury from a defective machine occurred it would occur in Alabama? The answer must be an affirmative one on the same basis as the affirmative answer in Duple, supra. Indeed, the defendant’s knowledge of the purchaser’s business address might reasonably have suggested to him that the machine would be used in Alabama. If Hrubetz elected to sell- its products in Oregon for ultimate use in another state, such as Alabama, “it is not unjust to hold it answerable there for any damage caused by defects in those products.” Gray, supra, 176 N.E.2d at 766. Any hardship in defending the product in Alabama “must be assumed as an attribute of foreign trade.” Duple, supra, 417 F.2d at 235. Indeed, from the nature of the purchaser’s business operations, Hrubetz could have reasonably foreseen that “The Round Up” would be used in any of the states in the union. Accord, Liberty Mut. Ins. Co. v. American Pecco Corp., 334 F.Supp. 522 (D.C.D.C.1971). Accordingly, “it does not violate due process to require the manufacturer to defend a products liability suit in that state (Alabama) where the accident occurs.” Sells, supra, 513 F.2d at 763.

In addition, Alabama furnishes the more convenient forum. The gist of the plaintiff’s complaint is that her minor daughter sustained mortal injuries as a proximate result of either the negligence or wantonness of the defendants in the operation of this attraction by failing to provide adequate safety restraints or guarding devices. Alabama law will govern the substantive questions, cf. Ex parte Central of Georgia Ry. Co., 243 Ala. 508, 10 So.2d 746 (1942). The witnesses to the accident and to the use of the attraction at the time of the accident are likely to be found in Alabama. It would appear, moreover, that any testimony relating to questions of technology or manufacturing design could be as easily produced in Alabama as in Oregon. In contrast, it would appear unfair to require the plaintiff to undertake, with all of its attendant inconveniences and expenses, redress in a distant state far removed from where the accident occurred and was likely investigated.

We hold, therefore, that the trial court erred in granting the motion of the defendant Hrubetz to dismiss the complaint, and we remand the cause to that court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and BLOODWORTH, J., dissent.

BLOODWORTH, Justice

(dissenting).

I must respectfully dissent from the holding of the majority decision because I believe it makes Alabama’s “long-arm” statute “too long.”

I concurred in Chief Justice Torbert’s dissent in DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala.1977) because I agreed with him there were not, in my judgment, such “minimal contacts” in that case so as to justify in personam jurisdiction under the “long-arm statute.” The majority held otherwise, and, therefore, I cited the DeSotacho v. Valnit case when I authored the opinion for the Court in Semo Aviation, Inc. v. Southeastern Airways Corp., [M.S. May 19, 1978, rehearing overruled July 21, 1978] 360 So.2d 936 (Ala. 1978). Semo, in my judgment, is a much stronger case than DeSotacho. The “minimum contacts” in Semo are as follows: that the planes would be delivered in Alabama; that they would be used to service mail contracts in Alabama; that the agent of defendant came to Alabama to pick up the checks for the planes and to deliver the written invoices and “spec, sheets”; that several phone calls were made by the agent to Alabama during the negotiation of the contract; that a number of calls were made by defendants to an Alabama bank to help the buyer secure financing; that defendant Semo was flying regularly scheduled flights into Alabama pursuant to its mail contract.

The “minimum contacts” present in Semo are a far cry from the “minimum contacts” in this case. Here, the contract was made by the seller-manufacturer who sold its product in Oregon to a customer having a business address in Alabama, the customer accepted delivery in Wisconsin, and the product allegedly caused injury while being operated by the purchaser in Alabama. I believe the majority’s application of the “minimum contacts” test in this case (in the words of the Supreme Court in its most recent in personam case in Kulko v. Superior Court of California et al., (1978) 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132) “represents an unwarranted extension of International Shoe and would, if sustained, sanction a result which is neither fair, just, nor reasonable.

TORBERT, C. J., concurs.


author: ALMON, Justice.

text:
    Kathy Lynn GAUGHT et al. v. Robert Earl EVANS et al.
    SC 2826, SC 2827, SC 2828.
    Supreme Court of Alabama.
    Aug. 18, 1978.
    R. B. Jones of Jones & Monroe, Birmingham, for appellants.
    J. Gusty Yearout and Robert D. Hunter, Birmingham, for appellee, Allstate Ins. Co.
   ALMON, Justice.

This appeal is from a summary judgment in favor of Allstate Insurance Company denying recovery under the uninsured motorist provision of a policy of insurance issued to Lawson Gaught. The trial court ruled that Allstate was not liable because the appellants settled their claims with the “primary” insurer, St. Paul Insurance Company without exhausting the coverage of the St. Paul policy.

On June 8, 1974, the minor daughters of Lawson Gaught, Kathy Lynn and Brenda Gaught, were riding as passengers in an automobile driven by Clayton O. Fowlkes and owned by Oran R. Fowlkes, Jr. The Fowlkes automobile collided at an intersection with an automobile driven by Robert Evans and owned by Jerry R. Hooper, both uninsured motorists. After colliding with the Evans/Hooper vehicle, the Fowlkes vehicle collided a second time with a vehicle driven by Mrs. Arlie O. Jennings and owned by T. Z. Jennings.

The Fowlkes vehicle was covered by a policy of liability insurance containing uninsured motorist coverage issued by St. Paul. The limits were $10,000 per person and $20,-000 per accident. Lawson Gaught owned an automobile liability policy containing uninsured motorist coverage issued by Allstate. It is conceded that the Gaught girls were covered under the terms of each policy. Allstate’s coverage is under policy provisions supplying coverage while riding in a “non-owned” automobile.

Lawson Gaught, as next friend, filed suit against St. Paul, the Fowlkes, the Jennings, Evans, and Hooper. On April 1, 1975, by way of pro tanto release, Gaught settled the claim against St. Paul and its insureds, the Fowlkes, for $5,500.00. The release recites that it is for medical, liability, and uninsured motorist coverage. The claim against St. Paul and the Fowlkes was dismissed with approval of the trial court with leave to proceed against any other defendants. The motion to dismiss recites that the settlement was not intended to be the actual damages sustained by the plaintiffs.

In March, 1976, after oral testimony, the Gaughts obtained default judgments against Robert Evans and Jerry Hooper, the uninsured motorists, totaling $25,500.00. Based on these judgments, Gaught instituted the present action against Allstate to recover under the uninsured motorist coverage up to the limits of the policy.

Allstate denied liability based on policy limitations. Allstate contends that its uninsured motorist coverage provided only “excess” coverage for the plaintiffs when injured while occupying a non-owned automobile which is involved in an accident in which an uninsured motorist is at fault; i. e., St. Paul is the “primary” insurer and Allstate is not liable on its policy until St. Paul’s coverage is exhausted.

The position taken by Allstate is fully supported by decisions of the Court of Civil Appeals in Barnwell v. Allstate Insurance Co., 55 Ala.App. 447, 316 So.2d 696 (1975), and Almeida v. State Farm Mutual Insurance Co., 53 Ala.App. 175, 298 So.2d 260 (1974). In upholding the policy limitations, the Court of Civil Appeals relied on the decision of this court in Continental National American Group v. Burleson, 283 Ala. 671, 220 So.2d 611 (1969), distinguishing the principles announced in Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So.2d 736 (1970).

The issue is whether the concept of “primary” and “secondary” coverage in the uninsured motorist context violates Safeco and the requirements of the Alabama Uninsured Motorist Statute. Tit. 36, § 74(62a), Code of Alabama 1940, Recompiled 1958 (Sec. 32-7-23, Code 1975).

The provision in dispute is known as an “other insurance” clause which is commonly found in automobile liability and uninsured motorist provisions. This clause attempts to limit the insurance companies’ liability when a person is insured under two or more policies covering the same risks. The facts of this case demonstrate the effect of such a clause.

Ordinarily, under “other insurance” provisions, there are combinations of clauses commonly referred to as “excess clauses,” “excess-escape clauses” and “pro-rata clauses.” We are not here dealing with a pro-rata clause, but some of the cases cited involve this type clause and reference will be made to them infra .

The “excess-escape clause” provides that the insurance shall apply “ ‘only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.’ ” Widiss, Uninsured Motorist Coverage, § 2.59, p. 106 (1969). The effect of this clause allows insurance companies to escape all liability in cases where the insured comes under the coverage of another policy unless its maximum coverage limit exceeds the other insurance. This court declared such clauses unenforceable as violative of the Uninsured Motorist Statute in Safeco Insurance Co. of America v. Jones, supra, and has been followed in later decisions. Employers Liability Assur. Corp., Ltd. v. Jackson, 289 Ala. 673, 270 So.2d 806 (1972); State Farm Mutual Automobile Ins. Co. v. Cahoon, 287 Ala. 462, 252 So.2d 619 (1971). Allstate does not challenge the validity of these decisions.

The “excess clause” provides that the claimant’s own policy applies “ ‘only in excess insurance oyer any other similar insurance available to such an insured [claimant] and applicable to such vehicle as primary insurance’ — that is, the uninsured motorist insurance which applies to the vehicle he is occupying is viewed as primary insurance . .” Widiss, supra. The enforceability of the “excess clause” is the issue at hand.

In Almeida v. State Farm Mutual Ins. Company, supra, the Court of Civil Appeals addressed this issue and stated the following:

“The principle of primary and secondary liability has long been included in automobile liability and is recognized by the courts of this state. Continental National American Group v. Burleson, 283 Ala. 671, 220 So.2d 611. Such provisions are matters reasonably affecting premiums charged and some protection against double recovery of damages.
“At first reading, language in Safeco, supra, appears to indicate that provisions as to primary and secondary relationship between uninsured motorist insurers is not permissible. (Safeco, supra, 286 Ala., page 613, 243 So.2d 736.) However, consideration of the issue before the court and the facts thereof does not require such conclusion.”
“We therefore conclude that the insured is bound by the provision in his policy which provides that if the insured is injured by an uninsured motorist while in an automobile other than the owned automobile and such automobile has uninsured motorist insurance available to insured, such coverage shall be primary and coverage provided to the named insured shall be secondary and only as excess over the first. Thus the insured’s first right of recovery is against the insurer of the non-owned automobile.”

Later, in Barnwell v. Allstate Insurance Company, supra, the Court of Civil Appeals reaffirmed its decision in Almeida, stating:

“As we said in Almeida, we do not consider that application of primary and secondary coverage on the basis of an excess insurance clause violates the principles of Safeco Insurance Co. v. Jones, 286 Ala. 606, 243 So.2d 736, and succeeding cases. Such application to uninsured motorist policies does not limit liability of any insurer nor prevent the insured from receiving full benefit of his policy in payment of his full damages. It merely requires that he have a beginning point for determining liability, damages and receiving payment.”

The rule in this jurisdiction (regarding primary and secondary coverage) was clearly set forth by Justice Bloodworth writing for the Court in Continental National American Group v. Burleson, 283 Ala. 671, 220 So.2d 611 (1969).

“We are clear to the conclusion that the majority rule is that where an automobile owner has a policy with an omnibus clause, and an additional insured has a non-ownership policy providing that is [sic] shall only constitute excess insurance over and above any other valid, collectible insurance, the owner’s insurer has the primary liability and the excess insurer secondary liability after the primary insurance is exhausted. By virtue of this rule, no consideration is given to the ‘other insurance’ clause in the primary policy, providing that if the additional insured has other valid and collectible insurance, the insurer is not liable except on a pro-rata basis because the insurance under the excess policy is not regarded as other collectible insurance, it not being available to the insured until the primary policy is exhausted. 8 Appleman, Insurance Law and Practice, supra; 16 Couch on Insurance 2d, supra; 76 A.L.R.2d supra; United States Fidelity & Guaranty Co. v. Slifkin (N.D.Ala.), 200 F.Supp. 563.”

Appellants argue that the primary and secondary coverage cases decided by this court are not controlling in the uninsured motorist context. They rely on the Uninsured Motorist Statute and the decision of Safeco and Hogan v. Allstate Insurance Company, 287 Ala. 696, 255 So.2d 35 (1971).

Both the Safeco and Hogan cases dealt with “excess escape” clauses whereas this case deals only with an “excess” clause. To give literal effect to the escape clauses in those cases would have resulted in absolutely no coverage whatsoever to the claimant under the secondary policies. We agree that the Uninsured Motorist Statute does not permit this result for the reasons stated in Safeco as follows:

“We hold that our statute sets a minimum amount for recovery, but it does not place a limit on the total amount of recovery so long as that amount does not exceed the amount of the actual loss; that where the loss exceeds the limits of one policy, the insured may proceed under other available policies; and that where the premiums have been paid for uninsured motorist coverage, we cannot permit an insurer to avoid its statutorily imposed liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.”

Here we have a different situation.

Secondary coverage may be reached after the exhaustion of primary coverage if the damages exceed the policy limits of the primary coverage. This construction gives effect to the contract provision, the primary-secondary coverage doctrine and does no violence to the Uninsured Motorist Statute.

The trial court is correct and the judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

      . Safeco also involved a “pro rata” clause which is not here pertinent. But in that connection see State Farm Mutual Automobile Insurance Co. v. Auto Owners Insurance Co., 287 Ala. 477, 252 So.2d 631 (1971).


text:
    Mark STANLEY and Sharon Stanley v. AMERICAN FIRE AND CASUALTY COMPANY.
    77-12.
    Supreme Court of Alabama.
    Aug. 18, 1978.

      W. H. Baldwin, Andalusia, for appellants.
    Robert B. Albritton of Albrittons & Givhan, Andalusia, for appellee.
   ALMON, Justice.

This is an action for declaratory judgment to determine coverage under a homeowner insurance policy issued to Mark Stanley. The trial court ruled there was no coverage because the policy “clearly and unambiguously excluded coverage for any loss related to business pursuits on the insured premises.”

Alicia Schofield, who was just over one year of age, was injured when she fell backwards on a bed of hot coals in the Stanley home fireplace. At the time of the incident, Mrs. Stanley was in the kitchen preparing lunch for herself, her own children, and the other children for whom she was baby-sitting.

For several months prior to this Mrs. Stanley kept the children of various friends and neighbors in her home during the day. She cared for eight different children, but no more than five at the same time. Mrs. Stanley received three dollars per day for each child as compensation.

At issue is the following policy exclusion:

“This policy does not apply:
“1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others .
“d. to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits.”

The trial court ruled that in caring for children Mrs. Stanley was engaged in a “business pursuit” within the meaning of the policy exclusion. The judgment, however, lacks any reference to whether the injury arose out of “activities therein which are ordinarily incident to non-business pursuits,” the exception to the exclusion. Our inquiry is directed to the exception.

The above provision, both exclusion and exception, have been the subject of several court decisions in other jurisdictions. The provision does not lend itself to clarity, resulting in a split of opinion over whether it is ambiguous, with the consensus being that it is poorly worded. See Martinelli v. Security Ins. Co. of New Haven, 490 S.W.2d 427 (Mo.App.1972); Crane v. State Farm and Cas. Co., 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129 (1971); McDougall v. Hartford Fire Ins. Co., 94 Idaho 220, 485 P.2d 962 (1971); and Gulf Ins. Co. v. Tilley, 280 F.Supp. 60, 64-65 (N.D.Ind.1967); aff’d 393 F.2d 119 (7th Cir. 1968).

The Crane and Tilley cases deal with substantially the same question as we have here and conclude the activity there was within the exception to the exclusion, resulting in coverage.

In Tilley, the exclusionary clause was held inoperative where baby care was furnished for consideration, and the baby sustained burns when she overturned a coffee percolator. The district trial court assumed that the child care was a business pursuit, but characterized insured’s coffee brewing for herself and a guest as an activity not connected with baby care, thus ordinarily incident to non-business pursuits. This analysis is questionable. The baby was burned because of the condition on the premises, and the baby’s own activity. The business of child care contemplates the exercising of due care to safeguard a child of tender years from household conditions and activities; and, any activity of the insured in this regard from which injury results cannot logically be called an activity ordinarily incidental to a non-business pursuit. In other words, the activity referred to is a failure to supervise rather than making coffee for a third party. Undertaking the business relation of child care for compensation is certainly not ordinarily incident to the conduct of a household.

In Crane the Supreme Court of California reasoned that “indeed, it is difficult to conceive of an activity more ordinarily incident to a noncommercial pursuit than home care of children.” We agree with the general ascertain, but disagree with their conclusion that child care for pay is ordinarily a non-business pursuit. It should be remembered that we are not here dealing with a temporary or casual keeping of children, but rather with a more permanent arrangement for an agreed upon compensation. The Supreme Court of California in Crane reversed the Court of Appeals. The Court of Appeals’ decision is styled the same and appears in 14 Cal.App.3d 727, 92 Cal.Rptr. 621. It is our view that the Court of Appeals’ decision is better reasoned and more properly analyzes the other cases cited than does the opinion of the Supreme Court of California. The facts are strikingly similar to the ones before us. In view of the similarity we will quote liberally from their opinion:

“ ‘Babysitting’ is an occupation in which the babysitter has the responsibility of keeping her infant charges entertained and protected from harm and even mischief. (Tropical Coach Lines, Inc. v. King (1962 Fla.Sup.Ct.) 147 So.2d 318, 319.)
“The term ‘babysitting’ perhaps is inaptly used to describe the contract for day care for children involved here. In ordinary parlance, the ‘babysitter’ is one employed as a matter of convenience by parents to stay with a child or children, so that they may for a few hours seek their pleasure, or tend to affairs external to the home. This differs from day-in, day-out child care for an indefinite period, as here.
“ ‘Business’ in its broad sense embraces anything about which a person may be busy, and-in its usual sense, signifies an undertaking or calling for gain, profit, advantage or livelihood. While ‘business pursuit’ in some contexts is synonymous with ‘business,’ it more accurately denotes a continued, extended or prolonged course of business or occupation. Child care for compensation as evidenced in this case was much more than a casual accommodation, and was properly found to be a ‘business pursuit’ under the terms of the policy exclusion. (Mansfield v. Hyde (1952) 112 Cal.App.2d 133, 137-138, 245 P.2d 577; Long v. City of Anaheim (1967) 255 Cal.App.2d 191, 197, 63 Cal.Rptr. 56; cf. Dorrell v. Norida Land & Timber Co. (1933) 53 Idaho 793, 27 P.2d 960, 963, reviewing definitions; Fadden v. Cambridge Mutual Fire Insurance Co. (Sup.Ct.1966) 51 Misc.2d 858, 274 N.Y.S.2d 235, 241; Home Insurance Company v. Aurigemma (Sup.Ct.1965) 45 Misc.2d 875, 257 N.Y.S.2d 980, 985. These New York trial court cases involve the same exclusionary clause here considered.)
“It has been held in a variety of contexts that a single day’s act, or single transaction does not qualify as a business. We need not explore the ramifications of these definitions, in view of the continuity of the services here contracted for and performed, according to the evidence. The present case does not involve casual babysitting, a temporary arrangement for an hour, a day or an evening, for the convenience of parents. It seems clear that while an individual instance might involve a business arrangement, such would lack the continuity of a ‘business pursuit.’ ” 92 Cal.Rptr. at 622.

We are in accord with the several authorities that the exclusionary provision is poorly worded and could have been written with more specificity. Yet when applied to these facts we do not find it ambiguous.

Two questions become pertinent. First, did the injury arise out of a business pursuit? We hold that it did. Second, did the injury arise out of an activity which is ordinarily incident to a non-business pursuit? The activity referred to is not preparing lunch, which would ordinarily be incident to a non-business pursuit, but rather to the failure to properly supervise a young child. Supervising children on a regular basis for compensation is ordinarily a business pursuit.

We are therefore of the opinion that the business exclusion is applicable and the judgment of the trial court is correct.

The judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    In re CHARLES MANUFACTURING CO. v. UNITED FURNITURE WORKERS. Ex parte Carl HOLMES et al.
    77-149.
    Supreme Court of Alabama.
    Aug. 18, 1978.

      Myron H. Thompson, Dothan, Robert H. Stropp, Jr., Birmingham, for petitioners.
    Stephen T. Etheredge, William L. Lee, III, of Lee & Mclnish, Dothan, for respondent, Charles Mfg. Co.
   EMBRY, Justice.

By original writ of certiorari to the Circuit Court of Houston County we here review the propriety of the proceedings below wherein petitioners were adjudged guilty of criminal contempt for violating the provisions of an injunction. Appellate jurisdiction to review such proceedings reposes in this court. In re Sandra Hill Tetter v. State, 358 So.2d 1046 (Ala.1978).

This case arises from a labor dispute between Charles Manufacturing Company and the United Furniture Workers of America, AFL-CIO, Local Union No. 361. On 30 September 1977, a preliminary injunction was issued by the trial court in the civil action of Charles Manufacturing Company v. United Furniture Workers of America, enjoining the U.F.W.A., AFL-CIO, Local Union No. 361, certain persons in their individual capacity and as officers (Carl Holmes, Barry Kennedy, Wayne Scott, Eddie Bolden, Leonard Howell, Mary Ward, Shirley Mowrey, Willie Carter, and Kenneth Turner) and their agents, employees, and representatives, and all persons receiving notice of the order from engaging in, inter alia, violence, mass picketing, threats, coercion, obstruction of the public roads and interfering with the ingress and egress from the plant or facilities of plaintiff, Charles Manufacturing Company, in Dothan, Alabama. Petitioners, defendants below, were enjoined from engaging in eleven separate acts.

On 1 November 1977, plaintiff filed a complaint charging petitioners with contempt. It contained only the following allegation regarding violation of the injunction:

“(2) Plaintiff avers that the Defendants have willfully failed and refused to obey said preliminary injunction as ordered by this Honorable Court.”

On 2 November 1977, the trial court ordered petitioners to appear on November 16, 1977 and show cause, if any, why they should not be punished for contempt of court. The complaint, a copy of the preliminary injunction, and the order were mailed to the defendants’ attorney of record.

On 14 November 1977, defendants filed a motion to dismiss the complaint for contempt. The basis of the motion was that the complaint for contempt and the trial court’s order failed to state in what particular respects petitioners violated the preliminary injunction. On 16 November 1977, the trial court denied the defendants’ motion. Petitioners then filed an answer to the complaint. The trial commenced on the same day. On 17 November 1977, the trial court rendered twenty-three judgments of contempt. Generally, the convictions were for scattering nails on the public road near the plaintiff’s plant, threats of physical abuse, harassment of nonunion workers, and throwing objects at the cars of nonunion workers. We reverse and remand.

Contempts are divided alone two lines: first, civil or criminal contempt. Civil contempt sanctions seek to compel or coerce compliance with orders of the court in the future, while a criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience of orders of the court. Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965); Carrol v. State, 350 So.2d 723 (Ala.Crim.App.1977). The second line divides contempts into those which are either direct or indirect. Direct contempts are those committed in the “presence” of the judge, where all of the essential elements of the misconduct are under the eye of the court, and are actually observed by the court. If some of the essential elements are not personally observed by the judge it is an indirect contempt. See Tetter, supra. The record is clear that this case involves convictions of indirect (sometimes called constructive) criminal contempt.

The petitioners’ first contention is that eight of them convicted of contempt were not named as defendants in the complaint and the trial court’s order to show cause; therefore, they were not given any notice that indirect criminal contempt proceedings had been instituted against them. Although these eight persons were not named specifically as defendants in the preliminary injunction, complaint, and the court’s order to show cause, it is clear that they were subject to the preliminary injunction. In the style of the injunction the local union was named as a defendant. Furthermore, the body of the injunction, in part, reads:

“ * * * It is ORDERED, ADJUDGED AND DECREED, that the Defendants, each and everyone, and through their agents and representatives, [who were also named as defendants] and all other persons acting at the direction of or in active concert or participation with them, jointly and severally, and all persons receiving notice of this order are hereby restrained and enjoined and ordered to refrain from * * * ” (emphasis added).

These eight persons were members of the local union, and received actual notice of the preliminary injunction and its terms. The denomination of the local union as a defendant and the language in the preliminary injunction makes it clear that these eight persons were subject to the injunction and could be held in contempt. To hold otherwise, in order to make an injunction effective, it would be necessary to name each member of the union by name.

In the proceedings held prior to issuance of the injunction, the attorney for the United Furniture Workers of America informed the court, and counsel for respondent, that he represented the named defendants in that cause as well as each and every member of the union. Subsequent to issuance of the preliminary injunction, neither the court nor respondent received any notice that petitioners’ attorney had ceased his representation of the union or its members. In fact, there is no evidence that his representatives ceased at any time prior to the convictions of contempt.

It appears that service of the complaint, and order to show cause, was made upon the petitioners’ attorney of record. The general rule is that where a party has been served with process and has appeared by attorney, and a decree or order has become binding on him, service of an order to show cause why he should not be punished for contempt may be made on his attorney, if the need to do so appears or the court so directs. See Annot., 60 A.L.R.2d 1244 (1958). But, a person who has no notice of an injunction will not be held in contempt. See Walker v. City of Birmingham, 279 Ala. 53, 181 So.2d 493 (1965), aff’d, 338 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). The record in this case, however, is clear that each member of the union had notice of, and understood, the preliminary injunction. Having actual notice of the terms of the injunction, and the complaint and order to show cause being served on their attorney of record, we hold they had sufficient notice that indirect criminal contempt proceedings had been instituted against them.

Petitioner’s second contention is that adequate notice of the contempt charges was not given any of them. We agree, and hold that adequate notice was not afforded these eight persons and the other “named” defendants that were convicted of contempt; therefore, due process accorded petitioners by the Fourteenth Amendment to the United States Constitution, and Art I, § 6 of the Alabama Constitution, was violated.

Proceedings charging one with an indirect criminal contempt requires that the accused be afforded due process of law. Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); Ex parte Seymore, 264 Ala. 689, 89 So.2d 83 (1956). Where an individual is charged with indirect or constructive contempt, due process requires that he be given notice of the charges and a reasonable opportunity to meet them, the right to call witnesses and confront his accuser, and the right to give testimony relevant either to the issue of complete exculpation or extenuation of the offense and in mitigation of the penalty imposed. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Cooke v. United States, supra; International Brotherhood of Electrical Workers v. Davis Contractors and Engineers, Inc., 334 So.2d 892 (Ala.1976); Ex parte Seymore, supra; Ex parte Bankhead, 200 Ala. 102, 75 So. 478 (1917).

The great weight of authority is that the preliminary statement in proceedings to punish a contempt committed out of the court’s presence must set forth all facts essential to the court’s jurisdiction, including facts constituting a contempt, and, the statement must clearly apprise the person charged of the nature and cause of the accusation. 17 C.J.S. Contempt § 72(2) (1963). In Craddock v. Oliver, 23 Ala.App. 183, 185, 123 So. 87, 88 (1929), the Court of Appeals of Alabama stated that:

“[The] rule nisi in cases of constructive contempt of a criminal nature must be based upon a sufficient information or affidavit, setting forth in general terms the acts complained of * * * ” (emphasis added).

In In re Tarpley, 293 Ala. 137, 300 So.2d 409 (1974), this court cited with approval the holdings of both Hunter v. State, 251 Ala. 11, 37 So.2d 276 (1948) and Ex parte Bankhead, 200 Ala. 102, 75 So. 478 (1917) that under both the federal and state constitutions the accused must be given notice of the nature and character of the charges, and be given an opportunity to answer. See also, Davis Constructors and Engineers, supra. Further, in Hunter, the court found that constructive contempt proceedings are sometimes begun by issuing a warrant of arrest, and occasionally, by issuing a citation or rule nisi to the accused ordering him to appear and answer the charge. After finding that due process required that the accused be advised of the charge, the court went on to say:

“This does not mean that a written accusation is not essential. But it need not be verified except to support a warrant of arrest under § 5, supra. But the form of it is not material if it sets out the charges in such manner as to apprise him of the exact nature of it, and what he is called upon to defend.” (emphasis added).

The complaint for contempt in this case simply stated that:

“Plaintiff avers that the Defendants have willfully failed and refused to obey said preliminary injunction as ordered by. this Honorable Court.”

The preliminary injunction listed eleven acts prohibited to be engaged in by petitioners. Neither the complaint for contempt nor the order to show cause issued by the circuit court, and served upon petitioners, contained an “accusation” or “charge” setting forth any facts which notified the defendants of what they were to defend. We hold this complaint and order did not satisfy due process requirements because adequate notice of the nature and character of the charges against them was not given petitioners.

We also hold petitioners were denied adequate opportunity to prepare their defense. The specific charges for which petitioners were convicted were not known to them until trial began. The plaintiff rested its case at the end of the first day of trial. Petitioners had been charged with about twenty acts of contempt, as disclosed by plaintiffs’ evidence. Counsel for petitioners then requested a continuance in order to prepare a defense. On the next day of trial, counsel for petitioners again requested a continuance to prepare a defense. It was denied. This was error.

For the stated reasons this cause is due to be reversed and remanded. We do not deem it necessary to address the other errors urged by petitioners.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.