text:
    Legal Heirs and/or ESTATE OF Wilbert B. BABB, Deceased v. GTE SYLVANIA, INC. (Zinsco Electrical Products of Mississippi) and American Motorists Insurance Company.
    No. 53262.
    Supreme Court of Mississippi.
    July 21, 1982.

      Charles W. Witt, John C. Underwood, Jr., Taylor, Witt & Underwood, Jackson, for appellant.
    Dan McCullen, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellees.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

William B. Babb filed a claim for workmen’s compensation benefits (motion to controvert) on March 9, 1978, alleging that he suffered emotional trauma in the scope of his employment during the period from April 1, 1976, to November 23, 1976. On April 4, 1978, Babb committed suicide by a self-inflicted gunshot wound to the head, and his motion to controvert was revived in the name of his estate. On August 11, 1978, Mrs. Sara Babb, his widow and only dependent, filed a second motion to controvert, seeking compensation benefits as a result of his death. The employer/carrier, GTE Sylvania, Inc. [GTE] and American Motorist Insurance Company, filed separate answers.

The hearing was held before an administrative judge, who heard lay and medical testimony, found that Babb’s injury was causally connected to his employment, and awarded compensation benefits. The employer/carrier appealed to the full Commission which reversed the administrative judge’s order, holding that Babb’s injury and death were not shown by clear evidence to be causally connected with his employment. The claimant appealed to the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding, which court affirmed the order of the full Commission, and the claimant has appealed here.

I.

The claimant contends that the findings and order of the Mississippi Workmen’s Compensation Commission are contrary to law and are not supported by substantial evidence, and the judgment of the lower court and the order of the Workmen’s Compensation Commission should be reversed.

Babb was a married male, who was born August 1, 1930. He started working for Presto Manufacturing Company in 1957 on an assembly-line operation making small appliances, and later became supervisor in the assembly line. He left Presto in 1969 and went to work for Zinsco as foreman on the assembly line. Zinsco was in the business of manufacturing electrical distribution equipment and transformers and was purchased by GTE Sylvania, Inc. about 1974. Babb continued as an assembly-line foreman for GTE.

Babb had suffered physical disabilities through the years as follows:

(1) Lumbar disc surgery in May, 1957.

(2) Lumbar disc surgery in September, 1974.

(3) Chronic peptic ulcer disease since the mid-1950’s with confinement at Doctors’ Hospital for ulcer problems in 1958, 1970, 1974, and 1975.

(4) In August, 1975, he suffered perforation of the ilium because of a lodged fish-bone and suffered an exploratory laparoto-my and removal of a part of the small bowel.

(5) Hospitalization from January 12 to January 27, 1976, with a chronic duodenal ulcer, which necessitated surgical procedure.

(6) Hospitalization at St. Dominic’s-Jackson Memorial Hospital from May 11 to May 16, 1976, for a heart problem.

When Babb had the surgical procedure January 12,1976, he took a leave of absence from January 12 until March 15, 1976, aggregating nine (9) weeks. He was on sick leave again from May 17 through June 11, 1976, missing four (4) weeks. On his return to work, he was transferred from a special work project in the stockroom, where he was employed at the time of his illness, to the Quality Control Department, where he worked until he left the employ of the company around Thanksgiving, 1976.

Appellants contend that Babb sustained a compensable injury which was caused by pressures of work from April 1 to November 23, 1976. Evidence, both lay and expert, for appellant and appellee are in conflict. The appellant introduced Dr. James Edward Ruff, a psychiatrist, as an expert witness and an attending physician of Babb. He first examined Babb upon referral of Dr. James Crosthwait, a cardiologist, and followed the patient until his death. Dr. Ruff testified that, in his opinion, Babb’s psychological difficulties had rendered him permanently and totally disabled by February, 1977, and he causally-connected Babb’s psychological disorders to the stresses with which deceased had to deal, primarily, the stress from his job. He also testified that Babb’s mental disorder and ultimate suicide were probably causally-connected to the problems he encountered in his work activities with GTE and that Babb was probably not responsible for his actions at the time of his suicide.

Dr. Richard W. Naef never examined Babb, but he reviewed twelve (12) exhibits, including hospital records, which will be enumerated hereafter, and expressed the opinion there was no causal connection between Babb’s mental condition and subsequent death, and his employment. The Commission’s order denying compensation benefits was based in large part upon the testimony of Dr. Naef. The Commission made the following finding on that testimony:

Dr. Richard W. Naef, a psychiatrist and neurosurgeon, testified based on his examination of various exhibits introduced in this cause. From his review of the exhibits, which reflect the extensive and prolonged history of deceased’s medical and psychological problems, Dr. Naef testified deceased had been an extremely anxious person throughout his adult life and suffered numerous physical disorders, some of which were psychogenic in origin. He testified deceased regressed in 1976 into a pronounced mental and emotional illness, displaying extreme anxiety, maladaptive behavior and neurotic manifestations of emotional disturbance.
According to Dr. Naef, deceased became increasingly ill and depressed, and his depression, along with his inability to cope with his physical illnesses, family problems and financial difficulties, led deceased to choose suicide as a solution to his problems.
Dr. Naef testified deceased had psycho-physiologic gastrointestinal disorder and duodenal-peptic ulcer disease since 24 years of age. In April, 1975, six months after deceased’s back surgery, deceased developed serious complications from the ulcer and required hospitalization. In June, 1975, deceased required emergency surgery because of an accidental perforation of the ilium by a fish bone. In Dr. Naef’s opinion, this emergency surgery was an unexpected source of stress which heightened deceased’s concern for his health. Six months later, deceased again developed serious complications from his chronic duodenal ulcer requiring surgery to re-section the vegas nerves and decrease acid production in the stomach. Five months later, May, 1976, deceased was hospitalized for substernal chest pain. At that time, deceased suffered not only “cardiac neurosis” (an unrealistic fear of having heart disease) but other symptoms as well; weight loss, generalized weakness, lack of stamina and recurring chronic epigastric pain.
Dr. Naef testified that, in his opinion, deceased’s behavior in response to his illnesses indicated severe personality disorder. Deceased was unable to train himself to alter his eating habits to maintain adequate nutrition, and he became malnourished from not eating enough. When he did eat there was a dumping effect: Food would not remain in the stomach long enough for proper digestion at the first level of digestion and food material was dumped into the small intestine causing hyperaction in the intestines which resulted in poor absorption, discomfort, diarrhea and loss of weight. Dr. Naef testified these problems caused deceased to become discouraged, impatient and frustrated. Deceased lacked understanding and acceptance of this disease. He was unable to make the intellectual effort of self-discipline and remain calm enough to eat, digest his food and continue persistent management of nutrition.
Due to deceased’s surgeries for the back injury and the puncture of his intestine, plus the psychosomatic illnesses with physical manifestations, he lost an excessive amount of time from work from mid 1975 to mid 1976. Dr. Naef testified deceased’s excessive absenteeism had an effect on his sense of security. Although the defendant allowed deceased to return to work, provided him with hospital insurance and even gave him a week’s vacation after he had been absent for illness numerous weeks in the same year, deceased still developed a great amount of anxiety and an increasing fear of losing his job. Based on the facts provided by Dr. Naef, he testified deceased’s job was not actually threatened, but deceased, on his own, developed the “concept” that his position with defendant was threatened.
Dr. Naef testified that deceased’s feelings of insecurity about his work, along with his uncertainty about his ability to recover from prolonged physical problems and his inability to cope with family and financial problems, finally led to deceased’s depression. Dr. Naef testified as to the effect of deceased’s physical ailments on his job performance.
“I think his state of health is what caused his inability to cope with those different job classifications. I think he probably had the basic experience and knowledge to do any of those three jobs. But I think he was so ill by that time anxious and suffering with so many physical symptoms that he was not free to give his best qualifications to the work. He would then misinterpret the requirements of the work, and the relationship between him and other people at work.
I don’t see that the change of job classifications, which have different duties in each position, would be a very important factor in causing his illness. I think his illness, and his personality, and his state of mind, his attitude, his lack of self-confidence, his insecure sense of having failed at so many things, and lost so much time at work, and still suffering with so much illness, the disappointment of not being well after gastrectomy, I think all of those factors made him unable to cope with the job.... I think they could have moved him back into almost any position and he still would have been unable to copy with ... the responsibilities.”
Dr. Naef testified that the depression which eventually led to deceased's suicide grew out of his inadequate personality. Deceased displayed a weakness of character which made it difficult for him to cope.with routine problems of living, unexpected adverse circumstances and a variety of true physical illnesses. He was unable to make mature adjustments and deteriorated into a neurotic state of maladaptive behavior with anxiety and then finally depression and suicide. Dr. Naef did not agree with Dr. Ruff that deceased’s job caused deceased’s illness but rather concluded that deceased’s illness made it impossible for him to cope with his job.
Dr. Naef stated that deceased’s suicide note was consistent with his personality. Dr. Naef stated:
“That’s a clear statement that he loves his family. He’s not killing himself because he hates them. He’s not blaming them as implied by this statement. ‘I love you all very much, but I can’t live in this misery’, meaning that he had become utterly frustrated, and hopeless, and helpless, and unloveable, and that he thought it was the best solution to the whole misery, to the whole miserable real-life situation.
He couldn’t master [sic] together the ability to cope, and make life any better, and I think he concluded that the family would be better off without him.”

Babb was hospitalized at the Veterans’ Administration Hospital in Jackson first on August 16, 1976. During periods of hospitalization, the following history and notations on the records were indicated at the VA Hospital:

He described himself as being a nervous person and upon the history he expressed concern over the amount of work that his wife does and that it was killing her. He had feelings of worthlessness and guilt and he reports early morning sleep disturbance with minimal activity during the day. He reports that he would come home from work in the afternoons and head straight for the couch with no interest in his family or outside activities. He also reported loss of sexual appetite and that he has no satisfaction in his sex life. He has had a weight loss of 20 lbs. since his operation in January.
* * * * * *
Patient reports periods of depression expressing concern over the past series medical operation which he believes is responsible for his condition (due to their stress). He expressed concern over the amount his wife works and that “it is killing her.” He has feelings of worthlessness in his condition requiring his wife to work hard to support.
He reports an early morning sleep disturbance but ponders no thoughts during these times. His activity is minimal, coming in after work and heading “straight for the couch.”

In Hemphill Drug Co. v. Mann, 274 So.2d 117 (Miss.1973), the Court said:

There is a considerable body of authority to support the proposition that the findings of fact of the Workmen’s Compensation Commission must be upheld so long as those findings are supported by substantial evidence.
sfc s|e sf:
In determining whether or not there is “clear evidence” of a causal connection, the Workmen’s Compensation Commission has the discretion to determine the probative value of expert medical testimony. In Miller Transporters, Ltd. [v. Reeves, 195 So.2d 95 (Miss.1967) ], supra, this Court held:
“The probative value of medical testimony is for the fact finding tribunal to decide. 100 C.J.S. Workmen’s Compensation § 555(5)c, p. 676; and cases cited. ‘The mere expression of a medical opinion couched in somewhat equivocal language may not always be grasped as a substitute for fair and substantial evidence in the field of mental illness, and if testimony of an expert witness is unconvincing, his conclusions need not be accepted. 100 C.J.S. Workmen’s Compensation § 555(15), pp. 721, 722.’ [Johnson v. Gulfport Laundry & Cleaning Co.], 249 Miss. [11] at 21, 162 So.2d [859] at 863. * * * * * *
.. . [T]he determination of facts is clearly within the province of the commission.” 195 So.2d at 100. [274 So.2d at 119, 120].

In Malley v. Over-the-Top, 229 Miss. 347, 90 So.2d 678 (1956), the Court said:

Accordingly, we hold that the Commission itself is the trier of facts and any question of fact decided by it is conclusive on appeal if it is supported by substantial evidence. It follows that the judgment should be and is affirmed. [229 Miss, at 355, 90 So.2d at 681].

See also Segar v. Garan, Inc., 388 So.2d 164 (Miss.1980); Holloway v. Prassell Enterprises, Inc., 348 So.2d 771 (Miss.1977); and Brown v. F. W. Woolworth Co., 348 So.2d 236 (Miss.1977).

We are of the opinion that the findings and order of the Workmen’s Compensation Commission were supported by substantial evidence and that the lower court was eminently correct in affirming that order.

II.

The parties concede and agree that the Workmen’s Compensation law in Mississippi, as interpreted, requires a physical injury or traumatic impact which results in the mental condition. However, in view of our decision on the facts related in Section I hereinabove, it is not necessary for us to address that question.

For the reasons stated, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS and DAN LEE, JJ., concur.

PRATHER, J., takes no part.

      . The record indicates that from April 1 through mid-September, 1976, Babb worked only nine (9) weeks because of unrelated physical infirmities and one (1) week of vacation.

       The exhibits which Dr. Naef examined were:
      Exhibit 2 — A copy of deceased’s Certificate of Death
      Exhibit 3 — Copy of out-patient notes of Dr. Ruff from September 9, 1976, through March 6, 1978
      Exhibit 8 — Copy of Defendant’s 1976 Salary Attendance Record
      Exhibit 9 — Copy of defendant’s 1975 Salary Attendance Record
      Exhibit 10 — Copy of letter signed by Mr. Phillip Patton dated April 22, 1977 Exhibit 11 — Copy of the Company Confidential Salary Information Form Exhibit 15 — Copy of Hospital records from Baptist Hospital, first admission August 27, 1974, second admission April 7, 1975, third admission June 12, 1975 Exhibit 16 — Copy of hospital records from Doctor’s Hospital commencing January 12, 1976
      Exhibit 17 — Copy of hospital records from St. Dominic’s Hospital commencing May 11, 1976
      Exhibit 18 — Copy of hospital records from St. Dominic’s Hospital commencing November 29, 1976
      Exhibit 19 — Copy of hospital records from St. Dominic’s Hospital commencing February 11, 1977
      Exhibit 20 — Copies of hospital records from Veterans Administration Hospital, first admission August, 1976, second admission July, 1977


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    CITY OF NEW ALBANY, et al. v. Howard Lee RAY.
    Nos. 53287, 53288.
    Supreme Court of Mississippi.
    July 21, 1982.

      Thomas R. Trout, Darden, Sumners, Carter & Trout, New Albany, for appellants.
    Will R. Ford, Ford & Cornelius, New Albany, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Howard Lee Ray petitioned the City of New Albany to rezone fifteen (15) acres of land from A-l, agricultural with three-acre residential, to R-3, multiple dwelling. Individual citizens protested the change of the zoning ordinance, and the City of New Albany [City] unanimously declined to rezone the property. Ray appealed to the Circuit Court of Union County, which court, Honorable W. W. Brown, presiding, reversed the decision of the City and rezoned the property from A-l to R-3 (# 53,287). After the City had denied the petition and prior to the hearing before Judge Brown, Ray filed a second petition seeking to rezone the property from A-l to R-2, two-family dwellings (duplex). The City also denied that petition and, on appeal, the Circuit Court dismissed the appeal as moot, since the first appeal was decided in favor of Ray (# 53,288). The records have been consolidated and are now before this Court on appeal.

I.

THE APPELLEE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE ANY OF THE NECESSARY ELEMENTS TO ESTABLISH A PRIMA FACIE CASE ENTITLING HIM TO A ZONING CHANGE. EVEN ASSUMING FOR THE PURPOSE OF ARGUMENT THAT SUCH A PRIMA FACIE CASE WAS MADE, THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT THE DECISION OF THE MAYOR AND BOARD OF ALDERMEN, AND THE CIRCUIT COURT ERRONEOUSLY SUBSTITUTED ITS JUDGMENT FOR THAT OF THE MAYOR AND BOARD OF ALDERMEN.

The City adopted a Zoning Ordinance which became effective June 26, 1980. Ap-pellee filed his request for a zoning change on July 22, 1980, less than one (1) month after adoption of the ordinance. The Zoning and Planning Commission of the City recommended the requested change from A-l to R-3. A full hearing was scheduled before the Mayor and Board of Aldermen. Approximately one hundred (100) citizens protested the requested rezoning, including a large majority of landowners adjacent to, and surrounding, the Ray property.

Appellee proceeded on the theory that there was a mistake in the original zoning of his property as A-l and that the classification was a “holding” situation until such time as the need developed for rezoning to another classification. He also contended that there was a public need for the rezoning.

In February of 1980, Dalcor Properties, Inc., Huntsville, Alabama, contacted appel-lee about obtaining an option on the fifteen-acre tract of land. Dalcor desired to construct a 28-unit housing project for the elderly on said property, and appellee sought a change in the zoning restriction in order to accomplish that purpose. He contacted the chairman of the New Albany Planning and Zoning Commission, who wrote a letter to the effect that the Commission did not foresee any problems in getting the property rezoned. Final HUD approval of the project was indicated in a letter dated July 30, 1980. In City of Oxford v. Inman, 405 So.2d 111 (Miss.1981), quoting from Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736, 740 (Miss.1980), the principles governing changes in zoning as to mistake and change in the neighborhood appear as follows:

Before reviewing the evidence in this case, we restate the requirements set forth in our cases which must be met by one seeking rezoning of property. The courts presume that comprehensive zoning ordinances adopted by municipal authorities are well planned and designed to be permanent. Before property is reclassified from one zone to another, there must be proof either, (1) that there was a mistake in the original zoning, or, (2) the character of the neighborhood was changed to such an extent as to justify rezoning and that public need exists for rezoning. Watts v. City of Wiggins, 376 So.2d 1072 (Miss.1979); Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss. 1979); Jitney Jungle, Ine. v. City of Brookhaven, 311 So.2d 652 (Miss.1975); Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974); Patterson v. City of Jackson, 285 So.2d 466 (Miss.1973); Board of Supervisors of Jackson County v. Roberts, 287 So.2d 436 (Miss.1973); City of Jackson v. Husbands, 233 So.2d 817 (Miss.1970); Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968); Moore v. Madison County Board of Supervisors, 227 So.2d 862 (Miss.1969); City of Jackson v. Wilson, 195 So.2d 470 (Miss.1966) and City of Jackson v. Bridges, 243 Miss. 646, 139 So.2d 660 (1962).
Furthermore, an applicant seeking rezoning must prove by clear and convincing evidence either (1) or (2) above. Sullivan v. City of Bay St. Louis, 375 So.2d 1200 (Miss.1979); Underwood v. City of Jackson, 300 So.2d 442 (Miss.1974); Hinds County Board of Supervisors v. Covington, 285 So.2d 143 (Miss.1973). [405 So.2d at 113].

The appellee concedes that there was no material change in the neighborhood and area surrounding the property proposed to be rezoned, but he introduced evidence to the effect that there was a public need for the rezoning. Appellee argues strenuously that there was a mistake in the original zoning ordinance in placing the property under the classification A-l. Without detailing the testimony and evidence, it is sufficient to say that there was no issue as to a change in the character of the neighborhood, there was a sharp issue as to the public need for rezoning, and there was an issue as to whether or not a mistake was made in the original zoning.

Appellee originally requested that the property be zoned A-l, and some members of the Zoning and Planning Commission may not have realized the full import of the zoning classification. One such representative testified that it was a mistake to zone the property A-l. However, a mistake within the meaning of the law is not a mistake of judgment, but, rather, a clerical or administrative mistake. The lower court held that the positions advanced by appellee were not applicable to the facts of this case unless there was a mutual mistake. However, in our opinion, mutual mistake also is not applicable.

The law is well settled that a decision of the Mayor and Board of Aldermen in such matters will not be disturbed unless the decision was arbitrary, capricious, discriminatory, or beyond the legal authority of the board. If it is supported by substantial evidence, or, if the question is fairly debatable, the decision will not be disturbed. Bell, et al. v. City of Canton, 412 So.2d 1179 (Miss.1982); Killegrew v. City of Gulfport, 293 So.2d 21 (Miss.1974); Currie v. Ryan and City of Hattiesburg, 243 So.2d 48 (Miss.1970); Ridgewood Land Co. v. Moore, 222 So.2d 378 (Miss.1969); Paine v. Underwood, 203 So.2d 593 (Miss.1967).

On the record before this Court, we are of the opinion that the action of the City in declining to rezone appellee’s property from A-l to R-3 was not arbitrary, capricious, or discriminatory and is supported by substantial evidence.

II.

THE CIRCUIT COURT HAD NO AUTHORITY TO DECIDE THIS CASE UNDER THE DOCTRINES OF PREEXISTING NONCONFORMING USE OR MUTUAL MISTAKE, SINCE THOSE THEORIES WERE NOT PRESENTED AT TRIAL AND WERE NOT INCLUDED IN THE BILL OF EXCEPTIONS. ASSUMING FOR THE SAKE OF ARGUMENT THAT THE COURT WAS ENTITLED TO CONSIDER THESE THEORIES, ITS DECISION WAS ERRONEOUS BECAUSE BOTH ARE INAPPLICABLE TO THE FACTS.

In its opinion, the lower court stated:

The most able Attorneys for the parties have presented and urged upon this court some of the recent and long past decisions of our Supreme Court regarding mutual mistake of fact, mutual mistake of law, substantial change of existing circumstances and that the property was left in a holding or transitional state. This court is of the opinion that neither of the above principals of law are applicable to this unique set of fact existing pertaining to this particular property unless it is that of mutual mistake of the transitional state usually referred to in such matters as being left in a “nonconforming use”. In fact, this court by its own independent research has been unable to find or determine that our Supreme Court has been confronted with this particular situation in any previous case.

Neither the bill of exceptions nor the parties presented and relied upon the theory of preexisting or nonconforming use of the property. The appellee conceded in oral argument that the principle did not apply to the facts in this case. We agree, and, are of the opinion that the learned trial judge erred in holding that the land should be rezoned to R-3 under that principle.

III.

THE APPELLANT CONTENDS THAT BY FILING A SECOND REQUEST FOR A ZONING CHANGE TWO DAYS AFTER THE MAYOR AND BOARD OF ALDERMEN DECLINED TO REZONE, APPELLEE ABANDONED HIS RIGHT TO SUBSEQUENTLY PERFECT HIS APPEAL; AND APPELLEE CONTENDS THAT THE LOWER COURT ERRED IN DISMISSING THE SECOND APPEAL AS MOOT.

The record in # 53,287 was incorporated, and made a part of the record, in # 53,288. The facts, argument and law apply equally to the two cases. The decision in # 53,287 controls # 53,288. Therefore, we reverse Cause # 53,287 and reinstate the order of the City of New Albany, and we affirm dismissal of the appeal in # 53,288, which also reinstates the order of the City of New Albany.

REVERSED AND RENDERED IN CAUSE NO. 53,287; AFFIRMED IN CAUSE NO. 53,288.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PRATHER, J., took no part.

      . The Board of Aldermen unanimously voted against rezoning which negatives the contention that the Board made a mistake in the original zoning ordinance.


author: WALKER, Presiding Justice,

text:
    Richard L. McKLEMURRY v. STATE of Mississippi.
    No. 53642.
    Supreme Court of Mississippi.
    July 21, 1982.
    V. Douglas Gunter, Jackson, for appellant.
    Bill Allain, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Wayne Milner, Sp. Counsel, Jackson, for appellee.
    Before WALKER, BROOM and ROY NOBLE LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

The appellant was charged and convicted of having “willfully and unlawfully practice[d] dentistry without having obtained a license from the Mississippi State Board of Dental Examiners by fitting the mouth, gums and teeth of Malcolm D. Watson with an artificial tooth.” The appellant was found not guilty of a second charge of “examining the mouth and teeth of Malcolm D. Watson” and “taking impressions of his teeth on November 17, 1980.”

It is uncontradicted that the appellant made a partial denture for one Malcolm D. Watson, Jr., consisting of a single tooth. The construction of the “flipper partial” was done at the direction of and under the supervision of a licensed dentist.

When Mr. Watson went to the Central Dentures Service office in Byram on November 20, 1980, to pick up his partial, he and the appellant, McKlemurry “.. . went in [the office] and [he] showed me the plate that he had made and put it in my mouth. He asked me how it felt and I told him it felt, you know, fine.”

There is absolutely no testimony or evidence that the appellant did anything else on the day in question.

The dentist was not present at the office on this occasion when McKlemurry put the partial denture in Watson’s mouth, although the Central Dentures Service office was in fact the auxiliary office of the licensed dentist. The dentist testified that the appellant was “his auxiliary personnel” who answered the telephone and scheduled appointments for the Byram office and performed his laboratory work. The Byram office is the dentist’s auxiliary office used for work involving prosthetics, dentures and partíais.

The dentist further testified that the work in making the partial was done under his direction but that he did not advise appellant to place the partial in Watson’s mouth but told him to hand it to Watson.

The question presented is whether the simple act of “putting” a partial bridge with one artificial tooth into the mouth of Mr. Watson constituted the unlawful practice of dentistry in that this amounted to a correction of “malposition or irregularities of the teeth or jaws” in violation of Mississippi Code Annotated section 73-9-3 (1972)? This is hardly a reasonable construction of the statute and we do not believe this to have been the intent of the legislature. It must be remembered that the appellant is not being charged with having unlawfully constructed the partial, but with practicing dentistry without a license by having put the already constructed partial bridge into the mouth of Mr. Watson. To adopt such a construction would mean that no one could assist a disabled or elderly relative or friend by placing a partial bridge or false teeth into their mouth. Such construction would be an absurdity.

Laws regulating the professions should not be so construed as to prevent the performing of uncomplicated services between persons in the course of their relationships with one another in this educated and informed society.

For an act to constitute a crime, it must not only come within the letter but the spirit of the law and the Court should not give the law such a strained or technical construction as to reach an illogical result. See Ratcliff v. State, 234 Miss. 724, 107 So.2d 728 (1958). Moreover, any doubt should be resolved in favor of the defendant. Charles E. Torcia, Wharton’s Criminal Law § 12, p. 59 (14th ed. 1978); United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35 L.Ed.2d 379 (1973).

We are of the opinion that the legislature intended that the correction of “malposition or irregularities of the teeth or jaws” contemplates a great deal more than simply “putting” a partial plate into the mouth of Mr. Watson.

We have carefully considered the arguments of the state but find them to be without merit. Therefore, the judgment of conviction and sentence of appellant are reversed and appellant discharged.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., SUGG, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PRATHER, J., takes no part.

      . Mr. Watson was a private detective employed to investigate the Byram laboratory for the State Dental Board.


author: SUGG, Presiding Justice,

text:
    Lloyd M. HARRINGTON v. CITY OF COLUMBUS, Mississippi.
    No. 53292.
    Supreme Court of Mississippi.
    July 21, 1982.
    Rehearing Denied Aug. 11, 1982.

      Donald J. Steighner, Columbus, for appellant.
    W. Welborn Johnson, Graham, Segrest & Johnson, Columbus, for appellee.
    Before SUGG, P. J., and BROOM and HAWKINS, JJ.
   SUGG, Presiding Justice,

for the Court: Appellant was convicted of resisting arrest before the Municipal Judge of the City of Columbus, sitting as ex officio Justice of the Peace and on appeal to the Circuit Court of Lowndes County a trial de novo was held. Appellant was convicted in the Circuit Court and sentenced to pay a fine of $500.

Appellant’s sole assignment of error is that the verdict of the jury was against the overwhelming weight of the evidence, but the record does not show that a motion for a new trial was made in the Circuit Court. In Neves v. State, 268 So.2d 890 (Miss.1972), we held:

Appellant did not make a motion for a new trial so the question of whether or not the verdict of the jury was against the overwhelming weight of the evidence is not before this Court. Hoke v. State, 232 Miss. 329, 98 So.2d 886 (1957) and Clark v. State, 206 Miss. 701, 39 So.2d 783 (1949), suggestion of error overruled, 206 Miss. 701, 40 So.2d 591 (1949). (268 So.2d at 893)

See also cases cited in Clark, supra, and Colson v. Sims, 220 So.2d 345 (Miss.1969).

We hold the question of whether the verdict of the jury was against the overwhelming weight of the evidence is not before this Court, and affirm.

AFFIRMED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PRATHER, J., took no part.


author: PATTERSON, Chief Justice,

text:
    Toy KELLY, Janet Kelly, Denise Kelly Boswell, and Mark Kelly, by His Attorney and Next Friend, William Willard v. RETZER & RETZER, INC., d/b/a McDonald’s Restaurant.
    No. 53106.
    Supreme Court of Mississippi.
    July 21, 1982.

      John H. Cocke, William G. Willard, Jr., Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Clarksdale, for appellants.
    W. 0. Luckett, Jr., Luckett, Luckett, Luckett & Thompson, Clarksdale, for appel-lee.
   PER CURIAM.

PATTERSON, Chief Justice,

for the Court:

Toy Kelly, father, Janet Kelly, mother, Denise Kelly Boswell, sister, and Mark Kelly, brother, brought suit in the Circuit Court of Coahoma County against Retzer & Retzer, Inc., d/b/a McDonald’s Restaurant, for the fatal shooting of Rodney Kelly on McDonald’s parking lot. The Kellys sought damages for the loss of their son and brother because of McDonald’s alleged negligence in not providing adequate security and safe premises for its patrons. The trial court granted Retzer & Retzer, Inc., (hereinafter McDonald’s) a peremptory instruction from which the Kellys appeal to this court.

At approximately 8:30 p. m. on Tuesday, September 25, 1979, a group of teenagers, including Rodney Kelly, gathered on McDonald’s parking lot in the City of Clarks-dale in Coahoma County. They were asked to leave the premises by the assistant manager because of loitering. One of the group, Lanny Byrd, left McDonald’s with a friend and returned for his car at about 9:45 p. m. As he walked to it, a group of black youths approached and one asked for a cigarette. Byrd refused the request and hostile words were exchanged. At this time Kelly pulled into McDonald’s parking lot where he was stopped by Byrd who asked if he had a tire tool because the blacks were acting as though they wanted to start trouble. Kelly at first responded negatively but then asked Byrd to wait a minute and pulled into a parking space. As Kelly and his companion, Laura, got out of the car, Kelly asked Laura for the keys to her car which was parked nearby and inquired which key was the one for its trunk. An argument ensued and one of the youths pushed Kelly away from the trunk and threatened to shoot him. Laura testified that Kelly pushed him away and then showed him a scar on his stomach stating that he was not afraid because he had been shot before. Grandberry, the black youth, momentarily waved a pistol and then shot Kelly. Perhaps the scene can best be portrayed by Grandberry’s testimony, introduced by the defendant through stipulation as being previously given by him, though its truthfulness was not conceded by the plaintiffs. It was read from the witness stand and follows in pertinent part:

My name is Roosevelt Grandberry, I live at 306 Carolina Street in Clarksdale, Mississippi. I was born on December 31, 1961. On September 25, 1979, I was seventeen years of age... .

On Monday, September 24, 1979, I purchased a .22 caliber pistol for $10.00. On Tuesday, September 25, 1979, my friends, Calvin Harris, James Murphy, Jimmy Jackson, Elbert Clinton and I were walking around town for three hours together. During this time, we visited my girl friend, Linda Smith, who lives over on Paul Edwards. I had the gun with me and showed it to my friends during this time.

After visiting my girl friend, we walked back down Sixth Street to DeSoto where we turned right and walked up to the intersection of Highway 61 and DeSoto, walked over to Mississippi Street and out back through McDonald’s back parking lot to reach the alley.

We then walked down the alley behind McDonald’s Restaurant going to Seventh Street.

We had no intention of stopping at McDonald’s restaurant for any purpose. In fact, my friends and I hardly ever go to McDonald’s at all. We were just using the alley as a short cut.

As we were walking down the alley-way behind McDonald’s I saw a car in the parking space right next to the alley near the back side of North Mississippi Savings and Loan with two white boys standing beside it.

My friends and I stopped in the alley beside the boy, and I asked one of the white boys for a cigarette. Since he was standing in the parking space right next to the alley, we were not easily visible to anyone inside of McDonald’s. He said, “You work and I work. You buy your own damn cigarette.” . .. And, I said, “Hey man, I just asked you for a cigarette, don’t come on me like that.” I said, “Just give me a cigarette.” He said, “You work and I work, you buy your own damn cigarette.” I said, “Wait a minute man, you cannot come off smart on me like that, man. So I’m gonna ask you again. If you don’t want to give me no cigarette, just say you ain’t giving me no cigarette.” He said, “I tell you what. You go ask your mother for one.” I said, “No, wait a minute. You don’t have to come out on me like that.” I asked the other boy, “Ain’t this right, man?” The other boy said, “I ain’t got nothing to do with it.” So, I just went and stood at the end of the dude’s car. While we were still talking to the white boy about the cigarette, another white boy and a white girl in a car entered McDonald’s parking lot on the other side of the building and drove around onto the alley and around to our side of McDonald’s and on past us. The white boy we were talking to flagged the car down and it stopped about twenty feet past us.

The white boy that we were talking to went over to the car and said, “Hey, man, you got a gun or something. I think these niggers out here are trying to do something to me.” The dude in the car just nodded his head and said, “Yeah.” I had followed close enough behind so I could hear what was going on. So, the dude in the car pulled into a parking space, parked, got out of his car meaning to go to the back of the car.

I said, “Hey, man, you don’t have to get this dude over here no gun to hurt me or nothing. I just asked him for a cigarette.” At that time I had my hand on his car leaning on it and he said, “Get away from my car, nigger.” So, I said, “Hey, man, I just told you, man. You don’t have to get no gun.” But he had his keys in his hand going to put them in his trunk so I pushed him back. Then he pushed me back. Then he told his girl to get a pistol out of the glove compartment. So, I said, “Hey, bitch, don’t get no pistol out of no glove compartment ’cause I have a gun, too. Somebody’s going to get shot or hurt or something.” So he raised his Shirt and showed me where he had been shot before, and said, “I already been shot before. I don’t care if I get shot again.” Up to this time, I had been alone with him at the back of his car. All the others were still at the other end of the parking lot. But, then, Elbert came over and said, “What’s up?” I said, “Nothing, man. This white boy is just talking about getting a gun out of his trunk and shooting me with it. I ain’t gonna let him get no gun out of his trunk.” Then Elbert and I started backing off. But the white boy kept going closer to the trunk so I pulled out my gun and I shot in the air first. But he kept going closer to the trunk and got ready to put his key in the back of the trunk so I shot him. Then I got seared and ran. I had never seen or heard of the white boys or the white girl before....

Byrd testified that just prior to the shooting he tried to get the attention of McDonald’s manager and assistant who were in the restaurant. The assistant testified that he came to the door where Byrd asked him to call the police because one of the blacks had a gun, and, that he turned to go inside but the shots were fired before he could reach the telephone. The police were called and arrived on the scene within one or two minutes as did an ambulance, but Kelly died soon after the shooting. Byrd stated that twelve to thirteen minutes elapsed from the time he returned to McDonald’s to the time of the fatal shooting, and, further testimony estimated Kelly was on McDonald’s premises two to four minutes before he was shot.

The plaintiffs introduced into evidence the top portion of 28 police offense reports made between January 1, 1976, and September 24, 1979, when officers received calls concerning various activities at McDonald’s and were dispatched to investigate. Nine of these reports dealt with theft or burglary from automobiles in the parking lot. Seven concerned reports of other theft on the premises such as purses, a wallet, a bicycle and a bicycle tire. The other reports included three incidents of vandalism, two assaults, one attempted auto theft, one auto theft, one attempted fraud, an armed robbery in a restroom, one strong armed robbery of a child by a 15 year old boy, one simple assault and one unknown complaint. During the same time interval, January 1, 1976, and September 24, 1979, there were 5,435 offense reports recorded by the ■ Clarksdale Police Department for the entirety of the city.

In addition to the reports, several witnesses gave testimony concerning various incidents in which they were involved on McDonald’s premises. Six of these incidents were included in the offense reports. In the other occurrences, the police were not involved or did not make an offense report or McDonald’s personnel were not involved.

The plaintiffs also proposed to call an alleged expert criminologist of whom they intended to ask a hypothetical question concerning security measures which should have been undertaken by McDonald’s in view of offenses or incidents that had previously transpired at McDonald’s. The court was of the opinion the jury could make that determination as well as the proposed witness whereupon a proffer of his testimony was made as follows:

He would say that in his opinion that business needs to undertake security precautions which would include the use of an armed security guard, and that such a device is quite common in this industry, including numerous other McDonald’s stores, which use full-time armed security guards for the protection of patrons.

Michael Retzer, President of Retzer & Retzer, Inc., testified that McDonald’s policy manual states that certain teenage behavior cannot be permitted, including “groups gathering and standing around,” and if such problems develop and cannot be stopped, a security officer should be hired. He further testified that it was the policy of McDonald’s for the restaurant manager to check the premises, including restrooms, dining and lobby areas, parking lot and surrounding areas every thirty minutes. Additionally, he stated that in the fall of 1978, and in the early part of 1979, off duty policemen or others were hired to supplement the management team on Friday and Saturday nights because the volume of business doubled at such time and the management team is often very busy inside and unable to make the routine inspections of the outside premises.

William Goff, the assistant manager of the Clarksdale McDonald’s testified that it was his duty to physically patrol the premises and that he did so on a regular basis every evening. Goff further testified that if teenagers gathered in the parking lot for two to three minutes, he would go out and ask them to either come in and buy something or leave.

Sandy Stillions, manager of McDonald’s in Clarksdale, testified that in the six years that McDonald’s had been open, uniformed officers were used as supplemental security on weekends for six to eight months and further, that there were probably no fewer disturbances or fights while the officers were on the premises than when the management teams patrolled the area.

In the first assignment of error, the Kel-lys contend the trial court erred in granting McDonald’s motion for a peremptory instruction. The theory of this case is of course, negligence which requires proof of the duty owed by McDonald’s to Rodney Kelly, proof that the duty was breached, proof that the breach caused Kelly’s death as well as proof of the elements of damages.

The general rule concerning the duty owed by an owner or occupier of land to his business invitees is stated in J. C. Penney Company v. Sumrall, 318 So.2d 829, 832 (Miss.1975):

Although the owner of a store to which he invites the public is held to the exercise of reasonable care in maintaining his place of business in a safe condition for the use of his customers, he is not an insurer of their safety. Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916 (Miss.1966).

Undoubtedly, McDonald’s owed its patrons, one of whom was Rodney Kelly, a duty to exercise reasonable care for their safety. The question presented is whether there was a breach of that duty and whether the injury to Rodney Kelly was proximately caused by such breach under the presented facts.

In considering the propriety of the trial court’s action in sustaining the motion for a peremptory instruction we need to consider the general rule, which follows:

The rule relating to the propriety of granting a directed verdict or peremptory instruction has been announced many times by this court. We said in Mock v. Natchez Garden Club, 230 Miss. 377, 382, 92 So.2d 562, 563 (1957):
[T]hat if reasonable men might have a difference of opinion as to whether or not the negligence of the actor constituted a substantial factor in bringing about the injury, then the question is for the jury. We have also held repeatedly in cases too numerous to mention that upon a motion for a directed verdict all the facts expressly testified to, and all inferences necessarily and logically to be deduced therefrom, are to be taken as true in favor of the party against whom the motion is asked, and that a case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish, and further that if more than one reasonable inference can be drawn from the facts the question of negligence is for the jury. (Emphasis added). ([Butler v. Chrest-man] 264 So.2d [812] at 815 [ (Miss.1972) ]).
318 So.2d at 833.

In considering the facts and all inferences logically deduced therefrom as true in favor of the Kellys, we are of the opinion the trial court did not err in granting the peremptory instruction. In reaching this conclusion we think the appellant failed to prove that McDonald’s breached its duty of reasonable care for the safety of their patrons.

The appellants argue this was a question for the jury in view of the previous offenses or incidents which had occurred at McDonald’s and that it could be reasonably foreseen that precautionary measures should have been undertaken to prevent an offense of á higher degree with potential tragic consequences for one of its patrons. In our opinion the undisputed evidence reveals that reasonable security measures were undertaken by McDonald’s and, moreover, the tragedy was not reasonably foreseeable. If, however, conceded to be foreseeable, as all crimes are generally foreseeable, we would still be unable to opine that McDonald’s security measures for the safety of its patrons were unreasonable or could have assured the plaintiffs’ decedent reasonable safety when the uncontradicted facts reveal that he intervened in a hostile situation.

The evidence is without dispute that McDonald’s did in fact require its assistant manager to patrol the parking lot area every thirty minutes, which the assistant manager testified he did on a regular basis, and, that if teenagers gathered on the premises for two to three minutes, they were advised to come in and buy something or to leave. The record is also uncontra-dicted that Kelly, who was on the premises from two to four minutes, upon learning that his ultimate assailant, Grandberry, and the other youths wanted to start trouble, voluntarily parked, got out of his car, and asked Laura in the presence of Grandberry for the key to the automobile trunk, ostensibly to obtain some type of a weapon. In addition, Kelly displayed a scar on his abdomen, stating he had been shot before and was not afraid. Moreover, when McDonald’s was notified of the hostility between the youths, the assistant manager immediately responded by turning to call the police, but the shots were fired before he was able to reach the telephone. In view of this sudden and spontaneous encounter, coupled with McDonald’s notice only seconds prior to the shooting and plaintiffs’ decedent’s voluntary intervention into the affray, we are of the opinion that McDonald’s was not negligent in either failing to assist Kelly at the time of the encounter by not providing an armed security guard or by the assistant manager’s failing to interject himself into the affray rather than call the police.

As this is a case of first impression in our state we mention those eases from other jurisdictions which have persuaded us to the above point of view.

In Cook v. Safeway Stores, Inc., 354 A.2d 507 (D.C.App.1976), the appellant was assaulted in appellee’s grocery store when she pursued and seized a stranger who had stolen her wallet. The appellee’s motion for a directed verdict was sustained following appellant’s opening statement wherein negligence was based upon there being no security guards present on the particular night of the assault and robbery. There was also an offer to prove that the store was located in a high crime area and that similar incidents had previously occurred. In affirming the directed verdict the court found it “apparent that the immediate cause of plaintiff’s injury, a rash attempt on the part of a customer physically to restrain a purse snatcher from fleeing from the scene of the crime, was not one which the storekeeper could be expected to anticipate.” 354 A.2d at 508-09. The Court further held:

This court is all too familiar through daily police reports of the high incidents throughout the entire city of such crimes as mugging, purse snatching, assault and robbery — a constant hazard to all law abiding persons who use the streets and public places of business. But simply because this hazard exists, it does not follow that the common law of negligence imposes an obligation upon private enterprises to provide armed guards to insure the safety of persons invited to do business with them. 354 A.2d at 509.

The court in Cook also quoted with approval Radloff v. National Food Stores, Inc., 20 Wis.2d 224, 121 N.W.2d 865 (1963):

Everyone can foresee the commission of a crime virtually anywhere and at any time. If foreseeability itself gave rise to duty to provide “police” protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner. 354 A.2d at 509.

In Jones v. Leon, 3 Wash.App. 916, 478 P.2d 778, 781 (1970), the Court of Appeals affirmed a directed verdict in favor of the defendant in a suit for negligence by a patron of a restaurant and bar who was shot in the establishment. Jones is similar to this case in that the would be assailant, Bird, entered the establishment and approached Jones and stated “I mean it, shove off, or I’m going to kill you.” Jones not knowing that Bird had a gun stated, “Have at it” whereupon Bird shot Jones. The plaintiff contended that because the police had been called sixty times in the two years preceding the incident, the defendant was under a duty to employ someone to prevent disreputable persons from entering. The court held “as a matter of law that the criminal act of Bird was so highly extraordinary or improbable as to be wholly beyond the range of expectability, and that the result of that act is not within the ambit of hazards covered by the duty imposed upon respondents.” 478 P.2d at 784.

In addressing the issue of Kelly’s intervention in the affray we again turn to other jurisdictions. In Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App.1979), Roberts was in the defendant’s grocery store attempting to place a phone call when two men entered, drew guns, and ordered the cashier and her husband to lie on the floor. The cashier called to Roberts to get off the phone stating one of the men had a gun. The cashier testified that she heard a scuffle and one of the robbers say, “So you want to fight.” Roberts was then shot and killed. The judge dismissed the wrongful death suit brought by Roberts’ parents concluding that the appellee not only did not breach his duty of care, but that even if he had breached such a duty, “the decedent’s own actions in choosing to fight with an armed robber precluded recovery.” 367 So.2d at 65.

In affirming the lower court’s dismissal the appellate court reiterated the words of the trial court: “[T]o ask this store or any other small business to do more, such as hiring full time armed guards in fear of any potential robbery would make this burden of prevention extremely high and in all likelihood make the cost of running a small business prohibitive.” 367 So.2d at 65.

Somewhat similar, in the case presented here, it would seem only conjecture, that security precautions over and above those used by McDonald’s would have prevented the fatal shooting. Kelly’s voluntary interference into an already hostile situation was an independent intervening cause which could not have been reasonably foreseen or prevented by McDonald’s.

In Oliver Bus Lines v. Skaggs, 174 Miss. 201, 210, 164 So. 9, 12 (1935), we stated: “[A]n independent intervening cause is one that could not have been reasonably foreseen by the defendant while exercising due care.”

Neither do we think that from the facts before us that McDonald’s could have foreseen that Kelly and other youths would choose McDonald’s parking lot as their battleground.

In Rosensteil v. Lisdas, 253 Or. 625, 456 P.2d 61 (1969), three persons, while engaged in a fight entered appellee’s restaurant, and a patron of the restaurant was severely injured when he attempted to assist one of the injured fighters. In an action by the patron against the restaurant for negligently allowing on the restaurant premises persons known to the defendant as having violent and disorderly propensities, allowing disorderly conduct on the premises, and failing to provide employees to maintain order, the Oregon Court affirmed a judgment in favor of the restaurant. It held:

Even if a restaurant owner has the duty under some circumstances to employ personnel who are capable of keeping order and thus protect his patrons from injury resulting from the foreseeable conduct of his patrons, he is not required to employ such personnel for the contingency that outsiders will elect to use the restaurant rather than the street as their battleground. The fact that the Hale Brothers had previously been in the restaurant gave defendants’ employees no warning that they would stir up trouble and suddenly return to burst into the restaurant. It is the responsibility of the public police to quell such disturbances whether they occur on a street or in a restaurant. And even where previously violence has swept in from the streets, we do not think that it should be the duty of a businessman operating a restaurant to risk his own life or employ others to risk theirs in order to protect bystanders who happen to be in the restaurant rather than on the street. That is a function which he should be able to leave to government police. 456 P.2d at 63.

Persuaded, as mentioned, we conclude that the trial court did not err in sustaining the motion for a directed verdict. In so ruling we are not unmindful of the trial court’s exclusion of expert testimony that would have been offered by a criminologist. We think he erred in this regard, provided he had been qualified as an expert, but nevertheless are of the opinion the proffer did not touch the question of foreseeability or voluntary intervention leaving the error harmless, in our opinion. Moreover, we are of the opinion the responsibility of enforcing the law is on the government chosen by the people of the area and does not necessarily rest upon the business involved. We therefore affirm.

AFFIRMED.

All Justices concur except PRATHER, J., takes no part.


text:
    Edmond Rudolph HARDY v. STATE of Mississippi.
    No. 53572.
    Supreme Court of Mississippi.
    July 28, 1982.
    J. Kennedy Turner, Kilpatrick & Turner, Philadelphia, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Humphreys County; Webb Franklin, Judge.

Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    PLUMBERS & PIPEFITTERS LOCAL UNION # 619 v. BROWN & ROOT, INC.
    No. 53480.
    Supreme Court of Mississippi.
    July 28, 1982.
    Mark W. Prewitt, Prewitt & Courteau, Vicksburg, for appellant.
    Wren Way, Way & Field, Vicksburg, M. Curtiss McKee, Frank M. Holbrook, Fuselier, Ott, McKee & Moeller, Jackson, William A. Brown, William L. Bedman, Powell, Wilson, Brown & Maverick, Houston, Tex., Frederick A. Kullman, E. Frederick Preis, Jr., Kullman, Lang, Inman & Bee, New Orleans, La., Sherman Muths, Jr., Gulfport, for appellee.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Mary Helen McDOUGLE v. CITY OF PHILADELPHIA, Mississippi and Gettie McAfee.
    No. 53587.
    Supreme Court of Mississippi.
    July 28, 1982.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellant.

Robert L. Thomas, Alford, Mars, Thomas & Kilgore, Philadelphia, for appellees.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Charles WOOTEN v. STATE of Mississippi.
    No. 53570.
    Supreme Court of Mississippi.
    July 28, 1982.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.


text:
    MITCHELL COMPANY, LTD. & George M. Mitchell v. D. C. CARTER.
    No. 53594.
    Supreme Court of Mississippi.
    July 28, 1982.
    Oscar P. LaBarre, LaBarre & LaBarre, Vicksburg, for appellant.
    Marshall Sanders, Vicksburg, for appel-lee.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    MISSISSIPPI GULF COAST BUILDING & CONSTRUCTION TRADES COUNCIL, et al. v. BROWN & ROOT, INC.
    No. 53323.
    Supreme Court of Mississippi.
    July 28, 1982.

      Charles T. Sykes, Jr., Gulfport, for appellants.
    Sherman Muths, Jr., Gulfport, William A. Brown, William L. Bedman, Powell, Wilson, Brown & Maverick, Houston, Tex., Frederick A. Kullman, E. Frederick Preis, Jr., Kullman, Lang, Inman & Bee, New Orleans, La., M. Curtiss McKee, Frank M. Hol-brook, Fuselier, Ott, McKee & Moeller, Jackson, Wren Way, Way & Field, Vicksburg, for appellee.
    Before SUGG, HAWKINS and PRATHER, JJ.
   SUGG, Presiding Justice,

for the Court:

On February 11, 1981 appellants began picketing at Gate 2 of the Jack Watson Plant of the Mississippi Power Company where appellee was employed to perform repair work. Gate No. 2 is the contractors’ entrance to the Jack Watson Plant off Lorraine Road and was used by other contractors engaged in work at the plant. On February 13, 1981 Chancellor Jason H. Floyd, Jr. ordered an injunction against appellants without notice enjoining appellants from:

1. Mass picketing, or congregating at or within 200 yards of Mississippi Power Company Plant, Contractor’s Gate Number 2 on Lorraine Road, Harrison County, Mississippi;
2. Having in front of, or in close proximity to said Contractor’s Gate Number 2 any more than four pickets at one time, such pickets at all times to be in motion and spaced not less than ten (10) feet apart in a single line, and to conduct themselves in such manner as not to block or interfere in any way with the use of such gate by any person or persons desiring to enter or leave said premises;
3. Blocking or obstructing, or attempting to block or obstruct any public or private roads used by Complainant or its employees in the work being performed at Mississippi Power Company by the placing of material objects on or over such roads;
4. Defacing, vandalizing, or interfer-ring with any motor vehicle owned or operated by Complainant, its employees, customers, business associates or others;
5. Threatening, cursing, coercing, intimidating, insulting or doing bodily harm or threatening to do bodily harm or otherwise interferring with, hindering, harassing or injuring any employees of Complainant, or any other person or persons doing business with Complainant, or any other person or persons doing business with Complainant or the property of any of them;
6. Placing vehicles, barriers or any other obstructions on Lorraine Road or its shoulders within 200 yards of the en-tranceway to Mississippi Power Company, Contractor’s Gate Number 2.
7. Conducting any picketing in a coercive, intimidating or threatening manner and specifically having pickets or any persons acting in concert with such pickets carrying weapons, clubs or other intimidating objects.

After a final hearing on March 18, 1981 the Chancellor entered a decree making the injunction permanent with some modification.

On appeal appellants contend, (1) that the Chancery Court of Harrison County did not have jurisdiction to issue the injunction because its jurisdiction had been pre-empted by the National Labor Relations Act and, (2) that the court erred in granting an injunction on the evidence shown by the record.

The United States Supreme Court has held enactment of Federal Labor laws did not divest state courts of the authority to enjoin mass picketing, violence, and overt acts of violence. In the case of United Automobile, Aircraft & Agricultural Implement Workers of America v. Wisconsin Employment Relations Board, 351 U.S. 266, 76 S.Ct. 794, 100 L.Ed. 1162 (1956), the Court stated:

There is no reason to re-examine the opinions in which this Court has dealt with problems involving federal-state jurisdiction over industrial controversies. They have been adequately summarized in Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 474-477, 75 S.Ct. 480 [484-486], 99 L.Ed. 546, 555, 556. As a general matter we have held that a State may not, in the furtherance of its public policy, enjoin conduct “which has been made an ‘unfair labor practice’ under the federal statutes.” Id., 348 U.S. at 475 [75 S.Ct. at 485], and cases cited. But our post-Taft-Hartley opinions have made it clear that this general rule does not take from the States power to prevent mass picketing, violence, and overt threats of violence. The dominant interest of the State in preventing violence and property damage cannot be questioned. It is a matter of genuine local concern. Nor should the fact that a union commits a federal unfair labor practice while engaging in violent conduct prevent States from taking steps to stop the violence. This conclusion has been explicit in the opinions cited in note 12.
The States are the natural guardians of the public against violence. It is the local communities that suffer most from the fear and loss occasioned by coercion and destruction. We would not interpret an act of Congress to leave them powerless to avert such emergencies without compelling directions to that effect. (351 U.S. at 274, 275, 76 S.Ct. at 799, 800, 100 L.Ed. 1172, 1173)

The United States Supreme Court has not receded from the position stated above. For example, in Sears Roebuck & Co. v. San Diego County District Council of Carpenters, 436 U.S. 180, 204, 98 S.Ct. 1745, 1761, 56 L.Ed.2d 209, 229 (1978) the Court noted that it had, “Held that state jurisdiction to enforce its law prohibiting violence, defamation, the intentional infliction of emotional distress or obstruction or access to property is not pre-empted by the N.L.R. A.,” citing the following cases: Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151; Construction Workers v. Laburnum, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025; Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582; Farmer v. Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338; Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030.

It is equally well established that the States may not enjoin peaceful picketing when done in connection with a labor dispute. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

The injunction in this case did not ban peaceful picketing, but regulated the picketing to insure that it would be peaceful. We therefore hold that appellants’ first assignment of error is not well taken. There was testimony about mass picketing which commenced at Gate No. 2 of the Jack Watson Plant on Wednesday, February 11, 1981. A number of appellee’s employees testified that when they arrived at the plant, the picketers were congregating at the entrance preventing any ingress. In the words of some of the witnesses the picketers were “massed up shoulder to shoulder” and would not let the appellee’s employees enter. The number of picketers on February 11 were estimated by various witnesses at approximately 50-75, 60-70, 75, 75-100.

The automobiles of at least five of appel-lee’s employees were attacked and damaged by the picketers. Windows were broken out of four automobiles. One employee’s eye was injured when a piece of glass from a broken window struck his eye. One of the employees testified that as he tried to report to work on February 13 the picketers shouted obscenities and threw a 10-15 pound block of concrete through one of the windows of his car. The automobile of another employee of appellee was damaged and when it was “hit and kicked by something on the right rear twice and it was scratched up in a couple of places and the gas lid was bent in.” A photographer of appellee testified that he was threatened as he attempted to take photographs of the picketing activity by a man who picked up a rock and made a visible sign that he intended to throw the rock at the photographer. Large spikes, nails or tacks had been attached to flat plates and placed throughout the parking lot and at the approaches to Gate 2. As a result about 50 automobiles had flat tires, including vehicles from the Sheriff’s Department.

Major Jerry Cooper, Chief of Patrol of the Harrison County Sheriff’s Department, corroborated the other witnesses description of the explosive situation. He testified that the picketers were shouting revolting and reviling language directed to the people trying to go to work and that the situation was getting out of control. He stated that ap-pellee’s employees had been provoked by damage to their automobiles and threatened to retaliate with personal violence.

Appellants argue that it was necessary for appellees to show that the pickets engaged in serious violence. Serious violence is not an essential element to the granting of an injunction involving picketing, the Supreme Court has described the conduct which the state has jurisdiction to regulate as “intimidation and threats of violence.” San Diego Building Trades Council v. Garmon, 359 U.S. 236, 248, 79 S.Ct. 773, 781, 3 L.Ed.2d 775, 784 (1959). The Court recognized in Youngblood v. Ra-infair, supra, that some activities not involving overt acts of violence are as potentially explosive as physical acts. The Court stated:

The issue here is whether or not the conduct and language of the strikers were likely to cause physical violence... Words can readily be so coupled with conduct as to provoke violence. . . If a sufficient number yell any words sufficiently loudly showing an intent to ridicule, insult or annoy, no matter how innocuous the dictionary definition of that word, the effect may cease to be persuasion and become intimidation and encitement to violence. . . Recognizing that the trial court was in a better position than we can be to assess the local situation, we think the evidence supports this conclusion. .. that the conduct and massed name-calling by the Petitioners were calculated to provoke violence and were likely to do so unless promptly restrained.” 355 U.S. 131,138-139, 78 S.Ct. 206, 211, 2 L.Ed.2d 151, 156-157 (1957).

In our opinion the Chancellor was faced with a highly volatile situation which might erupt into violence at any time and the evidence was sufficient to sustain the issuance of the injunction.

AFFIRMED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . The modification reduced the number of pickets permitted from four to two, reduced the distance in item 2 from 200 yards to 100 yards, and reduced the distance in item 6 from 200 yards to 200 feet.


author: SHORES, Justice. TORBERT, Chief Justice

text:
    TRANSPORT INDEMNITY COMPANY, a Corporation v. Kenneth Parker WYATT, Sr., et al.
    81-159.
    Supreme Court of Alabama.
    July 23, 1982.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellant.
    Jack B. Porterfield, Jr., and William T. Mills, II, of Porterfield, Scholl, Clark & Harper, Birmingham, for appellees.
   SHORES, Justice.

This is a declaratory judgment action.

The facts in this case are stipulated. Kenneth Wyatt, Sr., was hurt while in the line and scope of his employment with Dea-ton, Inc., in binding a load on a truck. He filed actions against several defendants, all of whom are either executive officers or directors of Deaton, Inc., and charged the defendants with various acts which contributed to his injury. The employees sued are the appellees in this case.

The employees claim the benefits of an insurance contract written by appellant Transport Indemnity Company, which was in full force and effect at the time of the accident. The policy specified Deaton, Inc., as the named insured and “any executive officer or director of a corporate named insured.”

The provisions of the policy pertinent to this appeal were:

“PART ONE “DEFINITIONS
“II. INSURED The word ‘INSURED’ shall mean the NAMED INSURED and any other person, firm, or organization to whom insurance protection has been extended under the policy or made so by any provision of law. The word INSURED shall also include, as respects Coverage Clauses I, II, III, IV, V and VI of Part Two, any executive officer or director of a corporate NAMED INSURED or a partner of a partnership NAMED INSURED while he is acting within the scope of his duties as such or insofar as he is or may be liable by reason of his occupying such position.
“PART ONE
“INSURING AGREEMENTS
“I. COVERAGE CLAUSE — BODILY INJURY The Company will pay on behalf of the INSURED all sums which the INSURED shall become legally obligated, by contract or otherwise, to pay as DAMAGES for BODILY INJURY caused by an OCCURRENCE to which this insurance applies and arising out of the occupation of the NAMED INSURED as stated in the Declarations.
“EXCLUSIONS
“This insurance does not apply:
“B. To any OCCURRENCE which caused BODILY INJURY to any employee of any INSURED arising out of or in the course of his employment by any INSURED, except:
“(1) Liability the NAMED INSURED may have with respect to BODILY INJURY to any employee of any INSURED other than the NAMED INSURED.
“(2) Liability assumed under written contract (except agreement between the NAMED INSURED and any employee or his representative) by the NAMED INSURED from others for whom the NAMED INSURED per-
forms a service, with respect to BODILY INJURY to an employee of the NAMED INSURED which occurs in performing such service.
“D. To any OCCURRENCE arising out of or due to' loading or unloading of any AUTOMOBILE or MOBILE EQUIPMENT which causes BODILY INJURY, provided that this limitation does not apply with respect to claims made or suits brought against:
“(1) The NAMED INSURED.
“(2) An INSURED to whom coverage has been extended by endorsement as if he were a NAMED INSURED.
“(3) Any executive officer or director of a corporate NAMED INSURED or a partner of a partnership NAMED INSURED while he is acting within the scope of his duties as such or insofar as he is or may be liable by reason of his occupying such position.
“PART FOUR “CONDITIONS”
“D. COMPANY’S LIMIT OF LIABILITY The total liability of the Company for all DAMAGES sustained as the result of any one OCCURRENCE shall not exceed the Limit of Liability stated in the Declarations as applicable to each OCCURRENCE. DAMAGES arising out of exposure to substantially the same general conditions shall be considered as arising out of one OCCURRENCE.
“E. SEVERABILITY OF INTERESTS The Company’s Limit of Liability shall not be increased by or because more than one INSURED is involved.”

Transport denied coverage and filed a bill for declaratory judgment.

In its final decree, the court stated in pertinent part:

“The Court was presented with three issues for determination:
“(1) Whether the provision in the Transport Indemnity Company policy of insurance issued to Deaton, Inc. entitled SEVERABILITY OF INTERESTS operates to extend coverage to those individual defendants named in civil action # CV-79-03479.
“(2) Whether exclusion D in Part II, (1) of said policy of insurance is ambiguous so as to accord coverage to those named individual defendants.
“(3) Whether exclusion B in Part II, (1) of said policy of insurance is ambiguous so as to accord coverage to those named individual defendants.
“The Court finds as follows:
“(1) The Severability of Interests provision provides as follows:
“SEVERABILITY OF INTERESTS
“The Company’s limit of Liability shall not be increased by or because more than one INSURED is involved.
“The Court finds United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 [376] (1970) to be controlling as to coverage with regard to the individual defendants. The word ‘INSURED,’ as used in the subject provision means only the person claiming coverage and, as such, the term is used severally and not collectively. The provision, accordingly, does not limit coverage, but may limit liability.
“The Court finds that each insured has coverage except with respect to his own employees. The facts as stipulated state that Wyatt, the Plaintiff in the action at law, was employed by Deaton, Inc. He was not, therefore, employed by the individual Defendants.
“(2) Exclusion D, as aforesaid states that the insurance does not apply to any occurrence arising out of or due to the loading or unloading of automobiles or mobile equipment. This limitation does not apply with respect to claims made or suits brought against any executive officer or director of a corporate named insured. The Court finds these provisions to be inconsistent with those of Exclusion B of Part 11(1) which attempt to exclude any bodily injury to any employee arising out of the course of his employment. Resolving the ambiguity in favor of the insureds, the Court finds that they have coverage under the policy.
“(3) The plaintiff has made much of the language found in Exclusion B of Part 11(1) of the Transport Indemnity policy. That provision reads, in part, as follows:
“This insurance does not apply: .. . To any OCCURRENCE which caused BODILY INJURY to any employee of any INSURED arising out of or in the course of his employment by any INSURED. ...
The Plaintiff contended that the use of the language ‘any employee of any INSURED’ was intended by the parties to make collective the type of occurrence for which there would be no coverage. The Court has already disposed of this argument in part I of this Decree. Nevertheless the term ‘any INSURED’ is ambiguous on its face in that a fair construction thereof could be that it refers to ‘any one of the insureds,’ and hereby finds United States Fire Ins. Co. v. McCormick to be controlling and further finds in favor of the individual Defendants as to coverage.
“Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
“ONE: The individual Defendants, if insureds under the Transport Indemnity policy, are entitled to the coverage of the Plaintiff Insurance Company and the Plaintiff insuror is obliged to defend said Defendants in Civil Action CV-79-03479 in the law-side of this Court and to pay any judgment that might be rendered against the said Defendants in said case within the limits of the subject policy.”

Transport then filed this appeal. We affirm.

Transport argues that the trial court was in error in determining that United States Fire Insurance Company v. McCormick, supra, is controlling, and for several reasons. First, it argues that while in McCormick the exclusion provision excluded coverage where the injured person was employed, by the insured, this case is different because this policy uses the words “employment by any insured.”

Second, it argues that this case does not contain the same type of severability of interest clause as was found in McCormick. Therefore, Transport argues, the case that should be controlling is Michigan Mutual Liability Company v. Carroll, 271 Ala. 404, 123 So.2d 920 (1960). In Carroll, the Court, after reviewing a policy which did not contain a severability of interest clause, determined that where a person who qualified under the policy as an additional insured injured an employee of the policy’s named insured, the additional insured was prevented from claiming coverage because of an exclusion provision which contained the words “employee of the insured.” The court found that Clause III of the policy which stated, “[t]he unqualified word ‘insured’ includes the named insured and also any person while using the automobile,” provided for a broader application than just to mean “employee of the insured against whom the suit is being brought.” We cannot agree that Carroll is controlling under these facts.

The policy in McCormick contained a provision which provided:

“8. Severability of Interests. The term ‘the insured’ is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limits of the company’s liability.”
The policy in this case provided:
“E. Severability of Interests. The Company’s limit of liability shall not be increased by or because more than one insured is involved.”

We are persuaded that this provision, although somewhat ambiguous, is analogous to that in McCormick in that its purpose is to limit liability but is in no way designed to limit coverage under the policy.

We also agree with the trial court that the term “any insured” in Exclusion B of Part II of the policy is ambiguous. The wording could be interpreted either to mean only singularly “any one of the insureds” or could apply collectively to the whole group of insureds. We also agree with the trial court that Exclusion D, when read along with Exclusion B of Part 11(1), also creates ambiguity in determining the extent of coverage.

“It is a general rule of construction that exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage for the insured. Further, such exceptions must be construed most strongly against the company drafting and issuing the policy.”

Employers Insurance Company v. Jeff. Gin Company, 378 So.2d 693, 695 (Ala.1979). Also, “[i]t is axiomatic that, if a policy is subject to more than one interpretation, it is to be construed to afford coverage and against the insuror.” Miles v. St. Paul Fire and Marine Insurance Company, 381 So.2d 13, 14 (Ala.1980).

For the foregoing reasons, the trial court’s judgment is due to be affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur specially because I am not persuaded that the severability of interests clause in the insurance contract is pertinent to a decision in this case.

However, I do find ambiguity in Exclusion B of Part II of the policy and further find ambiguity when comparing Exclusion B with Exclusion D.

It is apparent that as a result of this Court’s decisions respecting co-employee liability generally, we will be called upon to consider provisions of insurance contracts relating to this type of coverage. In Home Indemnity Co. v. Reed Equipment Co., 381 So.2d 45 (Ala.1980), the question of insurance coverage was considered in light of an agreement which provided:

“None of the following is an insured:

“(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;”

In that case, this Court held that the provision excluded as an insured any employee who is sued by a co-employee as a result of bodily injuries sustained in the course of employment. The Court also found that for the purpose of the insurance policy, the executive officers of the corporation were considered “fellow employees” and therefore were not insureds according to the terms of the policy.

       The trial court later amended its decree to specifically determine which of the defendants named in Wyatt’s suit were covered by Transport’s policy: E. N. Conaway, J. W. Carpenter, J. O. Fox, G. E. Tickle, R. E. Thrasher, Buddy Moore, Steve Thomason, and Bill Wideman. All of these, along with Wyatt, are appellees in this appeal.


author: JONES, Justice.

text:
    I. J. SCOTT, Jr. v. EAST ALABAMA EDUCATION FOUNDATION, INC., et al.
    81-315.
    Supreme Court of Alabama.
    July 23, 1982.
    Phillip E. Adams, Jr. of Walker, Hill, Adams, Umbach, Herndon & Dean, Opelika, for appellant.
    W. Larry Ray of Whittelsey, Ray & Tip-ton, Opelika, for appellees.
   JONES, Justice.

The single issue presented by this appeal is the propriety vel non of a merger between East Alabama Education Foundation, Inc., of Opelika, Alabama, and Lee County Educational Foundation, Inc., of Auburn, Alabama. The trial court found the merger to be valid. We affirm.

Appellant I. J. Scott, Jr., is a member of the East Alabama Education Foundation, Inc., an Alabama corporation, incorporated on January 23, 1970, in Lee County, Alabama. East Alabama Education Foundation, Inc., has operated since its inception as Scott Preparatory School (Scott Academy) in Opelika, Alabama. On October 8, 1981, the Board of Directors of East Alabama Education Foundation, Inc., voted to adopt an agreement of merger with Lee County Educational Foundation, Inc. (Lee Academy), of Auburn, Alabama.

On October 26, 1981, at a special meeting of the voting members of Scott Academy, the agreement of merger was approved by a vote of 57 to 16. On November 3, 1981, Scott filed a complaint in opposition to the merger, seeking injunctive, as well as declaratory, relief. Upon stipulation of facts, after due consideration, the trial court approved consolidation of the two institutions. Scott appeals.

I. Scott Academy’s Certificate of Incorporation

The first paragraph of East Alabama Education Foundation, Inc.’s (Scott Academy’s) certificate of incorporation reads:

“We, the undersigned, being each of the incorporators hereinafter named for the purpose of forming a nonprofit corporation under the provisions of the laws of Alabama, including the provisions of Title 10, Sections 124-232, Code of Alabama, 1940, as amended, do hereby make and file with Your Honor this our Certificate of Incorporation and do hereby declare and certify as follows:” (Emphasis added.)

Scott’s opposition to the merger is premised upon this supposition: By specifically including a reference to Title 10, Sections 124 — 232, in the first paragraph of its articles of incorporation, Scott Academy excluded from the purview of authority granted its voting members any power to effectuate a merger as authorized in Sections 236 — 240. Stated another way, Scott seeks to invoke the maxim “Expressio unius est exclusio alterius.” We disagree.

Scott Academy contends, and we agree, that the phrase “under the provisions of the laws of Alabama, including the provisions of Title 10, Sections 124 — 232, Code of Alabama, as amended,” does not require or imply the exclusion of all or parts of any other provisions of Alabama corporate jurisprudence.

The constitution, bylaws, and regulations of a voluntary association constitute a contract between the association’s members which is binding upon each member so long as the bylaws, etc., remain in effect. Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944). It is also well established that in the interpretation of a contract words of agreement will be given their ordinary meaning, Hib-bett Sporting Goods, Inc. v. Biernbaum, 391 So.2d 1027 (Ala.1980), and that, in order to ascertain the intentions of the parties to a written instrument, the plain or clear meaning of the instrument’s terms is to be given effect, and the parties are presumed to have intended what the terms clearly state. Federal Land Bank of New Orleans v. Tarra Resources, Inc., 373 So.2d 314 (Ala.1979).

Appellant Scott insists that our analysis should include an inquiry as to why the clause in the first paragraph of Scott Academy’s certificate of incorporation refers to the provisions of Title 10, Sections 124— 232, especially because the procedures for merger are provided in Sections 236 through 240. His point, of course, is that such inquiry will lead logically and inextricably to the conclusion that Scott Academy’s corporate powers are limited to that authority embraced within the referenced code sections, to the exclusion of the power of merger authorized by § 236, et seq.

To the extent we agree that there is no apparent logical reason for the reference to those particular code sections within the certificate of incorporation, we acknowledge the persuasiveness of Scott’s argument. In the final analysis, however, we are convinced, and accordingly so hold, that the mere reference to these sections as being included therein, along with other provisions of Alabama law generally, does not proscribe the application of other code provisions.

It is not the province of courts to interfere with the internal business management of corporate assets by a board of directors, and this rule applies except in cases of fraud or maladministration which is destructive or injurious to the corporation. Cadden v. Ladd, 358 So.2d 437 (Ala.1978).

The actions of the board of directors of Scott Academy in merging with Lee Academy were authorized under the laws of this State, which authorization was not inhibited or curtailed by Scott Academy’s certificate of incorporation. The trial court’s judgment, therefore, is due to be, and hereby is, affirmed.

AFFIRMED.

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

      . Code 1975, §§ 10-3-140 through 10-3-144.


author: SHORES, Justice.

text:
    ARCHITECTURAL GRAPHICS AND CONSTRUCTION SERVICES, INC. v. Robert E. PITMAN and Wallace R. Belcher.
    81-531.
    Supreme Court of Alabama.
    July 23, 1982.

      T. Schram Woodroof of Woodroof & Woodroof, Athens, for appellants.
    William A. Owens, Jr. of Malone, Owens, Hancock & Totten, Athens, for appellees.
   SHORES, Justice.

This is an appeal by plaintiff Architectural Graphics and Construction Services, Inc., a corporation, from a summary judgment in favor of defendants Robert E. Pitman and Wallace R. Belcher. We affirm.

On August 21, 1978, Robert E. Pitman accepted a proposed contract from Eric Merkt, proprietor of Architectural Graphics and Construction Services, for the construction of a veterinary clinic in Athens, Alabama. The building was to be constructed by Merkt’s company at an estimated cost of $111,000.00 on property owned by Pitman. Upon execution of the contract and prior to the beginning of construction, Pitman obtained a loan secured by a real estate mortgage in the amount of $116,000.00 to purchase the land and pay Merkt for construction of the building.

Subsequent to the execution of the contract and prior to the completion of the building, Pitman took in a partner, Wallace R. Belcher, and Merkt incorporated his construction company, now Architectural Graphics and Construction Services, Inc. (AGCS).

Upon completion of the building, Pitman and Belcher moved into the building and were informed by AGCS that an additional amount was owed on the cost of the building. At that point, Pitman and Belcher told AGCS that several areas of the building were either defective or had not been built according to the plans and specifications. With the understanding that the requested repairs would be made, Pitman and Belcher executed a promissory note and real estate mortgage to AGCS, dated October 15, 1979, in the amount of $18,736.97. Pitman and Belcher, claiming AGCS then failed to make any repairs, refused to pay the note.

AGCS filed suit on the promissory note against Pitman and Belcher, demanding judgment in the amount of $18,736.97, plus interest and attorney’s fees. Defendants filed an answer and counterclaim in which they denied owing any money to AGCS and claimed damages for breach of contract, breach of warranties, and fraud.

Pitman and Belcher filed a motion for summary judgment, asserting that AGCS was operating without a license at the time the contract and note were executed, in violation of Ala.Code 1975, § 34-8-1, et seq. The contract entered into by the parties was, therefore, void and the note and mortgage given as partial payment were unenforceable. Neither Eric Merkt, individually, nor AGCS, as a corporation, was licensed to do business as a general contractor by the Alabama State Contractors Licensing Board until January 30, 1980, some three months after the note was executed.

The trial court granted defendants’ motion for summary judgment and dismissed their counterclaim along with the original complaint. AGCS filed a motion to set aside the summary judgment, alleging that the original contract was entered into by Eric Merkt, d/b/a Architectural Graphics and Construction Services, while the suit was filed in the name of the corporation. This motion was denied, and plaintiff’s appeal followed. We affirm.

The single issue raised is whether the note and mortgage given by Pitman and Belcher to AGCS as partial payment of the contract are valid.

Appellant admits that it did not have an Alabama general contractor’s license at the time of the contract, and concedes that its contract with appellees is unenforceable, but argues that this does not prevent recovery on the note.

A “general contractor” is defined in Ala. Code 1975, § 34-8-1, to be “one, who, for a fixed price, commission, fee or wage, undertakes to construct or superintend the construction of any building, highway, sewer, grading or any improvement or structure where the cost of the undertaking is $20,-000.00 or more.” Section 34-8-2 requires any person desiring to do business as a general contractor to obtain a license from the Alabama State Contractors Licensing Board. Section 34-8-6 prohibits any person, firm, or corporation not duly authorized from engaging in the business of general contracting in this state; violation is subject to punishment as a misdemeanor. It is undisputed that both Merkt and AGCS fell within the definition of a “general contractor,” and that the contract exceeded $20,-000.00.

This Court has held that § 34r-8-1, et seq., Ala.Code 1975, is not a law enacted solely for revenue purposes, but rather is regulatory legislation designed to protect the public against incompetent contractors and to assure properly built structures which are free from defects and dangers to the public. Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969). In furtherance of that policy, this Court has also held that a contract by an unlicensed “general contractor,” as defined in § 34-8-1, is null and void as a violation of that public policy. Such contracts are illegal and unenforceable by the unlicensed general contractor. Hawkins v. League, 398 So.2d 232 (Ala.1981); Tucker v. Walker, 293 Ala. 589, 308 So.2d 245 (1975).

This rule has been applied to deny recovery where the action was based on the contract itself, Cooper, supra, Tucker, supra, for work, labor, and materials furnished, Cochran v. Ozark Country Club, Inc., 339 So.2d 1023 (Ala.1976), and in an action to establish a mechanic’s lien, Tucker v. Trussville Convalescent Home, Inc., 289 Ala. 366, 267 So.2d 438 (1972). AGCS acknowledges that, had its action been based on any of the foregoing theories, summary judgment would have been proper. However, it argues that these cases should not bar recovery here because this is a suit on the note as opposed to a claim based on the contract. As between the original parties to the note, this is a distinction without a difference. If a suit to enforce the contract is foreclosed to an unlicensed contractor, so must be a suit by the same unlicensed contractor to collect on a note secured by a mortgage given in consideration of that contract. See, § 7-3-306, Ala.Code 1975.

In brief, AGCS argues under the facts in this case that Pitman and Belcher should be estopped to raise this defense. It argues that they were equally guilty of violating the licensing statute and asserts that the parties were in pari delicto, and the trial court should have left all guilty parties as it found them. Although this argument has some appeal, particularly where a rule so harsh as this is involved, we cannot address it because the record is devoid of any evidence whatsoever to either support or contradict appellant’s contention. An appellate brief reciting matters not contained in the record cannot be considered on appeal. Cooper v. Adams, 295 Ala. 58, 322 So.2d 706 (1975); Coleman v. Estes, 281 Ala. 234, 201 So.2d 391 (1967).

The propriety of granting a motion for summary judgment must be tested by reviewing what the trial court had before it when it granted the motion. Mathis v. Jim Skinner Ford, Inc., 361 So.2d 113 (Ala.1978). Pitman and Belcher established, in support of their motion for summary judgment, that: (1) AGCS (and Merkt) was unlicensed; (2) the building constructed was the type covered by § 34-8-1; and (3) the cost of the work was $20,000.00 or more. These facts were not disputed. Thus, the movants were entitled to summary judgment as a matter of law. Tucker v. Walker, supra. The plaintiff offered no evidence, by affidavit or otherwise, in opposition to the motion for summary judgment. No evidence was offered to establish estoppel on the part of the defendants. Thus, the trial court was left with no alternative but to consider uncontradieted evidence as true and to grant, based on the record before it, summary judgment in favor of the defendants and against the unlicensed contractor. Mims v. Louisville Title Insurance Company, 358 So.2d 1028 (Ala.1978).

The licensing statute involved here has been described as a “penal one, and harsh results sometimes flow from the construction of a penal statute.” Hawkins, supra, at 237. The decision of the trial court is hereby affirmed.

AFFIRMED.

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

      . While appellant points out that at the time the parties entered into the contract Merkt’s business was a proprietorship and was incorporated only after the parties were engaged in performance of the contract, that has no significance because the statute, § 34-8-6, by its terms, is applicable to “any person, firm, or corporation not duly authorized.” (Emphasis added.) Merkt was not licensed under § 34-8-1, et seq., either as an individual or as a corporation.