author: ROY NOBLE LEE, Justice,

text:
    Connie Ray EVANS v. STATE of Mississippi.
    No. 53754.
    Supreme Court of Mississippi.
    Nov. 3, 1982.
    Rehearing Denied Dec. 15, 1982.

      Bell & Collins, James D. Bell, Jackson, for appellant.

      Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   ROY NOBLE LEE, Justice,

for the Court:

Connie Ray Evans and Alfonso Artis were jointly indicted in the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding, on a charge of capital murder. Evans entered a plea of guilty to the charge and the trial proceeded on the sentencing phase. After hearing the evidence, the jury found Evans guilty and sentenced him to death. He has appealed and assigns ten (10) errors in the trial below.

FACTS

Connie Ray Evans was twenty-one (21) years of age at the time of the homicide. On the night of April 7,1981, he and Alfonso Artis, age twenty-four (24), met at the Alamo Theater on Farish Street in the City of Jackson, Mississippi, and planned to rob R.J.’s Food Center on Lynch Street. They considered the fact that gunplay might be involved in the robbery. About 6:30 the following morning, Artis went to the house where Evans lived with his mother and stepfather, and they left together for the R.J. Food Center. Upon arrival there, they walked by the store on two occasions but did not enter because customers were present. After waiting approximately one-half hour, they began the robbery. Artis went inside with a gun while Evans waited outside and watched for trouble. Artis drew the gun on Arun Pahwa, the store attendant, and forced him at gunpoint to get on his knees behind the counter. Evans entered the store, received the gun from Artis, held it on Pahwa and guarded him while Artis checked the cash register. Ar-tis could not open the cash drawer, and Pahwa was made to get up from the floor, open the cash register and then was forced to kneel again. Artis collected money from the cash register and then searched and emptied Pahwa’s pockets and wallet.

Evans shot Pahwa in the head as he knelt motionless behind the counter and the two ran out the door. They had obtained approximately one hundred forty dollars ($140.00) in the robbery. Artis took off his shirt and wrapped the gun in it as they ran. Later, he gave the gun to Evans, who wiped away some of the fingerprints, and they hitchhiked to appellant’s brother’s house where Evans hid the gun behind a clock. They left there, caught a bus to the downtown area, and spent most of the money on new clothes. That night, they went to a movie, drank beer at a local club, then separated and went home. Evans told Ar-tis that he shot Pahwa because “I was cold hearted.”

The police were notified of the robbery and murder and went to the scene where they found the cash drawer open and Pah-wa lying behind the counter in a pool of blood. The cause of death was a gunshot wound in the head. As a result of the police investigation, Artis was apprehended on the night of April 8, 1981, and Evans was arrested seventeen (17) days later on April 25, 1981. He stayed on the streets during this time and finally telephoned his mother and decided to give himself up. Evans gave a written confession to the crime. Artis pled guilty to charges of armed robbery and manslaughter and received a sentence of twenty (20) years, with fifteen (15) years suspended. He testified for the State on the trial.

LAW

I.

Did the trial court err in striking for cause a juror who was irrevocably committed to vote against the death penalty regardless of the facts and circumstances presented?

On voir dire examination, a female juror stated that she had conscientious scruples against the infliction of the death penalty; and that she had strong feelings about sending somebody to jail or giving them the death penalty. She said:

Q. I would assume that the lesser of the two would-be to send someone to jail, so are you sure that you couldn’t sentence someone to death?
A. I am positive.
Q. You are positive you couldn’t return a verdict recommending the death penalty, is that correct?
A. Yes, sir.

The prospective juror qualified her feeling against the death penalty by saying that, if a person had killed several people she probably could vote for the death penalty. Also, she vacillated some when interrogated by the appellant’s attorney. She responded further:

Q. I see. So a murder in the process of a robbery you could not vote for the death penalty under any circumstances, is that correct?
A. (Juror nodded)
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Q. No question in your mind about that? You could not follow the law if the law was that you are to consider the death penalty and you decide on whether or not it’s a bad enough case, and you couldn’t even consider it if it was just one person killed?
A. If someone killed someone else, like I said, out of fear because they had robbed a store, no.
Q. I’m not asking you in self-defense or anything like that. Self-defense we wouldn’t be here. He wouldn’t have pled guilty.
A. (Juror nodded negatively).
Q. Your answer is still no, you could not consider it?
A. (Juror nodded negatively).
Q. Under any circumstances?
A. (Juror nodded).

The principle involved here was stated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). It has been followed many times, and recently in Edwards v. State, 413 So.2d 1007 (Miss.1982), where the Court said:

First argument made relates to the exclusion of juror Hibler on the ground of “conscientious scruples” against the death penalty. Juror Hibler was asked by the circuit judge if she could follow the testimony and instructions of the court although the “verdict could result in the death penalty”; juror Hibler said, “I couldn’t.”
Upon this state of juror Hibler’s voir dire examination, she was excused and the defendant urges reversible error under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Having categorically stated that she couldn’t follow the testimony and instructions of the court, we think that the juror was correctly excluded. The fact that upon questioning by defense counsel, Hi-bler stated she would try to be a “fair” juror did not qualify her in this case. Similar argument was made in Edwards v. State, supra, n. 1, but there the sentence was life imprisonment whereas here the sentence is death. Thus, the two cases are not precisely analogous. For an excellent explanation of the proper method of bringing the death penalty to the attention of the special venire in capital cases, see Armstrong v. State, 214 So.2d 589 (Miss.1968). [413 So.2d at 1009],

See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1969); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970).

In Irving v. State, 361 So.2d 1360 (Miss.1978), we said:

Following Witherspoon, this Court considered the procedure to be employed by trial judges in Myers v. State, 254 So.2d 891 (Miss.1971). That procedure follows:
“ ‘The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital case and that a verdict of guilty could result in the infliction of the death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper cases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released. The mere fact that a venireman is opposed to the death penalty does not disqualify him as a juryman, if he can do his duty as a citizen and juror and follow the instructions of the court, and where he is convinced of the defendant’s guilt he can convict him although the verdict of the jury may result in the death penalty’s being inflicted upon the defendant.’ (Emphasis added). Armstrong v. State, Miss., 214 So.2d 589, at 593.” 254 So.2d at 893-894. [361 So.2d at 1360].

We are of the opinion that there is no merit in the first assignment.

II.

Did the lower court err in admitting evidence of appellant’s non-violent criminal record as proof that the capital murder was “committed by a person under sentence of imprisonment,” pursuant to Mississippi Code Annotated § 99-19-101(5)(a) (Supp. 1982)?

The appellant contends that when an accused receives a suspended sentence for a non-violent crime, such sentence may not be subsequently used in a capital murder trial to prove that, as an aggravating circumstance, the murder was “committed by one under sentence of imprisonment.” He relies upon Peek v. State, 395 So.2d 492 (Fla.1980), wherein the Florida Supreme Court held that a defendant’s probationary status was not a sentence of imprisonment, which would support Subsection (5)(a) of the statute. However, in Peek the death sentence was upheld on appeal in spite of the court’s determination that a probated sentence had been erroneously included as an aggravating circumstance. The Florida Court said:

Thus, we have two clearly valid aggravating circumstances, one contested but valid aggravating circumstance, and no mitigating circumstances. We find that the trial court’s improper consideration of the two aggravating circumstances concerning pecuniary gain and commission of the offense while on probation does not render the sentence invalid. Hargrave v. State, 366 So.2d 1 (Fla.1978); Elledge v. State, 346 So.2d 998 (Fla.1977). [395 So.2d at 499-500].

Subsequent to Peek v. State, the Florida Court said in Lewis v. State, 398 So.2d 432 (Fla.1981):

The finding that appellant committed the capital felony while under a sentence of imprisonment was based on the fact that he was on parole from a prison sentence at the time of the murder. Based on evidence of this fact, we approve the court’s finding of this aggravating circumstance. [398 So.2d at 438].

In Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. den. 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862, reh. den. 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179, the Florida Court held, and the United States Supreme Court denied certiorari, that:

Although two aggravating circumstances were improperly determined to exist, we conclude that the trial court properly found that the murder was committed to avoid lawful arrest and was especially heinous and cruel....
... The evidence is not such as would require the trial court to find any of the mitigating circumstances proposed by Dobbert as a matter of law. Since there are one or more validly found aggravating circumstances and no mitigating circumstances, a reversal of the death sentence is not necessarily required. Elledge v. State, 346 So.2d 998 (Fla.1977); Hargrave v. State, 366 So.2d 1 (Fla.1978). [375 So.2d at 1070, 1071].

Jackson v. State, 381 So.2d 1040 (Miss.1980), involved an appeal from an enhanced sentence where it was contended that the statute required that a defendant actually serve the sentence through physical incarceration (Jackson’s prior sentence had been suspended). We held the following:

Jackson argues the conjunctive phrasing “and who shall have been sentenced ...” evidences a legislative intent to include within the class of habitual offenders only those who have been twice convicted of distinct felonies for which penitentiary terms have not only been pronounced as punishment, but also served through actual incarceration. We reject this argument, because we think the statutory intention is satisfied where, as here, the accused has been twice previously adjudged guilty of distinct felonies upon which sentences of one year or more have been pronounced, irrespective of subsequent probation or suspension of the sentences.
We are of the opinion the statute is intended to cure the evil of recidivism. Enhanced punishment relates to the conduct underlying the previous convictions. Adjudication of guilt and consequent pronouncements of sentences merely accord those convictions finality. Subsequent suspension of the sentences or probation is a matter of grace only, arising from the hope that the prospects of rehabilitation of the guilty warrant leniency. Clearly that hope is defeated when the beneficiary of the indulgence perpetuates further felonies. The statute is suited precisely to this problem. [381 So.2d at 1042].

We are of the opinion that, under Mississippi statutes and decisions, when a person has been convicted and placed on probation, particularly here, where four (4) years of a five-year sentence were suspended, such sentence is a sentence under imprisonment. Even so, there were other aggravating circumstances in the present case, and, under the Florida decisions, they were sufficient to sustain the conviction.

III.

Did the trial court err in admitting into evidence at the sentencing phase of a death penalty case, proof of matters admitted by the defendant by his plea of guilty in open court, where such proof was not related to the aggravating circumstances set forth in Mississippi Code Annotated § 99-19-101 (1972)?

Appellant argues that certain evidence and exhibits introduced were erroneous and prejudicial since he pled guilty to the robbery-murder and that proof should have been limited to matters not admitted in his guilty plea. An orderly and coherent procedure in the sentencing phase requires proof of the manner in which the homicide was committed. Facts relevant to an aggravating circumstance are competent. The statute sets forth eight (8) aggravating circumstances, any one, or more, of which may be proved. The State introduced nine (9) color photographs showing the body of the victim and the scene of the crime. Appellant contends that they were inflammatory and, since he had admitted the homicide, were not relevant in the sentencing phase.

Slides 1 and 2 show the cash register and the open cash drawer found by the police shortly after the robbery-murder. Slices 3 through 9 show the body of the victim and the surrounding store area. We think that the slides were competent and relevant on the issues of whether or not (1) the capital offense was committed while the appellant was engaged in the commission of robbery, and (2) the capital offense was committed for the purpose of avoiding or preventing lawful arrest, and (3) the capital offense was especially heinous, atrocious or cruel. In Coleman v. State, 378 So.2d 640 (Miss.1978), the Court had for consideration two (2) color photographs showing where shotgun pellets hit the victim on the right side of the head, lower arm and left side of his chest. The Court held that they were competent and had probative value on the aggravating circumstance of especially heinous, atrocious or cruel.

We have examined the opinions in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) and Jordan v. Watkins, 681 F.2d 1067 (5th Cir.1982), which discussed the phrase in an aggravating circumstance “outrageous or wantonly vile, horrible or inhuman in that they involved ... depravity of mind .... ” (Georgia) and “was especially heinous, atrocius or cruel.” (Mississippi). The decision of the Georgia Supreme Court in Godfrey was reversed, the United States Supreme Court holding that the Georgia court did not apply a proper constitutional construction of the phrase. Jordan was reversed, following Godfrey, on the ground that in Jackson v. State, 337 So.2d 1242, 1250 (Miss.1976), the Mississippi Supreme Court gave no proper guidance to the jury for imposition of the death penalty on that aggravating circumstance.

In the case sub judice, the victim was forced to kneel on the floor behind the counter with a .38-caliber revolver pointing at his head, he was made to stand up at gunpoint and open the cash register, and again was forced to kneel on the floor with the revolver still pointing at his head. He was physically assaulted by one of the robbers emptying his pockets, all occurring over a short period of time. From those facts, the jury could consider mental torture and aggravation which the victim probably underwent, and to determine whether or not the murder under all the facts and circumstances was especially heinous, atrocious or cruel. Even though it may be said that the facts of the homicide do not pass constitutional muster on the aggravating circumstance of being especially heinous, atrocious or cruel, three (3) other aggravating circumstances were proved by overwhelming evidence.

Dr. Baldev Pahwa, brother of the deceased, testified for the State and identified his deceased’s brother from one of the photographs. The witness was emotional and sobbed on the witness stand. The appellant argues that the testimony was calculated to inflame the jury more than the pictures introduced. We are unable to say that his testimony was not relevant and did not have probative value. It was for the purpose of identifying the victim and, as we have said in other cases, the appellant caused the situation and cannot complain, if the evidence has probative value.

Appellant next contends the court should have stricken from the appellant’s confession (1) that part setting forth he and Artis planned to rob the food store and possibly slay the store clerk, (2) that he saw “Alfonso behind the counter pointing the gun at the man who was down on the floor on his knees,” (3) that part relating to what appellant and Artis did following the murder, (4) that part stating it was his idea to rob R.J.’s Food Center, and (5) that part to the effect that he shot the man because “The man knew me and I did not want him to identify me.”

We think that the entire confession was properly admitted in evidence. It was a part of the orderly presentation of the State’s case and was relevant on the issues of aggravating circumstances submitted to the jury.

IV.

Did the lower court err in overruling the motion for mistrial when a witness testified that the victim’s pregnant wife appeared at the scene of the crime shortly after it occurred?

Officer Willie Allen testified for the State, and during his testimony, the following question and answer was asked and given:

Q. And at the time you arrived there, other than the deceased, was there anyone else connected with R.J.’s Pood Center there that you observed?
A. Okay. After getting the information from some of the witnesses that were working across the street, the family came, his wife and she was about seven or eight months pregnant and his mother and father—

The answer was not responsive to the question. Appellant’s attorney objected_on the ground that the wife’s pregnancy unknown Jto„ the appellant prior to' the homicide. had no relevancy. ..to.-the,,aggravating circumstances and was prejudicial to the defendant. The trial judge sustained the objection in chambers, and asked appellant’s attorney, if he desired him to instruct the jury to disregard the statement. The attorney argued for a mistrial, which was denied, and then told the trial judge he had no alternative except to request the jury be instructed to disregard the statement.

Each juror said that he (she) would disregard the statement. The jury is presumed to have followed the directions of the judge. There was no error under Hughes v. State, 376 So.2d 1349 (Miss.1979); Gray v. State, 375 So.2d 994 (Miss.1979); and Duke v. State, 340 So.2d 727 (Miss.1976).

Further, the court instructed the jury in Instruction No. 1 to “disregard all evidence which was excluded by the court from consideration during the course of the trial.”

V.

Did the lower court err in permitting a witness to testify that the appellant said he killed the victim because he was “cold hearted?”

Alfonso Artis, the accomplice, testified that he asked appellant why he shot Mr. Pahwa, and appellant replied, “I was cold hearted.” Appellant testified on the trial that “I didn’t mean to do it and I’m sorry.” The statement he made to Artis soon after the homicide was relevant on the issue of aggravating circumstances.

In Washington v. State, 361 So.2d 61 (Miss.1978), the facts were similar to those here. There, the defendant struck the victim over the head with a shotgun, had obtained the money and was backing out of the store when he shot the victim in the stomach with the shotgun. The testimony here shows that, as in Washington, he could have fled without cold-heartedly killing the proprietor of the store.

VI.

Did the lower court err in permitting the prosecution to cross-examine the defendant’s mother about his prior juvenile record?

During the defense’s direct questioning of appellant’s mother, Mary Lewis, the following occurred:

Q. Why did he not finish the tenth grade?
A. Well, Connie, he stopped to look for work and he would get odd jobs, you know, in order to help me and he would cut yards or whatever he could find to do and he would bring me most of the money. Sometimes he would give it all to me. And he was real good about helping me. I never had no trouble out of him and when I had surgery, he stayed with me all the time. He cooked and waited on me and saw that I got my medicine. He was a good child and I don’t know why he got into this. I reckon because he was with the wrong person, ’cause I never had no trouble out of him before. (Witness sobs). [Emphasis added],

The State cross-examined Mrs. Lewis on that response, and she reiterated the appellant had been into different little things a good while ago. The prosecuting attorney asked what little things she was talking about that he had been involved in, and she said he had gotten into something and he was released to his parents three or four times. She was interrogated in detail about those several times, but nothing was indicated as to what the matters involved or how they were disposed of in the Youth Court. Appellant contends that the Youth Court Act prohibits use of an adjudication of the Youth Court for impeachment purposes in any court. The contention is correct, except that the right oí a defendant or prosecutor in criminal proceedings is preserved to show bias or interest. Here, no reference was made to Youth Court proceedings or action, and no attempt was made to introduce any adjudication order. Also, the questions asked were proper to test the recollection of the witness and was in rebuttal. Allison v. State, 274 So.2d 678 (Miss.1973); Kearney v. State, 68 Miss. 233, 8 So. 292 (1890).

VII.

Did the lower court err in failing to rule on the admissibility of appellant’s letter to Alfonso Artis in a proper and timely fashion?

While appellant and Artis were incarcerated before trial, appellant wrote Artis that, if he (Artis) continued to cooperate with the police, appellant would “do to you the same thing I did to that man in the store .... ”

During cross-examination of appellant’s mother, the State introduced the letter as a handwriting specimen. It was marked for identification but not admitted into evidence. After Mrs. Lewis completed her testimony, the appellant moved to suppress the letter, or, that the trial judge rule on its admissibility, if it were offered in evidence later during the trial. The judge declined to make an advance ruling. Appellant testified and, on cross-examination, the State confronted him with the letter and the trial court admitted it in evidence.

We do not think the judge was required to make an advance ruling and that such refusal was not error.

VIII.

Did the lower court err in refusing Jury Instructions D-3, D-4 and D-8?

Instruction D-3 follows:

I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case.

Instruction 7 (S-l) granted by the court instructed the jury that it must find the existence of certain statutory aggravating circumstances beyond a reasonable doubt prior to any consideration of the death penalty. It further limited the statutory aggravating circumstances to those four (4) on which evidence had been adduced during the trial.

Instruction D-4:

The Court instructs the Jury that the terms heinous, atrocious, and cruel are deemed to include those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies in that it involved the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence that the victim died a quick death without unnecessary pain and torture, then, though the crime is murder, it is not to be considered as especially heinous, atrocious or cruel.

In our opinion, under the facts of the case sub judice and under the Mississippi statute, Instruction D-4 was too restrictive and its refusal does not constitute reversible error notwithstanding Godfrey v. Georgia. Further, the discussion under Part III hereinabove applies on this question.

Instruction D-8:

The Court instructs the Jury that even if you find that aggravating circumstances outweigh the mitigating circumstances, you may still recommend mercy and sentence the Defendant to life imprisonment.

The sense of that instruction was submitted in Instructions D-l and D-7.

Instruction D-l
You are instructed that even if you find the existence of one, two, three or more aggravating circumstances, you still can conclude that the circumstances are insufficient to warrant death, and you may impose a sentence of life imprisonment.
Instruction D-7
The Court instructs the Jury that you are not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial Court, but you must find a statutory aggravating circumstance before recommending a sentence of death.

IX.

Did the lower court correctly grant State’s Instruction No. 7 (S — 1)?

The mentioned instruction sets out the four statutory aggravating circumstances relied upon by the State. Appellant claims that the evidence did not show the homicide to be heinous, atrocious and cruel, nor did it properly establish that he was under sentence of imprisonment at the time the crime was committed.

These questions have been previously discussed hereinabove and lack merit.

X.

Did the lower court err in overruling objections to parts of the closing argument of the prosecution?

In the defense attorney’s argument, Honorable James Bell made the following statement:

Keep in mind this. That there is a co-defendant here who received what amounts to a five-year sentence and ask yourself is it fair if the man wasn’t holding the gun. He said that they talked about killing the man the day before. Ask yourself is it fair for him to get five years and Connie Ray Evans get death.

The district attorney, in answer, made the following statement: “You can sentence the defendant to life imprisonment but that’s your sentence ... that’s just your sentence, .... ”

The appellant argues that the statement by the district attorney was an insinuation that, if the jury fixed the sentence at life, appellant would not serve life in the penitentiary. In our opinion, the argument of the district attorney may be interpreted in whatever manner the hearer wishes to interpret same. It does not say what appellant’s counsel interprets it to say. If the argument was improper, then it could be said that the appellant’s attorney provoked the comment in response to his argument.

We are of the opinion that the district attorney’s statement does not constitute prejudicial or reversible error.

APPELLATE REVIEW OF SENTENCE

In accordance with Section 99-19-105(3)(a), (b), (c) ... (5), and the decisions of this Court and the Federal courts on imposition of the death penalty, we have carefully reviewed the record in this case and have compared it and the death sentence imposed in the cases which have been decided by this Court since Jackson v. State, 337 So.2d 1242 (Miss.1976). Those cases consist of fourteen (14) decisions by this Court from Bell v. State, 360 So.2d 1206 (Miss.1978), to King v. State, 421 So.2d 1009, No. 53,027, decided October 27, 1982, in which the death penalty was upheld. In Coleman v. State, 378 So.2d 640 (Miss.1979) the case was reversed as to punishment and remanded for resentencing to life imprisonment.

In our opinion, after such review and comparison, the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other and the death penalty will not be wantonly or freakishly imposed here.

We also find and conclude that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor. The evidence in the case overwhelmingly supports the jury’s finding of at least one statutory aggravating circumstance, viz: (1) the capital offense was committed by appellant while under sentence of imprisonment; (2) the capital offense was committed while the defendant was engaged in committing a robbery, (3) the capital offense was committed for the purpose of avoiding a lawful arrest, and (4) the capital offense was especially heinous, atrocious or cruel.

After comparison of the present case to those enumerated herein, we find that the sentence of death is not excessive or disproportionate to the penalty imposed in those cases, considering both the crime and the manner in which it was committed and the defendant. We also are of the opinion that the death penalty imposed on Evans is consistent and even-handed to like and similar cases and the sentencing phase followed in this trial provided a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not imposed.

The judgment of the lower court is affirmed, and Wednesday, December 1, 1982, is set for the date of execution of the sentence and infliction of the death penalty in the manner provided by law.

AFFIRMED AND WEDNESDAY, DECEMBER 1, 1982, SET FOR EXECUTION OF THE DEATH PENALTY.

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

      . All trial judges should study the opinions in Godfrey and Jordan before submitting the aggravating circumstances in § 99-19-101(5)(h) to the jury.

      . Decided before enactment of Mississippi Code Annotated § 99-19-101 (Supp.1977).

      ,—The appellant’s mother testified in his behalf. While on the witness stand, she sobbed, cried and was as emotional, or more so, than Dr. Pahwa.

      . A list of the cases is attached as Appendix A in King v. State.

      . Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).


source: Caselaw Access Project

author: PRATHER, Justice, for the Court:

license: Public Domain

text:
    Everin C. NEAL, Jr. v. STATE of Mississippi.
    No. 53909.
    Supreme Court of Mississippi.
    Nov. 24, 1982.

      Everin C. Neal, Jr., pro se.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.
   PRATHER, Justice, for the Court:

Everin C. Neal, Jr., an inmate, filed a petition which sought a writ of error coram nobis in the Circuit Court of Clarke County. His petition was accompanied by a request for appointment of counsel. In the proceeding which followed, the circuit court judge denied Neal’s requests. On appeal, Neal does not contest the denial of his writ for error coram nobis, but he does raise the issue of whether counsel must be appointed to represent an indigent prisoner seeking post-conviction relief.

There are several remedies which are provided to defendants and inmates. The constitutional right of an accused to be represented by counsel has long been recognized in legislative enactments. See Miss.Code Ann. § 99-15-15 (1972) (accused shall have representation available at every critical stage); Miss.Code Ann. § 99-15-17 (Supp. 1982) (statute setting forth the amount of compensation allowed to appointed counsel for trial and appellate work). And, our case law has provided further guidance in applying this right. In Jones v. State, 355 So.2d 89 (Miss.1978), our Court stated:

An accused is not only entitled to counsel at trial, but he is entitled to counsel on appeal from a conviction on the merits. If he is an indigent and unable to afford an attorney, then he is entitled to a court-appointed attorney at trial and on appeal. On the other hand, if he is able to afford an attorney at trial but subsequently is reduced to the status of an indigent, then he is entitled to have a court-appointed attorney to represent him on appeal. (Emphasis added).

[Id. at 91].

This case, however, does not come within that status. Several federal courts have recognized that the sixth and fourteenth amendments’ right of counsel to an accused no longer applies after conviction upon appeal. See, e.g. Stevenson v. Reed, 391 F.Supp. 1375 (N.D.Miss.1975), aff’d, 530 F.2d 1207 (5th Cir.1976), cert. denied, 429 U.S. 944, 97 S.Ct. 365, 50 L.Ed.2d 315 (1976) (once imprisonment pursuant to final conviction has begun, different constitutional protections begin) (State of Mississippi is not required to provide an attorney to represent an inmate who challenges conviction through habeas corpus). We agree with this limitation.

Moreover, the equal protection clause does not require the appointment of counsel in any discretionary or collateral proceedings. Compare Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (states are not bound by equal protection clause to provide counsel for defendants who seek discretionary appeals in state courts or certiorari in the United States Supreme Court) with Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (equal protection clause requires appointment of counsel for indigent defendant who seeks an appeal as of right).

In fact, the only requirement placed upon states with regard to collateral attacks upon convictions is compliance with the constitutional right of access to the courts. The United States Supreme Court has defined this right as requiring prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries, or to provide adequate assistance from persons trained in the law. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). This requirement alone is more than adequate to determine whether a writ of error coram nobis should be granted. Ordinarily, an inmate will have the benefit of introducing a trial record, appellate briefs, and an appellate opinion, as well as offering any relevant testimony. In our opinion, the appellant has been afforded adequate legal assistance by the Mississippi Department of Corrections and no more is required.

AFFIRMED.

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

      . Neal was convicted for the crime of manslaughter and sentenced as an habitual criminal to a term of twenty (20) years without parole. The petition for a writ of error coram nobis challenged the legality of a prior burglary conviction upon which the habitual criminal status was based in part.


text:
    Charles Albert ARMSTRONG v. STATE of Mississippi.
    No. 53906.
    Supreme Court of Mississippi.
    Dec. 1, 1982.
    G. Garland Lyell, III, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben V. Anderson, Judge.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, HAWKINS and DAN M. LEE, JJ., concur.


text:
    Robyn Sabrina RUSSELL v. STATE of Mississippi.
    No. 53883.
    Supreme Court of Mississippi.
    Dec. 1, 1982.
    Whitman D. Mounger, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BROOM, BOWLING, HAWKINS and PRATHER, JJ., concur.


author: PRATHER, Justice,

text:
    William J. DUNAWAY and Mary Lee Dunaway v. W.H. HOPPER & ASSOCIATES, INC., et al.
    No. 53933.
    Supreme Court of Mississippi.
    Dec. 1, 1982.

      Robert J. Kelly, Robert L. Williams, Her-nando, for appellants.
    James W. Amos, Hernando, for appellees.
    Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

The sole issue presented here is whether a previous judicial decision, which denied a request for a lis pendens lien, bars the present action, which seeks to set aside a fraudulent conveyance involving the same property. In the proceedings below, the Chancery Court of DeSoto County apparently dismissed the present action on the basis of res judicata or collateral estoppel. We reverse.

FACTS

The appellants, William and Mary Duna-way, purchased a house and lot from the appellee, W.H. Hopper & Associates, Inc. When the appellee failed to complete certain additional work promised under this purchase contract, the appellants filed a bill of complaint in the DeSoto County Chancery Court. Their bill sought either specific performance of the contract or a money decree for the damages. Furthermore, the appellants requested and were granted a lis pendens lien on the appellee’s next-door property.

Subsequently, on July 18,1979, the corporate defendant’s president, W.H. Hopper, conveyed the adjacent real estate to his father, W.V. Hopper, Sr. The elder Hopper was then permitted to intervene in the lawsuit, and he filed a motion to expunge the lis pendens notice. However, following the trial, the chancellor ruled that the appellants were entitled to damages, and he also denied the intervenors’ request to expunge the lis pendens notice.

On appeal, this Court affirmed only the award of money damages. See W.H. Hopper & Associates, Inc. v. Dunaway, 396 So.2d 43 (Miss.1981). We determined that it was improper to place a lis pendens notice on the adjacent property since the appellants’ bill of complaint, which sought specific performance or money damages, did not actually concern the adjacent property. In other words, the appellants’ bill of complaint was not filed “to enforce a lien upon, right to, or interest in the next-door property” of the corporation. Id. at 44.

The Dunaways began this second lawsuit when the money judgment affirmed by this Court remained unpaid. Their petition sought to set aside the conveyance of the next-door property; and it further requested that said property be sold to satisfy the judgment. In response, the appellees filed a motion to dismiss the appellants’ motion on the grounds of either res judicata or collateral estoppel. The chancellor sustained the appellee’s motion, but failed to state any legal justification for his decision. Therefore, this Court must address both grounds alleged by the appellees.

LAW

The sole question as stated above is whether the doctrine of res judicata, or its subsidiary doctrine of collateral estoppel, bars the present action.

Generally, four identities must be present before the doctrine of res judicata will be applicable: (1) identity of the subject matter of the action, (2) identity of the cause of action, (3) identity of the parties to the cause of action, and (4) identity of the quality or character of a person against whom the claim is made. Mississippi Employment Security Commission v. Georgia-Pacific Corp., 394 So.2d 299 (Miss.1981); Cowan v. Gulf City Fisheries, Inc., 381 So.2d 158 (Miss.1980); Standard Oil Co. v. Howell, 360 So.2d 1200 (Miss.1978). If these four identities are present, the parties will be prevented from relitigating all issues tried in the prior lawsuit, as well as all matters which should have been litigated and decided in the prior suit. Pray v. Hewitt, 254 Miss. 20, 179 So.2d 842 (1965); Golden v. Golden, 246 Miss. 562, 151 So.2d 598 (1963). In other words, “the doctrine of res judicata bars litigation in a second lawsuit on the same cause of action ‘of all grounds for, or defenses to, recovery that were available to the parties [in the first action], regardless of whether they were asserted or determined in the prior proceeding.’ ” Key v. Wise, 629 F.2d 1049, 1063 (5th Cir.1980), reh. denied, 645 F.2d 72 (5th Cir.1981), cert. denied, 454 U.S. 1103, 102 S.Ct. 682, 70 L.Ed.2d 647 (1981) (quoting from Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979)).

When collateral estoppel is applicable, the parties will be precluded from relitigating a specific issue actually litigated, determined by, and essential to the judgment in a former action, even though a different cause of action is the subject of the subsequent action. Lee v. Wiley Buntin Adjuster, Inc., 204 So.2d 479 (Miss.1967); Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289 (1956). And, collateral estoppel, unlike the broader doctrine of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated. Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (1965).

In the two lawsuits under consideration, it is clear that there are no. identical causes of action necessary to invoke the res judicata doctrine. The former suit involved an attempt to place a lis pendens notice on adjoining property pursuant to section 11-47-3 of the Mississippi Code Annotated (1972) (notice of suit affecting real estate recorded). The latter suit is an effort to set aside a deed on the same property on the basis of fraud under section 11-5-75, Mississippi Code Annotated (1972) (creditor may attack fraudulent conveyance). Not only are these two causes of action grounded in different statutes, they also involve entirely different classes of litigants. The lis pendens statute was enacted for those who claimed to rightfully own an interest in the property. Fernwood Lumber Co. v. Meehan-Rounds Lumber Co., 85 Miss. 54, 37 So. 502 (1904). But, the statute permitting an attack on fraudulent conveyances was devised for the protection of creditors who had no specific interest in the land.

Nor is the doctrine of collateral estoppel applicable under these facts. In our prior decision, we simply determined as a matter of law that the lis pendens lien was improper. There were no factual issues resolved in that case which are involved in the latter suit.

We are therefore forced to hold that the chancellor below was in error. The dismissal of the Dunaway’s petition to set aside an alleged fraudulent conveyance is reversed, and this cause remanded. The lower court is directed to conduct a full hearing after proper responsive pleadings have been filed.

REVERSED AND REMANDED.

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


text:
    A. COPELAND ENTERPRISES v. PICKETT & MEADOR, INC.
    No. 53886.
    Supreme Court of Mississippi.
    Dec. 1, 1982.
    Brown & McDonnell, John G. McDonnell, Biloxi, for appellant.
    Lambert & McPhail, Paul Richard Lambert, Hattiesburg, for appellee.
    Before WALKER, BROOM and HAWKINS, JJ.
   WALKER, Presiding Justice, for the Court:

This case is an appeal from the Circuit Court of Forrest County, Mississippi, wherein the appellant, A. Copeland Enterprises, was ordered to pay $5,927.11 back insurance premiums to the plaintiff/appellee, Pickett & Meador, Inc. Feeling aggrieved, the appellant has perfected his appeal. We reverse.

The facts as stipulated by the parties show that the appellant, A. Copeland Enterprises, entered into a franchise agreement with Mendoza, Overton & Mendoza, Inc., d/b/a Popeye’s Famous Fried Chicken of Mississippi, Inc. (hereinafter referred to as Mendoza), in which the latter would operate Popeye’s franchises in the greater Hatties-burg area. Part of the franchise agreement consisted of Copeland’s “insurance requirements” in which Mendoza, et al., was required to have Copeland named as an additional insured in all of its insurance policies. Copeland also required Mendoza to include in each policy a clause which stated that written notice must be forwarded to Copeland thirty days prior to the cancellation of any of Mendoza’s insurance policies instead of the standard five or ten day notice on most policies.

The record showed various letters of communication between Copeland’s insurance department and Pickett & Meador, Inc. (insurance agent) concerning the current status of various policies, but there existed no contract for insurance coverage between Copeland and Pickett & Meador. After Mendoza defaulted on the outstanding premiums, the appellee, Pickett & Meador, filed suit against Mendoza and Copeland and later received two default judgments against Mendoza. However, Copeland answered the declaration and generally denied the allegations as set forth by Pickett & Meador.

On appeal the only issue is whether an additional insured (Copeland) is liable for delinquent insurance premiums when the person obtaining the insurance (Mendoza) fails to pay the policy premiums. This question is one of first impression in Mississippi.

The Supreme Court of Alaska when faced with a similar question as the one before this Court stated:

The main question on this appeal is whether a lessor is liable for the payment of premiums on a fire insurance policy procured by the lessee on the leased property in accordance with the terms of the lease, where the insurance is taken out in the lessor’s name and for its benefit and the policy is delivered to the lessor. Our answer is that the lessor is not liable unless it has contracted to pay the premiums.
Such a contract, the existence of which is essential for imposition of liability on the lessor, is missing in this case. In order for there to be a contract there must have been a promise by the lessor to pay the insurance premiums. There is no evidence that any such promise was made by the lessor here, the appellee City Commerce Corporation. The insurance was purchased from appellant solely by the lessee, Johnson, without any assistance or advice from appellee. At no time did appellee expressly undertake to be responsible for payment of the insurance premiums. Nor is there evidence of any conduct on appellee’s part which reasonably would have justified appellant in understanding that appellee intended to assume that responsibility. The fact that the insurance policy was issued in appel-lee’s name and for its benefit and delivered to appellee did not give rise to a justifiable expectation on appellant’s part that appellee had undertaken to pay the cost of the insurance. (Century Insurance Agency, Inc. v. City Commerce Corp., 396 P.2d 80, 81 (Alaska 1964)).

See also Stevens Insurance, Inc. v. Howells, 155 Mont. 494, 473 P.2d 523 (1970).

No case authority has been cited by appellant nor does our research reveal any that upholds Pickett & Meador’s contention that the additional insured (Copeland) is liable for the default in payment of insurance premiums by the person obtaining the insurance in the absence of a contractual relationship between the additional insured and the insurer. Numerous cases have been cited by the appellant dealing with a mortgagor/mortgagee relationship. However, the liability of a mortgagee in Mississippi for payment of unpaid insurance premiums' is covered by Mississippi Code Annotated section 83-13-9 (1972). We have no such statute making additional insureds such as Copeland liable for nonpayment of premiums.

We are of the opinion that there was no promise by the additional insured to pay premiums, nor was there an express or implied contract between the parties and this Court will not draft a contract between two parties where they have not manifested a mutual assent to be bound. See Restatement of Contracts (Second) § 21 (1981).

Liability to pay premiums results only from contract, express or implied, and no duty is cast upon an additional insured to inquire whether the premiums of the named insured are paid, nor are they liable for the outstanding premiums in the event of named insured’s default in the absence of a contract.

The judgment against Copeland in favor of Pickett & Meador is therefore reversed and set aside.

REVERSED AND RENDERED.

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

      . These policies included coverages for comprehensive auto liability, contractors license bond, fire, vandalism and malicious mischief, builders risk, workmen’s compensation and a comprehensive crime policy.

      . The two default judgments against Mendoza were for $969.78 and $4,975.33 respectively.

      . See Hennessey v. Helgason, 168 Miss. 834, 151 So. 724 (1934).


author: BOWLING, Justice,

text:
    In the Matter of the ESTATE OF Roy C. ATKINS, Sr. Deceased. George William ATKINS, Executor v. Edna SARTIN.
    No. 53519.
    Supreme Court of Mississippi.
    Dec. 1, 1982.
    Stennett, Wilkinson & Ward, Derryl W. Peden, Jackson, for appellant.
    William R. Barnett, P. Zeb Jones, Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.
   BOWLING, Justice,

for the Court:

This appeal involves a question of first impression that should be of interest to the bench and bar and particularly the banking institutions. The primary question is the authority of a conservator to withdraw funds from a joint bank account of the ward prior to the ward’s death.

Roy C. Atkins, Sr., deceased, and Edna Sartin, appellee herein, for a number. of years prior to Atkins’ death, were closely associated in business and in their personal lives. The personal association was extremely close, to say the least. The business was sold in 1976 and the monies received from the sale were equally divided between the two parties. On February 8, 1977, Roy C. Atkins, Sr. delivered a holographic will to Wright & Ferguson Funeral Home in Jackson and placed it in the care of funeral director Ellis Wright, Jr. The terms of the will later developed to omit appellee from taking any of the personal or real property of the deceased. The beneficiaries were certain of his children.

The next important event in the saga occurred on October 5, 1978, when Mr. Atkins opened a silver savings “joint” account with Peoples Bank of Mississippi by depositing $14,000 in his name jointly with appel-lee Edna Sartin. Although Atkins was alone when he went to the bank and opened the account, appellee signed the signature card.

On October 19,1978, Atkins was admitted to the hospital where he remained until his death on January 24, 1979. Meanwhile Atkins’ son, George William Atkins, was appointed conservator of his father on January 19, 1979. On January 22, 1979, two days before his father’s death, the conservator withdrew the entire amount of the joint savings account in the sum of the original deposit of $14,000, plus accrued interest, and placed it in a conservatorship account.

A few days after Atkins’ death, appellee filed a bill of complaint to “Determine Ownership of Funds.” She requested and was granted a preliminary injunction by the Chancery Court of the First Judicial District of Hinds County prohibiting the conservator from disposing of the funds prior to final determination of their ownership.

Appellee Mrs. Sartin also filed a bill of complaint contending that on February 8, 1977, Atkins was not competent to execute the will that had been holographically prepared and left with the funeral home, as hereinbefore set out. Appellant, executor of the Atkins estate, filed a cross complaint contending that Atkins was not mentally competent when he opened the joint savings account on October 5, 1978. Appellant contended, that due to the relationship of the deceased and appellee Mrs. Sartin, a fiduciary and confidential relationship existed between them which rendered the opening of the joint account void under the presumption set out in prior opinions of this Court, and that Mrs. Sartin did not meet the burden of overcoming that presumption. In Re: Will of Moses, 227 So.2d 829 (Miss.1969); Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926).

Appellant further contended, in answer to appellee’s claim of the entire amount of the joint account, that the conservator had full authority to withdraw all of the account prior to the death of Atkins.

The chancellor held that there was not such a fiduciary and confidential relationship that existed between Atkins and appel-lee so as to create a presumption that the opening of the joint account was void. He further held that Atkins was competent when he opened the joint account and understood his actions and was exercising his wishes.

The chancellor further found that Atkins was of sound and disposing mind and memory when he executed the holographic will on February 8, 1977.

We shall not relate in detail the evidence presented by both appellant and appellee on the relationship of Atkins and appellee and the testimony of various witnesses regarding the competency of Atkins on the dates in question and the court’s ruling on the lack of a fiduciary and confidential relationship sufficient to create a presumption that the actions of Atkins in opening the account were void. The evidence on all these questions was conflicting. Some of these conflicts are irreconcilable in the record. We do not need to cite the many opinions of this Court which hold that we shall not disturb the findings of the chancellor unless it is shown by the record that he was manifestly in error. Although the questions mentioned above are close, we cannot say with confidence that the chancellor was manifestly in error.

This leaves for us to discuss the authority or lack of authority of the conservator to withdraw the funds from the joint account prior to the death of one of the account holders. As stated, Atkins’ son, George William Atkins, was appointed conservator on January 19, 1979. On January 22, 1979, he, as conservator, without any further authority from the court, withdrew with the bank’s consent the entire balance of the joint account. Atkins died two days later. The chancellor in his final decree gave a money decree to appellee Mrs. Sartin against appellant in the sum of the original joint account deposit plus interest until the date of the decree.

As stated, appellant contends that the conservator had the same authority to withdraw funds from the joint account as Mr. Atkins prior to his death. This Court has not passed on this question; neither have many other courts been presented this issue. We do, however, find authority for holding as we do; that is, that the conservator is not the alter ego of the joint depositor and during the life of the depositor the conservator does not have authority to withdraw all of the account funds unless specific sums are needed for his ward’s necessities. A summary of this holding appears in Annot., 62 A.L.R.2d 1092 (1958), as follows:

It is clear, by the generally recognized rule, that when one joint depositor becomes incompetent, his guardian does not succeed to his full discretionary rights in the account, but, at best, is merely privileged to withdraw, if necessary, what is essential for the incompetent’s maintenance. The result is that the whole nature of the account, usually formed upon
the basis of a trust or understanding between parties whose competence is assumed by them, undergoes a radical change. Whereas originally two parties had prima facie equal rights in the use of the account, one party, the guardian, is an unequal party, after the adjudication of incompetence, at least until a court decree makes a division or defines the relative rights.

The Alabama Supreme Court in Howard v. Imes, 265 Ala. 258, 90 So.2d 818, 62 A.L.R.2d 1086 (1956), stated the following:

The question presented on this appeal is whether the act of withdrawal by the bank, as guardian, of all the funds in the joint account had the effect of destroying Mrs. Imes’ survivorship interest in the account. In other words, did the Bank, as guardian have the power to withdraw all the funds, even though not needed for the care and maintenance of Mrs. Hughes, so as to prevent Mrs. Imes from taking as survivor?
There are no statutory provisions in Alabama prescribing the authority of a guardian in exercising the elective rights of the ward under a joint bank account. Nor have we found any occasion where this court has passed on the question.
It appears to be the generally accepte'd rule that a guardian cannot exercise a purely personal elective right of his ward. In re Wainman’s Estate, 121 Misc. 318, 200 N.Y.S. 893; Chase Nat Bank of City of New York v. Ginnel, Sup., 50 N.Y.S.2d 345; Application of National Commercial Bank & Trust Co., Sup., 50 N.Y.S.2d 274; Kay v. Erickson, 209 Wis. 147, 244 N.W. 625, 84 A.L.R. 361; Boehmer v. Boehmer, 264 Wis. 15, 58 N.W.2d 411; 44 C.J.S., Insane Persons, § 49, p. 134, where the rule is thus stated:
“The guardian * * * of a mental incompetent does not become his alter ego, and is not empowered by virtue of his office to act for the incompetent in matters involving the exercise of a personal discretion so as to change an act performed by the incompetent while mentally normal, * *
In applying the rule it has been specifically held that the guardian of a non compos mentis cannot withdraw all the funds in a joint account except for the ward’s necessities, since such complete withdrawal would be the exercise of a personal right of the ward. Boehmer v. Boehmer, supra; Coolidge v. Brown, 286 Mass. 504, 190 N.E. 723, 724; Drain v. Brookline Sav. Bank, 327 Mass. 435, 99 N.E.2d 160, 164. (Cf. Kepner, “The Joint and Survivorship Bank Account — A concept Without a Name.” (1953), 41 Ca.L. Rev. 596, pp. 618-619.)

The Massachusetts Court held in Drain v. Brookline Sav. Bank, 327 Mass. 435, 99 N.Ed.2d 160 (1951) that:

There is no merit in the contention of the plaintiff that, even though there was a completed gift, Miss Sullivan could have withdrawn the account during her life and her temporary guardian was likewise entitled to withdraw it. A guardian has no title to the property of the ward. The guardian’s authority to use the proceeds of this account was limited by the necessities of the ward. In the absence of any showing that the use of this account was necessary to meet the needs of the ward, the bank was under no duty to pay over to the temporary guardian the whole or any part of it.

In our opinion the reasoning of the Alabama and Massachusetts courts is proper.

Going further, we note the agreement between the deceased Atkins, appellee Sar-tin, and the bank that is printed on the signature card signed by the depositors which reads as follows:

JOINT ACCOUNTS: It is further agreed that when two or more signatures appear hereon AND the account shall be designated a JOINT account, said joint owners agree, by and between themselves, that all funds now or hereafter deposited in or to this account shall be owned by them as joint tenants with the right of survivorship and not as tenants in common, further that all or any part of said funds may be assigned or withdrawn by them upon the order of either or them during their joint lives. Upon the death of either of them the balance of said funds shall be payable to the survivor as his absolute property and his receipt shall operate as a complete release of the Bank from further liability to either of them, their heirs, executors, assigns or personal representatives.

We hold that before a conservator is permitted to withdraw his ward’s funds from a joint account with another, during the life of both, it is necessary for him to secure an order from a chancery court that a certain amount of the funds are required for the ward’s necessities. This corresponds with the duty of a guardian as it has existed for a long time. By statute the duties and powers of a conservator and guardian are the same. MCA § 93-13-259 (1972).

In the present case, there is no proof that during the two days of the life of Atkins, after the conservator was appointed, that any attempted withdrawal or withdrawal of any funds was needed for Atkins’ necessities. There is some evidence that some of the funds were used for attorney’s fees involved in the estate. A conservator could not withdraw funds for that use without a court order in the estate as the con-servatorship ceased, as does a guardianship, upon the death of Atkins. We hold, therefore, that the chancellor was correct in granting a money decree to appellee for the amount of the joint account, plus accrued interest.

AFFIRMED ON DIRECT AND CROSS APPEALS.

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


text:
    McCLUER ACADEMY, INC. v. Joe H. ROYALTY.
    No. 53962.
    Supreme Court of Mississippi.
    Dec. 8, 1982.
    H. Lanier B. Foote, Mel J. Breeden, Jr., Jackson, for appellant.
    M. Charles May, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Reuben V. Anderson, Judge.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Holly STUBBLEFIELD and Polly Stubblefield, by their Next Friend, Robert H. BROOME v. William Hugh STUBBLEFIELD.
    No. 53750.
    Supreme Court of Mississippi.
    Dec. 8, 1982.
    Robert H. Broome, Batesville, for appellant.
    No briefs filed for appellee.
   Appeal from Chancery Court, Panola County; L.E. Hannaford, Sr., Chancellor.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


author: BROOM, Justice, for the Court.

text:
    Eddie L. BRISCOE v. STATE of Mississippi.
    No. 53720.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Eddie Lee Briscoe, pro se.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   BROOM, Justice, for the Court.

AFFIRMED.

Petition for rehearing denied. Original opinion withdrawn.

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


author: MADDOX, Justice. SHORES, Justice

text:
    Richard ARRINGTON, Jr., as Mayor of the City of Birmingham STATE of Alabama, ex rel. James C. PARSONS, et al. and Richard ARRINGTON, Jr., as Mayor of the City of Birmingham v. The PERSONNEL BOARD OF JEFFERSON COUNTY, Alabama, et al.
    81-37, 81-131.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Rehearing Denied Dec. 19, 1982.
    James K. Baker, Charles H. Wyatt, Jr., and David J. Vann of Carlton, Boles, Vann & Stichweh, Birmingham, for appellant.
    Hubert A. Grissom, Jr., David P. White-side, Jr., and Michael L. Hall of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellees.
   MADDOX, Justice.

These cases involve the review of a trial court’s declaratory judgment and writ of mandamus, wherein the defendant has complied with the trial court’s decree, without compulsion. This Court holds the cases moot and dismisses the appeals. For this reason, the various other issues raised on appeal need not be addressed.

On January 10, 1981, Mayor Richard Ar-rington, knowing of the imminent resignation of Birmingham’s chief of police, met with the director of the Jefferson County Personnel Board to discuss the qualifications and procedure to be used in the selection of a new chief. Based upon its own regulations and on the meeting with the mayor, the board chose the selection criteria: a written examination, an interview, and a composite of education and experience. Each of the three was weighted by the board’s determination of significance. Eleven applicants received scores adequate for placement on the eligible list for the job of police chief. The names of the three applicants who had received the highest mixed scores were “certified” by the personnel board and sent to Mayor Arrington. These were the only applicants from which the mayor could appoint a new chief. The mayor asked that one of the names be removed from the list.

Eventually, the applicant’s name was removed and the fourth ranked applicant’s name added. The applicant whose name had been removed brought suit on August 14, 1981, in the Jefferson Circuit Court to have his name placed back on the list. On August 17, 1981, the Jefferson County Personnel Board filed a motion to intervene and sought an order denying the mandamus writ and a declaratory judgment construing the Mayor-Council Act [Act No. 452, 1955 Ah. Acts (as amended)], the Enabling Act [Act 248, 1945 Ala. Acts (as amended)], section 9-1-1 of the Code of the City of Birmingham, and the Jefferson County Personnel Board’s Rules of Procedure, to the effect that Mayor Arrington had a legal duty to appoint a new chief of police within ten days of receiving a properly certified list from the personnel board. The petition for writ of mandamus was denied because the certified list was made “subject to background investigation” and a declaratory judgment entered in favor of the personnel board.

Eight certified lists were sent to the may- or between May 27 and October 7, 1981. He sent back to the board all eight lists and requested that an applicant’s name be removed. On October 13,1981, the personnel board filed a petition seeking an alternative writ of mandamus requiring the mayor to appoint a new chief or show cause for failure to appoint. Before trial on the merits in state court, Mayor Arrington filed an action in the federal district court seeking a preliminary injunction to prohibit the personnel board from pursuing its action in the state court. The federal action was based on sections 1981 and 1983, Title 42, U.S. Code, alleging a civil rights violation. The federal court judge refused to issue the injunction and entered a final judgment on April 13, 1982.

Following the trial on November 4, 1981, the circuit judge entered an order granting a peremptory writ of mandamus ordering the mayor to choose an appointee from the eighth certified list. Mayor Arrington later appointed a new police chief from this list.

This Court has often said that, as a general rule, it will not decide questions after a decision has become useless or moot. Ex parte McFry, 219 Ala. 492, 122 So. 641 (1929); Byrd v. Sorrells, 265 Ala. 589, 93 So.2d 146 (1957); Chisolm v. Crook, 272 Ala. 192, 130 So.2d 191 (1961); Jacobs Banking Company v. Campbell, 406 So.2d 834 (Ala.1981). Alabama courts do not give opinions in which there is no longer a justiciable controversy; yet, Alabama has recognized two exceptions to the mootness doctrine: questions of great public interest,and questions that are likely of repetition of the situation. Byrd v. Sorrells, supra, State ex rel. Eagerton v. Corwin, 359 So.2d 767 (Ala.1977). Neither of these exceptions seems applicable here, especially since a new police chief has been appointed. A situation slightly similar to this one has arisen only once since the creation of the Jefferson County Personnel Board. The law states:

“As pointed out in some of the cases, it must affect the interest of the body politic as, for example, its revenue laws, or some situation ‘affected with a public interest’ as public utility rates, where the state or government is said to be ‘as a substantial trustee for the public.’ ”

City of Birmingham v. Long, 339 So.2d 1021, 1023 (Ala.1976), quoting Willis v. Buchman, 240 Ala. 386, 199 So. 892 (1941).

Counsel earnestly argues that the instant cases should be decided. The argument is based on the apparent similarities with our previous case of Brown v. Spencer, 292 Ala. 66, 288 So.2d 781 (1974). The facts and proceedings of the present case are, we think, distinguishable from Brown, supra. In Brown, the issue was whether compliance by a school board in appointing new board members in response to a writ of mandamus, under compulsion of possible contempt of court proceedings, rendered the controversy moot. This Court held the case was not moot, as the board had acted only to avoid being held in contempt. In the instant cases, there was no such order by the trial judge.

“Where an event occurs which renders a case moot prior to this court considering the appeal, it will be dismissed because a decision is not necessary.” State ex rel. Eagerton v. Corwin, 359 So.2d 767, 769 (Ala.1977). This contingency is now a reality; therefore, the appeals are dismissed as moot.

APPEALS DISMISSED.

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

SHORES, J., concurs specially.

SHORES, Justice

(concurring specially):

I agree that the appeal is due to be dismissed as moot. I would simply point out that this is all this case holds. It does not directly nor by implication hold that the ten-day provision of § 9-1-1, Code of the City of Birmingham, is mandatory.


author: ADAMS, Justice.

text:
    Peter MEREDITH v. C.E. WALTHER, INC., et al.
    80-418.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    Rehearing Denied Dec. 3, 1982.
    Joe R. Whatley, Jr., and John C. Falken-berry of Stewart, Falkenberry & Whatley, Birmingham, for appellant.
    Michael L. Edwards and Thomas J. Gallo of Berkowitz, Lefkovits & Patrick, Birmingham, for appellees.
   ADAMS, Justice.

This appeal comes to us from the Circuit Court for Jefferson County. Peter Meredith, Esq. (plaintiff), sued Pollution Control Walther, Inc., and other defendants, alleging that he was wrongfully discharged from his job. Plaintiffs job status was that of an employee at will. The trial court dismissed plaintiff’s action as to all defendants. Plaintiff appealed and asks that we recognize a cause of action for the wrongful discharge of an employee at will.

One issue is dispositive of this appeal:

1. Does the complaint state a cause of action for wrongful discharge of an employee at will, and should this court recognize such a cause of action?

We answer in the negative, and we affirm the judgment of the trial court.

For the purpose of this appeal, the facts are as alleged in the complaint. Plaintiff had been an employee of Pollution Control Walther, Inc., since December 3, 1973. He first worked as a personnel director, and then as an in-house attorney. Plaintiff and other salaried employees participated in an employee incentive program for which a trust had been established. Defendants C.E. Walther, Inc., and Combustion Engineering, Inc., purchased Pollution Control Walther, Inc., on April 19, 1977. Plaintiff continued to work for the new owners. A dispute arose over the trust assets. Apparently, other employees commenced an action in 1978 against defendants, alleging they illegally took the trust assets. In the summer of 1978, plaintiff testified in deposition about the trust. Later, he became a plaintiff in that lawsuit. Because of his testimony, and his becoming a party to the litigation, the new owners decided to terminate plaintiff’s employment. However, they did not inform him of their decision until mid-September 1979. Plaintiff’s employment was terminated October 1, 1979.

Plaintiff alleges, in count one of his complaint, that defendants had a duty to disclose their decision to terminate his employment. He asserts that he was a loyal employee who had developed a strong relationship of trust with defendants. He further alleges that he was led to believe his employment would be reasonably continuous and he cites the disparity in bargaining power between defendants and himself. He categorizes defendants’ failure to inform him earlier of their decision eventually to terminate his employment as fraudulent. Plaintiff claims compensatory and punitive damages in the amount of $500,-000.00, on the basis that defendants’ alleged fraudulent concealment caused him to experience a longer period of unemployment due to the fact he had to begin looking for work at a difficult time for the legal profession.

In Howard v. East Tenn., Va. & Ga. Railroad Co., 91 Ala. 268 at 270, 8 So. 868 at 869 (1891), this court stated “unless some time is fixed during which the employment is to continue, either party may terminate the contract at will.” The validity of this rule was reaffirmed, more recently, in Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977). Subsequently, the rule has been applied, and has withstood attack. Davis v. Marshall, 404 So.2d 642 (Ala.1981); Tripp v. Hall, 395 So.2d 33 (Ala.1981); Carver v. Metrobank, 386 So.2d 737 (Ala.1980); Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980); Newby v. City of Andalusia, 376 So.2d 1374 (Ala.1979); Bierley v. American Cast Iron Pipe Company, 374 So.2d 1341 (Ala.1979); Martin v. Tapley, 360 So.2d 708 (Ala.1978).

Plaintiff asks this court to abandon the employment at will rule and to recognize a cause of action affording a remedy for wrongful discharge of those who are employed for an unspecified period of time. Plaintiff advances legitimate reasons in support of his request. The rule has been applied to obtain harsh and inequitable results. Plaintiff alludes to the fact that the rule is inconsistent with contemporary standards and expectations. He cites the fact that the rule was adopted in American jurisdictions based on the erroneous conclusion of H.G. Wood’s A Treatise on the Law of Master and Servant (1877). The employment at will rule is a product of 19th century philosophy and social conditions. Note, Protecting at Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 Harv.L.Rev. 1816 (1980). Previously, this court recognized the questionable conclusion of Wood’s work. Peacock v. Virginia-Carolina Chemical Co., 221 Ala. 680, 130 So. 411 (1930). The issue is of no small importance. An estimated 60 to 65% of American employees have the status of employees at will. 93 Harv.L.Rev. 1816, n. 2. Nevertheless, for reasons discussed below, we find it unnecessary to review the rule.

Plaintiff cites two lead eases in support of his argument. The first is Monge v. Beebe Rubber Company, 114 N.H. 130, 316 A.2d 549 (1974). There, an employee at will alleged she was harassed, and ultimately discharged, because she failed to accept her foreman’s romantic advances. The New Hampshire Supreme Court recognized that a bad faith termination of the employment of an employee at will can give rise to a cause of action. Although ordering a re-mittitur, it upheld the jury’s finding in favor of the plaintiff, and in so doing, it modified the employment at will rule. The second case cited by plaintiff is Peterman v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959). In Peterman, the employment at will rule in California was modified to recognize a cause of action for an employee who was discharged because he refused to commit perjury before a legislative committee.

It has been remarked that a “coherent or complete doctrinal basis” for modification of the employment at will rule has not been articulated. 93 Harv.L.Rev. at 1817. Nevertheless, the two cases cited by plaintiff seem to find their doctrinal origins in the dictates of public policy as perceived by the New Hampshire and California courts. Monge, 114 N.H. at 133, 316 A.2d at 551; Peterman, 174 Cal.App.2d at 188, 344 P.2d at 27. Noting that doctrinal basis, we observe that a review of the complaint convinces us that plaintiff cannot come within the very theory he asks us to consider. We can understand how the New Hampshire and California courts perceived a need to provide a remedy in the iniquitous fact situations before them. We would be unable to perceive, under plaintiff’s theory, a similar need in the case before us. Although plaintiff alleges that defendants fired him because he testified truthfully, and became a party to the lawsuit, nowhere does he allege that defendants asked him to commit perjury, violate a disciplinary rule to which he was subject as an attorney, or commit some similar transgression. Plaintiff’s allegations merely show that he-^vas a party in an action with other salaried employees against defendants, and that his employment was terminated because of his involvement in that action. Even in California, where the employment at will rule has been modified, it is recognized that, absent other considerations, an employee at will who sues his employer can be discharged. Beckett v. Welton, 39 Cal.App.3d 815, 114 Cal.Rptr. 531 (1974). Other jurisdictions which have modified the employment at will rule have done so under fact situations far more compelling than plaintiff’s. Harless v. First National in Fairmont, 246 S.E.2d 270 (W.Va.1978) (bank employee fired in retaliation for his efforts to make bank comply with state and federal consumer credit protection laws); O’Sullivan v. Mallon, 160 N.J.Super. 416, 390 A.2d 149 (1978) (employee X-ray'technician fired for refusing to perform catheterizations which could be legally performed only by nurse or physician); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (employee dismissed because of jury duty service); Frampton v. Central Indiana Gas Company, 260 Ind. 249, 297 N.E.2d 425 (1973) (retaliatory dismissal of employee for her filing a workmen’s compensation claim). We find plaintiff’s facts inapplicable to the theory he argues. Accordingly, we find no merit to his argument. For the same reasons we find no need to reverse and remand to allow him to develop facts to support his theory and allegations.

Our holding allows us to pretermit discussion of the other issues raised by the parties. For all of the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . This case previously was before us in Meredith v. C.E. Walther, Inc., 406 So.2d 401 (Ala.1981). That appeal was dismissed on our own motion because the trial court adjudicated “fewer than all the claims or the rights and liabilities of fewer than all the parties.... ” Rule 54(b), Alabama Rules of Civil Procedure. After our dismissal the trial court entered a final judgment under Rule 54(b). The case is now properly before us.

        . We note that the employees’ litigation over the trust fund came before this court in Pollution Control-Walther, Inc. & C. E. Walther, Inc. v. Belzer, 406 So.2d 372 (Ala.1981).

      . For a history of the employment at will rule in Alabama see: Note, The Employment at Will Rule, 31 Ala.L.Rev. 421 at 446-56 (1980).

      . Perhaps the most unconscionable result sanctioned by this court in applying the rule occurred in Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). There, the employer’s assistant manager tried unsuccessfully to alienate the affections of plaintiff’s wife. Out of revenge, the assistant manager caused plaintiff’s dismissal. This court declined to find an actionable wrong arising out of the employer’s dismissal of plaintiff.

      . Since this court’s decision in Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980), holding that an employee at will could be discharged for service on a jury, the law has been changed to prohibit such discharges. Code 1975, § 12-16-8.1 (Supp.1981).


author: PER CURIAM.

text:
    Charles E. DREYSPRING v. KAR PRODUCTS, INC.
    81-290.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    Rehearing Denied Dec. 3, 1982.
    Gould H.K. Blair and J. Dennis Gallups, Birmingham, for appellant.
    Meade Whitaker, Jr., Judson E. Tomlin, Jr., and Perry E. Pearce of North, Haskell, Slaughter, Young & Lewis, Professional Ass’n, Birmingham, for appellees.
   PER CURIAM.

Affirmed on the authority of Meredith v. C.E. Walther, Inc., 422 So.2d 761 (Ala.1982), and Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977).

AFFIRMED.

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


author: ALMON, Justice.

text:
    John G. RALLS v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ANDALUSIA, a Corporation.
    80-752.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Rehearing Denied Nov. 19, 1982.
    Ab Powell, III of Powell & Powell, Andalusia, and William D. Melton, Evergreen, for appellant.

      W. Sidney Fuller of Tipler, Fuller & Sikes, Andalusia, for appellee.
   ALMON, Justice.

This case involves a dispute over a loan commitment issued by First Federal Savings and Loan Association of Andalusia (First Federal) to John G. Ralls. The defense to Ralls’s action is accord and satisfaction.

Ralls acquired a franchise permitting him to operate a Days Inn Motel. In 1978, he began investigating the feasibility of constructing and operating a motel in Evergreen, Alabama. He discussed construction loans with several lending institutions and on August 28, 1978, Ralls submitted a loan application for $600,000 to First Federal. He discussed the proposed loan with Miss Maggie Rodgers, the Executive Vice-President and Managing Officer of First Federal. Miss Rodgers testified that at the time the loan application was made, she told Ralls there would be an eight-month completion date on any construction loan. On October 27, 1978, First Federal sent Ralls a commitment letter stating in part:

“The loan was approved for 20 years at 10% interest rate. The 10% interest rate is guaranteed subject to your paying 1% of our 2% initial service charge.” (Emphasis added.)

The letter made no mention of a completion date.

On December 21, 1978, Ralls met with Miss Rodgers to accept the commitment. At that time he paid $6,000 representing 1% of the initial 2% service charge. Miss Rodgers testified she made a notation on her copy of the commitment letter that the completion date would be eight months from December 21, 1978, and also brought this to Ralls’s attention. Miss Rodgers made another notation on the letter stating that $6,000 had been paid “guaranteeing [the] 10% rate.”

Ralls testified that he had not been told of the completion date at the time of the loan application and that it was only mentioned by Miss Rodgers after he had paid the $6,000 on December 21,1978. His testimony as to the completion date was as follows:

“Well, I went over to pay six thousand dollars and after she wrote the check out, she said, ‘we’re going to have to put a date on it,’ and she came up with the August 21st and I told her that I had never built a motel and what if I didn’t get it finished by then and she said, ‘we’ve never failed to give anybody an extension yet,’ — that’s what she told me — so I didn’t worry about the date

Ralls also testified that he did not know the completion date had been put on First Federal’s copy of the commitment letter until shortly before the trial and that the first time a completion date was mentioned was after he had paid the $6,000. He further testified that he told First Federal that he did not want the loan unless it would be at the 10% interest rate.

Miss Rodgers filled out the check and check stub for Ralls when he paid the 1% fee. On the check stub she wrote: “1% guaranteeing 10% interest for 600,000.” On the check itself she wrote “1% — -10% interest.”

On January 9, 1979, Miss Rodgers sent a letter to the Conecuh County Bank stating First Federal had received $6,000 from Ralls that guaranteed him a 20-year loan at 10% interest. The letter authorized interim financing through the Conecuh County Bank. This letter made no mention of a completion date.

On April 12, 1979, Miss Rodgers notified Ralls that the First Federal board of directors did not approve extension of his 10% loan past August 21, 1979, but would be happy to extend the loan for a few months at the prevailing interest rate at the time of closing.

When it became apparent that the project would not be completed by August 21, 1979, Ralls wrote Miss Rodgers on August 5, 1979, asking for an extension. Miss Rodgers wrote Ralls on August 9, 1979, stating the board of directors could not extend the loan at 10% but could extend the loan commitment until the motel was completed, subject to the prevailing interest rate at the time of closing.

The motel was not completed until a few days before the loan was closed at 12% on December 5, 1979. Interest rates at that time had increased considerably.

Ralls subsequently filed suit against First Federal, claiming breach of contract, fraud, and misrepresentation and deceit. At the close of all the evidence, the trial judge granted First Federal’s motion for a directed verdict.

Ralls contends the trial court misinterpreted the law when it held that the loan closing on December 5, 1979, at 12% rather than 10%, constituted an accord and satisfaction as a matter of law.

Ralls contends his acceptance of the loan at 12% interest could not operate as an accord and satisfaction because he entered into the loan agreement under duress. The gist of Ralls’s argument is that at the time he accepted the loan, he was in such dire need of funds, as a result of the actions of First Federal, that he had no choice but to accept the loan no matter what the interest rate. Specifically, the question presented is whether economic duress can be successfully asserted to defeat the defense of accord and satisfaction.

The economic duress is asserted not to vitiate a contract, but as a defense to the assertion by First Federal that the signing of the 12% loan effected an accord and satisfaction. Economic duress is, under proper circumstances, a viable legal principle.

“Many authorities recognize the doctrine that economic duress or business compulsion vitiates a contract induced thereby....
“While the doctrine of economic duress or business compulsion is constantly being expanded by the courts, it may be invoked only to prevent an injustice and not to accomplish an injustice. The doctrine applies only to special, unusual, or extraordinary situations in which unjustified coercion is used to induce a contract, as where extortive measures are employed, or improper or unjustified demands are made, under such circumstances that the victim has little choice but to accede thereto.”

17 C.J.S. Contracts § 177 (1963) (citations omitted). We see no reason why courts should recognize economic duress to entirely invalidate a contract but not to avoid a defense of accord and satisfaction.

Since duress is ordinarily a matter for the jury, see, Day v. Ray E. Friedman & Company, 395 So.2d 54 (Ala.1981), Ralls claims the trial court erred in directing a verdict for First Federal. We are inclined to agree.

In order to survive a motion for a directed verdict, the contestant must present a scintilla of evidence. Bardin v. Jones, 371 So.2d 23 (Ala.1979); Rule 50(e), A.R.C.P. The reviewing court must examine the record to see if there exists a scintilla of evidence in support of the complaint. Perdue v. Mitchell, 373 So.2d 650 (Ala.1979).

The evidence presented by Ralls, viewed in a light most favorable to him, tended to show that First Federal guaranteed him a 10% interest rate. The only limitation on that guarantee was the completion date. However, the evidence concerning the completion date was in conflict. Ralls testified that Miss Rodgers told him they would have to put a limitation date on the loan but not to worry about it because they had never refused an extension to a loan commitment. Miss Rodgers's testimony was otherwise, but this is the type of factual dispute that should be submitted to the jury. If the jury found Miss Rodgers had in fact represented to Ralls that there would be no problem getting an extension, then it would follow that Ralls was justified in committing himself financially to the point where he had no choice but to later accept the loan regardless of the higher interest rate.

After reading the record and reviewing the evidence, we are of the opinion that Ralls presented a jury question in support of his theory of recovery. Therefore, it was error to direct a verdict in favor of First Federal. Accordingly, the judgment appealed from is reversed and the cause is remanded for retrial.

REVERSED AND REMANDED.

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