author: PRATHER, Justice, WALKER, Presiding Justice,

text:
    Kathleen KEYES v. GUY BAILEY HOMES, INC.
    No. 54095.
    Supreme Court of Mississippi.
    July 27, 1983.
    Rehearing Denied Nov. 2, 1983.
    William P. Featherston, Jr., Jackson, for appellant.
    Stephen Younger, Jackson, for appellee.
   PRATHER, Justice,

for the Court:

This appeal results from a decision of the Circuit Court of the First Judicial District of Hinds County, which sustained a motion to dismiss submitted by the appellee, Guy Bailey Homes, Inc. Kathleen Keyes, the appellant, had previously filed a two-count complaint. One count charged the appellee with a breach of an implied warranty in the construction of her home, while the other count alleged negligence in construction of the house on the part of the appellee. The motion to dismiss was based on a lack of privity between the parties.

The pleadings in this case revealed that the appellee, Guy Bailey Homes, Inc., constructed a house in Jackson which was first sold to Troy Gerald Fulgram on August 7, 1975. In turn, Fulgram sold the house to the appellant Keyes on June 1,1979. After moving into the house, Keyes allegedly discovered a latent defect, which consisted of a cracked foundation. She then filed this lawsuit.

I.

The issue before the Court is whether a builder-vendor of a home may be held liable on the basis of negligence or the breach of an implied warranty to a second or subsequent purchaser of a home. Under existing Mississippi case law, privity of contract between the builder and the purchaser of a permanent structure on real estate is a prerequisite to a viable cause of action. After lengthy consideration, we now believe that that rule must be abolished for it promotes an injustice against remote purchasers and it is not based on sound reasoning.

The pertinent Mississippi law is stated in three cases. First, in Oliver v. City Builders, Inc., 303 So.2d 466 (Miss.1974), a divided court ruled that the doctrine of strict liability could not be employed to impose liability against a builder-vendor in favor of remote purchasers of a permanent structure on real estate for the faulty construction of the foundation. Five judges did agree, however, that, as between a builder-vendor of a new home and his vendee, there is an implied warranty that the home was built in a workmanlike manner and suitable for habitation. Id. at 470. See Recent Decisions, Courts-Strict Liability in Tort for the Builder-Vendor for Property Damage Caused by Structural Defects, 46 Miss.L.J. 510 (1975).

Subsequently, in Brown v. Elton Chalk, Inc., 358 So.2d 721 (Miss.1978), Justice Walker, relying solely on the Oliver case above, clearly stated the narrow grounds upon which a purchaser of a home could recover against a builder-vendor for breach of an implied warranty. A party filing such a suit must allege in his declaration (1) that the house when purchased was new, and (2) that the plaintiff was the first purchaser. Id. at 722.

The most recent Mississippi case concerning this issue is Hicks v. Greenville Lumber Co., Inc., 387 So.2d 94 (Miss.1980). Once again, relying solely on Mississippi precedent, the Court ruled that a second or remote purchaser could not recover, on the basis of strict liability or implied warranty, for a latent defect in a home against the builder-vendor.

II.

The current trend in other jurisdictions extends protection to remote purchasers who have no contractual relationship or privity with the builder-vendor. For example, where a remote purchaser can prove negligence on the part of the builder-vendor which results in foreseeable injury or loss to the remote purchaser, a remote purchaser has been entitled to recovery for damages. See, e.g. Terlinde v. Neely, 275 S.C. 395, 271 S.E.2d 768 (1980); Newman v. Tualatin Development Co., Inc., 287 Or. 47, 597 P.2d 800 (1979); Simmons v. Owens, 363 So.2d 142 (Fla.App.1978); Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977); Wright v. Creative Corp., 30 Colo.App. 575, 498 P.2d 1179 (1972); Annot., 10 A.L.R. 4th 385 (1981). And, the privity barrier has also been removed in recent cases based on the implied warranty theory. See, e.g., Hermes v. Staiano, 181 N.J.Super. 424, 437 A.2d 925 (1981); Wagner Constr. Co., Inc. v. Noonan, 403 N.E.2d 1144 (Ind.App.1980); Moxley v. Laramie, 600 P.2d 733 (Wyo.1979). In light of this new substantial trend of authority, we think it worthwhile to reexamine our past rulings on this issue.

III.

The purchase of a home is quite frequently the most important and expensive investment that a family makes. Yet, most purchasers simply do not have the knowledge or expertise necessary to discover many defects. They must instead rely upon the honesty and expertise of the builder. Consequently, if the home is poorly constructed with latent defects, the purchaser may very well be subjected to a major financial catastrophe against which he has no practical means of protecting himself.

Under such a scenario, it is rather obvious that the courts must fashion some legal framework in which to protect innocent purchasers. Accordingly, we have already recognized that a first purchaser should be able to recover damages from the builder if the builder was in some way at fault for the loss. That is how it should be. Certainly, an innocent purchaser should not be forced to sustain a heavy financial loss when the builder, through his own negligence or his own failure to construct the house in a workmanlike manner, caused the defect.

But, our past decisions have unfortunately denied this same protection to second or subsequent purchasers. Yet, we know of no reasonable justification for this distinction. The existing law simply permits a wrong without a remedy. One of the better illustrations of the many examples in which injustice may result was stated in the case of Moxley v. Laramie, noted above, in the following language:

Let us assume for example a person contracts construction of a home and, a month after occupying, is transferred to another locality and must sell. Or let us look at the family which contracts construction, occupies the home and the head of the household dies a year later and the residence must, for economic reasons, be sold. Further, how about the one who contracts for construction of a home, occupies it and, after a couple of years, attracted by a profit incentive caused by inflation or otherwise, sells to another. No reason has been presented to us whereby the original owner should have the benefits of an implied warranty or a recovery on a negligence theory and the next owner should not simply because there has been a transfer. Such intervening sales, standing by themselves, should not, by any standard of reasonableness, effect an end to an implied warranty or, in that matter, a right of recovery on any other ground, upon manifestation of a defect. The builder always has available the defense that the defects are not attributable to him. [600 P.2d at 736].

IV.

However, if this Court does consider some change in the present law, will we unfairly surprise the building industry and subject its members to any injustice. Certainly, it is desirable to apply the law consistently so that individuals and businesses will be able to plan their affairs with assurance against unfair surprise. But, we believe that no harm will result to the business industry through a change in this law by abrogating the requirement of privity. Two recent cases tell us why.

In Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), the Court overruled prior case law which had granted immunity in tort suits to state and administrative agencies. However, “unfair surprise” considerations led the Court to provide correctly that the agencies be granted until July 1, 1984, to obtain liability insurance or to make such other arrangements as might be appropriate to be prepared for this new exposure to suit. Thus, the Court recognized that unfair surprise could result from imposing a new “primary rule” which would obligate state and municipal agencies for the first time to exercise reasonable care in the performance of their duties.

By contrast, the case of Tideway Oil Programs v. Serio, 431 So.2d 454, (Miss.1983), overruled rulings in previous case law, but did not change the primary rules under which the actions of citizens are to be governed. The Tideway decision held that punitive damages could be awarded for the first time in chancery courts. Of course, punitive damages had always been permitted against individuals who committed grossly negligent acts. The change, referred to as a remedial rule, simply enlarged the types of courts in which an individual guilty of grossly negligent conduct could be reprimanded.

When we consider what kind of rules we are changing, whether primary or remedial, we can plainly see that no unfair surprise will result to the building industry. The builder already owes a duty to construct the home in a workmanlike manner and to construct a home which is suitable for habitation. If we extend potential liability of the builder to subsequent purchasers, the builder still is burdened only with the duty to construct the home in a workmanlike manner, etc. In other words, no greater effort will be imposed on the builder to protect himself. This change will not affect the primary rules by which his activity is governed. Instead, the remedial rule will be enlarged to strengthen enforcement of the so-called primary rule—the duty to construct the home in a workmanlike manner.

The same reasoning is true with respect to the homebuilder’s potential liability on a negligence theory. Since the doctrines of caveat emptor and merger no longer stand in this jurisdiction, the builder of a house is required to exercise reasonable care in the construction of said house. If we extend the potential liability of builders to remote purchasers on the theory of negligence, the builder is still under the same requirement to exercise reasonable care. If the builder exercises reasonable care, he will not be liable on the basis of negligence to a successful lawsuit by either the first purchaser or subsequent purchaser. His burden is no greater. Thus, a change in the remedial rules has been effected, while in no way will overruling the past case law change the primary rules by which the builder is governed.

Therefore, under this reasoning process, we are not forced to apply the rule change prospectively, as we were forced to in Pruett above. Instead, our abolition of the privity requirement may have full force and effect to protect subsequent purchasers now.

V.

Some may argue that the removal of the privity requirement is a subject more properly addressed by our legislature. However, we believe that the legislature has already addressed this problem by enacting a broad statute on this very subject. Section 11-7-20 of the Mississippi Code Annotated (Supp.1982) specifically provides that:

In all causes of action for personal injury or property damage or economic loss brought on account of negligence, strict liability or breach of warranty, including actions brought under the provisions of the Uniform Commercial Code, privity shall not be a requirement to maintain said action. (Emphasis added).

A plain reading of the statute clearly suggests that it was the legislative intent to remove the privity requirement in all cases. We choose to do so now.

VI.

Nothing in today’s ruling enlarges the time within which an action for faulty construction must be brought. Under our law, suits of this sort are governed by a ten year statute of limitations. Miss.Code Ann. § 15-1-41 (Supp.1982). Prior to today, that statute of limitations was gratuitously shortened if the first purchaser sold the home to a third party. Under today’s ruling, the homebuilder’s potential exposure continues for ten years, without regard to how many subsequent purchasers there may be, and for ten years only.

REVERSED AND REMANDED FOR TRIAL.

PATTERSON, C.J., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and ROBERTSON, JJ., concur.

WALKER and BROOM, P.JJ., dissent.

WALKER, Presiding Justice,

dissenting:

I respectfully dissent from the opinion of the majority which overrules three recent cases of this Court. Brown v. Elton Chalk, Inc., 358 So.2d 721 (Miss.1978); Hicks v. Greenville Lumber Company, Inc., 387 So.2d 94 (Miss.1980); and Oliver v. City Builders, Inc., 303 So.2d 466 (Miss.1974).

My first objection is that the Court has acted without adversary briefs, and on the brief of appellant which does no more than cite the three above cases and Mississippi Code Annotated section 11-7-20 (Supp. 1982). The Code section relied upon by the appellant became law on April 27, 1976, after the home in question had been constructed. Therefore, it would have no application to this case. The balance of appellant’s brief is simply a few lines of argument that “[T]he rule limiting the remedy to the first purchaser of the house is extremely unfair to a second purchaser of the house that happens to discover the latent defect.” The inadequacy of the appellant’s brief is compounded by the fact that the appellee has failed to file any brief whatsoever in this case.

I strongly feel that the rights of the home building industry of this state are being so adversely affected by this decision, that it is incumbent upon us to ask for amicus curiae briefs or adversary briefs from the home building association on the question involved herein. Our failure to do this will affect a multimillion dollar industry of this state which is vital to the state’s economy and the thousands’ of working people dependent upon it. The opinion changes the rule in the middle of the game as to those home builders who built homes prior to the enactment of section 11 — 7—20 on April 27, 1976. The potential financial liability of home builders is considerably higher under the holding of the majority opinion than it was under the holding of Brown, Hicks and Oliver, supra. The home builders had a perfect right to rely on those decisions and to protect themselves from the liability those opinions imposed upon them. Under the majority opinion, they are now faced with additional potential financial liability for which they have made no provision. To me, this is grossly unfair.

I am also of the opinion that the trial court correctly held that the complaint did not state a cause of action. That complaint simply states:

4.
On August 7, 1975, Defendant sold the aforesaid house to Troy Gerald Fulgham, et ux.
5.
On June 1, 1979, Plaintiff purchased said house from Troy Gerald Fulgham, et ux.
6.
In September, 1979, Plaintiff discovered a latent defect in said house, which defect consisted of a severely cracked foundation.
7.
Defendant, by constructing the aforesaid house, impliedly warranted that said house was built in a workmanlike manner and that it was suitable for habitation.
8.
Defendant breached the aforesaid implied warranty that the house was built in a workmanlike manner and that it was suitable for habitation and as a direct and proximate result of the aforesaid breach of implied warranty that the house was built in a workmanlike manner and that the house was suitable for habitation, the Plaintiff has been damaged.

In Count II of the Declaration, he readopts what he earlier said in Count I, and states:

10.
Defendant was negligent in the construction of the aforesaid house.
11.
That as a direct and proximate result of the negligence of the Defendant in the construction of Plaintiff’s house as aforesaid, the Plaintiff has sustained damages.

The appellant then prays for a judgment in the amount of $100,000.00.

At no place in the declaration does the plaintiff allege that the home is not suitable for habitation nor does it allege in what regard the appellant was negligent in the construction of the home or in what way they have been damaged by the cracked foundation which is not an uncommon occurrence" in and around the City of Jackson.

In conclusion, I would either call for briefs from the home building industry association, or I would hold that the failure of the appellee, Guy Bailey Homes, Inc., to file a brief was a confession of the errors alleged by the appellant, without disrupting and changing the law, and would reverse and remand this case for trial. In such a case the reversal would simply be the law of the case and would not have the devastating effect upon the home building industry as does the present majority opinion.

My preference over the alternatives mentioned above is to recognize Brown, Hicks and Oliver as the law of this State and affirm the judgment of the trial court sustaining the motion to dismiss the complaint.

BROOM, P.J., joins this dissent.

      . The Mississippi Supreme Court has eliminated the requirement of privity of contract as an essential part of a cause of action, in food and beverage cases. Coca Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927); Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628 (1939). Privity of contract is not essential in a suit by the consumer against a manufacturer of other personal property. State Stove Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss.1966). Yet, our Court maintained the requirement of privity of contract in realty transactions.

      . The appellant alleged in its brief that the home was constructed by Guy Bailey Homes, Inc. prior to August 7, 1975.


source: Caselaw Access Project

author: HAWKINS, Justice,

license: Public Domain

text:
    Jerry LEFLORE v. STATE of Mississippi.
    No. 53884.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    Rehearing Denied Nov. 2, 1983.
    L. Joe Lee, Lee & Grenfell, Jackson, for appellant.
    Bill Állain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   HAWKINS, Justice,

for the Court.

Jerry Leflore was convicted in the circuit court of the First Judicial District of Hinds County of the crime of armed robbery, and sentenced to serve 25 years in the Mississippi Department of Corrections with 15 years suspended, 10 years to serve, and to be placed on probation for 5 years.

Upon this appeal we address the sufficiency of the evidence, and whether or not a mistrial was warranted because of the unwarranted presence of a jury bailiff in the jury room during deliberations.

FACTS

Robert Odeh, a native of Nigeria who had been in this country for approximately four years, was employed at the Fas-Gas Service Station at 2013 West Capitol. He was well acquainted with Leflore, an 18-year-old youth, having seen him on almost a daily basis. Leflore had worked at the station for two days in July, 1980.

Around 10 a.m. on Sunday, November 9, 1980, a man walked in the station, his face covered with a towel. He wore a T-shirt, white pants, and light blue casual shoes. He pulled a .22 caliber pistol on Odeh, pointed it in his face, and walked to the cash drawer and took approximately $60.00 in cash, leaving the silver. Nothing was spoken.

When he first came in, Odeh testified, “A guy who I felt, you know, I knew very well came in with his face covered up and I thought he was playing with me, you know, like he was making fun.”

Although his face was covered, from his complexion, mannerisms, and the way he walked, Odeh thought it was Leflore. The robber left the station from a side entrance and Odeh followed him approximately fifty yards from the store. The robber took the towel off his face, and Odeh got something of a side view of a part of the side of his face. This convinced him the robber was Leflore. The robber was walking in the direction of Leflore’s home.

Odeh returned to the store and called the police, who quickly arrived. Odeh then accompanied the officers to the Leflore residence where he was arrested. Odeh testified Leflore was wearing what appeared to be the same trousers and shoes, but a different colored T-shirt Odeh had remembered the robber wearing.

No money or weapon was found on Le-flore.

The conviction of Leflore was based entirely upon the testimony of Odeh.

Leflore testified his grandmother awoke him around 10 a.m. on that Sunday, gave him $5.00 to go to the store and get change. She wanted to give his younger brother and sisters Sunday School money. He went to a store on the corner of Capitol and Valley, owned and operated by Willie L. (Pop) Jones. The Jones store was located about one-and-a-half to two blocks from the service station. Leflore lived approximately three to four blocks from these places of business.

On his way to the store, Leflore was asked by a small boy to bring him something back from the store. According to Leflore, he got the money changed, and returned home. On his return, the child asked him why he had not brought him anything, and Leflore replied he had no money.

Within moments after Leflore got home, the police arrived and he was placed under arrest.

Leflore’s testimony was corroborated by his grandmother who testified she woke him around 9:30 to a quarter of ten and gave him $5.00 to go get change to give to his younger brother and sisters. Willie L. Jones also testified around the middle of that morning Leflore had indeed been to his store and got $5.00 changed, in his best judgment between 9 and 10 a.m. Henry Catchings, a long acquaintance of Leflore, saw him around 10 a.m. talking to a small boy about three blocks from the service station.

Each of these witnesses (excluding possibly Leflore) had testified at a preliminary hearing in December, 1980, and their testimony was substantially the same as during trial in June, 1981.

TRIAL PROCEEDINGS

While counsel were discussing the proposed instructions with the judge, defense counsel asked the court what Mr. Carlisle (a jury bailiff) was doing in the jury room. The court replied he was seeing if they had any messages they wanted sent out.

Defense counsel then stated, “I’d like to enter an objection to that. Charlie’s got a way of making expressions sometimes. I wish he’d just ask from behind the door.”

The court sent for the bailiff, and a discussion was had between the judge and the bailiff. The substance of the conversation is not in the record, but just following the discussion, the record reveals:

By the court, “The jury is inquiring about the heat since the air conditioner is not working and wants to know if they can get a fan. We’ve got a fan up in the court reporter’s office in my office, if you’ll get that fan down here.”

Court and counsel then resumed discussion of the instructions. Following discussion about the instructions, the district attorney requested the court to state for the record that he had called Mr. Carlisle out, talked to him, and what he had determined. The record then reveals:

By the Court, I’ll state for the record that after defense counsel objected or inquired about the presence of the bailiff in the jury room, the Court then inquired of the bailiff his purpose of being in there and he stated that the Jury was complaining about the heat since the air conditioner has gone off and were inquiring about the possibility of obtaining a fan. And the bailiff has been instructed and is returning now with a fan.”

Mr. Lee (defense counsel), “I assume that — I don’t know if this is in the record or not, but I assumed that a mistrial would have been overruled, if I so make it, you would overrule — ”

The Court, “There’s been no motion made for a mistrial.”

Mr. Lee, “Well, let me, for the record make it, if I may.”

Defense counsel then moved for a mistrial, and that he had no knowledge of what was discussed in the jury room.

The Court responded, “Well, I think the record will reflect that the bailiffs were properly sworn at the beginning of the trial and I can state for the record, we do not have a jury waiting room; also state for the record that the temperature in here is past 80 and one of the duties of the bailiffs is to make sure or to make the jury as comfortable as possible under all circumstances.”

Nothing further was said during the trial proceedings about the matter.

LAW

I.

On the question of the sufficiency of the evidence, we need not repeat the holdings in our multitude of cases that where the evidence is conflicting, the verdict of the jury will not be disturbed. In examining the record, this case is uncomfortably close.

Odeh’s testimony, as far as it went, has all the ring of truthfulness. We would have preferred the investigation of the officers developing some corroboration other than the clothes Leflore was wearing when arrested. No pistol or money were found on Leflore or on the premises. There is no record of a search being made of Leflore’s residence, or of fingerprints being taken of the cash drawer. These sources of evidence were available to the officers.

While perhaps not obligated to do so, further testimony of Leflore’s innocence should have been available to defense counsel. There were other possible witnesses. Perhaps counsel thought he produced all he needed.

As an appellate court, we cannot reverse on this conflicting testimony.

The jury saw and heard the witnesses, and their opportunity to evaluate is denied us, confined as we are to a record.

Moreover, it is the solemn duty of a district attorney to protect the innocent as well as prosecute the guilty.

Finally, and most important in our minds, is the experienced trial judge, who must live with his court decision taking the liberty of a young man.

These considerations accord our utmost respect and deference.

II.

Was a mistrial warranted because the bailiff was in the jury room?

It is, of course, a misdemeanor for a bailiff to go into the jury room after the jury has retired. Miss.Code Ann. § 97-9-57 (1972) In this case, however, it is understandable. While the bailiff should have reported the Jury’s discomfort to the circuit judge and asked for instructions, he did, what appears to us, the natural thing. He walked into the room to see how warm it was. As far as this record goes, that is all he did. No harm of any kind resulted, except the embarrassment the bailiff caused the Court. Defense counsel never attempted to show that any kind of impropriety occurred in the jury room. Had there been any, evidence of it was clearly available, from the bailiff and members of the jury. See: Johnson v. State, 106 Miss. 94, 63 So. 338 (1913).

There is no merit in any other assignment of error.

AFFIRMED.

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

      . From the record, this is as close a case as the author of this opinion has encountered.


author: DAN M. LEE, Justice,

text:
    Maurice GLENN v. STATE of Mississippi.
    No. 53934.
    Supreme Court of Mississippi.
    Oct. 19, 1983.

      Pauline Shuler, Fraiser, Burgoon & Abraham, Sam N. Fonda, Lott, Sanders, Gwin & Fonda, Greenwood, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

In the November, 1981 term of the Le-flore County Grand Jury the appellant, Maurice Glenn, was indicted for armed robbery. The indictment charged that Glenn had been previously convicted of two separate armed robberies and was therefore subject to the provisions of the habitual criminal statute, § 99-19-81 Miss.Code Ann. (1972). A jury convicted Glenn on the charge of armed robbery and he was sentenced to serve thirty (30) years in the custody of the Mississippi Department of Corrections. We affirm.

For at least some of the citizens of Greenwood, Mississippi, August 14, 1981, proved to be an exciting day. On that date Maurice Glenn was incarcerated in the Leflore County jail in downtown Greenwood. Somehow Glenn managed to escape by dropping out a second story window. Officer Richard Oakes, a narcotics officer, testified that he was taking the radio out of the police car with another officer, Dennie McAnally, when they heard a man hollering about an escape. Oakes testified that he turned and saw Glenn running away. Oakes and McAnally pursued Glenn to behind a nearby building where Glenn threatened Oakes with a knife. Oakes backed up and allowed Glenn to pass by him as Oakes was unarmed at the time. After allowing Glenn to pass him, Oakes followed at a distance of about fifty (50) feet. Glenn crossed the street and entered a nearby Piggly Wiggly grocery store. Oakes followed Glenn into the store but did not see him immediately upon entering. Oakes then asked the store manager to call the police. The manager handed the phone receiver over the wall of the store’s office and began to dial the police but before Oakes was able to speak to anyone at the police department, Glenn entered the office and grabbed a Piggly Wiggly employee, Charlotte Wilson. Glenn put his left arm around Wilson’s throat and held a knife to the back of her neck. He ordered Oakes to hang up the phone and get out of the store.

Charlotte Wilson, a bookkeeper for Pig-gly Wiggly, testified that she was in the Piggly Wiggly office with the store manager, David Wiggins, when Glenn came into the office and grabbed her from behind, putting an arm around her throat and a knife to her neck. She testified that she did not see Glenn take any money but that she heard a “sliding motion” which she attributed to Glenn sliding money off of the office countertop. Glenn forced her to go through the store at knifepoint and out the back exit. He eventually released her when they reached a fence near a railroad track a few blocks away.

Wiggins testified that he was in the store office when Officer Oakes came in. He testified that after the incident was over $206 was missing from the office but that he had not actually seen Glenn take the money. In fact, the sole witness who testified to having actually seen Glenn take the money was Mrs. Charlie Larry, a checker for the Piggly Wiggly. Mrs. Larry testified that as Glenn was getting ready to bring Ms. Wilson out of the office, he stopped and scooped up some money off of the counter and put it in his pocket. Although Mrs. Larry was confused as to which hand Glenn used to pick up the money and whether he continued holding the knife as he did so, she was firm in her testimony that she saw Glenn take the money.

Glenn was arrested a short time after the incident hiding in a utility shed in the neighborhood of the store. Officer Charles Sykes testified that at the time of the arrest he recovered $205.55 from Glenn’s pockets.

Prior to trial the trial court granted Glenn’s motion for a mental examination. Glenn’s attorneys had specifically requested that he be examined at the Region VI Mental Health Center in Greenwood. There he was examined by Dr. Richard Sayner, a psychologist. During its case in chief the state called Dr. Sayner as a witness. Dr. Sayner testified that he saw Glenn for approximately one hour and administered the verbal part of the Wechsler Intelligence Examination and conducted a formal interview designed to test Glenn’s function and memory. Dr. Sayner concluded that in his opinion Glenn was competent to stand trial and that at the time of the crime Glenn was able to distinguish between right and wrong.

At no point in the trial did the defense attempt to dispute the fact that Glenn had escaped from jail and held Charlotte Wilson captive at knifepoint. The defense’s case consisted primarily of the testimony of several of Glenn’s siblings who related that he had been acting strange or crazy ever since a fire that had taken the lives of four of his cousins several years prior. Glenn testified that he held himself responsible for the death of his cousins because the fire was set in an attempt to get back at him. Glenn also testified that he had no memory of the events from the time he jumped out of the jailhouse window until he was captured in the utility shed.

The jury returned a verdict of guilty but stated that they could not agree on imposition of the life sentence under the habitual offenders statute. The judge then sentenced Glenn to serve 30 years without the possibility of parole in the custody of the Mississippi Department of Corrections.

Glenn’s first assignment of error is that the verdict of the jury is contrary to the law and the overwhelming weight of the credible evidence. He argues that the state failed to prove all of the elements of the crime of armed robbery. In Crocker v. State, 272 So.2d 664 (Miss.1973), this Court set forth the three essential elements of the crime of robbery by stating:

It is well settled that the three essential elements of robbery are as follows: (1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence. All these elements must occur in point of time. If force is relied upon as a proof of the charge it must be force by which another is deprived of and the offender gains possession of the property. If putting in fear is relied upon, it must be the fear under duress of which the owner parts with possession. Register v. State, 232 Miss. 128, 97 So.2d 919 (1957).

272 So.2d at 665. The proof at trial was sufficient to establish all of these elements.

Glenn next argues that the court erred in refusing to grant him a further and more adequate mental examination. The day before Glenn was set for trial his attorneys requested a continuance and an order for another mental examination. Glenn’s argument was that Dr. Sayner was a psychologist rather than a psychiatrist. This argument is closely analogous to that made by the appellant in Greenlee v. State, 437 So.2d 1010 (Miss.1983). In that case Greenlee also requested a second mental examination because the first had been performed by a psychologist. Noting that the court had available the psychologist’s report from the first examination we held in Greenlee that the trial judge had not abused his discretion in refusing to grant a second examination. In the instant case the trial court also had Dr. Sayner’s report. We cannot say that the trial judge abused his discretion in refusing to grant a second examination.

Glenn’s last assignment of error is that the court erred in granting Instruction S — 1 of the state being an instruction attempting to set forth the elements of armed robbery. Instruction S-l reads:

The Court instructs the Jury that if you believe from the evidence beyond a reasonable doubt that the Defendant, Maurice Glenn, on the date testified about, did unlawfully, wilfully and feloni-ously place Charlotte Wilson in fear of immediate injury to her person by the exhibition of a deadly weapon, to-wit: a knife or dagger, and he, the said Maurice Glenn, did then and there take and steal $200.00, or any other amount of money or property, the personal property of Piggly Wiggly of Greenwood, Inc., a corporation, from the presence and against the will of Charlotte Wilson, and at that time he, the said Maurice Glenn, had the ability to realize and appreciate the nature and consequences of that act and the ability to distinguish right from wrong, then it is your sworn duty to find the defendant guilty as charged.

Glenn’s objection is that the instruction fails to state that the taking must be by the exhibition of a deadly weapon. He argues that the instruction allows the jury to find him guilty if it finds both that he took the money and that he exhibited a deadly weapon rather than requiring that the taking be by means of the exhibition of a deadly weapon. The state argues that the wording “and he, the said Maurice Glenn, did then and there take and steal” sufficiently conveys the causal relationship necessary as an element of the crime. The reading of the other instructions, particularly D-6 and D-8 make it clear that the jury had before them the essential elements of the offense. Both Instructions D-6 and D-8 require the jury to find that the taking of the property was committed by means of violence or by putting another person in fear of immediate injury. Read in conjunction with D-6 and D-8 the phrase in S-l “did then and there” comes to mean that the taking had to have been by means of force or putting in fear. Because these instructions must be read together we are of the opinion that any defect in S-l was cured by the granting of D-6 and D-8. Hickombottom v. State, 409 So.2d 1337 (Miss.1982).

Based on the foregoing, we affirm the verdict of the jury and the sentence of the trial court.

AFFIRMED.

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

BOWLING, J., not participating.


text:
    James Patrick BRELAND v. STATE of Mississippi.
    No. 54463.
    Supreme Court of Mississippi.
    Oct. 26, 1983.
    Woodrow W. Pringle, III, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Kosta N. Vlahos, Judge.

Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE and PRATHER, JJ., concur.


text:
    James MURPHY, Jr. v. STATE of Mississippi.
    No. 54528.
    Supreme Court of Mississippi.
    Oct. 26, 1983.
    Kenneth L. Thomas, Rosedale, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS and ROBERTSON, JJ., concur.


author: ALMON, Justice.

text:
    POLYTEC, INC., and Phil Cashion v. UTAH FOAM PRODUCTS, INC.; Gerald F. Chadbourne; J.O. Lockridge Company; John Binford; and Michael A. Guarino. UTAH FOAM PRODUCTS, INC. v. POLYTEC, INC., and Phil Cashion.
    81-530, 81-556.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      James L. Shores, Jr. and Gary A. Moore, Fairhope, for appellants/cross-appellees.
    Frank McRight, Mobile, for appel-lees/cross-appellants.
   ON REHEARING

ALMON, Justice.

The original opinion issued in this case is withdrawn and the following is entered as the Court’s opinion in this appeal and cross-appeal.

This case presents complex and novel procedural and substantive questions. The case reaches us in the following posture. Utah Foam Products, Inc., a supplier of foam roofing products, sued Polytec, Inc., an Alabama corporation which had applied a foam roof to a building in Birmingham, on Polytec’s account due. Polytec filed a permissive counterclaim regarding a transaction in Mobile and added counterdefen-dants, alleging that Utah Foam and others had wrongfully deprived Polytec of business. The trial court granted Utah Foam’s motion for summary judgment on the complaint and certain motions to dismiss the counterclaim. Polytec filed an amended counterclaim, of which the trial court dismissed two counts and denied motions to dismiss or strike a third count. Polytec appeals from the dismissal of the two counts and Utah Foam cross-appeals from the failure to dismiss the other count.

The counterclaim gives substantially the following statement of facts which are to be taken as true for the purpose of ruling on a motion to dismiss:

Polytec was in the business of selling and applying waterproofing materials, primarily urethane foam. In March 1980 Utah Foam sold Polytec a machine for applying foam and a quantity of foam. Polytec paid in advance for the machine but purchased the foam on credit. Later that month, Gerald F. Chadbourne, a salesman for Utah Foam, met Phil Cashion, Polytec’s president, and James C. Taylor, a Polytec representative, in Birmingham. Chadbourne demonstrated the use of the machine by applying foam to the roof of a building, apparently pursuant to a Polytec contract with the building owners.

According to Polytec, Chadbourne discussed with Cashion and Taylor the prospect of “Polytec becoming a distributor of the products of Utah Foam in the southeastern United States.” Polytec used a process whereby the foam was coated after application with a waterproofing material called Miracote, made by Miraco, Inc., a Pennsylvania company that Polytec represented. During the discussions with Chad-bourne, Cashion talked on the telephone with a person at Miraco and obtained an agreement for Miraco to underwrite half of the costs of testing the use of Miracote with Utah Foam’s urethane foam.

After the meeting in Birmingham, Poly-tec conducted a presentation at the temporary Mobile City Hall to demonstrate the applications of urethane foam and Miracote, allegedly at the request of Michael A. Guar-ino. Guarino was identified in the counterclaim as “an employee of the City of Mobile and advisor with respect to the Mobile Aerospace Industrial Complex (herein ‘the Complex’), owned by the City of Mobile and leased to Teledyne [Continental Motors].” Buildings at the Complex were damaged by Hurricane Frederic and Teledyne contracted with J.O. Lockridge Company, a Texas-based firm, to perform repair work. Those attending Polytec’s demonstration included Guarino; John Binford, a Lockridge employee and spokesman; Roderick Slater, an engineering and architectural consultant to the city; and some twenty other employees of Teledyne, the City of Mobile, and the Complex.

Following the presentation, Binford, Slater, and a Teledyne representative accompanied Taylor to Birmingham to inspect the recently installed urethane roof. Cashion telephoned Chadbourne, reaching him in the state of Washington, and spoke of Poly tec’s interest in obtaining a contract with Tele-dyne. Chadbourne flew to Mobile on April 20, 1980.

Cashion, Taylor, and Chadbourne met for approximately three hours with Binford, Slater, and others at the Complex on April 21. The Polytec representatives and Chad-bourne discussed the proposed Teledyne contract over breakfast the following morning. Cashion then drove Chadbourne to the Complex where Chadbourne attended a meeting to which Binford had invited him.

Polytec alleges that the next day, Chad-bourne informed Cashion “that the Tele-dyne people were going to repair the buildings with new built-up roofs and that Poly-tec should forget about getting a contract to put on a urethane foam roof.” On April 24, Cashion drove Chadbourne to Birmingham, where they talked with officials about roofing repairs to the civic center. Chad-bourne left Birmingham by airplane that afternoon.

The factual allegations of the counterclaim conclude:

“12. On or about May 7, 1980, Chad-bourne returned to Mobile and telephoned Cashion informing him that Utah Foam had sold two machines to Lo-chridge for it to use in applying urethane foam roofs to the buildings in the Complex.
“13. On approval from the City of Mobile, Lochridge and Utah Foam contracted with Teledyne and repaired the roofs of the buildings in the Complex with urethane foam after Chadbourne personally applied a new urethane foam roof to the residence of Guarino .... ”

The original counterclaim, filed on March 2, 1981, named Utah Foam, Chadbourne, Lockridge, Binford, Guarino, and fictitious parties as counterdefendants. Count one alleged that the counterdefendants “conspired to injure Polytec and Cashion by depriving them of the opportunity for doing the roofing work for Teledyne at the Complex and the profit that would have been made from doing the work.” Count two alleged that the counterdefendants “impliedly represented” that foam for the Complex would be acquired through Polytec, intending “to induce Polytec and Cashion to rely upon the implied representation.” Count two alleged further elements of a fraud claim and stated that the acts constituted a violation of Code 1975, §§ 6-5-101, -102, and -103.

The trial court granted Utah Foam’s motion for summary judgment on March 16, 1981, awarding Utah Foam the full amount sought in the complaint. On April 2, Utah Foam moved to dismiss the counterclaim. On the same date, Lockridge and Binford moved to dismiss the counterclaim or, in the alternative, for a more definite statement. Guarino filed a motion to dismiss on April 9.

On June 18, 1981, the trial court entered an order granting Utah Foam’s motion to dismiss and an order granting Guarino’s motion to dismiss. No order was ever entered regarding Lockridge and Binford’s motion. On June 26, Poly tec filed a motion for the court to set aside the orders of June 18 and to overrule both motions. The trial court denied this motion on October 21, 1981.

On November 3, 1981, Polytec filed an amended counterclaim containing three counts, numbered three, four, and five. Count three alleged that Utah Foam impliedly agreed to award Polytec the contract for roofing the Complex and agreed to make Polytec its exclusive distributor for the southeast. Counts four and five alleged conspiracy and fraud claims similar to those in counts one and two of the original counterclaim. Utah Foam filed a motion to strike the amendment to the counterclaim. Guarino filed a motion to dismiss the amended counterclaim.

On February 1, 1982, the trial court granted Utah Foam’s motion to strike and Guarino’s motion to dismiss as to counts four and five of the amended counterclaim and denied the motions as to count three. On March 4, 1982, the court entered a final judgment on counts four and five under Rule 54(b), A.R.Civ.P., as to all counterde-fendants. Polytec appealed from this order and Utah Foam cross-appealed from the failure to dismiss count three of the amended counterclaim.

In the opinion issued on May 27, 1983, this Court dismissed the appeal as untimely. The Court viewed the June 18 orders dismissing the original counterclaim as final orders and Polytec’s motion to set aside those orders as a Rule 59, A.R.Civ.P., motion to alter, amend, or vacate the orders of dismissal. Under this view, the motion to set aside was pending for longer than the ninety days allowed by Rule 59.1 and was thus denied by operation of that rule on September 24, 1981. Because no appeal was taken within 42 days of that date, the Court dismissed the appeal.

Polytec’s application for rehearing points out that the trial court’s June 18 orders did not dispose of the counterclaim against Lockridge and Binford. Utah Foam, in opposition to the application for rehearing, argues that Polytec did not properly file the original counterclaim and did not bring in the additional counterdefendants in accordance with the rules of civil procedure. Utah Foam argues that Lockridge and Bin-ford were thus never parties and the failure to rule on their motion to dismiss the counterclaim did not affect the finality of the June 18 orders.

Rule 13(b), A.R.Civ.P., states that “[a] pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Polytec’s counterclaim is a permissive counterclaim within the ambit of this rule. Therefore, if Polytec wished to assert its claim as a counterclaim, the proper time to do it was when it filed its answer. Rule 7(a). This Polytec did not do. Instead, Polytec in its answer denied that it was indebted to Utah Foam because Utah Foam was indebted to Polytec “for a substantial sum of money ... as will be more fully alleged by way of counterclaim to be filed by the defendants upon completion of initial discovery from” Utah Foam.

The proper course for Polytec to have followed when ready to file its counterclaim was to seek leave of the court: “(f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” Rule 13. None of the counterde-fendants objected to the counterclaim on this ground, however, so we deem any objection for failure to obtain leave of the court to have been waived.

Nor did Poly tec seek permission of the court to bring parties other than Utah Foam into the action. Rule 13(h), A.R. Civ.P., provides that “[pjersons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.” Rule 19 relates to joinder of persons needed for a just adjudication and there is no indication or allegation that it applies to this case. Rule 20 allows permissive joinder, but does not under its own terms require leave of court. Utah Foam asserts that Rule 21, including the following provision, should be read into Rules 19 and 20: “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.”

Polytec responds with the following quotation regarding the Federal rule from which Rule 13, A.R.Civ.P., derives:

“Under the 1966 revision of Rule 13(h), it is not clear whether leave of the court must be obtained before a defendant can bring in new parties as additional defendants to a counterclaim. Former Rule 13(h) inferred [sic: implied] that such leave was necessary since it stated ‘the court shall order them to be brought in ...’ However, this language was omitted in favor of the present provision that ‘persons ... may be made parties ... in accordance with provisions of Rules 19 and 20.’ Good arguments can, therefore, be advanced that leave of court is no longer necessary if the new parties are being brought in on a counterclaim which is raised in the original answer.”

3 J. Moore, Moore’s Federal Practice ¶ 13.-39, p. 13-239 (2d ed. 1983) (citations omitted).

Polytec also points out that no coun-terdefendants objected below to the failure to seek leave of court to add the additional counterdefendants. They all filed motions to dismiss the counterclaim, but not on the ground that Polytee failed to obtain leave of court. Therefore, we must take any objection on this ground as waived.

Thus, for our purposes, the counterclaim and all counterdefendants were properly before the trial court. The failure of the trial court to rule on Lockridge and Bin-ford’s motion to dismiss resulted in those two parties remaining as counterdefendants even though final judgments had been entered in favor of Utah Foam and Guarino. While Polytec’s motion to set aside the dismissals was pending, Polytec propounded interrogatories to Lockridge, and Lockridge answered them. Moreover, we note that Utah Foam’s motion to dismiss the counterclaim did not include Chadbourne as a mov-ant. Thus, although the parties have made no mention of the original counterclaim as still pending against Chadbourne, the record does not show it as dismissed as to him.

Our original opinion treated the counterclaim as dismissed in its entirety. As the above discussion shows, this was incorrect — although it is difficult to see how Polytec could proceed against Lock-ridge and Binford without Utah Foam in the action. No Rule 54(b) order was entered at that time to make the dismissal of Utah Foam and Guarino appealable, so our earlier dismissal of the appeal based on the operation of Rule 59.1 must be set aside and the appeal reinstated.

The appeal alleges error in the dismissal of counts four and five of the amended counterclaim, and the cross-appeal alleges error in the failure to dismiss count three of the amended counterclaim. The first question concerns the procedure for amending a complaint after dismissal.

Utah Foam argues that the trial court’s dismissal of counts four and five was correct because “Polytec did not have the right, without first obtaining leave of court, to amend its counterclaim after the court had ruled on three separate occasions that the substantive allegations were insufficient.” The rulings mentioned were the summary judgment, which Polytec opposed with an affidavit of Cashion setting out the circumstances forming the basis of the counterclaim; the dismissal of the original counterclaim; and the denial of the motion to set aside the dismissal.

Rule 78 provides an automatic right to amend within ten days after an order granting a motion to dismiss. Polytec did not follow this procedure, but chose instead to file its motion to set aside the dismissal.

Rule 15(a) provides that “[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served ....” There is some question whether this rule grants the right to amend after dismissal. A motion to dismiss is not a responsive pleading within the meaning of this rule. Rule 7(a). Thus, a literal reading of Rule 15(a) would allow an amendment after the granting of a motion to dismiss. Moore, commenting on the corresponding Federal rule, has observed that “granting leave as a matter of right after dismissal would completely frustrate the desire for certainty in the termination of litigation.” 3 J. Moore, Moore’s Federal Practice, ¶ 15.07[2], p. 15-50. He goes on to say that no time limitation governs such an amendment, and that the proper procedure is to file a Rule 59(e) motion to alter, amend or vacate the judgment or a Rule 60(b) motion for relief from judgment:

“If the order of dismissal does not contain leave to amend, which [would put] the other parties on notice that further proceedings are contemplated, and a judgment is entered, an amendment should be allowed only if plaintiff moves for relief under Rules 59(e) or 60(b) and complies with the time limits set forth in these Rules.”

Id., p. 15-51.

We agree that this would be the better practice. However, although the October 21 order finalized the dismissal of the original counterclaim, the record does not reflect that a judgment was entered, and moreover, the claim against Lockridge and Binford was still pending. Under these circumstances, Polytec was not required to file a Rule 59(e) motion to vacate the denial of the motion to set aside the dismissal. Thus the failure to file any such motion cannot support the dismissal of counts four and five and require the dismissal of count three.

Utah Foam’s motion to strike the amendment to the counterclaim gave as grounds that “all claims and counterclaims in this action have been resolved, the amendment asserts either restatement of dismissed claims or new claims which ought to have been included in the counterclaim when filed February 29,1981, and the amendment is interposed for purposes of delay.” Guari-no’s motion to dismiss was essentially a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

The court, in granting final judgment on counts four and five, ordered those counts dismissed “as to Utah Foam Products, Inc., Gerald F. Chadbourne, J.O. Lochridge [sic] Company, John Binford, and Michael A. Guarino.” Because the amendment was subject to disallowance on the court’s own motion under Rule 15(a), dismissal as to all parties, even those who filed no motion to dismiss or strike the amendment, is not error as such. The question is whether the trial court violated the standard that amendments are to be “freely allowed when justice so requires.”

Count four alleges that the counterdefen-dants

“induced Polytec and Cashion to make the presentations at the Complex ... impliedly promising ... that Polytec would be awarded the contract to perform the work.
“The defendants to this counterclaim acted in concert to accomplish the lawful end of having Polytec and Cashion demonstrate and persuade Teledyne and the City of Mobile to reroof the buildings in the Complex with urethane foam by means of concealing from Polytec and Cashion the fact that Polytec would not be awarded the contract to perform the work and that instead Lochridge and Utah Foam would do it.”

Count five alleges that the counterdefen-dants

“willfully misrepresented to Polytec and Cashion that if Teledyne and the City of Mobile made the decision to reroof the Complex buildings with urethane foam that Polytec would be awarded the contract to do the work, which representation was made by those defendants to induce Polytec and Cashion to demonstrate and persuade Teledyne and the City of Mobile, which they did to their injury.”

Count five concludes that the misrepresentation was in violation of Code 1975, § 6-5-101.

We proceed to the merits. The crux of Utah Foam’s argument supporting the dismissal of counts four and five is that they do not allege any actionable wrongs. It cites Stuart Constr. Co. v. Vulcan Life Ins. Co., 291 Ala. 650, 285 So.2d 920 (1973), as being remarkably close on point. In that case, a building contractor sued another contractor, an architect, and a corporation taking bids on a construction project. The plaintiff alleged that the corporation and the architect conspired with the other contractor to award that contractor the contract “without regard to the amounts bid by the other bidding contractors.” The complaint continued,

“Thereafter, in furtherance of the conspiracy, the conspirators did wrongfully and with malice interfere with the plaintiff’s business by issuing to plaintiff an invitation to submit a bid, all the while knowing of the time, expense and effort that the plaintiff would incur in preparing and submitting a bid.”

Id., 291 Ala. at 653, 285 So.2d 920.

This Court agreed with the trial court that the complaint did not state a claim, because the corporation was under no duty to award the contract to any particular bidder. The Court pointed out that the plaintiff did not allege that the contractor made any promise or inducement to the plaintiff to get it to submit a bid, nor that there was any business relationship between the plaintiff and the corporation. Further, the Court held there could be no liability for a conspiracy unless there was an actionable wrong.

Polytec argues that this case is distinguishable from Stuart because Polytec has alleged an actionable wrong. Polytec raises five theories under which it asserts counts four and five state a cause of action: prima facie tort, wrongful interference with a business, interference with a prospective business advantage, civil conspiracy, and fraud. Of these, we shall discuss first the argument pertaining to wrongful interference with a business.

One’s employment, trade, or calling is a property right, and the wrongful interference therewith is an actionable wrong. Moving Picture Machine Op. Local No. 236 v. Cayson, 281 Ala. 468, 205 So.2d 222 (1967); Bowen v. Morris, 219 Ala. 689, 123 So. 222 (1929). “[A]n unlawful invasion of or interference with the pursuit or progress of one’s trade, profession, or business is a wrong for which an action lies.” Sparks v. McCreary, 156 Ala. 382, 387, 47 So. 332 (1908); Alabama Power Co. v. Thompson, 278 Ala. 367, 178 So.2d 525 (1965).

The question of whether defendants were justified in taking the actions interfering with a plaintiff’s business is generally for the jury to decide. Evans v. Swaim, 245 Ala. 641, 18 So.2d 400 (1944). Furthermore, justification is an affirmative defense. Sparks v. McCreary, supra; see also, Thompson v. Allstate Ins. Co., 476 F.2d 746 (5th Cir.1973). For these reasons, plaintiff need not plead a lack of justification and any alleged justification is not grounds for a motion to dismiss.

Polytec has alleged that Utah Foam, Chadbourne, Lockridge, Binford, and Guari-no conspired to interfere with Polytec’s roofing business by inducing Teledyne not to award the Complex roofing project to Polytec even though Polytec conducted the demonstrations which persuaded Teledyne to use urethane foam roofs. Polytec asserts that none of the counterdefendants were in the roofing business and so had no legitimate reason for cutting Polytec out of the job. It appears that Lockridge was a general contractor for Teledyne, however, so Lockridge may have been legitimately interested in obtaining the business for itself. Under the authorities cited above, however, these matters of justification are not proper for consideration on a motion to dismiss or a motion to strike.

Polytec has thus stated a claim for wrongful interference with its business. For this reason, the trial court erred in dismissing counts four and five of the amended counterclaim. We decline to discuss the arguments Polytec makes under the theories of prima facie tort, interference with a prospective business relationship, fraud, and conspiracy. The right to recover under any of these theories coincides more or less with the right to recover for the alleged tortious interference with Polytec’s business. The first two theories bear no precedent in this state and so, there being another theory with ample precedent on which the complaint states a cause of action, we deem it premature and unnecessary to discuss the elements of such theories of recovery. The wrongful conduct and injury to be proved under the fraud and conspiracy theories are virtually the same as those to be proved under the wrongful interference theory.

There is no necessity to address the cross-appeal because the ruling denying the motion to dismiss count three was not a final judgment and the Rule 54(b) determination did not extend to this count. The cross-appeal is dismissed.

The judgment of the trial court dismissing counts four and five of the amended counterclaim is reversed and the cause remanded.

APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; CASE 81-530: REVERSED AND REMANDED; CASE 81-556: APPEAL DISMISSED.

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

      . Phil Cashion, the president of Polytec, is named with Polytec as a defendant and as a counterclaimant. Except where Cashion’s status as a party is material, we shall refer solely to Polytec as the party defendant/coun-terclaimant.

      . Spelled “Lochridge” in some places in the record.


text:
    Mary PARKS, et al. v. The DEPARTMENT OF YOUTH SERVICES, et al.
    82-117.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      J. Victor Price, Jr., Montgomery, for appellants.
    Thomas R. Christian and Robert T.J. Childers of Turner, Wilson, Christian & Dorrough, Montgomery, for appellees.
   ALMON, Justice.

The dispute from which this appeal arises concerns the legislative provisions under which the plaintiff class, academic and vocational instructors with the Department of Youth Services, are to be paid. The trial court held that they are to be paid pursuant to the statutes governing teachers and not those governing merit system employees.

Mary Parks and Arthur Jones filed this action on behalf of themselves and all other similarly situated certified academic and vocational instructors in the Department of Youth Services (DYS). They claimed that they were entitled to a 16% raise in fiscal year 1980-81 under the provisions of Act No. 80-762, 1980 Ala.Acts 1588, and sought declaratory and injunctive relief requiring defendants to pay them this raise. The complaint named as defendants the Alabama Department of Youth Services and its executive director, plus the Alabama Youth Services Board and its members. Plaintiffs later amended their complaint to add as defendants the state budget officer, the state personnel board, its director and members, and the Governor. They sued but later agreed to dismiss the defendants in their individual capacities.

The defendants filed an answer raising various defenses. These defenses are pertinent to this appeal: that § 44-1-22, Code 1975, provides that the employees of DYS “shall be governed by the personnel merit system rules and regulations of the state personnel department”; that Act No. 79-724, 1979 Ala.Acts 1283, and Act No. 80-616, 1980 Ala.Acts 1051, provided 7% and 7½% raises in fiscal years 1979-80 and 1980-81, respectively, for state merit system employees; and that, pursuant to the advice of the state personnel department, DYS paid the plaintiffs the merit system raises.

After defendants filed their answer, plaintiffs filed a motion to maintain the proceeding as a class action. The court granted this motion and ordered that notice be sent to the class members. A notice of pendency of the action was sent to the class members consistent with the requirements of Rule 28(c)(2), A.R.Civ.P. The notice informed the class members that they would be excluded if they so requested by a specified date; that the judgment, whether favorable or not, would include all members who did not request exclusion; and that any member who did not request exclusion could enter an appearance through counsel.

On May 17, 1982, the defendants filed a counterclaim which requested the court to consider “not only the terms of Act No. 80-762 as compared to Act No. 80-616, but also to compare Act No. 79 — 724 and Act No. 79-540 as well as House Bill No. 480 and House Bill No. 150,” and to do equity to the parties under all these acts. The court held a hearing in the case on May 24, 1982, and ruled that the plaintiffs should be paid under the acts relating to teachers rather than those relating to merit system employees. The court appended to its judgment a computation of the difference in pay that would be due to or from the plaintiffs under the revised schedule. The net result of this computation was that all but four of the plaintiffs owed refunds to the state. One of the plaintiffs who received an award in her favor was plaintiff Parks.

The plaintiffs filed a motion for rehearing and new trial. The denial of this motion is the subject of this appeal, and, because the grounds of the motion are essentially the issues on appeal, we shall set them out in some detail.

The first ground of the motion was that the court granted relief different from that indicated from the bench:

“Specifically the Court told the defendants that they could not recover from the members of the class money or salary paid to them in the form of annual or merit pay raises. Because of these instructions, the plaintiffs did not offer evidence or testimony that they had to establish their right to these raises regardless of whether they were or are considered teachers instead of state employees.”

The second ground alleged in the motion was that the court’s order granted relief wholly outside of the explanation of the matter in controversy sent to the members of the class, and that it was inequitable to change the nature of a class action after notice was sent and the time to opt out of the action had expired.

The third ground was that the counterclaim was barred by laches. The fourth ground was that the counterclaim did not seek to recover money from the class and thus the judgment could not grant such relief. The fifth ground was that neither party offered evidence at the hearing because the court indicated substantial agreement with the plaintiffs’ position, and that if the court had changed its position, equity demanded that plaintiffs be allowed to produce their testimony. This fifth ground alleged that the plaintiffs were prepared to. offer evidence that teachers everywhere in the state receive the annual and merit raises given to merit system employees.

The first issue on appeal incorporates grounds two and three of the new trial motion: Must a counterclaim be filed at the time of or before a defendant files an answer or at least before notice to potential class members informs them of the nature of the lawsuit? Plaintiffs argue that Rule 13(f), A.R.Civ.P., requires leave of court to file a counterclaim not filed with an answer. While we agree with this statement, we find no indication in the record that plaintiffs objected to the counterclaim on this ground. For this reason, and because the parties and the court treated the counterclaim as properly filed, we find no error presented on the basis of Rule 13(f). See Polytec, Inc. v. Utah Foam, Inc., 439 So.2d 683 (Ala.1983) (On Rehearing).

The plaintiffs argue that the due process rights of the class members were violated because the counterclaim resulted in a judgment against them on a claim of which they had no notice and opportunity to be heard. We disagree. The defendants’ answer, filed before the class action notice was sent to the class members, raised the defense that the defendants paid the plaintiffs under the provisions of Acts 79-724 and 80-616. Thus, the issue on which the trial court ordered the refunds was joined before the prospective class members received notice of the pending action.

Although the above discussion shows that the trial court could have rendered the judgment it did with the case in the present posture, the question remains whether the court properly rendered the judgment. This question is addressed in the plaintiffs’ second and third issues, which raise the remaining grounds of their motion for new trial. Plaintiffs state issue two as: May a party to a lawsuit be granted relief that he does not request on an issue which the court has stated is not properly before it? Issue three is: Is it incumbent upon the party alleging payment of money by mistake to offer evidence that the payment was by mistake or unauthorized, or may that party gain relief sought merely by pleading a mistaken payment?

We have addressed the aspect of issue two that alleges the defendants did not request relief in the form of repayments of amounts allegedly improperly made. The remaining aspect of issue two requires some analysis of the relevant pay methods and of the statements of the trial court during the hearing.

Act No. 79-540 provided that, should sufficient funds be available, “[t]he Budget Officer shall allocate funds” to certain state educational institutions, including DYS, to pay specified cost-of-living increases. “[Cjertified academic and vocational instructors ... in the Department of Youth Services shall receive an increase of up to 7% of the state salary allocated in 1978-79 Fiscal Year.” Payments were to be made quarterly on January 1, April 1, July 1, and September 30, 1980.

The legislature passed Act No. 80-762 “to provide a 16% salary increase to the education personnel enumerated in Section 2 of this act,” for fiscal year 1980-81. Section 2 required the state budget officer to make allocations necessary to grant a 16% raise “based on the following: (a) State base salary payable during the 1978-79 fiscal year to ... certified academic and vocational instructors ... in the Department of Youth Services.”

Act No. 79-724 provided a conditional cost-of-living increase of up to 7% for merit system and certain other employees. Section 7 provided that

“The State Personnel Director shall revise the schedule of rates for all employees and officials hereby affected regardless of whether subject to the State Merit System, to reflect the increase herein provided. . .. [Sjuch revisions shall be made only once at the end of the Fiscal Year, that is on September 30, 1980, and shall reflect the actual total annual increase in rates of pay, resulting from the conditional quarterly payments.”

Act No. 80-616 provided a 7½% cost-of-living raise for the same employees as those covered by Act No. 79-724:

“However, any state employee covered under the provisions of this Act, and otherwise eligible for consideration for an annual step increase in salary, shall only be eligible for a maximum step increase in the amount of 2½% at the time of their annual review, which step increase shall be in lieu of any step increase heretofore provided by law.”

Act No. 80-616 also provided for the pay schedules to be revised to reflect the cost-of-living increase.

The trial court was clearly correct in determining that the plaintiffs should have been paid the raises in 79-540 (if available) and 80-762 rather than those in 79-724 and 80-616: the former pair of acts refer specifically to academic and vocational instructors at DYS. The only argument we perceive DYS to make in favor of its interpretation is that all its other employees are merit system employees. The court was also correct in using a formula which based the 16% raise of Act No. 80-762 on the base salary from fiscal year 1978-79. The controversy raised by the plaintiffs seems to arise from the fact that the trial court took away annual step raises received by the plaintiffs, presumably for the fiscal years 1979-80 and 1980-81.

It appears from the record that the conditional cost-of-living raises paid to teachers in 1979-80 under Act No. 79-540 were only one-fourth of those paid to merit system employees under Act No. 79-724. Thus the plaintiffs, if they received 7% raises under Act No. 79-724, were paid more than they would have been under the proper statute. The court ordered repayment of only three of the four quarterly payments because the first was barred by the statute of limitations. Code 1975, § 6-2-39(a)(6), provides a one-year limitation for recovery of wages and should apply to defendants’ counterclaim as it would to a claim by plaintiffs. Even with relation back of the counterclaim, Rule 13(c), A.R.Civ.P., the face of the record shows that only two of the overpay-ments should have been reached. The plaintiffs point out that the second payment, made on April 1, 1980, was not subject to refund because they filed suit on April 14, 1981. This appears to be correct and should be addressed on remand.

The method adopted by the trial court to compute the difference between what was paid and what should have been paid was to calculate a 16% raise over the 1978-79 base salary and multiply that figure by the number of paychecks received between October 1, 1980 and the date of judgment. From that total amount due to be paid, the trial court subtracted the amount which was paid. For about half of the plaintiff class members, this resulted in amounts owed to DYS. These figures do not include the three quarterly cost-of-living raises, because those were deducted in a separate calculation, which resulted in all but four of the plaintiffs owing money to DYS.

Plaintiffs argue that the above method took away their annual merit raises which they were entitled to receive regardless of the cost-of-living raises. They had a witness present at the hearing who was prepared to testify that teachers across the state receive annual raises just as merit system employees do. He did not testify because, according to the plaintiffs, the trial court indicated that the question of merit raises was not before it, but only cost-of-living raises. The remarks of the trial court on which the plaintiffs base this claim are as follows:

“I’m going to rule on what I think is before me and what is before me at this time on the complaint and counterclaim is an interpretation of how these raises should be done. Based on those raises I don’t think you can ... I don’t think it is before me as to whether or not how they are going to be classified with the exception of for raises. I don’t think those statutes that put them under a merit system step raise, you know; whether they are a one or a two or a three, for base pay purposes or what a teacher makes, for base pay purposes — I don’t believe that’s before me. The only thing I think that has been brought before me on a complaint and counterclaim is how these legislatively passed percentage raises — you know, you may have to look back at what the base is to find that — but I don’t think I’m going to be able to give you any guidance on that because I don’t think the matter is really before me. You may have to get another lawsuit or you may have to get another personnel regulation and we may end up looking at it somewhere down the road, but as the case has been presented to me- — and y’all tell me if I’m wrong — I believe the only thing before me is an interpretation of the legislative raises and which one takes effect; not what it goes back to, whether it’s sixteen percent of State or sixteen percent of a base teacher’s salary.”

The parties explain that in an informal conference after the hearing the judge changed his mind and decided on the refund method that was in fact used. The defendants assert that the judge’s decision is presumptively correct because matters were before him which are not preserved in the record, citing Limbaugh v. Johnston, 393 So.2d 963 (Ala.1981), and Lockhart v. Robbins, 386 So.2d 424 (Ala.1980). The plaintiffs correctly point out that the principle of law found in those cases relates to eviden-tiary matters, whereas the informal discussion after the hearing in this case did not include any presentation of evidence.

We agree with the plaintiffs that an adequate record was not built to determine whether annual merit or step raises received by the plaintiffs should be refunded. Act No. 80-762 provides that the 16% raise would be based on the 1978-79 salary, but it does not require that any interim annual raises be refunded. Plaintiffs’ motion for new trial included an affidavit by their witness that he was at the hearing prepared to testify regarding annual raises for teachers. The trial court induced the plaintiffs not to present this evidence by stating that the matter was not before it. Before the trial court retracted that decision, it should have reopened the matter for the plaintiffs to produce their evidence.

For the reasons stated, the trial court erred in denying plaintiffs’ motion for rehearing and new trial. The judgment is therefore reversed and the cause remanded for the court to reopen the proceedings regarding annual merit raises received by the plaintiffs and the statute of limitations issue on the April 1 quarterly increase.

REVERSED AND REMANDED.

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

      . House Bill 150 became Act No. 82-570, 1982 Ala.Acts p. 1061, and gave an 11% raise to merit system employees, effective October 1, 1982. H.B. 480 became Act No. 82-574, 1982 Ala.Acts p. 1066, and gave a 16% raise to, among others, “teachers employed by” DYS, for the 1982-83 fiscal year.

      . The plaintiffs defended against the counterclaim based on the statute of limitations, and first raised the defense of laches in their motion for new trial. Even assuming the latter defense was timely, it does not amount to a Rule 13(f) objection.


author: PER CURIAM.

text:
    Richard L. OSBORNE v. Ralph R. BANKS, III.
    82-193.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      John H. England, Jr. of England & Bivens, Tuscaloosa, for appellant.
    Michael D. Smith of Hall, Clark & Smith, Eutaw and R. Clifford Fulford of Fulford, Pope, Natter, Donovan & Mullins, Birmingham, for appellee.
   PER CURIAM.

This case comes to us on appeal from a final order of the Circuit Court of Greene County, finding that the appellant, Richard Osborne, was disqualified from serving as district judge of Greene County, and permanently enjoining the members of the Board of Supervisors from certifying him as newly elected to that position.

This litigation raises two precise issues:

1. Does the law of Alabama support the trial court’s conclusion that Osborne is ineligible for, and disqualified from, holding office under § 36-2-l(a)(3), Code 1975?
2. Does the plaintiff have an adequate remedy at law in this case, barring in-junctive relief?

The answer to the first question is yes; the answer to the second question is no. The judgment of the trial court is affirmed.

The pivotal facts in this case are as follows:

Richard Osborne and Ralph Banks, Jr., were candidates for district judge of Greene County in the Democratic Primary held September 7, 1982. Osborne was the victor and was certified as the party’s nominee. No other party offered candidates for that office. On October 12, 1982, Ralph Banks, Jr., learned that Osborne had been convicted of larceny in the municipal court of Montgomery in 1969, when Osborne was 21 years old. When he registered to vote in 1981, Osborne disclosed that he had been convicted of petty larceny and fined $50.00. He was registered at that time. On October 14, 1982, Banks contacted the State Democratic Executive Committee, stating that Osborne was disqualified from being a candidate for public office and requesting the Committee to name him (Banks) as the party’s nominee. The Committee, at first, set a hearing on the matter, but on October 27, 1982, reconsidered and decided not to pursue it. On October 28, 1982, Banks’s son, Ralph Banks, III, filed suit in his capacity as a qualified voter, taxpayer, and resident citizen of Greene County, asking for a preliminary injunction and declaratory relief. The hearing on the preliminary injunction was set for November 1, 1982, but when that day came, and service had not been obtained on Osborne, an application for a temporary restraining order was filed in open court. As a result of the hearing, a temporary restraining order was granted, restraining the defendant members of the Board of Supervisors for Greene County for the November 2, 1982 general election, and members of the board of registrars for Greene County, from posting, publishing, or certifying election results for the office of district judge, pending a hearing on the merits. Service was obtained on Osborne on November 5, 1982. In his answer, Osborne denied that he was ineligible to vote or hold office, and alleged that the complaint should be dismissed because plaintiff had an adequate remedy at law. He admitted, however, that as a youth, he had stolen hub caps in the City of Montgomery and had been convicted of this crime.

After a hearing on the merits, the trial judge, on November 19, 1982, issued the final judgment from which this appeal was taken.

The parties agree that in the general election of November 2, 1982, Banks received 626 write-in votes and after Banks then secured a conditional writ of mandamus from the circuit judge, sitting by designation in Greene County, the Board of Supervisors certified these votes to the Secretary of State. On December 20, 1982, Banks was proclaimed elected to the office of District Judge for Greene County, and is now serving in that capacity. Banks then dismissed his suit for mandamus.

I.

First, we must compliment counsel for both sides for their excellent briefs and cogent arguments presented at oral hearing in this case. The briefs and arguments have served to sharpen our focus on the issues presented.

We now turn our attention to the first issue: Does the law of Alabama support the trial court’s conclusion that Osborne is ineligible to hold office under § 36-2-l(a)(3), Code, 1975? The resolution of this issue is purely a matter of statutory construction. What does the statute say? Code 1975, § 36-2-l(a)(l) and (3) states: “(a) The following persons shall be ineligible to and disqualified from holding office under the authority of this state; (1) those who are not qualified electors, except as otherwise expressly provided; ... (3) those who shall have been convicted of treason, embezzlement of public funds, malfeasance in office, larceny, bribery or any other crime punishable by imprisonment in the state or federal penitentiary and those who are idiots or insane.”

Also involved in our consideration of Issue I is an analysis of Article VIII, § 182, Constitution of Alabama, 1901. This section provides:

The following persons shall be disqualified both from registering and voting, namely: All idiots and insane persons; those who shall by reason of conviction of crime be disqualified from voting at the time of the ratification of this Constitution; those who shall be convicted of treason, murder, arson, embezzlement, malfeasance in office, larceny, receiving stolen property, obtaining property or money under false pretenses, perjury, subornation of perjury, robbery, assault with intent to rob, burglary, forgery, bribery, assault and battery on the wife, bigamy, living in adultery, sodomy, incest, rape, miscegenation, crime against nature, or of any crime punishable by imprisonment in the penitentiary, or of any infamous crime involving moral turpitude; also, any person who shall be convicted as a vagrant or tramp, or of selling or offering to sell his vote or the vote of another, or of buying or offering to buy the vote of another, or of making or offering to make a false return in any election by the people or in any primary election to procure the nomination or election of any person to any office, or of suborning any witness or registrar to secure the registration of any person as an elector. [Emphasis supplied.]

Counsel for Osborne forcefully argues that violations of municipal ordinances have been treated differently by our courts from violation of state laws. He draws strength for his argument from an attorney general’s opinion dated June 12, 1980, which concludes that conviction of a municipal ordinance would not disqualify a person from voting, even if such conviction would constitute a crime involving moral turpitude if prosecuted under state law. He argues that if we accept the premise that the attorney general’s opinion is sound, and that the conviction of a municipal ordinance cannot prevent one from voting, then we must conclude that such a conviction could not prevent one from being eligible to hold office under § 36-2-l(a)(l). This is because, by counsel’s analysis, one would be a qualified elector, thereby meeting the first requirement of § 36-2-l(a), Code 1975.

Although an attorney general’s opinion is entitled to great weight, it does not have the force and effect of law and is only advisory in nature. Associated Industries of Alabama, Inc. v. State, 55 Ala.App. 277, 314 So.2d 879 (Ala.Cr.App.1975). In any event, counsel’s argument gains Osborne nothing. A candidate for public office must show that he meets the eligibility requirements of all categories of § 36-2-1(a), including category 3, which the circuit judge found he did not meet. It is one thing to say that one is a qualified elector and another to say that one does not have any of the disqualifications of Section 3. The circuit judge thought section 3 to be broader than section 1, and we agree. We believe the requirement of an office holder to be more strenuous than those requirements to be a qualified elector.

Osborne further contends that violations of municipal ordinances are not considered serious crimes in the same way that violations of state laws are. For instance, his argument is very persuasive that a witness cannot be impeached by showing the conviction of a municipal ordinance, since these convictions do not involve moral turpitude. Caldwell v. State, 282 Ala. 713, 213 So.2d 919 (1968); Craig v. State, 50 Ala.App. 618, 282 So.2d 59 (1973). Also, he says that even though petty larceny is a crime involving moral turpitude under state law, it is not so serious under municipal law as to be entitled to the constitutional safeguard of a jury trial. Birmingham v. Evans, 53 Ala.App. 358, 300 So.2d 396 (1974); Mobile v. McCown Oil Company, 226 Ala. 688, 148 So. 402 (1933). And petty larceny is the very crime which is being held against him in the instant case.

Needless to say, we are not unaware of the fact that many states do not include misdemeanors as disqualification for holding public office. The disqualification is usually expressed in terms of conviction of a felony or other infamous crime. For instance, in Elder v. County Election Board, 326 P.2d 776 (Okl.1958), a mandamus proceeding was filed to compel the county election board to place petitioner’s name on the ballot as a candidate for county commissioner where he had been disqualified by the board because of having pleaded guilty to the federal offense of possession of a still, the distilling apparatus, and liquor upon which a federal tax had not been paid. Such an offense is a felony under federal law. However, the Oklahoma court held that although such a conviction was a felony under federal law and caused the loss of certain rights of federal citizenship, it was only a misdemeanor under Oklahoma law and petitioner was entitled to all of his civil and voting rights.

As we said earlier, resolution of Issue I is a matter of statutory construction. And, although the trend of our times is to increase the participation in the electoral process, both as to voting as well as to holding office, we believe the public policy of our state was set by Justice Stone’s decision for this court in Anderson v. State, 72 Ala. 187 (1882), and followed in Washington v. State, 75 Ala. 582 (1884). In the Anderson case, this court interpreted the meaning of Article VIII, Section 3, of the Constitution of the State of Alabama just some seven years after its passage. That section is very similar in terminology and in import to our present Article VIII, Section 182, of the Constitution of Alabama and the election qualification statute, Code 1975, § 36-2-l(a)(l) and (3). The ease involved whether Anderson was properly convicted on a charge of illegal voting because he had been convicted of petty larceny in a state court. Anderson argued that the statute did not cover petty larceny, since the word petty was not used in the statute. It also was not used in the laws we have under consideration. However, Justice Stone writes in Anderson:

We do not think there is anything in this objection. The provision of the constitution makes no exception, and we do not feel at liberty to engraft one upon it. Larceny is larceny, whether grand or pet-it; and we fail to perceive that the value of the thing stolen, whether a shade above or a shade below the dividing line, can enter into its moral criminality. The animus furandi determines the moral aspects of the question.
We can not assent to the proposition, that “the use of the word ‘other,’ before the generic term ‘crime punishable by imprisonment in the penitentiary,’ shows that the particular crime of larceny, which disqualifies, is that larceny which is punished by imprisonment in the penitentiary.” If that construction be sound, then the principle must equally apply to the other clauses, “malfeasance in office,” and “bribery.” Some grades of these are not punishable by imprisonment in the penitentiary; yet we think the intention was to visit disfranchisement on every grade of these offenses. Moreover, if the intention had been to disfranchise only convicted felons, it would have been much easier to employ that general and comprehensive term.

72 Ala. at 189. We believe that this decision states a policy of this state now, as well as then.

Although the attorney general’s opinion has weight and we do not pass upon its efficacy as to who is entitled to vote, nevertheless we believe the people of the State of Alabama wish the qualifications of elected officials to be a cut above the qualifications of registered voters. Our conclusion may have been different in this case if the petitioner did not have the opportunity to obtain pardon from either the mayor of the City of Montgomery, or the pardon and parole board. Because most of the petty larceny offenses are perpetrated by youthful defendants, we would not think it fair to hold them culpable forever for the indiscretions of their youth. If Mr. Osborne has truly overcome the dereliction of his youth, as apparently he seems to have done — having qualified as a lawyer, he certainly will be entitled to apply for a pardon. We agree with Judge Stone. Larceny is larceny and it makes no difference whether it is grand, petty, state or municipal. It is the intention of the actor, not the location of the crime that is the crucial consideration.

II.

Counsel for petitioner candidly agreed in open court that if we decided that conviction of petty larceny under a munici pal ordinance is a disqualification from holding office, then he must lose his case. However, we proceed to address the second issue because if the trial court had no jurisdiction in the matter, there would have been no vehicle upon which we could have discussed Issue I. We believe the trial court did have jurisdiction. Bostwick v. Harris, 421 So.2d 492 (Ala.1982); Kinney v. House, 243 Ala. 393, 395, 10 So.2d 167 (1942).

In Bostwick and Kinney, this court held: “where matters pertaining to nominations are regulated by statute, questions of compliance with the' statute and infringement of the legal rights conferred are judicial; and the courts are not ousted of jurisdiction or bound by the decisions of party authorities with regard thereto.” 421 So.2d at 493; 243 Ala. at 395, 10 So.2d at 168. Here, the trial court sought to interpret § 36-2-1(a)(3), Code, 1975, dealing with who was eligible to hold a state office. Furthermore, Banks had attempted to get this determined by the Democratic Party, but was unable to do so; hence, his lawsuit. The lawsuit was filed at the earliest possible time, namely, one day after the Democratic Executive Committee decided it would not have a hearing on Banks’s claim under Rule 9 of their procedural rules.

In Perloff v. Edington, 293 Ala. 277, 302 So.2d 92 (1974), this court said: “If the committee or the chairman fail or refuse to follow the mandates of the statutes, the only recourse of either the contestant or the contestee is to the courts. In such cases, the courts are open.” 293 Ala. at 281, 302 So.2d at 96. Following that mandate, Banks carried his case to the courts and the courts, indeed, were open. For the foregoing reasons, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

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

      . Boards of Registrars — Voters—
      Disqualification from Voting
      Violation of a Municipal Ordinance does not result in disenfranchisement.
      Dear Mayor Dukes:
      This is in response to your request for an opinion from this office regarding the effect of a violation of a municipal ordinance on a person’s right to vote. Specifically, you ask the following questions:
      “1. Does a conviction of a violation of a municipal ordinance describing a crime which if prosecuted in the State Courts would involve moral turpitude, have the effect of disenfranchising that person so as to prevent him from registering and voting in elections?
      “2. If the answer to question number 1 is yes, please advise whether or not in your opinion state law authorizes either the Municipal Judge or the Mayor of an Alabama city to restore political and civil rights without granting a full pardon as provided for in Section 12-14-15 of the 1975 Code of Alabama.”
      As you are aware, Article 8, Section 182 (Constitution of Alabama 1901) states that persons who are convicted of a crime involving moral turpitude shall be disqualified from voting. There are no cases decided under this section concerning violations of municipal ordinances. However, there are a number of cases decided pursuant to Section 12-21-162 Code of Alabama 1975, which indicate that crimes involving moral turpitude do not include convictions for violations of municipal ordinances, but only convictions for violations of state law.
      Section 12-21-162 provided that a witness may be examined affecting his credibility as to whether he or she has been convicted of a crime involving moral turpitude. The Alabama appellate courts have repeatedly held that this section contemplates only convictions for violations of state law. Caldwell v. State, 282 Ala. 713, 213 So.2d 919 (1968); Birmingham v. Evans, 53 Ala.App. 358, 300 So.2d 396 (1974); Craig v. State, 50 Ala.App. 618, 282 So.2d 59 (1973).
      In Birmingham v. Evans, supra, the Court of Criminal Appeals stated that, “The violation of a municipal ordinance or regulation is not a crime or criminal offense against the state, but only against the municipal corporation enacting the ordinance or regulation.” And in Craig v. State, supra, at 50 Ala.App. 621, the Court stated:
      “A witness in a criminal case may be examined concerning his conviction for a crime involving moral turpitude. This rule applies to cases where defendants testify, however, to attack the credibility of a witness, based on criminal convictions, the questions should be phrased so as to exclude municipal offense convictions, since such convictions do not involve moral turpitude.” (Citations omitted.)
      By analogy, the same reasoning would apply to Section 182 of the Constitution. Therefore, it is my opinion that conviction of a municipal ordinance will not disqualify a person from voting, even if such conviction would constitute a crime involving moral turpitude if prosecuted under state law.
      Because the answer to the first question is in the affirmative, we do not reach the second question. [END OF ATTORNEY GENERAL’S OPINION.]

      . See Annot., 39 A.L.R.3d 303 (1971); Annot., 53 A.L.R.2d 8, 13-14 (1957).