                     IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-IA-02095-SCT

THE COMMERCIAL BANK, KEMPER COUNTY,
DEKALB, MISSISSIPPI

v.

JAMES HEARN, INDIVIDUALLY, AS
ADMINISTRATOR OF THE ESTATE OF PRINCESS
ROSA HEARN, DECEASED, AS NATURAL
GUARDIAN AND NEXT FRIEND OF PARIS A.
HEARN, JENNIFER R. HEARN, AND JOSHUA
HEARN, ALL MINORS, AND ON BEHALF OF ALL
WRONGFUL DEATH BENEFICIARIES AND
STATUTORY HEIRS, KNOWN AND UNKNOWN OF
PRINCESS ROSA HEARN, DECEASED, AND
PATTIE A. HEARN

DATE OF JUDGMENT:                        08/16/2004
TRIAL JUDGE:                             HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:               LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                MICHAEL WAYNE STRAHAN
                                         J. RICHARD BARRY
ATTORNEYS FOR APPELLEES:                 GRACE WATTS MITTS
                                         ROBERT H. COMPTON
NATURE OF THE CASE:                      CIVIL - WRONGFUL DEATH
DISPOSITION:                             REVERSED AND RENDERED - 01/12/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      DICKINSON, JUSTICE, FOR THE COURT:

¶1.   The question presented in this wrongful death suit is whether a bank manager with a

flexible work schedule was within the scope of his employment while making deliveries for
the United Way during normal banking hours. We hold that, under the facts of this case, he was

not.

                              BACKGROUND FACTS AND PROCEEDINGS

¶2.     In October 2000, the Commercial Bank of Dekalb employed Dexter Thornton to

manage its Medical Center Branch. In the afternoon hours of Thursday, October 5, 2000, while

delivering a United Way pledge solicitation package to a local business, Thornton hit a vehicle

driven by Pattie Hearn.          Pattie’s infant child, Princess Rosa Hearn, died from injuries she

sustained in the collision.

¶3.     Pattie and her husband, James, filed suit against Thornton, the Bank, and Progressive

Gulf Insurance Company, seeking compensation for the wrongful death of Princess Rosa and

the injuries sustained by Pattie.1      Following discovery, the Bank filed a motion for summary

judgment, claiming Thornton was not acting within the scope of his employment at the time

of the accident. After the trial court denied the summary judgement motion, the Bank filed its

petition seeking interlocutory appeal which we granted.

                                       STANDARD OF REVIEW

¶4.     This Court reviews de novo a trial court’s grant or denial of summary judgment. Brooks

v. Roberts, 882 So.2d 229, 231 (Miss. 2004).              The party seeking summary judgement bears

the initial burden of demonstrating there are no genuine issues of material fact to be decided

by the trier of fact.         Miss. R. Civ. P. Rule 56.     Furthermore, all such evidentiary matters,


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           The United Way of Meridian was later added as a defendant in the amended complaint with its
liability stemming from the doctrine of respondeat superior.

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including admissions in pleadings, answers to interrogatories, depositions and affidavits, must

be examined in the light most favorable to the non-moving party.    Davis v. Hoss, 869 So.2d

397, 401 (Miss. 2004). The burden, however, is not entirely with the moving party. As this

Court has clearly held, “[t]he non-moving party may not defeat the motion merely by making

general allegations or unsupported denials of material fact.... The ‘party opposing the motion

must by affidavit or otherwise set forth specific facts showing that there are indeed issues for

trial.’” Drummond v. Buckley, 627 So.2d 264, 267 (Miss. 1993) (citations omitted).

                                             ANALYSIS

¶5.    The Hearns assert the Bank is liable for Thornton’s alleged negligence pursuant to the

doctrine of respondeat superior.      Both Thornton and the Bank claim Thornton’s activities

were outside the scope of his employment, and that no facts are present in the record which

would allow a reasonable jury to find otherwise. This, according to the Bank, removes the case

from the rubric of respondeat superior.

       Respondeat superior

¶6.    Since the mid-19th century, this Court has recognized the doctrine of respondeat

superior which imputes an employee’s negligence to the employer. However, for just as long,

this Court has limited this vicarious liability to acts of the employee “performed within the

scope of the authority conferred.”        The General Worth v. Hopkins, 1856 WL 3945, *6

(Miss.Err.App 1856).

¶7.    From the outset of this litigation, the Bank has denied Thornton was acting within the

course and scope of his employment. The Bank’s summary judgement motion alleges that:

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        Dexter Thornton was not acting on behalf of, nor for the benefit of, Commercial
        Bank at the time of the accident. Rather, Mr. Thornton was outside the course
        and scope of his employment with Commercial Bank. Therefore, Commercial
        Bank should not be subject to any liability based on the actions of Dexter
        Thornton.

¶8.     The Bank has consistently asserted in pleadings and discovery that Thornton was a

salaried employee and an officer of the Bank and therefore was not required to work on a

specific schedule.    The Bank further presented sworn testimony that Thornton’s solicitation

for the United Way was a wholly personal errand, outside the course and scope of his

employment.    It is undisputed that Thornton used his personal vehicle to make the deliveries

for the United Way and that the Bank did not reimburse him for mileage.            It is further

undisputed that the Bank was not a member of United Way and never ordered or approved

Thornton’s activities for the United Way.

¶9.     The Hearns provide the following list of “additional facts [that] create a genuine issue

whether Commercial Bank is liable under the doctrine of respondeat superior”:

        1)      Defendant Thornton’s deposition testimony was that he was a member of
                the Downtown Optimist Club;

        2)      Commercial Bank paid his membership dues for the Downtown Optimist
                Club;

        3)      Mr. Thornton attended the United Way kickoff campaign during business
                hours in the year 2000;

        4)      A United Way volunteer called Thornton, while at work, and asked him
                to deliver 5 packages for United Way;

        5)      A United Way volunteer delivered the United Way packages to Dexter
                Thornton at Commercial Bank;



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6)    Johnny Brewer, president of Lauderdale County operations, came to the
      accident scene after the accident happened on October 5, 2000;

7)    Dexter Thornton believed he had delivered other pledge packages for
      United Way within regular business hours of 8 to 5 and regular work day
      [sic] of Monday through Friday;

8)    In the course and scope of his membership in the Downtown Optimist
      Club, he worked at fund raisers, including a Pancake Jubilee, which
      would have been after 8 a.m. during business hours on a regular work day;

9)    The Downtown Optimist Club directed a golf program during work hours
      and he would be there during a work day to attend the fund raiser;

10)   Dexter Thornton was delivering the United Way package during work
      hours when this accident occurred;

11)   While Commercial Bank had no policy to be a part of civic organizations
      it had no policy against being a part of civic organizations;

12)   Dexter Thornton admitted he was a full time employee of Commercial
      Bank at the time this accident occurred on October 5, 2000;

13)   Dexter Thornton admitted the hour of 2 p.m. to 3 p.m. on October 5,
      2000 was within his normal working hours;

14)   Commercial Bank, admitted that Dexter Thornton was a full time
      employee of Commercial Bank on October 5, 2000;

15)   Commercial Bank’s employee Handbook Mission Statement states the
      Bank’s Mission, in part, is to “be a responsible citizen and business
      leader of our community by earning and keeping a reputation of
      profitability, financial soundness and unquestioned fiscal integrity, and
      not knowingly taking actions that are adverse to the best interest of our
      community, its businesses, or its families.”

16)   The Employee Handbook further stated that Banking Hours were 8 a.m.
      daily, Monday through Friday, and reflected that employees were
      expected to remain at Commercial Bank until closing except during their
      lunch hour;



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17)   The proof was that if an employee joined a civic club and Commercial
      Bank deemed it reasonable, they would reimburse them for it;

18)   Michael Dudley (president of the Bank) testified he was to begin serving
      on the Red Cross board on September 25, 2003 and that he had been a
      member of various Boards indicating community involvement was
      promoted by Commercial Bank;

19)   In October 2000, Michael Dudley was a member of the Dekalb Lion’s
      Club and Commercial Bank paid his dues;

20)   Michael Dudley testified he was the only person able to hire officers,
      although he did not hire Dexter Thornton because Jeff McCoy was
      president when Dexter Thornton was hired;

21)   Michael Dudley testified that community involvement would factor into
      an officer being hired;

22)   Michael Dudley testified that Commercial Bank had no set policy
      regarding requests for donations and Johnny Brewer would make the
      decision for donations in Lauderdale County;

23)   Michael Dudley knew Commercial Bank had donated to Boy Scouts;

24)   Michael Dudley stated there was nothing written to say the Bank
      encouraged participation in community activities but each bank officer
      is judged based on what they can produce; how they do that is up to them
      and that bringing in new customers is one factor on which they are
      judged;

25)   Michael Dudley stated that meeting others and making a positive
      impression might result in additional business and bringing in additional
      business is something a bank officer would be judged upon as well as
      operating the office;

26)   Michael Dudley testified that what Dexter Thornton was doing that day
      with United Way could have been positive for the community and he had
      never heard anything negative about United Way. Depending on the
      individual, this work could cast a positive light on the bank through its
      employee;



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       27)     Michael Dudley stated he did not see anything negative about Dexter
               Thornton delivering United Way packages;

       28)     Michael Dudley stated that Commercial Bank’s Mission Statement of
               being a responsible citizen and business leader would encompass
               numerous things, and delivering a United Way package would not be
               outside the parameters of being a responsible citizen.

¶10.   The most that can be presumed from these averments, even if all are true, is that the

Bank may have indirectly benefitted from Thornton’s activities at the time of the accident. An

indirect benefit to the employer, however, is not the appropriate test for respondeat superior.

¶11.   The Hearns also say that respondeat superior is applicable because Thornton’s

accident was within “the spatial and time limits of his employment and . . . of the same general

nature as the conduct authorized or incidental to his employment.” In support, the Hearns cite

two cases: Adams v. Cinemark USA, Inc. 831 So.2d 1156 (Miss. 2002), and Priester & Sons

v. Bynum’s Dependents, 244 Miss. 185, 141 So.2d 246 (Miss. 1962).

¶12.   Priester & Sons provides no support for the Hearns’ position, as it involves a dispute

over whether a Workmen’s Compensation Act amendment applies in a case where the

employee was found dead at work.       Nor does this Court’s holding in Adams support the

Hearns’ position.   In that case, Catherine Adams attempted to purchase tickets to an R-rated

movie for her fifteen year-old sister and her sister’s fourteen year-old friend.     When box

office employee Weigelia Thomas refused to sell tickets for the two underage patrons, Adams

became upset, and Thomas summoned the manager.         Meanwhile, Adams and Thomas had a

heated exchange and, at some point, Thomas left the box office and assaulted Adams.        This



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Court affirmed the grant of summary judgment to Cinemark by finding that Thomas’ actions

were not within the course and scope of the employment of a box office cashier. This Court’s

response to Adams’ assertion that Thomas’ actions “may have been fueled by the responsibility

vested in her by Cinemark” was that “unsupported speculation and allegations are not sufficient

to defeat a motion for summary judgment. (citations omitted).” Id.

¶13.   This Court’s recent decision in Gulledge v. Shaw, 880 So.2d 288 (Miss. 2004), more

accurately addressed the law regarding the scope of an employee’s employment:

       The inquiry is not whether the act in question, in any case, was done, so far as
       time is concerned, while the servant was engaged in the master's business, nor
       as to mode or manner of doing it...but whether, from the nature of the act itself
       as actually done, it was an act done in the master's business, or wholly
       disconnected therefrom by the servant, not as servant, but as an individual on his
       own account. Holliday v. Pizza Inn, Inc., 659 So.2d 860, 864 (Miss.1995)
       (quoting Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823
       (1900) (emphasis added)). Moreover, In determining whether a particular act
       is committed by a servant within the scope of his employment, the decisive
       question is not whether the servant was acting in accordance with the
       instructions of the master, but, was he at the time doing any act in furtherance
       of his masters' business? If a servant, having completed his duty to his master,
       then proceeds to prosecute some private purpose of his own, the master is not
       liable; but if the servant, while engaged about his master's business, merely
       deviates from the direct line of duty to accomplish some personal end, the
       master's responsibility may be suspended, but it is re-established when the
       servant resumes his duty. Holliday, 659 So.2d at 864-65 (quoting Barmore v.
       Vicksburg, S. & P. Ry., 85 Miss. 426, 38 So. 210 (1905) (emphasis added)).

Gulledge v. Shaw, 880 So.2d at 295.

¶14.   In Gulledge, with only one justice dissenting in part, we approved summary judgement

for a bank employee who, while on duty at the bank,              notarized a forged signature on a

document out of the presence of the purported signatory.             Even though we recognized   the


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employee’s responsibilities at the bank “included performing the duties of a notary public,” Id.

at 291, we nevertheless concluded, as a matter of law, that notarizing the document “was not

in furtherance of the bank’s business – rather, it was a personal act.” Id.

¶15.    The dissent has concluded that the isolated phrase from Gulledge, “was he at the time

doing any act in furtherance of his masters' business” entitles Hearn to a trial because a

reasonable jury might conclude Hearn’s volunteer charitable work was in furtherance of the

bank’s business. However, Gulledge says much more.

¶16.    Citing with approval White’s Lumber & Supply Co. v. Collins, 186 Miss. 659, 191 So.

105 (1939), the Gulledge Court recognized that respondeat superior liability requires a

finding that the employee was “in the course of the performance of the character of work which

the employe [sic] was appointed to do.” Gulledge, 880 So. 2d at 295. There is not even a hint

of evidence in the record before us that Hearn’s volunteer charitable work was “the character

of work” Hearn was employed to perform. See also Holliday v. Pizza Inn, Inc., 659 So. 2d

860 (Miss. 1995) (employee’s act “as actually done” must be “in the master’s business”).

¶17.    Gulledge points out that we look to the act committed by the employee, rather than

some indirect benefit the employer may have received from a specific act not part of the duties

of employment. The Hearns have produced no evidence, and indeed do not even argue, that

Thornton’s duties as an employee of the Bank included delivering solicitation packages to local

businesses for the United Way.        Rather, the Hearns claim this activity, though not specifically

authorized, was indirectly beneficial to the Bank, and a reasonable jury could believe that the



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persons receiving the solicitation packages might think well of the Bank for allowing its

employee to engage in charitable work, and this good will might lead to additional business for

the Bank. We find no case which carries the doctrine of respondeat superior so far as this.

¶18.   In Marter v. Scott, 514 So.2d 1240, 1242-43 (Miss. 1987), this Court cited with

approval § 228 Restatement (Second) of Agency (1958), which provides:

       (1)     Conduct of a servant is within the scope of employment if, but only if:

                        (a)    it is of the kind he is employed to perform;

                        (b)    it occurs substantially within the authorized time
                               and space limits;

                        (c)    it is actuated, at least in part, by a purpose to serve
                               the master, and

                        (d)    if force is intentionally used by the servant against
                               another, the use of force is not unexpectable by the
                               master.

       (2)     Conduct of a servant is not within the scope of employment if it is
               different in kind from that authorized, far beyond the authorized time or
               space limits, or too little actuated by a purpose to serve the master.

¶19.   The comment to § 228 explains that “not all physical acts of the kind authorized

performed within the time and at the place of service are within the scope of employment,

since only those which the servant does in some part for the purpose of giving service to the

master are included.”

¶20.   We find the Hearns have failed to produce evidence which satisfies requirement of §

228 (1)(a). Thornton’s“conduct” was delivering solicitation packages for the United Way. No

proof is before us that Thornton was “employed to perform” that kind of “conduct.” Nor is it

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enough to say that Thornton’s good deeds might have resulted in new customers for the Bank.

A test so broad as this would render most employers vicariously liable for virtually all of their

employees’ activities.    For instance, Thornton’s visit to the doctor for a check-up, and his

shopping trip to the mall could both certainly result in new business for the Bank, since (the

plaintiff would argue) doctors and business persons often reciprocate by doing business with

their patients or customers. And it could be forcefully argued that the Bank’s best interest is

well served when employees obtain regular medical check-ups and stay healthy.                 The

imposition of vicarious liability under these examples is no more unacceptable than the

proposition that the Bank should be held vicariously liable because Thornton’s charitable work

might result in new business for the Bank.

¶21.    Stated differently, we hold that while there may be substantial evidence that the Bank

encouraged Thornton’s participation in charitable activities and benefitted therefrom, far more

is required to impute liability to the Bank under the doctrine of respondeat superior.        The

pertinent question is whether Thornton was engaged in the course and scope of his employment

while delivering packages for the United Way. The facts submitted by the Hearns, if all true,

simply establish that:      (1) Thornton engaged in other charitable activities during normal

banking hours;     (2) the Bank’s president personally engages in charitable activities;   (3) the

Bank itself contributes to some charitable organizations (although not the United Way);        (4)

the Bank has no personal enmity against the United Way; (5) community participation is a

factor in an officer’s hiring but not retention; (6) officers are judged by how much they

produce and their office management; (7) no written policy requires or encourages community

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participation; (8) an individual soliciting for a charity might put that individual in a positive

light which could increase the Bank’s business.

¶22.   Testing this case under § 228 Restatement (Second) of Agency (1958), discussed

supra, we find no evidence produced by the Hearns or otherwise to show that making

charitable solicitations for the United Way is the kind of work Thornton was employed by the

Bank to perform. 2

¶23.   By our holding today, we reenforce our previous holdings in Gulledge and Marter, and

we again cite with approval 228 Restatement (Second) of Agency, which all require an

evaluation of the employee’s act, itself, rather than a perceived, possible, indirect benefit to

the employer.

       Summary judgment

¶24.   Counsel for the Hearns argued that summary judgment is inappropriate in this case,

partly because facts might be developed at trial which more clearly show the Bank’s approval

and involvement in Thornton’s charitable activities.     Not only is this argument contrary to our

established case law, it demonstrates a common misunderstanding of the procedure and

requirements under the current version of Rule 56 of the Mississippi Rules of Civil Procedure.




       2
         Our decision today is not contrary to decisions from many other jurisdictions which, though not
binding upon us, are instructive. See Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 -721
(Tex.App.-Austin 2004) (proof required that employee’s act was “for the accomplishment of the object
for which the employee was employed.”); Horne v. DePetrillo, 2005 WL 883680, at *2 (D.N.H. 2005)
(conduct must be the “kind he or she is employed to perform.”); Saleh v. Wertzbaugher, 2004 WL
2035600, at *1 (Ohio App. 6 Dist. 2004) (requirement that “employee was doing the work he was
employed to do at the time of his negligence.”).

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See Adams v. Cinemark USA, Inc.               831 So.2d 1156, 1159 (Miss. 2002); Reynolds v.

Amerada Hess Corp., 778 So.2d 759, 765 (Miss. 2000); Herrington v. Leaf River Forest

Prods., Inc., 733 So.2d 774, 779 (Miss. 1999); Crystal Springs Ins. Agency, Inc. v.

Commercial Union Ins. Co., 554 So.2d 884, 885 (Miss. 1989). See also Hurst v. Ala. Power

Co., 675 So.2d 397, 400 (Ala. 1996); Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo.1996);

Darrah v. Bryan Mem'l Hosp., 253 Neb. 710, 571 N.W.2d 783, 786 (1998); Howard Hughes

Med. Inst. v. Gavin, 96 Nev. 905, 621 P.2d 489, 491 (1980); Paradigm Hotel Mortgage

Fund v. Sioux Falls Hotel Co., 511 N.W.2d 567, 569 (S.D.1994); Wriston v. Raleigh County

Emergency Servs. Auth., 205 W.Va. 409, 518 S.E.2d 650, 662 (1999).

¶25.   Rule 56 provides a defendant may move for summary judgment at any time. Miss. R.

Civ. P. Rule 56(b).         Subsection (c) allows the plaintiff to file affidavits in response to the

motion. It then provides:

       The judgment sought shall be rendered forthwith if the pleadings, depositions,
       answers to interrogatories and admissions on file, together with the affidavits,
       if any, show that there is no genuine issue as to any material fact and that the
       moving party is entitled to a judgment as a matter of law.

Miss. R. Civ. P. Rule 56(c). The rule does not provide for evidence which might be introduced

or developed at trial. The party resisting summary judgement must produce any such evidence

in opposition to the motion.      It is thus incumbent upon a plaintiff to respond to a motion for

summary judgment by demonstrating material factual disputes.            The comment to Rule 56

provides that summary judgment “serves as an instrument of discovery in calling forth quickly




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the disclosure on the merits of either a claim or defense on pain of loss of the case for failure

to do so.” This interpretation of Rule 56 is clearly supported by Davis and Drummond.

¶26.     In applying Rule 56 to the facts and procedural background of this case, we find, as

discussed supra, that the Bank provided deposition testimony and other evidence that Thornton

was not acting within the scope of his employment by delivering the United Way solicitation

packages. The Hearns were then required to show the existence of genuine disputed issues of

material fact, not by simply disagreeing with the Bank, but rather by producing evidence that

Thornton was, indeed, acting within the scope of his employment.           This required evidence on

each of the required elements, including some evidence to show that Thornton’s “conduct,” that

is, his delivery of the United Way packages, was the kind of conduct he was “employed to

perform.”    See Marter, 514 So.2d at 1242-43, citing with approval § 228 Restatement

(Second) of Agency (1958). No such evidence was produce by the Hearns. Rule 56 provides

that, under such circumstances, judgment “shall be rendered forthwith.”          Thus, the trial judge

committed reversible error in failing to grant the Bank’s motion for summary judgment.

                                           CONCLUSION

¶27.   The Hearns’ assumption or allegation that solicitation on behalf of charities such as the

United Way was part of Thornton’s employment responsibilities, is unsupported by any

affidavit or evidence placed before the trial court.     Unsupported allegations and the prospect

that such evidence may be produced at trial, do not entitle the Hearns to a jury determination

of whether Thornton was acting within the course and scope of his employment.                The trial

court’s denial of summary judgment is reversed and rendered.

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¶28.   REVERSED AND RENDERED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ.,
CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




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