              IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2017-IA-01522-SCT

MAR-JAC POULTRY MS, LLC

v.

PATRICIA LOVE, INDIVIDUALLY, AND AS
NEXT BEST FRIEND, AND PERSONAL
REPRESENTATIVE OF KEANNIE LOVE, AND
ON BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF KEANNIE LOVE AND
LASHAWN MILLER, INDIVIDUALLY, AND AS
NEXT BEST FRIEND, AND PERSONAL
REPRESENTATIVE OF LISHANAY WILKS, AND
ON BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF LISHANAY WILKS


DATE OF JUDGMENT:           10/12/2017
TRIAL JUDGE:                HON. EDDIE H. BOWEN
TRIAL COURT ATTORNEYS:      CORY NATHAN FERRAEZ
                            PAUL MANION ANDERSON
                            RANCE N. ULMER
                            DAVID M. OTT
COURT FROM WHICH APPEALED: COVINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    DAVID M. OTT
                            KRIS A. POWELL
ATTORNEYS FOR APPELLEES:    P. MANION ANDERSON
                            SAMUEL S. McHARD
                            RANCE N. ULMER
NATURE OF THE CASE:         CIVIL - WRONGFUL DEATH
DISPOSITION:                REVERSED AND RENDERED - 06/13/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.

     RANDOLPH, CHIEF JUSTICE, FOR THE COURT:
¶1.    Mar-Jac Poultry MS, LLC (Mar-Jac), appeals the denial of its motion for summary

judgment on the Plaintiffs’ claims for negligence, negligence per se, and wrongful death

under the theory of respondeat superior after a Mar-Jac employee’s vehicle collided with a

school bus on the way to work, killing his two passengers, who were also Mar-Jac

employees. Based on the evidence presented, we find that the trial court erred in denying

Mar-Jac’s motion for summary judgment, for it is undisputed that the driver was not acting

in the course and scope of his employment with Mar-Jac when the accident occurred. Thus,

we reverse, and we render summary judgment in favor of Mar-Jac.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Beginning in June 2015, Senah Carter was employed at Mar-Jac as a “jack driver.”

He was responsible for bringing chicken in and out for the employees on the line and

throwing away wet pallets and empty boxes. Carter was not assigned any other job

responsibilities. In September 2015, Carter asked his supervisor, Launis Cameron, if Mar-

Jac had any job openings for Lishanay Wilks, who lived in his home, and Keannie Love, who

was Wilks’s friend. Cameron did not have any job openings, so he told Carter to ask Leo

Barnes, another Mar-Jac supervisor, if he had any openings. Barnes responded that he had

two spots available and asked Carter if the two women would be able to show up for work.

Carter told Barnes that he would “bring ’em to work.” Barnes responded that if the women

could be there the next morning, Carter could “bring them on down here,” so they could start

work. Carter testified that he was never told that he was expected or required by Mar-Jac to

bring Love and Wilks to work.



                                             2
¶3.    Carter drove Wilks and Love to work almost every day for approximately three weeks.

Wilks and Love gave Carter a few dollars for gas. On September 22, 2015, Carter was

driving to Mar-Jac with Wilks and Love when he drove his vehicle into the back of a school

bus. Wilks and Love both were killed.

¶4.    On March 29, 2016, Patricia Love and Lawshawn Miller, on behalf of Love and

Wilks, filed a complaint in Covington County Circuit Court, asserting claims for negligence,

negligence per se, and wrongful death against Carter and against Mar-Jac under the theory

of respondeat superior. Attached to the complaint was an affidavit signed by Carter, which

stated that Carter believed driving Wilks and Love was part of his normal work assignment.

An affidavit signed by Patricia Love also was attached, stating that Carter had told her that

he provided transportation for Wilks and Love because Mar-Jac told him to do it as part of

his job duties.

¶5.    The Plaintiffs then filed a combined motion and memorandum for partial summary

judgment on the respondeat superior claims against Mar-Jac. Citing inapplicable workers’

compensation cases and cases from other jurisdictions, the Plaintiffs alleged that Carter was

on a “special mission” for Mar-Jac at the time of the car accident and, thus, was acting in the

course and scope of his employment. The Plaintiffs attached the following to their motion:

(1) the Mississippi Highway Patrol’s crash reports from the car accident; (2) Carter’s

affidavit; (3) Carter’s deposition from his workers’ compensation claim; (4) Mar-Jac’s

answer and affirmative defenses; (5) Patricia Love’s affidavit; (6) Leo Barnes’s deposition;

and (7) Carter’s workers’ compensation petition to controvert.



                                              3
¶6.    On September 12, 2017, Mar-Jac filed its motion for summary judgment and a

response to the Plaintiffs’ motion for partial summary judgment, arguing that Carter was not

acting within the course and scope of his employment with Mar-Jac at the time of the car

accident and that Mar-Jac was not liable for Carter’s negligence. Mar-Jac primarily relied

on Carter’s deposition testimony to support its motion. Mar-Jac attached the crash reports

and Carter’s petition to controvert, as well as Carter’s deposition.

¶7.    The Plaintiffs filed their response to Mar-Jac’s motion. Shortly thereafter, the trial

court heard arguments on both parties’ motions. The Plaintiffs argued that Carter “was told

by his supervisors and his superiors at work that he was in charge of making sure these

women got to work on time. That was his job.” Counsel for Plaintiffs further argued that the

deposition testimony reflected that Mar-Jac had told Carter, “You’re in charge of bringing

these girls to work.” Mar-Jac responded that Carter had testified that he was not expected

or required by Mar-Jac to bring Love and Wilks to work. The trial court ruled from the

bench that he was going to deny both Mar-Jac’s motion for summary judgment and the

Plaintiffs’ motion for partial summary judgment.

¶8.    On October 12, 2017, the trial court issued a written order finding that a genuine

dispute of material fact existed and that both parties’ motions should be denied. This Court

granted Mar-Jac’s petition for permission to appeal on April 19, 2018. Both parties filed

briefs. An amicus curiae brief in support of Mar-Jac’s position also was filed by the

Business & Industry Political Education Committee, which was joined by thirty-six other

companies.



                                              4
                                             ISSUE

¶9.    The only issue before the Court is whether the trial court erred in denying Mar-Jac’s

motion for summary judgment

                                 STANDARD OF REVIEW

¶10.   “This Court reviews de novo a trial court’s grant or denial of summary judgment.”

Commercial Bank v. Hearn, 923 So. 2d 202, 204 (Miss. 2006) (citing Brooks v. Roberts,

882 So. 2d 229, 231 (Miss. 2004)). “The evidence must be viewed in the light most

favorable to the nonmoving party.” Sanderson Farms, Inc. v. McCullough, 212 So. 3d 69,

74 (Miss. 2017) (citing Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss. 2004)). “However,

that party’s claim must be supported by more than a mere scintilla of colorable evidence; it

must be evidence upon which a fair-minded jury could return a favorable verdict.” Id. (citing

Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202

(1986)).

                                        DISCUSSION

¶11.   The Plaintiffs’ claims against Mar-Jac are based solely on the theory of respondeat

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

superior[,] which imputes an employee’s negligence to the employer.” Hearn, 923 So. 2d

at 204. “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.’” Id. (quoting Steamboat

General Worth v. Hopkins, 30 Miss. 703, 711 (Miss. 1856).

       The doctrine of respondeat superior has its basis in the fact that the employer
       has the right to supervise and direct the performance of the work by his


                                                5
       employe[e] in all its details, and this right carries with it the correlative
       obligation to see to it that no torts shall be committed by the employe[e] in the
       course of the performance of the character of work which the employe[e] was
       appointed to do.

White’s Lumber & Supply Co. v. Collins, 186 Miss. 659, 191 So. 105, 107 (Miss. 1939).

¶12.   This Court has cited with approval the Second Restatement of Agency, 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.

Marter v. Scott, 514 So. 2d 1240, 1242-43 (Miss. 1987) (emphasis added) (quoting

Restatement (Second) of Agency § 228 (Am. Law Inst. 1958)).

¶13.   Mar-Jac argues that Carter was not acting in the course and scope of his employment

at the time of the accident. Mar-Jac asserts that Carter’s act of transporting Wilks and Love

was not “of the kind” that he was employed to perform, was not done in the “authorized time

and space limits,” and was not “to serve” Mar-Jac. Marter, 514 So. 2d at 1242-43 (quoting

Restatement (Second) of Agency § 228 (Am. Law Inst. 1958)).




                                               6
¶14.   Based on the evidence presented, one conversation between Carter and Leo Barnes,

a Mar-Jac supervisor, forms the basis of the Plaintiffs’ claims against Mar-Jac. The Plaintiffs

assert that Mar-Jac, through Barnes, instructed Carter to provide transportation to Wilks and

Love as part of his job duties, relying on isolated portions of Carter’s and Barnes’s testimony

to support their claims. However, taken as a whole, the testimony is clear that Carter was not

required to drive Wilks and Love to work. Carter repeatedly testified that he was not

expected to bring the women to work as part of his job responsibilities at Mar-Jac. During

the deposition taken in Carter’s workers’ compensation case, Carter testified about his

conversation with Barnes as follows:

       Q.     Had anybody at Mar-Jac asked you to bring those two ladies to work?
       A.     Yes. Leo – Leo did.
       Q.     Leo?
       A.     Leo. Leo Barnes.
       Q.     Tell me about that conversation.
       A.     Well, I asked did he have an opening. He said, Yes. And I said – he
              said, Who you got? I said, I got two young ladies that need a job. He
              said, Will they work? I said, Yeah, they’ll work. I said, I’m gonna
              bring ’em to work. Bring ’em up – he said, Bring ’em up here, and I’ll
              talk to them, and I’ll hire them.
       Q.     Did he tell you to bring the ladies to work?
       A.     Yes.
       Q.     Were you paid to bring the ladies –
       A.     No.

       ....

       Q.     Did Mar-Jac pay you for bringing them to work?
       A.     No. They didn’t – I paid my own self to go in to work. No. Didn’t
              nobody pay me nothing.
       A.     Did they pay your gas for bringing them to work?
       A.     Paid – no. I paid my own gas.

       ....

                                              7
       Q.     All right. You just told me what – part of what Leo Barnes said. Did he
              say anything else?
       A.     No. That’s all – all he said to me. Bring them up there, he’ll hire them.
              He said, Will they work? I said, Yeah, they’ll work. Just bring them up
              there and hire – interview them, and hire them. And that’s what I done.

       ....

       Q.     And nobody had told you that you had to bring them as a condition of
              your employment?
       A.     No.
       Q.     No –
       A.     He didn’t – he didn’t tell me to bring them. I asked him if he’d hire
              them, he said, Yes. Bring them down. Then he asked me will they work?
              I said, Yes, they’ll work. And I brought them to work.

       ....

       Q.     Did Mr. Barnes or anyone else say that you had to provide
              transportation to these ladies –
       A.     No.
       Q.     Nobody said that, did they?
       A.     No. All he done, just told me to bring –

       ....

(Emphasis added.)

¶15.   Carter again testified about this same conversation during the deposition taken in this

case. Carter testified as follows:

       Q.     Your testimony has been that somebody, Leo you said, asked you to
              bring Mr. And Ms. Wilks [sic] to Mar-Jac. Is that right?
       A.     Yes.

       ....

       Q.     So you go to Leo, and Leo says he does have job openings, doesn’t he?
       A.     Yes.

       ....

                                              8
Q.     Mr. Carter, my question is, Leo asked you, when you said you had two
       people that wanted these jobs that he had, he asked you if they could
       get to work.

....

A.     Yes. I told him yes.

....

Q.     Leo Barnes –
       [objection]
Q.      – never told you that as part of your job, you were expected and
       required by Mar-Jac to bring Ms. Love and Ms. Wilks to work–
       [objection]
Q.     – did he?
       [objection]
Q.     Yes or no –
A.     No.

....

A.     He told me to bring – he told me to bring them, he gone hire them.
       First thing he – he asked me – he asked me, “Will they work?”
       I said “Yeah.”
       He said, “Bring them on down here.” He said, “I’ll hire them.”

....

Q.     Yeah. Now, Mar-Jac did not pay you any money –
A.     No.
Q.     – for bringing them to work, did they?
       [objection]
A.     No.
       [objection]
Q.     And nobody at Mar-Jac said you were going to get fired if you didn’t
       bring them to work, did they?
       [objection]
A.     No.
Q.     And nobody said that you would be punished or written up for any
       violations of any of your job responsibilities if you didn’t bring Ms.
       Wilks and Ms. Love to work, did they?

                                     9
       A.     No.

       ....

       Q.     So there were going to be zero repercussions to you if you didn’t bring
              Ms. Wilks and Ms. Love to work –
              [objections]
       Q      – as far as Mar-Jac’s concerned?
       A.     Yes.

(Emphasis added.)

¶16.   Leo Barnes also testified about the conversation he had with Carter as follows:

       Q.     All right. Now, the conversation that you had with [Carter] about
              bringing the two girls to work happened the day before they started,
              correct?
       A.     Yeah. I mean, he – not bring them to work. All we [sic] said is they
              need jobs. We didn’t talk about – I just said, Can they get to work? That
              was all that was said. There was no conversation about it. He just said
              they needed a job.
       Q.     Did you tell him to bring them up there tomorrow?
       A.     Yeah, to start work. I said, I got two spots. If they can be at work in the
              morning, they will start. Bring boots.
       Q.     All right. So on September the 8th, you and [Carter] had a discussion
              where you said, If they can be here in the morning, bring them on?
       A.     Yes, sir.
       Q.     Okay. Did you know that [Carter] was going to be the one bringing
              them?
       A.     No, because, I mean, it doesn’t matter. Long as they get to work, I’m
              happy. I don’t care how they get to work.
       Q.     Okay.
       A.     Long as they gonna get there, they gonna get there.
       Q.     Okay.
       A.     That’s all I took out of it.
       Q.     It doesn’t do any good for – for Mar-Jac to have employees that doesn’t
              show up to work, right?
       A.     You’re right.
       Q.     They need to show up, right?
       A.     Have to show up.
       Q.     And – and did you know that if [Carter] didn’t bring them, that they
              didn’t have another way to get there?

                                              10
       A.     It didn’t matter. They said they would get there. That’s – that’s on
              them. That’s between him – them and [Carter]. All I said, if they get
              there. If they’re not there, they’re termed. That’s all I deal with.
       Q.     Did you know that [Carter] brought them on September the 9th?
       A.     I mean –
       Q.     Did you – did you know they rode with him?
       A.     Probably – yes, because he said he would bring them because they stay
              with him, so, yeah.
       Q.     Did you know that he brought them to work every day after that?
       A.     But what that got to do with it? I got people that bring people to work
              everyday. It’s not company policy. If you’re not at work, you’re not at
              work. Work start at 8:00, time o’clock, 8:00. That’s all that matter.
              Anything from 8 and before, it doesn’t got nothing to do with Mar-Jac.

       ....

(Emphasis added.)

¶17.   The testimony is undisputed that Barnes told Carter to “bring [Wilks and Love] on

down here” or to “bring [Wilks and Love] up here.” However, Carter’s and Barnes’s

depositions, viewed as a whole, provide the context in which Barnes’s statement was made.

Carter had approached Barnes about hiring Wilks and Love. Barnes asked Carter if the two

women would be able to get to work. Carter told Barnes that he would “bring [Wilks and

Love] to work.” Barnes then responded to Carter’s request to bring Wilks and Love to Mar-

Jac by telling Carter to “bring them on down here” or “bring them up here.” No dispute

exists that Barnes made this statement. But this statement, without more, is insufficient to

impute Carter’s negligence to Mar-Jac, because Carter repeatedly testified that he was not

required by Mar-Jac to bring Wilks and Love to work. Carter testified that neither Barnes

nor any other Mar-Jac supervisor told Carter that he “had to transport” Wilks and Love to

work. Further, Barnes testified that it did not matter how Wilks and Love got to work and



                                            11
that the employee’s responsibility—not Mar-Jac’s—is to present himself or herself to work.

It is therefore undisputed that Carter was not required as part of his job responsibilities as a

jack driver at Mar-Jac to provide Wilks’s and Love’s transportation to work.

¶18.   This Court’s previous decision in Hearn is instructive. There, an officer of a bank

drove a United Way pledge-solicitation package to a local business during banking hours.

Hearn, 923 So. 2d at 203. The bank employee hit another vehicle, killing an infant child.

Id. A lawsuit was filed against the bank, and the bank sought summary judgment, claiming

that the employee was not acting within the scope of his employment at the time of the

accident. Id. at 204. The plaintiffs argued that the bank benefitted from the employee’s

charitable acts, that the accident was within the “spatial and time limits of his employment,”

and that it was of the same general nature as the conduct authorized or incidental to his

employment. Id. at 206. Quoting the Second Restatement of Agency, this Court rejected the

plaintiffs’ argument, finding that the plaintiffs had not submitted any proof that the employee

was “employed to perform” that kind of conduct. Id. at 209 (quoting Marter, 514 So. 2d at

1242-43 (quoting Restatement (Second) of Agency § 228 (1958))). Further, the Court found

that, even though “there may be substantial evidence that the Bank encouraged [the

employee’s] participation in charitable activities and benefitted therefrom, far more is

required to impute liability to the Bank under the doctrine of respondeat superior.” Id. at

208-09. Thus, the Court granted summary judgment in favor of the bank, because the

plaintiffs did not show that the employee’s conduct was the kind of work that he had been

employed by the bank to perform. Id. at 209.



                                              12
¶19.   Applying the elements of the Second Restatement of Agency, Section 228, the

transportation of Wilks and Love was not “of the kind” that Carter was employed to

perform. Marter, 514 So. 2d at 1242-43. Carter was employed as a jack driver,1 he had no

other job responsibilities, and he was not paid to transport his coworkers. Although the

dissent suggests that this was only a “contention,” the deposition testimony is undisputed that

Carter was not expected to or required to transport Wilks and Love to Mar-Jac as part of his

job responsibilities. Second, Carter’s driving to work did not occur within the “authorized

time and space limits.” Id. Carter was approximately thirty miles away from Mar-Jac at the

time of the accident. Carter was not “on the clock,” nor was he compensated for his travel

expenses. As to the third element, the Plaintiffs vigorously assert that Carter drove Wilks

and Love for the purpose of benefitting Mar-Jac. The Plaintiffs assert that Carter’s

transporting Wilks and Love “ensured Mar-Jac had workers available for its mandatory and

necessary shifts—that chicken is not going to de-bone itself!” Even if it were true that Carter

transported Wilks and Love, at least in part, to benefit Mar-Jac, “this does not of itself

constitute [Carter] as an employee of [Mar-Jac] at the particular time of the accident.” Id.

at 1243. As this Court held in Hearn, “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.” Hearn, 923 So. 2d at 208. Carter’s “act” was driving to work. This

Court has long held that “it is the business of the employee to present himself at the place of



       1
          According to Carter’s testimony, a “jack driver” is responsible for driving and
lifting a pallet jack machine to transport chicken products from the cooler to employees
working on the line and to return the chicken to the cooler after processing.

                                              13
employment, and the relation of master and servant does not exist while he is going between

his home and his place of employment.” Brown v. Bond, 190 Miss. 774, 1 So. 2d 794, 799

(Miss. 1941).

¶20.   The Plaintiffs contend that unambiguous deposition and affidavit testimony

establishes that Carter was specially and exclusively instructed to transport Wilks and Love

to Mar-Jac. To defeat Mar-Jac’s motion for summary judgment, the Plaintiffs rely on

Carter’s deposition testimony (which refutes their position) and on two affidavits executed

by Carter and Patricia Love. Carter’s affidavit consists of five paragraphs, which state the

following:

       My name is Senah Carter and I am over the age of 21. I am competent and
       authorized to make this Affidavit and the matters contained herein are within
       my personal knowledge and are true and correct. I am a resident of Prentiss,
       Mississippi.

       I am currently an employee of Mar-Jac, and work at the poultry plant in
       Hattiesburg, Mississippi.

       I travel by car to work everyday and typically transported both Keannie Love
       and Lishanay Wilks, who are also employees of Mar-Jac. This transportation
       was provided at the direction and instruction of my supervisors/superiors at
       Mar-Jac. I provided rides to and from work basically every day for Keannie
       Love and Lishanay Wilks as Love and Wilks did not have a vehicle to provide
       themselves transportation to work. It is my belief that transporting Keannie
       Love and Lishanay Wilks was beneficial to Mar-Jac.

       The purpose of this transportation was to ensure Mar-Jac employees had
       transportation to and from work, and I considered these rides as part of my
       normal work assignment.

       On the morning of September 22, 2015, while traveling to Mar-Jac’s poultry
       plant in Hattiesburg for work with both Love and Wilks as my passengers, I
       was involved in a car crash that resulted in the deaths of both Love and Wilks.



                                             14
Carter’s deposition testimony directly contradicts his affidavit, because Carter specifically

testified that he was never told that he was required by Mar-Jac to bring Wilks and Love to

work. Further, Carter was questioned about this affidavit during his deposition and testified

that he had received this affidavit in the mail and had not spoken to anyone about the content

of the affidavit before receiving it. Carter also testified that his deposition testimony was

more accurate than the affidavit.

¶21.   “Although the court must resolve all factual inferences in favor of the nonmovant, the

nonmovant cannot manufacture a disputed material fact where none exists.” Foldes v.

Hancock Bank, 554 So. 2d 319, 321 (Miss. 1989) (quoting Albertson v. T.J. Stevenson &

Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984)). “Thus, the nonmovant cannot defeat a motion

for summary judgment by submitting an affidavit which directly contradicts, without

explanation, his previous testimony.” Id. (quoting Albertson, 749 F.2d at 228). Carter

discredited the verity of his own affidavit during his deposition; thus, the Plaintiffs cannot

defeat Mar-Jac’s motion for summary judgment based on Carter’s affidavit.

¶22.   Patricia Love’s affidavit provided the following:

       My name is Patricia Love. I am over the age of 21. I am competent and
       authorized to make this Affidavit and the matters contained herein are within
       my personal knowledge and are true and correct. I am a resident of Prentiss,
       Mississippi.

       I am a [sic] the mother of Keannie Love, deceased, who was an employee of
       Mar-Jac and worked at the Mar-Jac poultry plant in Hattiesburg, Mississippi.
       When Keannie began working for Mar-Jac, Senah Carter assured me on
       multiple occasions that he would provide transportation to Keannie Love from
       our home to work. Senah reassured me that he would take care of the
       transportation because Mar-Jac had told him to do it as a part of his job duties.



                                              15
       Keannie’s friend, Lishanay Wilks, also told me that Senah Carter was
       providing her transportation at the request of Mar-Jac. Senah personally
       confirmed this to me and stated one of his supervisors told him to make sure
       Keannie and Lishanay got to work.

       Senah provided rides to and from work for Keannie Love and Lishanay Wilks
       basically every day because Keannie Love and Lishanay Wilks did not have
       a vehicle to get them to work.

       Keannie and Senah both told me that Mar-Jac benefitted from this ride share
       program so they could get to work on time, and did not have to worry about
       finding a ride to work.

       On the morning on September 22, 2015, while traveling to Mar-Jac’s poultry
       plant in Hattiesburg for work, Senah, Keannie, and Lishanay were involved in
       a car crash that resulted in the deaths of Keannie Love and Lishanay Wilks.

Patricia Love’s affidavit is based on what Carter, Love, or Wilks told her about what Mar-Jac

allegedly told them. Thus, Patricia’s statements about Mar-Jac are hearsay2 and are not based

on personal knowledge. “[S]ummary-judgment evidence must be admissible at trial.” Ill.

Cent. R.R. Co. v. Jackson, 179 So. 3d 1037, 1043 (Miss. 2015) (citing Trustmark Nat’l

Bank v. Meador, 81 So. 3d 1112, 1118 (Miss. 2012)). “[H]earsay statements that would not

be admissible at trial are incompetent to support or oppose summary judgment.” Jackson,

179 So. 3d at 1043 (citing Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635 F.3d 685,

692 (5th Cir. 2011)). Patricia’s affidavit fails to satisfy Mississippi Rule of Civil Procedure

56(e), which requires that “[s]upporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matter stated therein.” Miss. R.

       2
         Hearsay is a statement that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted. Miss. R. Evid. 801(c).

                                              16
Civ. P. 56(e). Like Carter’s affidavit, Patricia’s affidavit is insufficient to defeat Mar-Jac’s

motion for summary judgment.

                                      CONCLUSION

¶23.   Based on the evidence presented, the trial court erred in denying Mar-Jac’s motion for

summary judgment. The testimony is undisputed that Carter was not acting in the course and

scope of his employment with Mar-Jac when the accident occurred. The Plaintiffs have

failed to submit admissible proof to dispute that fact. We reverse and render summary

judgment in favor of Mar-Jac.

¶24.   REVERSED AND RENDERED.

     COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.,
CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS, P.J.

       KING, PRESIDING JUSTICE, DISSENTING:

¶25.   I dissent from the majority’s rendering of summary judgment in favor of Mar-Jac

Poultry MS, LLC (Mar-Jac). Patricia Love and LaShawn Miller (collectively, the Plaintiffs)

presented sufficient evidence to create material issues of fact as to whether Senah Carter was

operating within the course and scope of his employment with Mar-Jac when he was

transporting two of Mar-Jac’s employees to work. Accordingly, a jury, not this Court, should

decide whether Mar-Jac should be held liable under the doctrine of respondeat superior.

¶26.   On September 22, 2015, Senah Carter, an employee of Mar-Jac, was transporting

Lishanay Wilks and Keannie Love, also employees of Mar-Jac, to work. Carter rear-ended

a school bus, resulting in the deaths of Wilks and Love. The Plaintiffs filed claims against



                                              17
Mar-Jac under the doctrine of respondeat superior, alleging that Carter had been on a special

mission for Mar-Jac at the time of the accident. The trial court denied Mar-Jac’s motion for

summary judgment, finding that the issue was one for the jury.

¶27.   Mississippi Rule of Civil Procedure 56 mandates that summary judgment should be

granted only 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.” M.R.C.P. 56. “The

burden of demonstrating that no genuine issue of fact exists is on the moving party. That is,

the non-movant is given the benefit of the doubt.” Anderson v. LaVere, 895 So. 2d 828, 832

(Miss. 2004) (citing McCullough v. Cook, 679 So. 2d 627, 630 (Miss. 1996)). Because “[a]

motion for summary judgment is not a substitute for trial of disputed fact issues, the court

may only determine whether there are issues to be tried.” Id. (citing Dennis v. Searle, 457

So. 2d 941, 944 (Miss. 1984), overruled on other grounds by Thornhill v. Sys. Fuels, Inc.,

523 So. 2d 983 (Miss. 1988)). This Court conducts a de novo review of the granting or denial

of summary judgment. Id.

¶28.   “Under the respondent superior doctrine, ‘one who acts through another is in law

himself the actor.’ That is, ‘[i]f B while acting on A’s behalf commits a tort, A may be

liable.’” Gulledge v. Shaw, 880 So. 2d 288, 295 (Miss. 2004) (quoting Fruchter v. Lynch

Oil Co., 522 So. 2d 195, 199 (Miss. 1988)). As this Court stated,

       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,—whether in doing the act he uses the
       appliances of the master,—but whether, from the nature of the act itself as

                                               18
       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.

Id. (emphasis omitted) (quoting Holliday v. Pizza Inn, Inc., 659 So. 2d 860, 864 (Miss.

1995)). The Gulledge Court went on to specify that

       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.

Id. (emphasis in original) (quoting Holliday, 659 So. 2d at 864-65).

¶29.   Generally, employers are not liable for injuries received by employees off of the

premises of the employer and while employees are going to or returning from their work.

Wallace v. Copiah Cty. Lumber Co., 223 Miss. 90, 98, 77 So. 2d 316, 317 (1955) (citing 1

Larson’s Workmen’s Compensation Law at 194). However, this Court has established

exceptions to the general rule when the employee is performing an act that he has been

authorized to do and that directly benefits the employer. As the evidence shows, Carter was

not merely traveling to work that morning; he was transporting two additional Mar-Jac

employees. I conclude that the facts presented in this case establish genuine issues of fact as

to whether Mar-Jac should be held responsible under the theory of respondeat superior.

¶30.   I agree with the majority’s contention that the Commercial Bank v. Hearn, 923 So.

2d 202 (Miss. 2006), decision is instructive. However, I would find Hearn to be beneficial



                                              19
in affirming the trial court’s denial of summary judgment. In Hearn, an employee of

Commercial Bank left the bank during work hours on a personal errand to deliver a package

to United Way. Id. at 205. The employee did not deliver the package for the benefit of

Commercial Bank, although it was admitted that Commercial Bank might indirectly have

benefitted from the employee’s activities. Id. at 206. However, this Court stated that an

indirect benefit was not an appropriate test for respondeat superior. Id. The Hearn Court

found Gulledge to be controlling, and it held that the pertinent question was “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. . . .” Id. at 207 (emphasis in original) (quoting

Gulledge, 880 So. 2d at 295). The Court went on to state that whether the employee had been

authorized to perform the act was an important factor. Id. at 208.

¶31.   Here, unlike in Hearn, Carter’s transportation of two Mar-Jac employees to work

certainly did directly benefit Mar-Jac. Leo Barnes, a supervisor at Mar-Jac, hired Love and

Wilks to work in his department. Barnes testified that he needed Love and Wilks to work at

Mar-Jac. Therefore, Carter’s transportation of two Mar-Jac employees whom Mar-Jac needed

to work directly benefitted Mar-Jac. The Plaintiffs also presented evidence that, not only had

Carter been authorized to transport Love and Wilks to work, but that he was encouraged to

provide them transportation by one of his supervisors.

¶32.   The majority contends that the transportation of Wilks and Love was not “of the kind”

that Carter was employed to perform. However, this Court has used the term “authorized”

as coterminous with “employed to perform” in the respondeat superior context. In Marter



                                              20
v. Scott, 514 So. 2d 1240, 1242-43 (Miss. 1987), this Court quoted Section 228 of the Second

Restatement of Agency, 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.

Hearn, 923 So. 2d at 208 (emphasis added) (quoting Restatement (Second) of Agency § 228

(Am. Law Inst. 1958)). And the Hearn Court stated that

       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.”

Hearn, 923 So. 2d at 208 (emphasis added) (quoting Restatement (Second) of Agency § 228

cmt. (Am. Law Inst. 1958)); see Adams v. Cinemark USA, Inc., 831 So. 2d 1156, 1159

(Miss. 2002) (emphasis added) (“It is obvious that Thomas’s tortious act of assaulting Adams

was not authorized or in furtherance of Cinemark’s business.”), superseded by rule as

recognized in Tunica Cty. v. Town of Tunica, 227 So. 3d 1007, 1026-27 (Miss. 2017).

¶33.   Carter submitted an affidavit stating that he typically transported both Love and Wilks

to work. He stated that

       This transportation was provided at the direction and instruction of my
       supervisors/superiors at Mar-Jac. I provided rides to and from work basically
       every day for Keannie Love and Lishanay Wilks as Love and Wilks did not

                                              21
       have a vehicle to provide themselves transportation to work. It is my belief that
       transporting Keannie Love and Lishanay Wilks was beneficial to Mar-Jac. . .
       . I considered these rides as part of my normal work assignment.

Patricia Love, Keannie Love’s mother, also submitted an affidavit stating that

       When Keannie began working for Mar-Jac, Senah Carter assured me on
       multiple occasions that he would provide transportation to Keannie Love from
       our home to work. Senah reassured me that he would take care of the
       transportation because Mar-Jac had told him to do it as a part of his job duties.
       Keannie’s friend, Lishanay Wilks, also told me that Senah Carter was
       providing her transportation at the request of Mar-Jac. Senah personally
       confirmed this to me and stated one of his supervisors told him to make sure
       Keannie and Lishanay got to work.

Carter was not acting as an individual on his own account in this case. Instead, Carter was

authorized and even encouraged to bring two Mar-Jac employees to work.

¶34.   Additionally, I disagree with the majority’s contention that Carter was not expected

to bring Love and Wilks to work. Carter testified that one of his supervisors, Barnes, had

asked Carter to bring the two girls to Mar-Jac so they could work. Barnes confirmed that he

was one of Carter’s supervisors. Carter’s deposition testimony reads as follows:

       Q:     Had anybody at Mar-Jac asked you to bring those two ladies to work?
       A:     Yes. Leo – Leo did.
       Q:     Leo?
       A:     Leo. Leo Barnes.
       Q:     Tell me about that conversation.
       A:     Well, I asked did he have an opening. He said, Yes. And I said – he
              said, Who you got? I said, I got two young ladies that need a job. He
              said, Will they work? I said, Yeah, they’ll work. I said, I’m gonna bring
              ’em to work. Bring ’em up – he said, Bring ’em up here, and I’ll talk to
              them, and I’ll hire them.
       Q:     Did he tell you to bring the ladies to work?
       A:     Yes.
              ....
       Q:     I want to know everything Leo Barnes said to you about bringing those
              two ladies to work.

                                              22
       A:     Told me bring them – he told me, bring them and get them interviewed,
              and said he’d hire them, and that’s what he did.

¶35.   In a separate deposition, Carter again stated that he wasn’t being paid to bring Love

and Wilks but that he was “asked to bring them,” and he stated further that Mar-Jac needed

workers. Carter testified as follows:

       Q:     And he asked you to bring those girls to Mar-Jac so they could work for
              Mar-Jac. Correct?
              OTT: Object to the form.
       A:     Yeah.
       Q:     Because he had positions to fill in his line. Correct?
              OTT: Object to the form.
       A:     Yes.
       Q:     And he knew they had no other way to get to work except through you.
              Correct?
              OTT: Object to the form.
       A:     Yes.
       Q:     After Leo told you to bring the girls to work, you told him you would
              get the girls to work. Right?
              OTT: Object to form.
       A:     Yes.
       Q:     And he expected you to get the girls to work. Correct?
              OTT: Object to form.
       A:     Yes.
       Q:     And if they missed work, Leo would come and ask you where the girls
              were at. Right?
              OTT: Object to form.
       A:     Yes, or either like – like if I go back down, say, “Where the girls at,”
              he say, “They went home.” Say, “One of them was sick,” like that. He
              say, “They coming back tomorrow,” like that.
       Q:     And he’d come and talk to you about it. Right?
       A:     Yeah.

¶36.   Clearly there are issues to be tried in this case, and Mar-Jac is not entitled to a

judgment as a matter of law. The test in Gulledge is whether “from the nature of the act itself

as actually done, it was an act done in the master’s business, or wholly disconnected



                                              23
therefrom by the servant. . . .” Hearn, 923 So. 2d at 207 (emphasis omitted) (quoting

Gulledge, 880 So. 2d at 295). Transporting two Mar-Jac employees to work was not wholly

disconnected from Mar-Jac’s business. Instead, it was done in furtherance of Mar-Jac’s

business. Because the Plaintiffs have provided sufficient evidence that Carter was bringing

Wilks and Love to work to directly benefit Mar-Jac and at Mar-Jac’s encouragement and

authorization, I would affirm the trial court’s denial of summary judgment.

¶37.   Moreover, in the workers’ compensation context, there is also a recognized exception

to the coming-and-going rule—when the employee was involved in a special mission or

errand for his employer. See Miller Transporters, Inc. v. Seay’s Dependents, 350 So. 2d

689, 691 (Miss. 1977). In Duke ex rel. Duke v. Parker Hannifin Corp., 925 So. 2d 893, 897

(Miss. Ct. App. 2005), the Mississippi Court of Appeals found sufficient facts to determine

that the employee, Laura Duke, had been on a special mission for her employer at the time

of her death. There, shortly after Duke had arrived at work, she was notified that the building

was being evacuated because of a fire. Id. at 894. Duke was instructed to leave the area and

to call her supervisor later that morning to determine when to return to the facility. Id. Duke

drove to an independent contractor’s nearby home office. Id. at 894-95. Later that morning,

Duke’s supervisor informed her to return to work. Id. On the way back, Duke was involved

in a fatal, one-vehicle accident. Id. at 895. The Court of Appeals held that because Duke “had

been in possession of some computer backup tapes and a laptop computer” and because Duke

had not been released from work, Duke had been on a special mission. Id. at 897.




                                              24
¶38.   Outside jurisdictions also have found that a special mission occurred when the

employee had been transporting work product. The District Court of Appeal of Florida, First

District, also found that an employee was engaged in the performance of work for her

employer and was furthering the employer’s interest when the employer directed the

employee to drive to a coworker’s home and transport her to work. Alexander & Alexander

Fashions v. Ortega, 562 So. 2d 418 (Fla. Dist. Ct. App. 1990). The Florida court quoted

Section 27.00 of Larson’s treatise, The Law of Workmen’s Compensation, stating “[a]n act

outside an employee’s regular duties which is undertaken in good faith to advance the

employer’s interests, whether or not the employee’s own assigned work is thereby furthered,

is within the course of employment.” Id. at 419 (quoting Larson, The Law of Workmen’s

Compensation § 27.00 (1985)).

¶39.   In Sun Papers, Inc. v. Jerrell, 411 So. 2d 790 (Ala. Civ. App. 1981), an Alabama

court found that sufficient evidence had existed to support a finding that an employee’s

accident on the way to work arose out of and in the course of his employment. The court

found probative that “[t]he wife testified that just before her husband left the house on

Saturday morning, he said that he was going to the office to deliver some material he had

picked up at a high school the day before.” Id. at 793.

¶40.   Although this lawsuit does not involve workers’ compensation, other courts have

applied the special-mission exception to the coming-and-going rule in a tort context. See

Godwin ex rel. Godwin v. United States, No. 3:14cv391-DPJ-FKB, 2015 WL 4644711, at

*4 (S.D. Miss. 2015) (internal quotation marks omitted) (recognizing an exception to the



                                            25
“going and coming rule” as “when the employee is on a special mission or errand for his

employer” (quoting Duke, 925 So. 2d at 893));3 Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d

354, 356 (Tex. App. 1993) (“However, an exception to the general rule exists where an

employee has undertaken a special mission at the direction of his employer or is otherwise

performing a service in furtherance of the employer’s business with the express or implied

approval of the employer.”) (citing Gebert v. Clifton, 553 S.W.2d 230, 232 (Tex. Civ. App.

1977))); Kephart v. Genuity, Inc., 38 Cal. Rptr. 3d 845, 853 (Cal. Ct. App. 2006) (“An

employee who is going to work, or coming from work, is within the scope of employment

if the employee is on a special errand, either as part of his or her regular duties or at a specific

order or request of the employer.”) (citing Tognazzini v. San Luis Coastal Unified Sch.

Dist., 103 Cal. Rptr. 2d 790, 790 (Cal. Ct. App. 2001))).4

¶41.   Carter was not merely transporting work product that morning. Instead, he was

transporting two needed employees to work at the encouragement of his employer. Summary

judgment is appropriate only when the evidence reveals no genuine dispute regarding any

material fact. I would find that the Plaintiffs presented sufficient evidence to create questions



       3
       In the Godwin case, the district court judge also found probative that the employee’s
supervisor had authorized the special mission. Id. at *4.
       4
        See also Mastec N. Am., Inc. v. Sandford, 765 S.E.2d 420 (Ga. Ct. App. 2014);
Carter v. Reynolds, 815 A.2d 460, 467 (N.J. 2003) (“There are, however, exceptions to the
going and coming rule. Those exceptions are also rooted in workers’ compensation law but
have been engrafted onto tort law.”); Skinner v. Braum’s Ice Cream Store, 890 P.2d 922
(Okla. 1995); and Alsay-Pippin Corp. v. Lumert, 400 So. 2d 834, 835-36 (Fla. Dist. Ct.
App. 1981) (“Nor are we convinced that there was an erroneous application of Workmen’s
Compensation law pertaining to scope of authority rather than an application of common law
principles of respondeat superior.”).

                                                26
of fact about whether Carter was bringing Wilks and Love to work for the direct benefit of

Mar-Jac, whether Carter was not only authorized to bring the girls to work but was expected

to, whether Mar-Jac needed workers, and whether Carter was acting in the scope and course

of his employment when he was involved in the accident. I would affirm the trial court’s

denial of summary judgment and would remand this case for a trial on the merits.

Accordingly, I dissent.

       KITCHENS, P.J., JOINS THIS OPINION.




                                            27
