Commercial Bank v. Hearn, No. 2004-IA-02095-SCT.

Citation923 So.2d 202
Decision Date12 January 2006
Docket NumberNo. 2004-IA-02095-SCT.
PartiesThe 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.
CourtUnited States State Supreme Court of Mississippi

Michael Wayne Strahan, Meridian, J. Richard Barry, attorneys for appellants.

Grace Watts Mitts, Robert H. Compton, Meridian, attorneys for appellees.

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, 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, 30 Miss. 703, 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:

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;

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;

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;

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...

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