"Yes, our employee stole from you, but she didn't cut us in!"

TBA and its commenters observed a while back that the Mississippi Supreme Court is egregiously coy about overruling its precedents. Another example today: Akins v. Golden Triangle Planning & Devel. Dist.. Defendant's employee embezzles funds meant for plaintiff; plaintiff sues defendant. Nope, says the MSSC, because "Tate’s misdeeds were for her own personal gain and were of no benefit to Golden Triangle." Hence, outside the scope of her employment, thus, no respondeat superior, ergo, no liability for the employer.

That holding follows upon this analysis:

Golden Triangle contends that Akins’s reliance on both Billups and Napp is misplaced, as these decisions have been eroded by more recent Mississippi Supreme Court decisions which have demonstrated a “marked shift away from expansive employer vicarious liability.” * * * Alternatively, Golden Triangle maintains that, even if the facts averred by Akins are true, Golden Triangle still is entitled to judgment as a matter of law because Tate acted outside her duties for her own gain to the detriment – not the benefit – of her employer/master, Golden Triangle.

In Billups, for instance, "a salesman was overcharging Billups for bread and keeping the difference for himself." Seems on point, eh? But the Court, apparently embracing the "alternatively" theory, affirms summary judgment for the defendant, without explaining how to distinguish Billups or whether that case remains good law.

Justice Randolph, dissenting in the 5-4 decision, points out that, under Mississippi precedent, "[a] master is subject to liability for the torts of his servant committed outside the scope of employment if the servant was aided in accomplishing the tort by the existence of the agency relation." In other words, respondeat superior is part of vicarious liability, but not all of it. And Randolph goes on to quote from Billups:

“[i]t is well settled that the principal is liable for the frauds and misrepresentations of his agent within the scope of the authority or employment of the agent, even though he had no knowledge thereof and has received no benefit therefrom. . . .” 2 Am. Jur. p. 281, Agency, § 362. “The principal is liable to third persons for injuries resulting from the fraud and deceit of his agent if such is within the scope of the agent’s authority. Acts of fraud by the agent, committed in the course or scope of his employment, are binding on the principal, even though the principal did not know of or authorize the commission of the fraudulent acts, and although he derives no benefit from the success of the fraud, and the agent committed it for his own benefit.” 3 C.J.S., Agency, § 257, p. 190.

Randolph also gives us the Fifth Circuit's analysis of the cases relied upon by Billups:

Each case involved a situation in which the principal delegated to the agent the power to perform a certain task, such as collect monies for the principal. In each case, the agent acted for his own purposes, but the fraud transpired as part of the very duty that the principal authorized the agent to perform. Because the customers had a relationship with the principal that induced the customers to rely on the principal’s agent, and the agent defrauded the customers in the performance of the duty entrusted to him by the principal, the agent was “aided in accomplishing the tort by the existence of the agency relation.”

A remarkably weak opinion by Carlson doesn't even address the dissent's arguments. How Kitchens and Graves signed on -- the dissenters were Randolph, Dickinson, Lamar, and Chandler -- is mysterious indeed. If they're going to vote against type, could they please save it for a case where they're actually in the right?