(dissenting).
I dissent.
The first question presented is:
1. WAS SUMMARY JUDGMENT PROPER?
In determining whether summary judgment was proper in Hamaker v. Kenwel-Jackson, 387 N.W.2d 515, 517 (S.D.1986), we stated:
In summary judgment, the burden of proof is on the moving party to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Summary judgment is an extreme remedy and is not intended as a substitute for a trial.
Wilson v. Great Northern Railway Company, 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).
In summary judgment, the pleadings, affidavits, depositions, and every reasonable inference arising therefrom must be viewed most favorably toward the nonmovr ing party. Moreover, the appellate court is not bound by the factual findings of the trial court. Instead, it must conduct an independent review of the record. Hurney v. Locke, 308 N.W.2d 764, 767 (S.D.1981); Trapp v. Madera Pacific, 390 N.W.2d 558 (S.D.1986).
American Family urges that Arndt’s outstanding attainments over a period of thirteen years gave no notice to American Family that it would be characteristic for him to impart information to others that facilitated the theft from his friend Leaf-green. In fact, American Family asserted that, “from his appointment in February of 1968 through June 27,1981, [the day of the theft], Arndt’s conduct was exemplary.”1 This simply is not entirely true and raises a material question of fact.2
*284In Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla.2d DCA 1980), the occupant of a townhouse sued the developer, Feather Sound Inc., (Feather Sound), for injuries sustained when she was assaulted by one of the developer’s employees, James Carter (Carter). The trial court awarded summary judgment to Feather Sound. In reversing the judgment, the court held:
If an employer wishes to give an employee the indicia of authority to enter into the living quarters of others, it has the responsibility of first making some inquiry with respect to whether it is safe to do so.
Id. at 1240. Although this case deals with an aspect of the doctrine of negligent hiring, which is not an issue here, it is nevertheless pertinent.
Feather Sound initially hired Carter as an outdoor laborer without access to the interior of the townhouses. Approximately three weeks after he was hired, Carter’s duties changed as a result of a departmental transfer. He was assigned work inside the condominium units. He was given access to passkeys to the townhouses and permission to use them in order to gain entrance to make necessary repairs. Id. at 1239.
The evidence showed that Carter used a passkey to gain entry into the apartment in which he assaulted Williams. The evidence further showed that Carter had a history of criminal and mental problems. There was no indication that Feather Sound had any knowledge of Carter’s criminal or psychiatric record. Id. Feather Sound conducted no background check, nor contacted the references or the two prior employers listed on Carter’s job application before they hired him. Id. The court stated:
Most jurisdictions ... recognize that independent of the doctrine of respondeat *285superior, an employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others.... The more difficult question, which this case presents, is what, if any, responsibility does the employer have to try to learn pertinent facts concerning his employee’s character.
Id. at 1239-1240.
After recognizing that the rule is not altogether clear, the court stated that the employer’s responsibility to check out an applicant’s background is necessarily dependent upon the type of work to be done by the prospective employee. Thus, when Carter was hired to do outside work on the grounds of the townhouse development, during which he would have only incidental contact with the tenants, the court found that Feather Sound did not have an obligation to make an independent inquiry concerning Carter’s past. However, the court found that Feather Sound’s duty to make a reasonable inquiry about Carter’s background arose before they transferred him to inside work and gave him access to the townhouse passkeys. Id. at 1240. The court held:
[W]hen Feather Sound permitted Carter to have access to the townhouses, Feather Sound was chargeable with such information concerning his background as it could have obtained upon reasonable inquiry.
Id. at 1241.
Here, the evidence indicates that American Family had ample knowledge of Arndt’s professional and personal problems, and even part of his criminal record, prior to the theft. Yet they allowed him to continue his employment when they knew he had the authority to enter the private dwellings of others. In light of American Family’s insistence upon Arndt’s sterling character, fact questions exist concerning the extent that American Family was chargeable with information about Arndt’s prior conduct and problems, and the foreseeability thereof.
Since summary judgment is appropriate to dispose of legal, not factual questions, it was inappropriate in this case. Trapp, supra. Although this case should be reversed and remanded without considering any other issue, the second question presented is:
2. DID THE FACTS PRESENT A JURY QUESTION?
The test is: Could reasonable minds differ under these disputed facts, as to whether the actions of Arndt were a part of or incidental to the business of American Family Insurance Company. See: Rodgers v. Kemper Construction Co., 50 Cal.App.3d 608, 619, 124 Cal.Rptr. 143, 149 (1975): “[W]here the question is one of vicarious liability, the inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.” • [citation omitted]; Dudley v. Estate Life Ins. Co. of America, 220 Va. 343, 257 S.E.2d 871, 875 (1979): “[A] principal is liable for the fraudulent and deceitful acts of his agents ‘committed as an incident to and during the performance of an act which is within the scope of the agent’s authority.’ ” [citation omitted]; Harris v. Trojan Fireworks Co., 120 Cal.App.3d 157, 163, 174 Cal.Rptr. 452, 456 (1981): “liability attaches where a nexus exists between the employment or the activity which results in an inquiry that is foreseeable ... Foreseeable is here used in the sense that the employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among the other costs of the employer’s business.”
Thus, if reasonable minds could differ as to whether Arndt’s conduct imputed liability to American Family under the tests set forth above, a jury question was presented and it would be improper for the trial court, or this court, to usurp that function. As mentioned by the majority, the Dudley court held that the plaintiffs’ evidence raised fact questions for jury determination. 257 S.E.2d at 876. The insurance *286agent in Dudley made fraudulent misrepresentations to the insureds to procure personal gain. The insurer argued that since the fraud was committed solely for the agent’s personal gain without benefit to the insurer, then the fraud was committed outside the scope of the agent’s authority, and thus relieved the principal from liability. Id. at 874. The court was unpersuaded by this argument and stated:
[W]e think plaintiffs’ evidence was sufficient to raise a jury issue on the question whether [agent’s] conduct was attributable to his principal. Estate Life [insurer] put [agent] in a position which enabled him, while apparently acting within his authority, to perpetrate the frauds upon [plaintiffs]. And on this evidence, we cannot say as a matter of law that plaintiffs had notice that [agent] was acting for his own purposes.3
Id. at 876.
Similarly, as a matter of law, can we rule that there was no nexus between Arndt’s visit to the Leafgreen home on May 18, 1981, in his capacity as an American Family agent to review liability insurance and the subsequent theft on June 27,1981? I think we cannot. From the Leafgreens’ point of view, Arndt was clothed with all the authority of American Family Insurance Company necessary to sell its product. He cultivated a relationship with the Leaf-greens over an extended period of time which in effect, lulled them into a false sense of security. Arndt’s presence at the Leafgreen home, his learning of the existence of the box with cash, valuables, and important papers, and learning which room the box was stored in were all a part of or directly incidental to the business of American Family Insurance Company. Surely there exists a jury question under the Dudley rationale as to whether the Leafgreens had notice that Arndt was acting for his own purposes.
It appears that Arndt’s key knowledge that Leafgreens would be in Rapid City for an entire day resulted more from his personal friendship with Leafgreens than from his employer’s business. Whether this friendship with Leafgreens arose from the business of American Family or vice versa is not clear from this limited record.
Arndt’s decision to engage others in the theft of these valuables was made during his employment with American Family, and so was the theft itself. The fact that Arndt damaged American Family at the same time by causing an insurance loss, is an important consideration but is not necessarily determinative.
This summary analysis of these important questions leads me to conclude that reasonable minds could differ. Therefore, Leafgreens are entitled to have a jury determine these questions under proper instructions. We should reverse and remand to the trial court for a jury trial.
. Arndt’s supervisor stated that from the very beginning Arndt’s record was outstanding, he excelled as a salesman, and sis a member of the “sales training staff." He further stated that Arndt was not only an outstanding sales leader in the Rapid City District and the State of South Dakota, but he also held the record as one of the company’s outstanding salesmen throughout the nation. The supervisor also testified that at the time of his discharge as an agent, Arndt was servicing some 3300 policies in central South Dakota.
. In addition to the problems and disappointments referred to in footnote one of Jus,tice Henderson’s dissent, it is important to note the strong language used and apparently needed to "reform" this "exemplary” agent. As early as August 12, 1977, American Family Insurance’s State Director was advising Arndt, in writing, with copies to Arndt’s district manager, that:
—Arndt had some major problems in separating himself from a beer business, and as far as they were concerned, it had to be done. “Just so there is no misunderstanding, Ed of what I told you — within twelve months you are going to have to decide whether you can really get yourself out of the beer business even by association, because if you can’t, we are going *284to have to look for someone to replace you as agent."
As early as June 9, 1978, Arndt's district manager wrote, with copies to Dakota State Director, that:
—"Ed—-I am writing you in disappointment of how you are conducting your agency in the past few months."
—Concerning missed meetings, "... You never attended, and no word from you concerning same until I called you."
—Concerning personal calls to Arndt’s office in Pierre, "... This past week I talked with you on Saturday, June 3rd, and you know [sic] I was coming over on Wednesday, June 7th. When I came over no message or notice on the door — no phone call to me, etc. This not only.bothers me as to your relationship with me, but your concern to your policy holders ..."
—"Ed, you also have had a non-sufficient funds problem with your checks — -I hope this is a past problem but had a letter dated May 22nd concerning a check dated March 29, 1978 — I hope this has been taken care of.”
—"Ed, as you know you have a serious family problem too — .”
—“These problems must be solved before I can turn over additional business to you ...”
All of these problems, along with Arndt’s arrests for assault and battery on May 4, 1977, simple assault and disorderly conduct on February 15, 1979, and open container on June 16, 1981, predate the theft of June 27, 1981. They were a preview of things to come:
—Arndt’s continuing alcohol problems;
—August 15, 1981 and November 18, 1981: Arrests for DWI;
—June 30, 1982: IRS Notice of Levy on wages for taxes due;
—September 5, 1982: Substantial check problems with customers and other insurance companies;
—September 16, 1982: Arrest for failure to file sales tax return with intent to evade;
—January of 1983: Non-sufficient funds check in the amount of $4,854.17 to American Family;
—March of 1983: Account delinquencies with American Family Insurance in the amount of $13,531.47;
—March of 1983: Substantial civil debt problems including another IRS levy;
—April 1, 1983: Arrests for perjury, retaining stolen property and aiding and abetting (the theft);
—May 31,1983: Arndt’s termination as an American Family Insurance Agent for insufficient checks.
Whether these prior problems were an accurate indicator of the future problems is difficult to determine. These prior problems clearly indicate a person losing his control, his concern for others, and his sense of responsibility. This can lead to deception and dishonesty. In this case, hindsight tells us that these problems accurately indicated things to come. Whether these prior problems made the later problems, (specifically the theft), reasonably foreseeable for American Family is discussed in question 2.
. It is interesting to note that the Dudley decision attributed liability to the principal based in substantial part upon the authorities cited in the majority opinion.