Tucker's Beverages Inc. v. Fopay

Because the facts in this case are uncontradicted that Moore was employed by Tucker's on the day of the accident and because the statements attributed to him by witnesses concerned matters within the scope of his employment, the court holds there was no error in admitting the statements pursuant to Texas Rule of Evidence 801(e)(2)(D).

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Click here for the full text of this decision FACTS:Approximately 20 minutes before his work shift at a liquor store, Eddie Isaac Moore was crossing the road between his store and another store owned by his store. He collided with a car driven by Benny and Susann Fopay, who sustained serious injuries. The Fopays sued Moore and Tucker’s Beverages, who owned the two stores. Moore admitted his fault, so only Tucker’s vicarious liability was at issue. At trial, the trial court allowed in statements attributed to two post-accident witnesses. One said that Moore said at the time of the accident he was transporting merchandise from the one store to the other. The other witness said Moore told him after the accident that at the time of the accident, he was picking up night deposits for Tucker’s. A jury ruled against Tucker’s, who now appeals. HOLDING:Affirmed. “Why did Moore cross the road?” the court asks first. The question is important because if Moore was acting in the course and scope of his employment at the time of the accident, Tucker’s would be vicariously liable. Tucker’s claims that the witnesses’ statements were inadmissible under Texas Rule of Evididence 801(e)(2)(D), which applies to out-of-court statements by a party when the speaker is the “party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” In other words, the court adds, Moore’s statements would be admissible against Tucker’s as long as they were made during the existence of the employment relationship and concern subject matter within the scope of employment. The court rejects Tucker’s first argument, which is that Moore was on a personal errand before his work shift at the time of his statements. The court notes that under Rule 801(e)(2)(D), the trial court’s ruling should not have turned on whether Moore was actually performing duties for Tucker’s at the time his statements against its interests were made. Instead, because it was undisputed that Moore was Tucker’s employee on the day of the accident, the trial court needed to determine only whether Moore’s statements concerned a matter within the scope of his employment. The court further finds it “irrelevant” whether Moore was on duty at the time of the accident. The court also rejects Tucker’s second argument: that before Moore’s statements could be admitted, the Fopays were required to prove, by independent corroborating evidence, that Moore was within the course and scope of his employment at the time he made the statements attributed to him by the witnesses. Before admission of a statement under Rule 801(e)(2)(D), if it otherwise qualifies within the terms of the rule, the proponent must establish only the existence of the employment or agency relationship. Here, the Fopays had firmly established, through Tucker’s own admission, that Moore was an employee of Tucker’s on the day of the accident. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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