but you're in a designated parking area so injuries associated with perhaps walking through the park or deemed unsuitable traveling employee is another kind of exception where a person may not be going to the same destination for a day employer provided transportation is equally compelling exception when the employer provides the transportation controls the time the route the means of transportation  well known because i think in your question you're saying coworker and convenience and i think that that's a substantial distinction in this case the reason i think it's employer provided transportation we're dealing with the reason he was with russell was it a personal convenience i mean sometimes people pick people up because they want to have some company who can exclude bad name to me you've got to focus in what was the job related this for this right well i think it's undisputed the destination is work because mondays were the start of work is five am at five am when these two men didn't show up because they were hit by a train the boss and  co were calling these two people saying where are you and that's something you don't so there are there is no evidence that they were going to breakfast there is no evidence that they were for companies but i would ask the court to consider this specifically to your question just a sense of what if it's just for company a couple of weeks ago i worked through the lunch hour because i was in a courthouse a couple of counties away and when i got back to my office it was one  i wanted to go have lunch i went to my associate and i said come have lunch with me and he said i've already and i said i need come come with me well i miss boss i probably would have done that to my law partner but i did it to myself see it and my guess is my associate was already eaten says you're the boss and so i think when you know the essence of arising out of it in the course of a lot of times it has to do with control and you think this case is the commission obviously didn't agree with your position well keep in mind that sort of the crux of where this what gets the case here is that the commission made a decision without considering all the evidence because the arbitrator excluded testimony that was excluded to have been considered right and so that's the starting point here and if i understand you correctly the circuit court erred in suggesting that you could look past that evidentiary ruling and say and have said that even considering that excluded testimony if we find that the decision of the commission was not against the manifest weight of the evidence you're saying can't do that if it was an improper exclusion of evidence it has to go back to the mission of the commission to make that decision that right i think this is a fair sized summary of my argument i do think the arbitrator of the commission go an agent of the respondent it's not hearsay if there's an agency relationship and the conversation has to do with work and it's has to do with the scope of work what is being said of the conversation amber says boss came to our house on sunday afternoon the day before the monday morning shift and said hey be ready i'm going to come pick you up at four thirty and that testimony it's in the record because of that offer  but there was an objection to the dead man's act which doesn't apply because no one is suing or defending on behalf of the state of this case and it's not hearsay because if you're an agent and if the conversation has to do with the scope of the agency which is work well then it's not hearsay i really think if you look closely at the record that the arbitrator was really caught up on the dead man's issue i mean we went back and forth on that throughout this trial and it's a nonparty that we're talking about but that man sat side here and just concentrate on the here i just think the over rules of evidence if you look at the elements eight eight zero one two i think and you look at the elements of when it's not hearsay is there an agency between the respondent and jimmy russell the foreman yes is the conversation something within the scope of that agency what they're talking about going to work so that's certainly in the scope and so i think those elements that make it not hearsay now i do want to point out that what the owner of the company says is i didn't that the boss told brian holmes hey if if your foreman tells you that he's going to come pick you up at work don't listen to him he doesn't have the authority to do that i mean that's not in the record so it's almost like a parent agency what is brian holmes reinhold as a boss who says i'm picking up the fourth or do we really think he did have said you know to heck with you know the evidence is he had his own way to work that he didn't need a ride would have left later in the morning so the boss picks the time picks the route and drives himself into a train so you know right holmes the question is when you're dealing with a subordinate and you say no i just don't think you can say no well before concerning a matter within the scope of agency or point transportation to work i think that have made during the existence of the relationship ok so what evidence is there what was presented to the arbitrator that  russell was authorized to provide such transportation well it had been done before the the owner of the company testified he knew that jimmy russell had in fact taken picked and taken them to work so he knew what happened he didn't prevent by circumstantial evidence the person who replaced jimmy russell after his death paul hawse he testified in this case and he admitted that in his role as foreman replacing jimmy russell he sometimes picks up employees that need rides to work and he said and i asked well why do you do that because they're good employees they're good workers and so you a foreman going and getting people because they're needed for the job that's employer provided transportation whether it's because of the dui or genius there's still some element benefiting the employee but the new past that that is that implies acceptance or if it applies authority so if if the foreman picks up the subordinate in the past once a month or twice a month in the last six months and the boss knows it which the owner testified he knew it happened before and he didn't prohibit it and say don't do that so given that it happened before i think you can infer from those circumstances and implied  is evidence where the owner says i didn't ask him to do so i said but the question is is that a prohibition is the only way that that relationship exists when there is a prohibition i think you have to have a prohibition because you are you have to consider the relationship that goes on between the former then the subordinate which is i'm going to pick you up unless the subordinate know us that he can providing transportation they just want to go to breakfast i was there if it is you will i would say that i don't like black and white and i wouldn't i wouldn't say that you would make a bright line rule i this because i think there are a lot of elements about how personal the trip is and i think you would have to take that on a case by case basis i don't think you would ever make a hard and fast rule that if it's to go to breakfast and if your boss evidence that tips the scales in favor of they were going to do some work this was connected to work this right other than merely i want to give you a right to work but consider the excluded evidence ok so you would include that so he can't and you would you include all the other circumstantial evidence weighed against the absence of any hard fact that there are going to dennys if if some of the excluded evidence were only allowed im sure the credibility credibility or for her so we've got a credibility problem one way or another even if the testimony were printed right and i think but if you're going to let it in then what do do you does this court send it all the way back to the about three sixty sittings i think this court can do as well as the commission i think if this court considers all the evidence it can find a lawyer providing transportation on the same asked you can send it back to the mission but the commission never  it was court i think was party understanding of this whole case is that the opposing counsel is taking essentially half of the story you know it's not looking at the big picture which i think is incumbent upon anybody trying the case of looking at the evidence they would want you to believe that the supervisor jimmy russell came to the fisher and said you're going to be tomorrow morning they fail to take into account the other evidence leading up to this time period the evidence is the day before the same pair jimmy russell and mr holmes were riding together no indication that there was any special type of work that had to be done they did do a project together they came back to mr terraces place they picked up some furniture from mr russell and drove off and the other testimony this case is that ever since mr holmes had got the motorcycle bottom of the earlier people giving him bribes specially on days where it looked like it was to be raining here or other issues so they're basically asking you to not believe there were any discussions about mr holmes asking for a ride you know that afternoon or that day before basically saying all we heard was the the only evidence that kid that came in was the owner mr harris staying i never told him to go out and pick him up to do some kind of special airing or dom before meeting happy owners house what they were going to do in this case i can't tell you what they ever did special in the past all i know is i heard him say as i pick him up at four thirty as if it was and or the thing i'm reading point on this was the credibility she says that if he had gone on his own her husband got on his own and when he left the five o'clock but they all agreed work started at five o'clock so that doesn't even add up he's not to leave his house at five o'clock at the starting point five o'clock just getting completely and that even if you add in the evidence that was executed that still doesn't get them to whether going which goes back to i think you heard mr stone talk about how the commission didn't consider the facts that's not right but then remembering that it's not just me or do not say you have to go with me at this time it's more likely a response to a request to take him to work so i don't think you can just say by saying ok i'll pick up a certain time that that actually is within the scope of emp discussing what it was they would do she didn't know what they were going to that specific day she didn't know it was a blank it was a kind of a general statement that she made but again if you compare that with the supervisor mr about the employment in detail things that were going on things that you had to do at the time of the employer even the big picture both for the dumb as act and this hearsay so that the whole idea of spirit was that you can't just put someone came up before where respondent says that you know initially this was a special eric and i don't special errand comes up one time arbitrator's decision you all know that we do civility and nor do i think the fear of of that should should keep us from looking specifically just at the facts of the individual case when there is an oiler providing transportation do say i need help is that sufficient as long as this work in other words do i need help loading the the hammers and the and the gas to gas powered guns you know the many different things at work i want you to help me a car ok but i'm not i agree with that your honor and and if if they were here for us all random self into a train on his way taking home the patio furniture the boss harris gave to him as of yet i think under those circumstances i probably wouldn't be making this argument but this is a monday the beginning of the work week at the beginning of the work week you can imagine how much practice work has to be done to load the trucks the evidence that was excluded that's just what i just threw in you know if you will and that's why i don't that's fine i think the automatic rule would be fearful of it because you could have a relationship on sunday that involves