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United States Court of Appeals,

Fifth Circuit.

No. 94-60755

Summary Calendar.

Reid CORLEY, Plaintiff-Appellant,

v.

BURGER KING CORPORATION, Defendant-Appellee.

Jerry SMITH, Plaintiff-Appellant,

v.

BURGER KING CORPORATION, Defendant-Appellee.

July 6, 1995.

Appeal from the United States District Court for the Southern

District of Mississippi.

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:

Jerry Smith and Reid Corley filed suit against the Burger King

Corporation, alleging that while John LeBlanc, manager of the Bay

St. Louis Burger King, was acting within the course and scope of

his employment, he was involved in a car wreck with Smith and

Corley. The district court found that Smith and Corley could not

rely on hearsay to establish that LeBlanc was acting within the

course and scope of his employment at the time of the accident.

Finding no other evidence suggesting that LeBlanc's actions could

be imputed to Burger King, the court granted Burger King's motion

for summary judgment. Smith and Corley filed this appeal, and we

reverse.

I.
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In July 1991, Smith and Corley were traveling on U.S. Highway

90 in Hancock County, Mississippi. Their car was stopped at a red

light when it was struck from behind by a car driven by John

LeBlanc. Both Smith and Corley testified by affidavit that LeBlanc

"stated that he had been at home watching a golf game on television

when he got a call that the store he managed needed some CO2 for

their drink machine. He had gotten it and was headed to the store

when the wreck happened." LeBlanc also told Smith and Corley that

he had looked away from the road in order to look at a McDonald's

that was on fire. When he looked back, it was too late.

II.

In order to impute LeBlanc's actions to Burger King, Smith

and Corley must show that at the time of the accident, LeBlanc was

acting within the scope of his employment. See Odier v. Sumrall,

353 So.2d 1370, 1372 (Miss.1978). The district court held that

"out of court statements made to third parties by employees cannot

be used to establish agency under Mississippi law." We find that

LeBlanc's statement is not hearsay and, accordingly, is admissible

to defeat Burger King's motion for summary judgment.

"A statement is not hearsay if ... [t]he statement is offered

against a party and is ... a statement by the party's agent or

servant concerning a matter within the scope of the agency or

employment, made during the existence of the relationship."

Fed.R.Evid. 801(d)(2)(D). Smith and Corley's testimony regarding

LeBlanc's statements at the scene of the accident fall squarely

within Rule 801(d)(2)(D). It is undisputed that at the time of the
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accident LeBlanc was the manager of the Bay St. Louis Burger King.

Cf. Blanchard v. Peoples Bank, 844 F.2d 264, 265, 267 n. 7 (5th

Cir.1988) (attorney's affidavit containing statement by former bank

employee was inadmissible because employee was not working at the

bank at the time of her conversation with the attorney). LeBlanc's

alleged statement that he was delivering CO2 to the restaurant

concerned "a matter within the scope of the agency or employment."

See Nekolny v. Painter, 653 F.2d 1164, 1171 (7th Cir.1981) ("After

the fact of the agency is established, Rule 801(d)(2)(D) requires

only that the statement "concern a matter within the scope of the

agency or employment.' "), cert. denied, 455 U.S. 1021, 102 S.Ct.

1719, 72 L.Ed.2d 139 (1982).

III.

For the foregoing reasons, the decision of the district court

is REVERSED and the case is REMANDED for further proceedings.