Mahlandt v. Wild Canid Survival and Research, 588 F.2d 626 (1978)

Relevant Facts: Pl’s 3 year old child was sent by his mother to retrieve his older brother from the neighborhood.  While en route he passed by the Df’s wolf being kept at an employee’s home temporarily.  A neighbor heard the child scream looked out and saw the boy laying on the ground with the wolf standing over him howling.  The employee’s son carried the boy inside his house until he was treated.  The employee went to the employer and left a note on the door claiming the wolf had bitten the child.  The minute entry of the Board of Directors meeting discussed its liability over the incident.  Pl sought to introduce the note and minute entry.  The father of the child permitted a statement by the child that he had gone under the fence, and the dad did not feel the scratches were from a bite.  The expert agreed. The tr. ct excluded the note, and the minutes.

Legal Issue(s): Whether the note left by the employee is considered a matter w/i the scope of his agency or employment, custody of the wolf, and were made during the existence of that relationship to render it admissible as a vicarious admission?

Court’s Holding:

Procedure: Jury verdict for the defense; Ct of App Reversed and Remanded for new trial.

Law or Rule(s):  A statement is not hearsay if the statement is offered against a party and a statement by the party’s servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,

Court Rationale: The employee did have actual physical custody of the wolf, and his opinions, conclusions were adopted by the Board of Directors as the basis for action by his principal.  Once agency, and making the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.  801(d)(2)(D) does not include an implied requirement that the declarant have personal knowledge of the facts underlying his statement. The two statements by the employee were admissible against the Df.  However, there was no servant, or agency relationship which justified admitting the evidence of the Board minutes against the employee.  None of the conditions of 801(d)(2) cover the claim that minutes of a corporate meeting can be used against a nonattending, nonparticipating employee of that corporation.