     Case: 09-60416     Document: 00511021553          Page: 1    Date Filed: 02/05/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 5, 2010

                                       No. 09-60416                    Charles R. Fulbruge III
                                                                               Clerk

PAULINE KELLY, Individually and on behalf of all heirs at law of Destry
Ezell Kelly, deceased; CHRISTEN N. PETERS, Individually; NAKEYA J.
MCLENDON, Individually,

                                                   Plaintiffs-Appellants
v.

KATHERINE LABOUISSE, doing business as Straw Hill Farms,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:07-CV-631


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        The crux of this appeal is the ownership of a cow that was struck by an
automobile, causing personal injuries to Plaintiffs. The district court granted
summary judgment in favor of the defendant because it found Plaintiffs failed
to offer sufficient admissible evidence that the defendant owned the cow. For the
following reasons, we AFFIRM the district court’s judgment:



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-60416   Document: 00511021553     Page: 2   Date Filed: 02/05/2010

                              No. 09-60416

   1. Although we review the district court’s summary judgment decision de
   novo, we first review the district court’s rulings on the admissibility of
   summary judgment evidence for manifest error, which is akin to an abuse
   of discretion. See Berry v. Armstrong Rubber Co., 989 F.2d 822, 824 (5th
   Cir. 1993); see also Richardson v. Oldham, 12 F.3d 1373, 1376 (5th Cir.
   1994). We find no such error here. Plaintiffs rely in part on the testimony
   of Talmadge Abram, who said Thadio Aaron told him that Jimmy Smith
   told Aaron the cow belonged to Straw Hill Farm. Defendant concedes that
   Smith’s alleged statement to Aaron would be an admission of a party
   opponent. But Aaron’s alleged statement to Abram is a different matter.
   The district court properly determined that the statement is inadmissible
   hearsay because it concerned a matter outside of the scope of Aaron’s
   employment with Straw Hill Farm. See F ED. R. E VID. 801(d)(2)(D) (a
   statement by a party’s agent or servant must be made within the scope of
   employment); F ED. R. E VID. 805 (hearsay within hearsay is admissible
   only if each part of combined statement conforms to a hearsay exception).
   Although Aaron worked at the farm and performed tasks related to the
   cattle, the record shows that he was a general farm hand. There is no
   indication that he managed the cattle, maintained cattle records, or had
   accounting responsibility for the cattle. Instead, Aaron worked at the
   direction of Smith, who performed those jobs as the farm’s “cattle man.”
   See Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1566 (11th
   Cir. 1991) (holding that the inquiry regarding scope of employment was
   whether the speaker was authorized to act for his principal concerning the
   matter about which he allegedly spoke). Plaintiffs argue that Aaron’s
   testimony about his duties created an issue of fact for the jury as to the
   scope of his employment. But the scope of Aaron’s employment relates to
   the admissibility of the hearsay statement; juries do not decide such

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                              No. 09-60416

   issues, and we conclude that the district court did not abuse its discretion
   by precluding Abram’s testimony on this record.
   2. Plaintiffs’ contention that circumstantial evidence established a fact
   issue as to the ownership of the cow also fails.       Smith’s unrebutted
   testimony was that the farm’s cattle records showed no documentation of
   a black cow with a tag bearing the number “29,” and that a headcount
   showed no cows were missing from Straw Hill Farm’s inventory. Plaintiffs
   are not aided either by Smith’s removal of the cow from the road and
   burial of it on Straw Hill Farm property, or by the general practice of
   farmers burying only their own cows on their land. Smith explained
   without contradiction that he buried the cow to alleviate the odor from the
   decaying carcass after the accident. His actions do not create a fact issue
   as to ownership. The same is true of Plaintiffs’ evidence that Straw Hill
   Farm had cows in pastures on both sides of the road, that a fence was
   down, and that a gate was partially open. The evidence showed that other
   farmers also had cows in the area, and no witness was able to identify the
   owner of the cow that was struck. Plaintiffs’ argument does not rise above
   the level of mere speculation and conjecture as to the ownership of the
   cow, which is insufficient to defeat summary judgment. See Thomas v.
   Great Atlantic & Pacific Tea Co., 233 F.3d 326, 329–30 (5th Cir. 2000).
   3. We similarly find no merit to Plaintiffs’ cursory arguments as to the
   hearsay exceptions of F ED. R. E VID. 803(6) and 807 and the admissibility
   of evidence under F ED. R. E VID. 407 and 404(b).
   AFFIRMED.




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