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requirements of rule 801(d)(2)(C) of the Federal Rules of
Evidence are not met.
Interstate prepared the appraisal of the Common Stock for
the benefit of the ESOP and its Trustee, both of whom were
independent of HCA and of HealthTrust. Respondent, however,
argues that Interstate served as an agent of HealthTrust or of
the ESOP in preparing the Interstate Valuation and, therefore,
because HealthTrust was a wholly owned subsidiary at the time the
Interstate Valuation was prepared, Interstate served as an agent
of HCA. We do not agree.
Even if Interstate were found to be an agent of HealthTrust
the parent/subsidiary relationship between HCA and HealthTrust by
itself would not provide sufficient basis to make the statements
of Interstate an admission by HCA. See Zenith Radio Corp. v.
Matsushita Elec. Indus. Co., supra at 1247. We believe that the
facts and circumstances present in the instant case do not
support a conclusion that the Interstate Valuation constitutes an
admission by HCA of the fair market value of the HealthTrust
Common Stock.
An agency is "the fiduciary relation which results from the
manifestation of consent by one person to another that the other
shall act on his behalf and subject to his control, and consent
by the other so to act." 1 Restatement, Agency 2d, sec. 1(1)
(1958). In the instant case, there is no evidence that
Interstate had a fiduciary duty to HCA or that HCA, HealthTrust,
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