Taylor v. Gill

Rick TAYLOR, Joyce Taylor and Kenny Willis v.
Jackie GILL

96-793                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 23, 1996


1.   Principal & agent -- agency relationship discussed -- two
     essential elements. -- The burden of proving an agency
     relationship lies with the party asserting its existence;
     every agency relationship includes the element of control by
     the principal; the two essential elements of an agency
     relationship are (1) that an agent have the authority to act
     for the principal and (2) that the agent act on the
     principal's behalf and be subject to the principal's control. 
     
2.   Principal & agent --  agency defined -- gratuitous undertaking
     may fall under umbrella of agency relationship. -- An agency
     may be defined as a contract, either express or implied, upon
     a consideration or a gratuitous undertaking by which one of
     the parties confides to the other the management of some
     business to be transacted in his name or on his account, and
     by which that other assumes to do the business and render an
     account of it.

3.   Principal & agent -- submission by one giving service to
     direction and control of one receiving it applies equally to
     master-servant and principal-agent relationships. --  The
     principle of law that it is only necessary that there be
     submission by the one giving the service to the direction and
     control of the one receiving it as to the manner of
     performance applies not only to a master-servant arrangement
     but to principal-agent relationships as well.

4.   Motions -- denial of directed verdict -- standard of review. -
     - The standard of review in determining whether the trial
     court erred in denying a motion for a directed verdict is
     whether the verdict of the jury is supported by substantial
     evidence; substantial evidence is that evidence which is
     beyond mere suspicion or conjecture and which is of sufficient
     force and character that it will, with reasonable and material
     certainty and precision, compel a conclusion of the matter one
     way or another; on review, the appellate court will only
     consider evidence favorable to the appellee together with all
     reasonable inferences. 

5.   Principal & agent -- independent contractor -- distinguished
     from agent. -- An independent contractor is one who,
     exercising an independent employment, contracts to do work
     according to his own methods and without being subject to the
     control of the employer, except as to the results of the work;
     the right to control and not the actual control determines
     whether one is a servant or an independent contractor.     

6.   Principal & agent -- no substantial evidence regarding
     existence of agency relationship -- judgment of trial court as
     to appellants reversed. -- Where the evidence presented did no
     more than relegate the neighbor who mowed appellant's lawn to
     a status akin to that of an independent contractor, the
     appellate court found a marked difference between the
     authority of appellant to stop the neighbor from doing the
     work altogether, which she most certainly could have done, and
     her authority to control the exact manner in which he went
     about his task; there was no proof that the appellant intended
     to micromanage, or could have micromanaged, how the neighbor
     actually accomplished his work; nor was there proof in the
     record that the he would have subjected himself to such
     control in performing this favor; because there was no
     substantial evidence regarding the existence of the agency
     relationship, the judgment of the trial court was reversed and
     remanded as to the landowners.


     Appeal from Arkansas Circuit Court; Russell Rogers, Judge;
reversed and remanded.
     Matthews, Sanders, & Sayes, by: Margaret M. Newton, for
appellants. 
     Green, Henry, & Green, by:  J.W. Green, Jr., for appellee.

     Robert L. Brown, Justice.
     Appellants Rick Taylor and Joyce Taylor appeal from a $40,000
judgment entered against them relating to a lawnmower injury
sustained by appellee Jackie Gill.  The Taylors raise several
arguments for reversal, one of which is the lack of an agency
relationship between them and the operator of the lawnmower, Kenny
Willis.  We agree with the Taylors that Willis was not acting as
their agent when the injury occurred, and we reverse the judgment
as it pertains to them.
     Kenny Willis and the Taylors lived in the same neighborhood in
Stuttgart and were friends who would, on occasion, assist each
other in meeting various needs.  For example, Rick Taylor would
help Willis with mechanical work on his truck, while Willis would
mow the Taylors' yard because the Taylors did not own a lawnmower. 
Other neighbors, including Jackie Gill, would do the same.  No
payment was made for these services, and Willis was not paid for
the mowing involved in this case.
     On April 16, 1994, a day when Rick Taylor was out of town,
Willis began mowing the Taylors' yard.  He was neither asked nor
told to do so but was merely mowing the yard as a favor to the
Taylors.  Both Rick and Joyce Taylor later testified at trial that
they did not know Willis would be mowing their yard on that day. 
Although neither of the Taylors was home when Willis commenced his
task, Joyce Taylor returned from work while he was cutting the
grass in her yard.  She noticed that Willis was doing this but did
not ask him to stop, although she acknowledged at trial that she
could have done so.  While Willis was mowing in a ditch on the
Taylors' property, the lawnmower hit a rock or piece of gravel
which shot out from the side of the lawnmower, soared some 20 feet,
and struck Jackie Gill, who was standing on the other side of a
pickup truck, in the eye.  Gill lost partial use of his eye.
     Gill filed a complaint against Kenny Willis and the Taylors
and sought damages for the personal injury he sustained as a result
of Willis's alleged negligence.  The complaint asserted that
Willis, acting as the Taylors' agent, operated the lawnmower
unsafely in an area where gravel and rocks were located without
first determining whether it could be done without causing injury
to Gill.
     At the ensuing trial, the Taylors moved for a directed verdict
at the close of Gill's evidence and urged, among other things, the
lack of substantial evidence to support an agency relationship. 
The directed-verdict motion was denied.  The Taylors put on no
proof, and the circuit court submitted the case to the jury on
interrogatories.  The jury found that Willis was 80% at fault,
while Gill was 20% at fault.  The jury assessed Gill's damages at
$50,000 and found that an agency relationship existed between
Willis and the Taylors.  The court, as a result of the verdict,
reduced the $50,000 award due to Gill's measure of fault and
entered a $40,000 joint and several judgment against the Taylors
and Willis.
     In Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994), we set forth the principles of agency law followed in
this state:
          The burden of proving an agency relationship lies
     with the party asserting its existence.  B.J. McAdams,
     Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519,
     579 S.W.2d 608 (1979).  This court has used different
     definitions of agency that were appropriate for the
     particular cases, but each of them includes the element
     of control by the principal.  In Evans v. White, 284 Ark.
     376, 682 S.W.2d 733 (1985) and Campbell v. [Bastian], 236
     Ark. 205, 365 S.W.2d [249] (196[3]), we adopted the
     definition of agency contained in the Restatement
     (Second) of Agency.  We said the two essential elements
     of an agency relationship are (1) that an agent have the
     authority to act for the principal and (2) that the agent
     act on the principal's behalf and be subject to the
     principal's control.  In Hinson v. Culberson-Stowers
     Chevrolet, Inc., 244 Ark. 853, 427 S.W.2d 539 (1968), we
     examined the Restatement definition together with a quote
     from 2 Am. Jur. 13, Agency  2 and concluded that the
     essential elements for a showing of the agency
     relationship were authorization and control.  Id. at 855,
     427 S.W.2d  at 541-42.
Pledger, 316 Ark. at 200, 871 S.W.2d  at 392.
     Prior to the Troll Book Clubs case, this court observed that
a gratuitous undertaking could fall under the umbrella of an agency
arrangement:
     An agency may be defined as a contract, either express or
     implied, upon a consideration, or a gratuitous
     undertaking, by which one of the parties confides to the
     other the management of some business to be transacted in
     his name or on his account, and by which that other
     assumes to do the business and render an account of it.
Hinson v. Culberson-Stowers Chevrolet, Inc., 244 Ark. 853, 855, 427 S.W.2d 539, 541-42 (1968) (quoting 2 Am. Jur. 2d  2, at 13)
(emphasis added).  See also Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963).
     Recently, we cited the Restatement (Second) of Agency  221,
cmt. c (1957), to the effect that it is only necessary that there
be submission by the one giving the service to the direction and
control of the one receiving it as to the manner of performance. 
See Howard v. Dallas Morning News, Inc., 324 Ark. 91, 918 S.W.2d 178 (1996).  This principle of law applies not only to a master-
servant arrangement but to principal-agent relationships as well.
     Our standard of review in determining whether the trial court
erred in denying a motion for a directed verdict is whether the
verdict of the jury is supported by substantial evidence.  Barnes,
Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993); Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993). 
Substantial evidence is that evidence which is beyond mere
suspicion or conjecture and which is of sufficient force and
character that it will, with reasonable and material certainty and
precision, compel a conclusion of the matter one way or another. 
Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996); Muskogee
Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992).  In our
review, we will only consider evidence favorable to the appellee
together with all its reasonable inferences.  Anslemo v. Tuck,
supra; Muskogee Bridge Co. v. Stansell, supra.   
     Thus, focusing on the evidence most favorable to Gill, it is
clear that the Taylors, who did not own a lawnmower, were benefited
by the services provided by Willis.  Furthermore, they did not
reject Willis's work on prior occasions; nor did they do so in this
case despite the fact that Joyce Taylor returned home while he was
cutting the grass and had the opportunity and authority to stop the
work as the homeowner.  Based on these facts, and the inference
that Rick Taylor and Willis were exchanging favors, Gill urges that
there is substantial evidence that Willis was acting as the
Taylors' agent when the injury occurred.
     The Taylors concede that under Arkansas law an agency may be
implied from the conduct of the parties even absent an express
agreement.  See Hinson v. Culberson-Stowers Chevrolet, supra.  They
further concede that they were receiving a benefit from the mowing
services provided by Willis.  But they maintain that there was a
dearth of proof on (1) mutual consent to the agency relationship,
even by implication; (2) the ability of the Taylors to control the
conduct of Kenny Willis; and (3) Willis's submission to that
control.  We agree.      
     Although no evidence was presented that Willis was asked to
cut the Taylors' grass on this particular day, a jury could
reasonably conclude, based on the prior conduct of the parties,
that Willis had authority to do this work.  However, as our Model
Jury Instruction points out, an agent is "a person who, by
agreement with another called the principal, acts for the principal
and is subject to his control."  AMI 3d 701 (emphasis added).  See
also Crouch v. Twin City Transit, Inc., 245 Ark. 778, 434 S.W.2d 816 (1968); Campbell v. Bastian, supra.  The only evidence tending
to establish a right of control in the Taylors over the work
performed by Willis comes from the following colloquy between
Gill's counsel and Joyce Taylor on direct examination:
          GILL'S COUNSEL:     If Mr. Willis had been doing
     something that you did not approve of when you drove up
     on April sixteenth in mowing your yard, would you have
     told him to do it differently?
          JOYCE TAYLOR:  Yes, sir.
          GILL'S COUNSEL:     Being your yard, you had
     control?
          JOYCE TAYLOR:  Yes, sir.
     We view this colloquy in the context in which the service was
performed -- as an unsolicited favor to the Taylors.  Giving this
evidence its most probative value, it proves only that the Taylors
could have prevented Willis from mowing because of their status as
property owners.  For example, had Joyce Taylor observed Kenny
Willis mowing in an off-limits area like a flower bed, or at a time
when the lawnmower's noise was distracting, she could have stopped
him.  That authority, however, does not meet the requirement, as
noted in Evans v. White, supra, and Campbell v. Bastian, supra, of
proving an express or implied agreement between Willis and the
Taylors that Willis was subjecting himself to the control of the
Taylors with respect to the methods employed in mowing the yard. 
Moreover, apart from the fact that Willis was working on the
Taylors' property, there was no evidence presented at trial of the
intent or authority of the Taylors to control the precise manner in
which Willis mowed the lawn.  Again, the proof presented tended to
prove only that the Taylors could force Willis to refrain from
certain conduct because of their status as property owners, a
condition that would apply to any third party entering the land of
another to perform a service.
     We think the evidence presented in this case does no more than
relegate Willis to a status akin to that of an independent
contractor, which we distinguished from an agent in Howard v.
Dallas Morning News, Inc., supra:
          On the other hand, we have defined an independent
     contractor as one who, exercising an independent
     employment, contracts to do work according to his own
     methods and without being subject to the control of the
     employer, except as to the results of the work, and have
     held that the right to control and not the actual control
     determines whether one is a servant or an independent
     contractor.  Wilson v. Davison, 197 Ark. 99, 122 S.W.2d 539 (1938).
Howard, 324 Ark. at 100, 918 S.W.2d  at 183.
     In sum, we see a marked difference between the authority of
Joyce Taylor to stop Willis from doing the work altogether, which
she most certainly could have done, and her authority to control
the exact manner in which Willis went about his task.  We observe
no proof that the Taylors intended to micromanage, or could have
micromanaged, how Willis actually accomplished his work.  Nor do we
glean from the record that Willis would have subjected himself to
such control in performing this favor.
     Because there was no substantial evidence regarding the
existence of the agency relationship, the judgment of the trial
court must be reversed as to the Taylors.  We remand for an order
consistent with this opinion.
     Reversed and remanded.