Taylor v. Gill

• Decision Date: 23 December 1996
• Docket Number: No. 96-793,96-793
• Citation: 326 Ark. 1040,934 S.W.2d 919
• Parties: Rick TAYLOR, Joyce Taylor and Kenny Willis, Appellants, v. Jackie GILL, Appellee.
• Court: Arkansas Supreme Court

Page 919

934 S.W.2d 919

326 Ark. 1040

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

No. 96-793.

Supreme Court of Arkansas.

Dec. 23, 1996.

Margaret M. Newton, Mel Sayes, Little Rock, for appellants.

J.W. Green, Jr., Stuttgart, for appellee.

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. ¹ 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 (196 ), 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. Anselmo 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. Anselmo 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'...