dissenting. There is one important element of proof that has been completely overlooked in arriving at the conclusion that James Davis was acting within the scope of his employment. It is all very well to say that the statements of Hawthorne’s son to Sanders were not hearsay and I agree that they were not. It is barely possible to say that there is sufficient evidence, outside the testimony relating to the statements of the son, to constitute substantial evidence that he was some kind of agent of Glen Hawthorne, but there is absolutely nothing outside the son’s statements and actions to show the extent of his authority or that this authority was sufficiently broad to bring the deceased employee within the scope of his employment at the time of his fatal injury.
Keeping the keys to the secondary plant operated by Glen Hawthorne certainly did not make his son a general agent. It did not even tend to show the extent of his authority, except to unlock the doors. The payment of a salary higher than that of the deceased employee may tend to show agency, but is has nothing whatever to do with the extent of the authority of the recipient of the higher salary. Telling the employee “what to do” has nothing whatever to do with the extent of the authority of the speaker, when we are not informed as to what he had told the employee to do, particularly when there is not a single word to even intimate that the principal had any idea what his son was telling the employee to do. There is not a word to indicate that Davis had ever taken or transported the son anywhere prior to the date of the fatal accident, either with or without Glen Hawthorne’s knowledge or consent, or that he had ever used his motorcycle for purposes of the business in which he was employed. There is absolutely no evidence other than the statement the son made to Sanders that comes anywhere near showing that the trip was connected with the business. The majority does not bother to say how the claimant met the burden of showing the extent of the son’s real or apparent authority or that Davis was acting within the scope of his employment.
I have a great deal of difficulty translating the statement, “I need to go to Glenwood to look at some cattle” into (1) an order to Davis to transport the speaker there or (2) a statement that the speaker was looking at cattle for his father’s slaughterhouse operations. There is not a word to show that the son had ever “scouted” for cattle to be purchased for the business, had ever purchased any cattle or had ever been given the authority to do either.
There may not be two rules of evidence relating to proof of agency, but I do not think any Arkansas case can be found where the extent of the agent’s authority has been determined upon the basis of evidence of this sort in any action in tort or contract. So there must be two rules as to the burden of proving the agent’s authority.
There is not a single circumstance to support the statement of the son as to the extent of his authority. There is nothing whatever to show that he had apparent authority in the premises. Statements and actions of an alleged agent may be admissible to corroborate other evidence to establish agency, but neither agency nor scope of the agency can be established by declarations or actions of the purported agent. B. J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W. 2d 608.
If we apply the rules of law governing proof of agency, there is not a scintilla of evidence, much less substantial evidence, to show that the younger Hawthorne was acting within the scope of his real or apparent authority as the agent of his father or that Davis was acting within the scope of his employment when he suffered the fatal injury. We have said that, to be substantial, evidence must be persuasive. It must do more than create a suspicion of the existence of the fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21. To find the evidence that Davis was acting within the scope of his employment to be substantial, one must be indeed very easily persuaded. I could do no more than suspect that Davis was in the scope of his employment.
I would reverse the decision of the Court of Appeals and dismiss the claim.