dissenting. The central issue in this case is whether David Mitchell was an employee or an independent contractor of the Dallas Morning News. The threshold determination in such cases is whether Mitchell had the authority to act for the publishing company. See, e.g., McMahan v. Berry, 319 Ark. 88, 890 S.W.2d 242 (1994); Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994); Jumper v. L & M Transp., Inc., 296 Ark. 319, 756 S.W.2d 901 (1988); Johnson v. Timber Corp., 295 Ark. 622, 752 S.W.2d 241, set aside on rehearing on other grounds, 295 Ark. 663-A, 758 S.W.2d 415 (1988); Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987); Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985); Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968). Our law in Arkansas is absolutely clear on that point.
In 1968, this court adopted the Restatement of Agency standard of what is required to create an agency relationship. See Crouch v. Twin City Transit, supra. We acknowledged that an agency relationship is created as a result of conduct by two parties manifesting that one of them is willing to have the other act for him subject to that party’s control, and the other party consents to act. Absent an agreement, there must be conduct evidencing this relationship. The majority and I agree on this point, and caselaw in this state bears it out. See, e.g., Schuster’s, Inc. v. Whitehead, supra; Evans v. White, supra; Karcher Candy Co. v. Hester, 204 Ark. 574, 163 S.W.2d 168 (1942); see also AMI Civ. 3d 701 and 707.
Where the majority opinion falls short, in my judgment, is in its failure to identify proof of conduct by Dallas Morning News and David Mitchell to create such a relationship. What the majority does instead is present circumstances that might prove some control by the Dallas Morning News over Mitchell. Whether Dallas Morning News was interested in results and effective delivery of its papers rather than control over the details of the work is debatable. See generally Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990). But even assuming for purposes of summary judgment review that these circumstances manifest some control, that analysis does not satisfy whether the publisher’s conduct evidenced that Mitchell was acting for it and conduct by Mitchell that he consented to act for the Dallas Morning News.
The contractual arrangements in this case certainly give no indication that an agreement was struck between Dallas Morning News and Mitchell. Dallas Morning News contracted with Delivery Systems, Inc. to serve as its distributor in the Litde Rock area. The Independent Distributor Agreement between the parties stated that Delivery Systems would have “sole control” over its personnel, including their selection and their work performance. It further stated that Delivery Systems was an independent contractor and added:
Distributor [Delivery Systems] shall have no authority, and is hereby forbidden, to employ or contract with any person on behalf of Publisher [Dallas Morning News]. . . .
Delivery Systems then contracted with David Mitchell as a carrier and entered into an Independent Contractor/Carrier Agreement as well as a Delivery Systems Carrier Lease. The Independent Contractor/Carrier Agreement specified that Mitchell operated solely under his own supervision as an independent contractor and that Delivery Systems was only interested in the “desired result of prompt receipt and delivery of newspapers.”
Mitchell did destroy 130 newspapers,1 and when Dallas Morning News found out about this, the publishing company was upset. According to Joe Fox, president of Delivery Systems, the “impression” was left with him that if Delivery Systems wanted to keep the contract with Dallas Morning News, it would have to terminate the contract with Mitchell. Rather than do this, Fox ended the contract with Dallas Morning News. But in discussing these circumstances in his deposition, Fox made it clear that the Dallas Morning News knew that it did not have the authority to terminate Mitchell. And Mitchell made it clear in his depositions that he worked for Delivery Systems.
The majority appears to hinge its opinion on Comment C to Restatement (Second) of Agency § 221 (1958), which requires that there be submission by the one giving service to the directions and control of the one receiving it as to the manner of performance. Comment C to §221 further states that if one manifests consent that another shall be his servant and work is in fact done upon his account, the one employed is the servant of the one employing, although there is no intent to receive the service. Again, there is no proof of conduct in this case on Mitchell’s part to submit to the directions and control of Dallas Morning News, and no conduct by Dallas Morning News consenting to the fact that Mitchell was in its employ.
The one case cited in the majority opinion which had approximate facts stands for the point that no employment relationship existed. See Murrell v. Goertz, 597 P.2d 1223 (1979). In Goertz, there was a tier of two independent-contractor relationships, as in the instant case. In short, the majority has presented no precedent for eliminating the necessity for some implied agreement based on conduct. But that is what the majority opinion does by inferring an agency relationship solely based on aspects of control exercised by Dallas Morning News. Again, whether Mitchell’s conduct proved in any form or fashion that he submitted to this control is not even addressed. And the record reveals there is no such proof.
On the Howards’ second cause of action, the circuit judge denied summary judgment to Delivery Systems, and their case against that party will go to trial. In the case against Dallas Morning News, however, I cannot see eliminating one essential factor for determining agency and employment which has been the law in Arkansas for decades and which the Restatement on Agency contemplates.
For these reasons, I would affirm.
Glaze, J., joins.Presumably, this occurred after Mitchell’s accident with the Howards, but that fact is unclear from the record.