dissenting. Independent contractors are the backbone of many industries in Arkansas which are dependent upon such contractors to deliver needed food sources or raw materials to be processed or manufactured into a marketable product. The issue of independent contractor relationships has been much litigated through the years, since it is often a first line defense in tort litigation to avoid imputed liability to the owner. There is one crucial element that has always been applied in Arkansas when deciding the issue, and that is whether or not the owner has actual control or the right to control the method and manner of the work contemplated, and not just the end result.
The appellate court’s responsibility in reviewing a trial court’s denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict of the jury has been well stated by the majority, which is that if only one reasonable inference can be drawn from the proof presented, then it becomes a question of law. Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). In the case now before the court, there is but one “reasonable inference” to be drawn from the proof presented: Georgia-Pacific (GP) had no control or even any right to control the physical conduct or method and manner in which the work was conducted by the appellants, Johnson Timber Corporation (Johnson) and J & N Logging Company (J & N), when cutting, loading, and hauling logs to GP’s mills, and no principal-agent or employer-employee relationship existed. The trial court, as a matter of law, should have directed a verdict or granted the motion for judgment notwithstanding the verdict for the appellant, GP.
The owner-independent contractor vs. principal-agent relationship is founded upon the issue of whether or not GP had any physical control or the right to control the physical conduct or method and manner of Johnson and J & N when actually cutting, loading, and hauling the logs to GP’s mills, which was the substance of their agreements, and which the parties had contracted to perform. At the time of the tragic accident, Johnson and J & N were both in the process of cutting, loading, and hauling logs to GP’s mills.
The law in Arkansas was very aptly stated by Chief Justice Griffin Smith in Moore and Chicago Mill and Lumber Co. v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938),acase directly on point, which has been followed as the law in Arkansas for almost fifty years:
By a long line of decisions this court is committed to the universal rule, that where the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master and servant. This court has consistently accepted and stated the settled rule that even though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof.
There are no facts in the record to indicate that the appellant, GP, had any control over the physical conduct of any of the other appellants, nor, more importantly, even a right to control such conduct, which involves the cutting, loading, and hauling of logs, at the time of the tragic accident which resulted in the death of four individuals near Strong, Arkansas. GP must have had control or the right to control the method and manner of the work to be performed (cutting, loading, and hauling logs) by the appellants, Johnson a.nd J & N, as opposed to the right to control the end result, in order to establish a principal-agent or master-servant relationship.
Appellants and appellees relied heavily upon the written agreements of the parties as evidence of the owner-independent contractor relationship and the principal-agency relationship. Since there was no evidence before the court which questioned the legality of the agreements or the good faith of the parties in entering into the agreements, the issues are: (1) whether or not the agreements, in and of themselves, create the relationship of principal-agent or owner-independent contractor between GP and Johnson, and GP and J & N; and (2) if such agreements do create an owner-independent contractor relationship, has the subsequent conduct of the parties created a principal-agency relationship?
The agreement between J & N and GP, titled “Cutting and Hauling Contract,” first states that GP and J & N have reached an agreement and then describes the lands on which GP owns timber that has been marked by GP for cutting and the log specifications, “large butt logs, 33” or 35”, with minimum scaling diameter of 14”; and to be delivered to El Dorado.” The preliminaries of the agreement provide that GP desires to have the logs cut and hauled, and that J & N desires to cut and haul the logs in accordance with the terms of the contract.
Paragraph 1 provides that:
The duration of this contract shall be for four (4) weeks from date hereof The contractor agrees to cut, and shall have the exclusive right to cut, the now marked and identified timber on the property heretofore specified and to haul same to the destinations named in Paragraph 4 .... Cutting and hauling shall, in all respects, comply with sound principles of timber conservation and shall be done in accordance with the specifications . . . Georgia Pacific shall exercise no control over any employee of the contractor or any equipment owned or used by the contractor. Georgia Pacific may, at any time, examine the results of the operations of the contractor to see that the provisions of this contract, including the specifications as set forth in Schedule A, have been complied with .... [Emphasis added.]
Paragraph 2 provides that “the contractor agrees, at times of his choosing, to cut and haul diligently, weather permitting .... The contractor understands that Georgia Pacific’s plywood plants must have a steady flow of raw materials . . . [Emphasis added.]
Paragraph 3 states that Georgia-Pacific shall weigh and scale the logs for payment when delivered, but also that “if the contractor disagrees with the scale, he shall have the right to have the logs rescaled in his presence.”
Paragraph 4 sets forth that the contractor is to be paid weekly, and states the rate to be paid per thousand-foot log scale and the point of delivery.
Paragraph 5 provides that the contractor shall reimburse GP for avoidable damage caused by the contractor to GP property, and also provides that “either party . . . may . . . by giving the party in default three (3) days written notice, cancel and terminate this agreement. [Emphasis added.] Upon such cancellation and termination, the offending party hereunder shall remain liable to the other party for actual damages sustained by such other party.”
Paragraph 6 states that the contractor:
will comply with all the state and federal laws and regulations imposed upon any person employing labor or renting equipment, including, but not limited to, the Fair Labor Standards Act of 1938, as amended (hereinafter referred to as the Wage-Hour Law), and the Occupational Safety and Health Act of 1970, as amended.
The agreement further provides that the contractor must keep payroll records and “make all payroll records available to GP at any reasonable time in order that they may be checked . . . .” Also, the contractor is required to insure that his employees comply with OSHA safety regulations and specifically, wear safety goggles in the area where trucks are being unloaded.
Paragraph 7 provides that the contractor is to hold harmless and indemnify GP for any loss to persons or property arising out of the work to be performed as a part of requiring the contractor to maintain Workers’ Compensation insurance and public liability insurance with the company acceptable to GP.
Paragraph 8 states that the contract represents the entire agreement between the parties. [Emphasis added.]
Paragraph 9 provides that if GP cannot take delivery by reason of an act of God, strikes, etc., then GP would not be liable to the contractor.
The agreement was signed by GP and J & N.
The Confirmation of Purchase Agreement entered into between GP and Johnson is not nearly as detailed as the J & N Contract, and is more in the nature of a supply contract. GP entered into an agreement with Johnson to purchase timber from Johnson to be cut on private lands not owned by GP.
The Confirmation of Purchase Agreement states that the buyer (GP) has agreed to purchase from the seller (Johnson), and paragraphs 1 and 2 state the price to be paid and that delivery is to be made by truck.
Paragraph 3 provides that the buyer (GP) shall scale all wood, however transported, in accordance with specifications set out in Schedule A.
Paragraph 4 provides that “because of the risk of buyer under certain provisions of the Wage-Hour Law, seller agrees to comply fully with all provisions. . . ,” (emphasis added) specifically, (a) to pay minimum wages, (b) to keep payroll records and require seller’s subcontractors to maintain such records, (c) to make payroll records available for buyer’s (GP) inspection, and (d) to comply with OSHA safety regulations and safety rules of GP while on the property.
Paragraph 5 provides and gives each party, buyer and seller, the right to cancel the agreement or reduce the amount of production at any time by giving notice to the other.
Paragraph 6 provides that the seller (Johnson) warrants good title to the timber being purchased. Although not specifically stated .in the Confirmation of Purchase Agreement, GP did require Johnson to maintain public liability insurance in specific amounts.
There is nothing in the record to indicate that the parties did not execute the contracts in good faith, and there is no question that the agreements were in effect at the time of the accident.
The contract between J & N and GP clearly states that “GP shall exercise no control over any employee of the contractor or any equipment owned or used by the contractor.” There is no evidence to the contrary in the record.
The Confirmation of Purchase Agreement between Johnson and GP does not establish any right of GP to control the method and manner of the work to be performed by Johnson. There is no evidence to the contrary in the record.
The Cutting and Hauling Contract between GP and J & N and the Confirmation of Purchase Agreement between GP and Johnson is not unlike the contract examined by the court in Moore, supra, where we stated that “the contract between Moore and the Company was filed as an exhibit to the answer. There was no substantial proof to show that the contract was colorable, nor were there any allegations or proof to show that it was not bona fide.”
It is obvious from an examination of the written agreements entered into by the parties that there is nothing in the agreements to show an intent on the part of GP to retain control or direction of appellants, Johnson and J & N, in the exercise of the physical means or method by which Johnson and J & N performed under the contracts. There is no direction or control relating to the physical conduct of Johnson or J & N or their employees in the execution of the contracts. The contracts do provide certain directions to be observed by Johnson and J & N in the cutting of the timber, especially as to size, place, and dimension, but these are specific and definite and similar to plans and specifications often found in contracts covering the performance of labor of a similar character. The design of these agreements is to provide a given result, not the method and manner of the work to be performed. Moore, supra.
As stated in Moore, this court has consistently accepted and stated the settled rule that even though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof.
In Skorcz and J. H. Hamlen & Son, Inc. v. Howie, 243 Ark. 640, 421 S.W.2d 874 (1967), a case in which Hamlen inspected the area where the logs were to be cut on a weekly basis in order to determine if the logs were cut within the boundary lines; whether the trees were the proper size; if the stumps were too high; and if useable logs were left, we reversed a judgment against Hamlen and held that the evidence did not support a jury finding that an independent contractor relationship did not exist, and, in addition, was not supported by the fact that Hamlen had fired the contractor for not complying with those requirements. The same is true in the case before this court.
Several “specifics” are cited as evidence that Johnson and J & N and their employees were under the “direct control” of GP to sustain a master-servant relationship between GP and Johnson and GP and J & N. The term “specifications” is probably the more appropriate term to describe the “specifics” to be observed by Johnson and J & N in the cutting and hauling of the timber. However, all of the items referred to, if poured into one bag, provide no substantial evidence of any actual physical control by GP in the method and manner of the physical work to be performed, that is, the cutting, loading, and hauling of logs to GP’s mills, or even the right of GP to control such work. There is a total lack of control of the means by which each “contractor” was to complete the work for GP, and there is no substantial evidence whatsoever that GP undertook to direct the manner in which the contractors or their employees should work while performing their duties as agreed to under the written agreements.
Since, under the terms of the written agreements, Johnson and J & N are independent contractors in their relationship with GP, the court must next determine if there is any evidence to show that by subsequent conduct, GP and Johnson and J & N abandoned their contractual relationship and entered into a principal-agent or master-servant relationship. In reviewing the record, the evidence offered outside of the written agreements, even testimony offered by appellees, corroborates and reaffirms the intent of the parties when entering into the Cutting and Hauling Contract and the Confirmation of Purchase Agreement.
Gene Staggs, a Procurement Forester for GP, testified by deposition that GP has no control over the kind of vehicle the contractor has, the shape they are in, who drives them, or how the wood is procured by the suppliers in the case of Johnson. In fact, GP, in its dealings with Johnson, dealt only with Johnson on a buyer-seller basis and did not even know that Thrower, who was driving the truck stopped on the highway near Strong which resulted in the accident, was one of Johnson’s drivers.
Joe Frank Thrower, who cut and hauled the logs to GP from lands procured by Johnson, testified that GP did not have anyone out on the job directing him to do anything, and that he dealt with his own operations and employees without assistance and direction from GP.
Mr. Charles Gil Johnson, the owner of Johnson, stated that GP did not check the equipment used by the log haulers, and has never, at any time, given him any advice about equipment to be used, or how to go about the “manner and means” of cutting and hauling the pulp wood.
Jerry Adams, the owner of J & N, testified that GP did not tell him who to work or who not to work out on the job and had nothing to do with his equipment. He further stated that the withholding and payment of Workers’ Compensation payments by GP on behalf of J & N was something they just help with that saved him bookkeeping and made audits easier for GP.
Mr. Carroll Barnett, who had been in the wood business since 1946, was called as a witness at the trial by the appellees and testified that GP had never given him any instructions on how to run his operations; when he worked; what trucks he was to use; who he was to employ; or the method of cutting the timber and the manner in which he hauled it to the mill — which is all left up to him. He further testified that GP had no control over his equipment, his employees, or him.
In reviewing both the written agreements presented at the trial and the testimony, it is obvious there was no substantial evidence before the trial court at the close of appellants’ case to indicate that GP had controlled the “method and manner” of Johnson, Joe Frank Thrower, J & N or Lemmie Smith when cutting and hauling pulp wood and logs to GP’s mills.
On review of the trial court’s order denying the motion for a directed verdict or motion notwithstanding the verdict requested by GP, we must determine whether the verdict is supported by any substantial evidence in a light most favorable to the party against whom the motion is sought. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984). In this case, there was no “substantial evidence” to submit the independent contractor issue to the jury, and it was error for the trial judge not to grant the motion for a directed verdict or motion for judgment notwithstanding the verdict of the jury in favor of GP.
Apparently, several factors were relied upon by the trial court in reaching the conclusion that the issue was a proper question for the jury, which are hereafter addressed separately:
(1) GP provided the contracts and filled in the blanks before presenting them to the contractors.
The fact that GP prepared the contracts represents no evidence of the right of GP to control the physical conduct or the method and manner of the work to be performed, which was cutting, loading, and hauling logs to GP’s mills. Since there is no evidence tending to question the execution of the contract, although there is an abundance of testimony reflecting that the parties understood the terms of the agreement in regard to their relationship, we must assume that the contract was executed in good faith by both parties. In fact, the record reflects that at the close of the appellees’ case, GP moved for a directed verdict, alleging, among other things, that there was no evidence to support any scheme, plan or method by GP to insulate itself from liability. The trial court, in ruling upon the motion, found that the plaintiffs had not made a case to prove any scheme, plan or method by GP to insulate itself from liability. The trial court ruled that the allegation as set forth in the amended complaint of the plaintiffs had failed. There was no cross-appeal filed by the appellees in this case alleging error in the granting of the directed verdict by the trial judge, and we must, therefore, recognize on appeal that there was no scheme, plan or method by GP to insulate itself from liability.
(2) GP required liability insurance with a company acceptable to GP.
The liability insurance required did not insure GP, but only insured Johnson and J & N for liability for the negligence of their employees. J & N cut and hauled logs from property owned by GP, and both J & N and Johnson’s employees delivered logs on GP property, exposing GP’s land and property to damage by J & N and Johnson, for which liability insurance coverage would provide some protection. Public policy should encourage, not discourage, a general public liability insurance to provide a means of compensation to those who might be injured.
GP did not pay for the liability insurance purchased by its contractors, but the insurance was paid for by the contractors from their own funds.
Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W.2d 341 (1949), cites Delamar & Allison v. Ward, 184 Ark. 82, 41 S.W.2d 760 (1931), where it was held that “[e]vidence that defendants were carrying liability insurance covering the negligence of a truck driver hauling gravel was a circumstance to be considered in determining whether the truck driver was employed by defendants or was an independent contractor.” [Emphasis added.] Ozan was relied upon to support the proposition that since GP required Johnson and J & N to maintain public liability insurance, the relationship became one of principal-agent. However, in the case before this court, as the testimony reflects, the liability insurance premiums were not paid by GP, nor was GP the named insured. Johnson and J & N, not GP, paid for their own general liability insurance to insure themselves against the negligence of their own employees.
Certainly, it should be the public policy of this state that public liability insurance be encouraged. The fact that public liability insurance is required of an independent contractor, who pays for the insurance, is not evidence of any control as opposed to the situation in which the owner would insure himself for liability of the alleged independent contractor. This case and Delamar, supra, are distinguishable.
. (3) GP withheld Workers’ Compensation premiums and required Workers’ Compensation insurance be maintained by the contractors’ employees.
Again, GP paid no Workers’ Compensation premiums with any of its funds, nor did it insure any of Johnson’s or J & N’s employees, but instead, they insured their own employees, and the premiums were paid by them. GP should not be penalized for complying with Arkansas law. In Brothers v. Dierks Lumber & Coal Co., 217 Ark. 632, 232 S.W.2d 646 (1950), this court held in an opinion written by Justice Leflar that Arkansas Statutes Annotated § 81-1306 (1947) does make a “prime contractor” liable for the death and injury of an employee of a subcontractor when the subcontractor fails to secure compensation required by the Act. The Defendant in Brothers was a forest products company, and the court found the products company liable for payment of Workmen’s Compensation benefits to an employee of the contractor. Compliance with the law in Arkansas should not be used to destroy the independent contractor relationship which existed, and such compliance should be encouraged.
In Ozan, supra, the court held that “if’ it had been shown that appellants paid Workmen’s Compensation insurance on Kirby for his employees, such testimony would have been relevant as a circumstance to be considered by the jury in determining whether Kirby was an employee or independent contractor. Since there was no such evidence, and since Kirby operated under the same written agreement that the company had with all of its logging contractors, it was reversible error to submit the issue of the employee relationship to the jury, and this court stated, “ [w] hen the testimony in the instant case is considered in the light most favorable to appellees, we find no substantial evidence showing a modification of the written contract by the practice under it sufficient to support the verdict on this question.”
Ozan cannot be stretched to stand for the proposition that since GP withheld money from and paid Workmen’s Compensation premiums for Johnson and J & N’s own funds, as a matter of convenience, as testified to by Jerry Adams, these acts made Johnson and J & N employees or agents of GP. To meet the test laid down in Ozan, the appellants would have to have shown that GP paid Workers’ Compensation premiums on the employees of Johnson and J & N from its own funds.
(4) GP could terminate the contracts at will.
In Moore, supra, it was also contended by counsel for appellees that the power reserved to the company to permanently discontinue operations under the contract in and of itself created the relation of master and servant. The court further noted that the “power to discharge,” which is unrestricted, is a very important circumstance tending to disprove the relation of independent contractor. However, in this case, as stated by the court in Moore, the parties to this contract agreed that it might be temporarily suspended or totally rescinded. GP, Johnson, and J & N were competent to make such an agreement and, as such, it is distinguishable from an “unrestricted right of discharge,” a condition which usually arises where the work to be done is general and indefinite, rather than definite and specific, as found in this case.
In the case now before the court, the parties entered into a written agreement in good faith; had full knowledge and understanding at the time of contracting that the agreement might be suspended or terminated, dependent upon supply needed; were competent to make such decisions; and the work to be done was definite and specific, just as in Moore, supra. The fact that GP could terminate the contracts at will does not destroy the independent contract relationship.
(5) GP required that the wood be loaded in a manner compatible with GP’s unloading equipment and could refuse timber not properly loaded, or which was too small or too large; controlled the size and the shape of the logs and the delivery rate; furnished foresters to assist in locating boundaries, surveying and spotting of trees to be cut; and maintained the right to refuse to accept timber if employees were not wearing proper safety equipment while on GP’s premises.
These facts relied upon by the majority to find an agency relationship have nothing whatsoever to do with control over the method and manner of the cutting, loading, and hauling of the logs.
The Moore case clearly held that supervision of the work in progress, specifications on the cutting of the timber, and the marking of logs that should be cut and hauled to the mill does not destroy the independent contractor relationship. In Moore, we stated:
This court has consistently accepted and stated the settled rule that even though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof.
(6) GP required each worker to abide by OSHA standards and GP’s local'safety rules, and to comply with the Fair Labor Standards Act.
Clearly, under the law, GP’s liability under OSHA extended not just to its own employees, but also to employees of subcontractors and independent contractors. In Teal v. E. I. Dupont De Nemours & Co., 728 F.2d 799, 804 (6th Cir. 1984), the court found that Congress had enacted 29 U.S.C., § 654(a)(2), “for the special benefit of all employees of an independent contractor who performed work at another employer’s workplace.”
For GP to purchase logs produced by employees who are not paid the minimum wage or overtime would be in violation of the “Hot Cargo” provision of the Fair Labor Standards Act, 29 U.S.C., § 215 (a)(1), for which GP would be liable for penalties. As held in Wirtz v. Loan Star Steel Company, 405 F.2d 668 (5th Cir. 1968), GP must also make a good faith effort to comply with the Act. No doubt, in an effort to comply with the law, GP required Johnson and J & N to comply with the Fair Labor Standards Act, and retained the right to audit their records to insure compliance as required by law.
The case now before the court is one where the proverbial “one cannot see the forest for the trees” is applicable. The substantive agreement between GP and Johnson and J & N deals with the cutting, loading, and hauling of logs to GP in order to keep GP supplied with a sufficient supply of logs to meet its production demands. J & N cut, loaded, and hauled logs under the terms of a “Cutting and Hauling Contract” upon lands owned by GP. Johnson procured timber on its own and hired Thrower to cut, load, and haul logs to GP under the terms of the Purchase and Confirmation Agreement between Johnson and GP. In both cases, GP executed no control over the physical conduct of J & N and its employees, or Johnson and its agents or employees, when cutting, loading, and hauling logs to GP’s mills.
The “trees hiding the forest” are such things as preparation of the contracts by GP; the requirement of liability insurance by GP; the withholding of Workers’ Compensation premiums from funds due the contractors by GP and paying it for their convenience; the fact that GP could terminate the contracts; requiring that the wood be loaded in a manner so that it could be unloaded by GP’s equipment when delivered; requiring the workers to comply with OSHA standards and local safety rules; setting the specifications of the size and shapes of the logs and their delivery rate; and designating trees to be cut which would comply with GP’s specifications. None of these “trees which hide the forest” have anything to do with the control of the physical conduct, by GP, over the method and manner in which Johnson and J & N cut, loaded, or hauled the logs to the mill.
The record does not contain substantial evidence, either in the written documents or testimony, that GP controlled or even had a right to control the method and manner of the cutting, loading, and hauling of the logs to GP’s mills. The only involvement of GP in this process was to be sure that the logs met certain specifications, and GP sought to protect itself by requiring its contractors to comply with the law.
In J. L. Williams & Sons, Inc. v. Hunter, 199 Ark. 391, 133 S.W.2d 892 (1939), this court held that there must be definite and substantial evidence in order to “go behind” the independent contractor relationship, when such relationship appears to exist as a result of written contracts:
It is common knowledge that hundreds of logging operations throughout the state are constantly handled under contract, both oral and written, which leave to the performing party complete independence in effectuating the purpose of such contract. While the facts of each case should be carefully examined when suits are filed for personal injuries resulting from operations conducted by so-called independent contractors, something more than speculation and conjecture is necessary to convert a bona fide contract independently performed into one of master and servant.
199 Ark. at 395, 133 S.W.2d at 894.
In Skorcz and J. H. Hamlen & Son, Inc., supra, the court found that an independent contractor relationship existed, and reversed a jury finding to the contrary. The facts in Skorcz are not unlike the facts in the case now before the court, where the injured party contended that the log hauler was not an independent contractor because:
about once a week a representative of Hamlen visited the tract to see if the operation was confined within proper boundary lines; if all trees of proper size were being cut; if stumps were too high; and if usable logs were being left. The record also reveals that Hamlen would tell Joe where to unload the logs when they were delivered at the yard in Little Rock. Appellees also rely on certain testimony tending to show Hamlen might have been able to discharge Joe if he refused to do the things, mentioned above, as directed by Hamlen or his agent, and also on the fact that Hamlen and Joe had no written contract.
243 Ark. 642, 421 S.W.2d 875-876.
The majority admits that no specific fact can be pointed to which establishes the employer-employee relationship. However, the majority concludes that all the facts and circumstances establishing proof, when considered together, are sufficient to present questions of fact to be decided by the jury, citing Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W.2d 171 (1958), which held that when it is demonstrated that the person causing an injury was at the time rendering service for another and being paid for that service, and “the facts presented are as consistent with the master-servant relationship as with the independent contractor relationship, then the burden is on the one asserting the independence of the contractor to show the true relationship of the parties.” The facts presented in this case are inconsistent with the master-servant relationship, but consistent with the owner-independent contractor relationship. As acknowledged, there is no specific fact presented which establishes the employer-employee relationship.
The Restatement (Second) of Agency § 1 comment A (1958), provides that the relation of agency is created as a result of conduct by two parties manifesting that one of them is willing for the other to act for him, subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and “subject to his control.” The essential elements are authorization and right to control. Evans v. White, supra. Johnson and J & N were not subject to the control of GP when physically cutting, loading, and hauling the logs to GP’s mills, although they were subject to the control and direction of GP as to the end result of their work.
752 S.W.2d 279 Griffin, Rainwater & Draper, P.A., by: Richard E. Griffin, for appellant Georgia-Pacific Corporation. Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Ralph R. Wilson, for appellant Johnson Timber Corporation. McKenzie, McRae & Vasser, for appellants Lemmie Smith and J & N Logging Company, Inc.In Southern Kraft Corporation v. McCain, 205 Ark. 943, 171 S.W.2d 947 (1943), a contractor engaged in cutting wood at a stated price per cord was charged with the responsibility of hiring and firing his own men, furnishing their tools, and paying their wages. Southern Kraft exercised no control over them, except as to the result of the contract. This court held that these facts could lead only to the conclusion that an independent contractor relationship existed. See also Crossett Lumber Company v. McCain, 205 Ark. 631, 170 S.W.2d 64 (1943), and Voss v. Ward’s Pulpwood Yard, 248 Ark. 465, 452 S.W.2d 629 (1970).
One can read into the facts presented and speculate, but based upon the entire record and the actual facts presented to the trial court, there is no substantial evidence to sustain the finding of the jury. The relationship between GP and Johnson and GP and J & N was clearly one of owner-independent contractor, and the judgment entered by the trial court should be reversed and dismissed as concerns GP.
INTERIM OPINION DELIVERED JULY 11, 1988
758 S.W.2d 415 Boswell, Tucker & Brewster; Shackleford, Shackleford & Phillips; Bramblett & Pratt; and Compton, Prewett, Thomas & Hickey, P.A., by: Robert C. Compton, for appellees. Per Curiam.We will consider the petition for rehearing and the motions filed in this case after the court reconvenes on September 6, 1988.
Special Justice Gibson joins in the order; Glaze, J., not participating.