dissenting. I cannot agree that Instruction No. 5 requested by appellees is erroneous. In fact, I can see no valid distinction between that instruction and appellant’s Instruction No. 4. Ap-pellees ’ Instruction No. 5 merely told the jury that if they should find that W. T. Jackson was engaged in work of the Gin Company and that the Gin Company had the right to control and direct his conduct at the time of the collision, then in law Jackson was agent for the Gin Company. Instruction No. 4 given on behalf of appellant in effect told the jury the same thing. This instruction reads: “A servant is a person subject to the command of his master as to the manner in which he shall do his work. The relation of master and servant exists only where the master can order the work and direct how it shall be done. When the person to do the work may do it as he pleases then such person is not a servant. ’ ’
It appears to me that the meaning of the two instructions is the same and appellant is in no position to complain of the court’s giving an instruction on behalf of the appel-lees when an instruction carrying the same meaning was given on behalf of appellant.
The majority opinion states'that elements other than those mentioned in Instruction No. 5 are involved in this case in the relationship of master and servant, and that one of the elements omitted from the instruction is the right to terminate the employment. The fact that the employer may or may not terminate the employment at will may shed some light on the nature of the employment. Still, such right is not a distinguishing feature between an agent and an independent contractor. The right to terminate the employment at will may not exist, and yet the relationship could be that of master and servant. On the other hand, the contract of employment may not be can-cellable at will and yet the relationship be that of independent contractor. In my opinion the cases cited by the majority do not sustain the view that the right to terminate the employment is one of the elements of a master and servant relationship. Wright v. McDaniel, 203 Ark. 992, 159 S. W. 2d 737, merely states that the right to terminate the employment is evidence that it may be considered in arriving at a conclusion of whether the relationship is that of agency or independent contractor, and the same thing is true of Hollingsworth & Frazier v. Barnett, 226 Ark. 54, 287 S. W. 2d 888.
If the Phillips Gin Company had the right to control and direct the action of Jackson, the driver of the truck, at the time of the collision, then without a doubt Jackson was the Gin Company’s agent in driving the truck, and this is what the jury were told. In Olin Mathieson Chemical Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250, the right to direct and control the driver was the element considered in determining whether agency existed. In the case at bar the majority has pointed to no other element that should be considered except the right to terminate the contract of employment, and in my opinion this is not one of the elements of agency, but merely evidence of the relationship. The trial court instructs the jury on the law and not on the evidence.
According to the undisputed evidence in the case, the driver of the truck was employed by the Gin Company to move seed for the Company, and when the accident occurred he was on the return journey after delivering the seed as directed by the Company. There is only one issue: Was Jackson an independent contractor, or was he an agent of the Gin Company? This Court is holding that the evidence was sufficient to take the case to the jury on the question of agency. It was up to the trial court to instruct the jury as to just what facts would constitute agency in the circumstances of this case, and by Instruction No. 5 the court told the jury that if the Gin Company had the right to control and direct the conduct of the driver of the truck at the time the collision occurred, then the driver would be, according to law, the agent of the Gin Company. This was a correct statement of the law, and it is hard to understand just how the court could have informed the jury on this point of law in any clearer terms.
In Ark. Independent Oil Marketers Assn., Inc. v. Monsanto Chemical Co., 225 Ark. 620, 625, 284 S. W. 2d 127, there was the issue whether one Yates was the agent of the Lion Oil Company. It was held that he was the agent of the company and the case turned on the fact that the company had the right to direct and control his actions. The Court quoted from 116 A. L. R. 462, as follows : “ ‘ '* * * and in the majority of such cases it has been held that such operator is a “servant” or “employee” of the oil company, rather than an ‘ ‘ independent contractor ” as is commonly contended by the company, generally on the theory that although the terms of the written contract might indicate that the operator had the status of an “independent contractor, ’ ’ the company in actual practice retained such power to subject him and his employees to its will and direction that he was in fact a “servant,” “employee,” or “agent,” * * ”
And the Court quoted from Magnolia Petroleum Co. v. Johnson, 149 Ark. 553, 233 S. W. 680, as follows [225 Ark. 626] : “ ‘And the majority are of the opinion that the contract between the company and Smith, as interpreted by the conduct of the parties under it, shows that it was the purpose of the company to retain complete control of everything done in connection with the sale and delivery of the oil, and that the testimony, in its entirety, warranted the finding that the drivers of the wagon were themselves the servants of the company.’ ”
The wording of Instruction No. 5 simply means that if the G-in Company had the right to direct the driver of the truck as to the road to travel, the speed at which the truck should be driven, the caution which should be exercised, and other details pertaining to operation of the truck, then the driver of the truck was the agent of the Gin Company. True, the instruction does not point out all possible actions of the driver, but the words ‘ ‘ the right to control and direct his conduct” include such details. I have found no case sustaining the contention that Instruction No. 5 is erroneous, and none is cited by the majority. Surely the jury cannot be left to make its own rules as to just what set of circumstances will constitute the relationship of principal and agent. Certainly in the case at bar the jury had to be informed as to the distinction in law as between an agent and an independent contractor. In many cases the distinction is finely drawn, and no rule can be laid down which will fit every case, but here it is undisputed that the Gin Company employed Jackson, the driver of the truck, and the only question is: Did the Company have the right to control and direct his conduct at the time of the collision? If so, then Jackson was an agent, and that is what the court told the jury.
In Moore and Chicago Mill & Lbr. Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, in discussing the distinction between an agent and an independent contractor, the Court said: “ * * * The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. * * *” That is exactly the situation we have here. If the Gin Company had the right to direct and control the conduct of the driver at the time of the collision, then it necessarily follows that the relationship of master and servant existed, and that is what the court told the jury.
Neither do I think Instruction No. 5 was argumentative or a comment on the weight of the evidence.
For the reasons set out herein, I respectfully dissent.
Mr. Justice Millwee joins in this dissent.