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Frawley v. Nickolich - 73 Ark. App. 231, 41 S.W.3d 420 (2001)

Rule:

The relation of agency is created as the 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 two essential elements of the definition are authorization and right to control.

Facts:

Appellant Elizabeth Frawley was a licensed bail bondsman who was employed by appellant, J & J Bonding, Inc.  Frawley’s friend, Dixie Hinerman, accompanied Frawley to the Pulaski County jail and distributed business cards of Frawley's to a trusty and others at the facility. Thereafter, Frawley was notified by the Board that she solicited business or advertised for business in or about a place where prisoners were confined in violation of Ark. Code Ann. section 17-19-105(2). Appellant J & J Bonding, Inc. was notified that it was responsible for Frawley's actions pursuant to Ark. Code Ann. section 17-19-210(b) because she was acting within the scope of her authority as a J & J bondsman.The Board suspended Frawley’s license, and it imposed a fine of $2,500 against J & J Bonding. The trial court affirmed the judgment of the Board. Appellants sought further review, arguing that there was no evidence of an agency relationship between Hinerman and Frawley.

Issue:

Was the relationship of agency between Hinerman and Frawley sufficiently established, which would justify the finding that appellants violated Ark. Code Ann. section 17-19-105(2)?

Answer:

Yes.

Conclusion:

The Court held that the relation of agency was created as the result of the conduct by two parties manifesting one was willing for the other to act for her subject to her control, and the other consented. Substantial evidence supported the conclusion that Hinerman, the person who distributed the business cards was acting as an agent for Frawley, and that Frawley was acting within the scope of her employment by J & J Bonding, Inc. According to the Court, the sanctions imposed did not abuse discretion because Frawley was subject to a one year suspension, and J & J Bonding, Inc.’s fine was in the mid-range of possible fines.

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