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Beard v. Richards11/12/1991
nd degree from that involved in the instant one, however, and those cases are easily distinguished. We discussed this difference at length in Hill v. McQueen, supra, where we recognized that in the Ada-Konowa situation, paying the toll was a condition precedent to enjoying the right, and that it was the toll keeper's duty to get that toll or withhold the privilege. In light of the fact that successful employee performance involved immediate action in opposition to the other's will, it was determined that such tortious action should be anticipated by the employer.
Similarly, Mistletoe Express Service, Inc. v. Culp, 353 P.2d 9, 11 (Okla. 1960), is clearly distinguishable from the case at hand and the majority's conclusion that its reasoning would support imposing liability on Salmons for Richards' intentional torts is unconvincing. In Mistletoe, the Court found that the employer, a common carrier, had deliberately sent an employee known to have a violent nature and commonly called "Slugger" into a situation where the employer was expecting bad feelings. Even though knowing the employee's disposition, the employer gave specific instructions which were almost certain to cause the very result produced: assault on a third party. While acknowledging the general rule of nonliability of an employer for the intentional torts of its employee, the Court held that liability would be imposed where the employer had knowledge of its employee's "dangerous, hot-tempered, antagonistic and pugilistic disposition" and it was "shown that such employee was acting within the scope of his employment and that such act complained of was done as a means of carrying out the job assigned to him." That decision is not relevant to the issue presented in this action and does not support the majority's reliance on it to justify the decision. By adopting that decision as the standard by which it would judge Salmons' responsibility, the majority alters the established law governing respondeat superior liability without good reason.
I would affirm the trial court's award of attorney fees to defendant pursuant to ยง 103 based on that court's finding that this action was not well grounded in fact.
I am authorized to state that Chief Justice OPALA and Justice HARGRAVE join with me in the views expressed above.
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