dissenting:
I must respectfully dissent. The majority’s reversal of the award of attorney fees to defendant rests on mistaken notions of the underlying litigation and relies on inapplicable authority. By the time the majority opinion ends it has, through dicta, changed the standard by which an employer’s liability for the actions of its employees has always been measured.
First, Beard did not present a prima facie case of Salmon’s respondeat superior liability. By definition, a prima facie case is one which consists of sufficient evidence to get the plaintiff past a motion for directed verdict inasmuch as the evidence, if unrebut-ted, would be sufficient to support a finding in plaintiff’s favor. See, for instance, Black’s Law Dictionary. This was not the case here. Beard did not present sufficient evidence of Salmon’s liability and that was why the trial court sustained the motion for directed verdict. That judgment was not appealed; its correctness has not been challenged and it is now the law of this case. The majority may not reshape and recast that evidence, and thereby change the effect of its legal sufficiency in a decision which is not before us for review.
Neither is the majority accurate in its statement that the trial court “did not reconsider Beard’s claim as required by § 103” and awarded fees and costs to Salmons only because he “prevailed on the directed verdict.” The transcript reveals that in assessing all the evidence and considering his previous rulings in the case, the trial court specifically found the claim was not well grounded in fact and sustained the motion on that ground:
“... if I was correct in sustaining the defendant’s motion for a directed verdict, I was probably incorrect in not sustaining his motion for a motion for summary judgment.... I do think that it is a construction of the statute, 103, Title 23. As I read the statute, I, like Mr. Scarth, do not find bad faith, but I think the second ground is, as Mr. Scarth’s argument in that respect, is well founded that there was no basis in fact for the assertion of a claim against his client and the motion will be sustained. You may proceed with your proof.”
Also, contrary to the majority’s recitation of “facts,” it was not shown that Richards was “in the process of hauling a load for Salmons” at the time of the altercation. To the contrary, Richards’ status as Salmons’ employee in general, as well as his agency at the time in question, was sharply disputed and contested by Salmons.
While Salmons owned the truck, the truck and driver were “leased out” to Roadrunner at the time of the attack. Evidence showed that Roadrunner was responsible for Richards who was working under Roadrunner’s direction and control. On the day in question, Salmons had no way of even knowing Richards’ whereabouts or destination and had no control over him.
Salmons could not have been liable for Richards’ intentional torts under the doctrine of respondeat superior. Even if Richards had been shown to be his agent, there was no evidence that he acted within the scope of his employment in the commission of the intentional tort. The trial court’s ruling in favor of Salmons was consistent with settled law in this jurisdiction: in order to hold a master liable for the intentional tort of his servant, the plaintiff must show first, that the relation of master and servant existed at the time and second, that the tortious act was committed within the scope of his authority. Allison v. Gilmore, Gardner & Kirk, Inc., 350 P.2d 287 (Okla.1960); Tulsa General Drivers, Warehousemen and Helpers Union, etc. v. Conley, 288 P.2d 750 (Okla.1955); Hill v. McQueen, 204 Okl. 394, 230 P.2d 483 (1951).
Notwithstanding the majority’s protests to the contrary, Allison v. Gilmore, Gardner & Kirk, etc., supra, is very similar to the matter before us and is controlling here. There we affirmed the trial court’s ruling sustaining defendant/employer’s demurrer to plaintiff’s evidence as it failed to establish that defendant’s truck driver em*819ployee was acting within the scope of his employment when he assaulted the plaintiff. We noted there the general rule is that it is not within the scope of a servant’s employment to assault another and that a master will not be liable for such an assault, though committed by the servant while about his master’s business. We found there was nothing connected with employment as a truck driver where his duties were to drive and deliver gasoline, that would warrant the employee fighting with a third party. Relying on our previous decision in Tulsa General Drivers, Warehousemen and Helpers Union, etc. v. Conley, supra, we also observed that:
“This court has long been committed to the rule, that, ‘In order to hold master or principal responsible for tort or negligence of his servant or agent plaintiff must establish that act committed by servant or agent was within the scope of his authority as such servant or agent, and in the course of his employment.’ ”
We have recognized that where a servant commits an intentional tort within the scope of his authority, the employer is responsible to the injured third party. Ada-Konowa Bridge Co. v. Cargo, 163 Okl. 122, 21 P.2d 1 (1932), cited by the majority is representative of that line of cases. The authority of the servants in those cases differs in character and 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 § 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.