MASSMAN CONSTR. CO. v. CHISHOLM

MASSMAN CONSTR. CO. v. CHISHOLM
1943 OK 393
145 P.2d 211
193 Okla. 477
Case Number: 31047
Decided: 11/30/1943
Supreme Court of Oklahoma

MASSMAN CONSTRUCTION CO.
v.
CHISHOLM, Adm'r.

Syllabus

¶0 1. MASTER AND SERVANT--Liability for torts under doctrine of respondeat superior--Requesite proof that relationship of master and servant existed when tort was committed and that tort was committed in course of employment.
Where it is sought to hold one person responsible under the doctrine of respondeat superior for the torts committed by another, it must be made to appear by competent evidence that the relationship of principal and agent or that of master and servant existed between the two at the time the tort was committed, and, in addition that the tortious act complained of was committed in the course of the employment of the servant.
2. SAME.
The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist at the time and in respect to the very transaction out of which the injury arose.
3. SAME--Evidence held insufficient to support recovery.
Evidence examined, and held insufficient to support recovery under the doctrine of respondeat superior.

Appeal from District Court, Mayes County; N. B. Johnson, Judge.

Action by Donald Chisholm, administrator of the estate of Buck B. Bassham, against the Massman Construction Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bridges, Parry & Krueger, of Tulsa, for plaintiff in error.
Earl Boyd Pierce and R. M. Mountcastle, both of Muskogee, and Harve N. Langley, of Pryor, for defendant in error.

DAVISON, J.

¶1 This is a companion case to No. 30553, Massman Construction Company v. Donald Chisholm, as Administrator of the Estate of Buck B. Bassham, Deceased, 193 Okla. 473, 145 P.2d 207, this day decided. The parties are the same. Here in a trial to a jury judgment was rendered on the verdict for $5,377.67 for pain and suffering of the deceased after the injury and prior to death.

¶2 The questions in this case include the same questions as were decided adversely to the plaintiff (defendant in error) in the companion case. There is no essential difference in this evidence and the relative importance thereof.

¶3 Our decision in that case governs the disposition of this appeal.

¶4 There are certain additional questions herein presented which need not be discussed since the insufficiency of the evidence on the point discussed in cause No. 30553, supra, requires that the judgment herein rendered be set aside and the cause remanded to the trial court for further proceedings not inconsistent with the views expressed.

¶5 Reversed and remanded.

¶6 CORN, C.J., and OSBORN, WELCH, and HURST, JJ., concur. GIBSON, V.C.J., and RILEY, BAYLESS, and ARNOLD, JJ., dissent.