This Court has repeatedly stated that when passing on a motion for directed verdict or a demurrer to the evidence the trial court should consider as true all the evidence favorable to the party against whom the demurrer or motion is directed, together with all inferences reasonably to be drawn therefrom, and should disregard all conflicting evidence favorable to the demurrant or person moving for a directed verdict. Hampton v. Danks, Okla., 387 P.2d 609 (1964); Sisler v. Whitten, Okla., 393 P.2d 497 (1964); Price v. Smith, Okla., 373 P.2d 242 (1962); Chuck's Bar v. Wallace, 198 Okla. 152, 176 P.2d 484 (1947). In Allied Reserve Life Ins. Co. v. Cunningham, Okla., 355 P.2d 564 (1960), Syllabus 4, this Court held:
It is true that the liability of the employer for damages resulting from injuries suffered by an invitee when assaulted by an employee or agent while upon the employer's premises has been clearly recognized by this Court. Chuck's Bar v. Wallace, 198 Okla. 152, 176 P.2d 484; Ada-Konawa Bridge Co. v. Cargo, 163 Okla. 122, 21 P.2d 1. It is equally true that the employer is not liable to third person not an invitee upon its premises for the tortious act of its employee or agent unless it is shown that such employee or agent was acting within the scope of his employment, and that the act complained of was done as a means of carrying out the job assigned to him by the employer.
It is the contention of the defendant that the court was correct in sustaining the demurrer as to Rushing on the theory that the plaintiff having failed in his proof of a conspiracy his cause of action was demurrable by all defendants. In support of his contention on the above proposition plaintiff cites, Teeters v. Frost, 145 Okla. 273, 292 P. 356, 71 A.L.R. 179; Colby v. McClendon, 85 Okla. 293, 206 P. 207, 30 A.L.R. 196; Chuck's Bar v. Wallace, 198 Okla. 152, 176 P.2d 484; Perrine v. Hanacik, 40 Okla. 359, 138 P. 148, 51 L.R.A., N.S., 718 and other cases pertaining to the same point of law. We find no fault with the decisions of any of the above cited cases, but think they are not in point for a decision of the present case.
In propositions one and four defendant argues that he had a right to use reasonable force in clearing his establishment of an unruly person. Defendant cites Chuck's Bar v. Wallace, 198 Okla. 152, 176 P.2d 484, 485. Therein the court affirmed a judgment for plaintiff who was injured in a fight in a tavern. The statement as to the rights and duties of the tavern owner was made in approving an instruction on agency.
In such instances it is not error to refuse a special requested instruction. Jones v. Spicer's Inc., 197 Okla. 574, 173 P.2d 421; Chuck's Bar v. Wallace, 198 Okla. 152, 176 P.2d 484. Defendant's last contention is that the trial court erred in charging the jury as follows:
As Professor Mechem states, if one is employed as a bouncer in a saloon, it is to be expected that one will use such means as are necessary to bounce an unruly customer. It is a job calling more for force than finesse; if a jury finds that more force was used than the situation quite warranted, and so a tort was committed, it seems neither unlikely nor unreasonable that such a happening will be considered one of the risks of the saloon business and that the tort, though useful, will be treated as committed in the course of employment. F. Mechem, Outlines of Agency, § 396 at 266-267 (4th ed. 1952); Stewart v. Reutler, 32 Cal.App.2d 195, 89 P.2d 402 (1939); Chuck's Bar v. Wallace, 198 Okl. 152, 176 P.2d 484 (1946). There are numerous decisions so holding. See cases collected in 34 A.L.R.2d, supra at 415.
(See, e.g., Wallace v. Smith (1979), 75 Ill. App.3d 739, 748, 394 N.E.2d 665; Bonnem v. Harrison.) Other jurisdictions which have considered a dramshop keeper's respondeat superior liability for a bartender's or bouncer's assault on a patron have not precluded liability merely because the force used was unnecessary and excessive since under such circumstances, the use of even excessive force may be anticipated. (See, e.g., Davis v. DelRosso (1977), 371 Mass. 768, 359 N.E.2d 313; Monk v. Veillon (La. App. 1975), 312 So.2d 377; Maddex v. Ricca; Novick v. Gouldsberry (9th Cir. 1949), 173 F.2d 496; Chuck's Bar v. Wallace (1946), 198 Okla. 152, 176 P.2d 484. See also Restatement (Second) of Agency § 245, comment i (1958).