Baker v. Strawn v. Magnolia Petroleum Co.

The original opinion affirming the judgment of the trial court was rendered in this case on March 2, 1926. Plaintiff in error filed its petition for rehearing and complained of the opinion on the ground that it failed to construe or express an opinion on sections 3849 and 3850, Comp. Stat. 1921, which it contended it relied on as controlling in the trial of the case. Upon consideration of this petition a rehearing has been granted, not for the purpose of changing the opinion, but for the purpose of construing the statute and adding same to the opinion.

The trial court, in its charge to the jury, read these two sections of the statute as the law of the case. Defendant, Magnolia Petroleum Company, excepted to this paragraph, as well as other paragraphs, of the instructions, and contended that these sections of the statute had no application to the facts stated in plaintiff's petition. If these sections are applicable to the facts stated in the petition, plaintiff was entitled to base its action on them and have the question of damages passed on by the jury, as was done, and it was the jury's province to determine how much damages, if any, should be awarded under the evidence and instructions given. Since the opinion affirms the judgment of the trial court, granting a new trial, the cause will probably have to be tried again, and both parties, in their briefs, have requested that we pass on the question as to whether or not these sections of the statute are applicable to the facts stated by plaintiff in its petition. They were drawn into the controversy of the first trial, and will, no doubt, be drawn into it at the trial a new, and it is thought their meaning should receive our attention at this time in view of the new trial.

If they are applicable, plaintiff has a case for damages to be tried, and if not applicable he has not.

These two sections were passed by the first Legislature of the Territory of Oklahoma in 1890. The first section declares against, first, willfully, negligently, and carelessly starting or causing to be set on fire any woods, marsh, or prairie; second, making a campfire or other fire, and leaving it without having thoroughly extinguished the same so that the fire shall spread and burn any wood, marsh, or prairie. These acts were made a misdemeanor and penalty fixed in a sum not exceeding $200, and a jail sentence of not more than one year, and the section further provides liability for damages in a civil action to any person damaged by such fire. The second section provides that where the fire described in the first section injures or destroys "the ranch, buildings, improvements, fencing, timber, marsh, or any other property of any person," the person causing the fire shall be responsible to the person so injured for all damages. It further provides that when such fire injures or destroys a cattle ranch, or improvements, or hay upon such ranch, or grass growing thereon, the person causing the fire shall respond in damages to the person injured.

The purpose of this statute was to prevent carelessness in the use of fire and destruction of property in the Territory of Oklahoma in country life. Besides the items of property specified, it uses the language "or other property of any person," making its meaning broad enough to include all sorts of personal property, as well as property attached to real estate subject to injury or destruction by fire, and when brought over and made part of the laws of the state in 1908, it is broad enough to include all sorts of personal property and property attached to real estate, subject to injury or destruction by fire, whether the said property is situated on land where the fire was started or on adjoining land. It was certainly not the intention of the lawmakers to limit the provisions of the statute to the particular property in existence on the date and in the year it was passed, but it must have been the intention to extend these provisions to any property subject to injury or destruction by fire connected with rural or farm life, whether in existence then or to come into existence thereafter.

The property subject to injury or destruction is described in connection with the words "any woods, marsh, prairie, or ranch," and we think, from the language used, it was the intention of the Legislature that the property meant to be included in the property subject to injury or destruction by the careless use of fire was such property as is located on and used in rural life as distinguished from property owned and used in urban life.

Under the general rule, where the statute is expressed in general terms and in words of the present tense, it will be construed to apply not only to things and conditions existing at the time of its passage, but it will be also given a prospective interpretation, by which it will apply to such things and conditions as come into existence thereafter. This seems to have been plaintiff's theory in bringing its action. The property destroyed by fire was oil well property and unknown to Oklahoma Territory at the time the statute was passed, but we may say it was property in prospect, that came into existence in the development of the country and after statehood. Plaintiff cites many authorities to support this construction: Newman v. Arthur, 109 U.S. 132, 27 L.Ed. 883; Pickhardt v. Merritt, 33 L.Ed. 355; Hedden v. Robertson. 38 L.Ed. 258; United States v. Einstein, 78 Fed. 798; Territory v. Jones (N.M.) 99 P. 338, 20 L. R. A. (N. S.) 239; People ex rel. McClelland v. Roberts (N.Y.) 42 N.E. 1082, 31 L. R. A. 399; Schus v. Powers-Simpson Co. (Minn.) 89 N.W. 68, 69 L. R. A. 887; Wall v. Platt (Mass.) 48 N.E. 270; 2 R. C. L. 1168, par. 3; Commonwealth v. Maxwell et al. 271 Pa. 378, 114 A. 825. 16 Am. L. R. 1134; Buckannan v. State. (Tex. Cr.) 252 S.W. 510, 25 R. C. L. 778, par. 24.

We think these authorities are sufficient to support plaintiff's contention that sections 3849 and 3850. Compiled Statutes 1921, are applicable to the facts alleged in its petition and authorize the action for damages.

The trial of the case anew should be in accord with these views, and with this construction of the statute added to the opinion written by Commissioner Ruth, the judgment of the trial court is affirmed.

By the Court: It is so ordered.