3 Okla LRev 172

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Henry H. Foster Jr. & W. Page Keeton, Liability without Fault in Oklahoma, 3 OKLA. L.
REV. 172 (1950).
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Foster, H.; Keeton, W. ., Liability without fault in oklahoma, 3(2) Okla. L. Rev. 172
(1950).
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Foster, H., & Keeton, W. (1950). Liability without fault in oklahoma. Oklahoma Law
Review, 3(2), 172-216.
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Henry H. Foster Jr.; W. Page Keeton, "Liability without Fault in Oklahoma," Oklahoma
Law Review 3, no. 2 (May 1950): 172-216
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Henry H Foster Jr & W Page Keeton, "Liability without Fault in Oklahoma" (1950) 3:2
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LIABILITY WITHOUT FAULT IN
OKLAHOMA (Continued) *
HENRy H. FOSTER, JR..t AND W. PAGE KEETON$
Consideration has been given in the first installment of this article to

the jurisprudential basis for liability without fault, to the postulates
and factors which occasion delictual accountability, to the classic ex-
amples of such liability, and the circumstances under which the com-
mon law imposed strict liability. In addition to strict liability being
imposed by the common law, constitutional or statutory provisions may
effect that result. In the discussion which follows an attempt will be
made to analyze the situations where the Oklahoma Constitution or
statutes impel liability without fault, to examine responsibility for the
escape of dangerous substances, and to ascertain the significance of eco-
nomic factors and the extent to which they have encroached upon the
domain of liability based upon fault.
2. Strict Liability Imposed by the Constitution.Perhaps the most im-

portant and far reaching example of liability without fault to be found in
the Oklahoma cases is that involved in the application of Art. II, Sections
23 and 24 of the Bill of Rights of the Oklahoma Constitution. In a number
of the cases which have been discussed previously, liability was based in
part upon these sections of the Constitution. 0 The sections are frequently
relied upon in nuisance cases.2 69 To date the Oklahoma court has not given
any clear-cut indication of the scope of, nor the limitations upon, the use of
these sections, and it is difficult to deduce any settled conclusions from the
cases. Consequently, the following discussion is to a large extent specu-
lative.
Section 23 pertains to the taking or damaging of private property for
' The first installment of this article appeared at 3 O LA. L. REv. 1 (1950).
t Professor of Law, University of Oklahoma. A.B. 1933, LL.B. curn laude 1936, Univer-
sity of Nebraska; LL.M. 1941, Harvard.
1:Dean and Professor of Law, University of Texas. A.B., LL.B. 1931, University of Texas;
S.J.D. 1936, Harvard. Formerly Dean and Professor of Law, University of Oklahoma.
268 St. Louis & S. F. Ry. v. Matthews, 174 Okla. 167, 49 P.2d 752 (1935) ; Oklahoma
City v. Vetter, 72 Okla. 196, 179 Pac. 473 (1919) ; City of Muskogee v. Hancock, 58 Okla. 1,
158 Pac. 622 (1916); E. I. Du Pont de Nemours Powder Co. v. Dodson, 49 Okla. 58, 150 Pac.
1085 (1915).
260 Ibid.
1950] LIABILITY WITHOUT FAULT
private use and reads in part: "No private property shall be taken or dam-
aged for private use, with or without compensation, unless by the consent
of the owner.....2o An exception is made in the case of "private ways of
necessity, or for drains and ditches across lands of others for agricultural,
mining, or sanitary purposes, in such manner as may be prescribed by.
27
law., '1
Section 24 is an eminent domain provision and specifies that "private
property shall not be taken or damaged for public use without just com-
pensation ...." and provides for procedure to determine "just" compen-
272
sation."
Consideration first will be given to Section 23 and thereafter to Sec-
tion 24. The Oklahoma court has applied Section 23 to various types of
situations. It pertains in cases involving property damage resulting from
270 OKLA. CONST. Art. II, § 23. The following state constitutional provisions expressly
inhibit the taking or damaging of private property for private use, with specified exceptions:
ARIz. CoNsT. Art. 11, § 17; CoLo. CoNsT. Art. II, § 1s; IL. CoNsT. Art. II, § 13; Mo. Co_sT.
Art. I, §§ 26-28; WAsH. CONST. Art. I, § 16; Wyo. CoNsT. Art. I, §§ 32, 33.
In the absence of a constitutional provision it was generally held that the damaging of
neighboring property was damnum absque injuriawhen property was appropriated for public
use or specifically authorized private use. As long as the damaging did not constitute a "taking"
and oust him from the possession of the land or deprive him of its beneficial use, no recovery
could be had. See NICHOLS, THE LAw oF EminENT DomAiN § 108 (1917). Various interpre-
tations have been given to what type of damage is comprehended within the term "damaged for
public use." It is generally conceded that it does not apply to the personal convenience or
annoyance of the occupant of property or to injury to his business, but only to injury to prop-
erty, but the precise kind of injury to property to which the constitutional provision extended
has been the subject of much discussion. Some states have held that it applied only to direct
physical injury to the property, others treat it as extending the existing right to recover damages
to remaining land when part of a tract is taken to similar cases where no property was taken
and hold that any public use of land which causes an actual ascertainable depreciation of the
present market value of neighboring land is "damage" in the constitutional sense. In most juris-
dictions this latter definition has been rejected as too broad, and compensation has been denied
for injuries which have undoubtedly had a depreciating effect upon present market value if they
failed to fall within some narrower definition of damage. English cases have defined such
damage to include only such injuries as would be actionable at common law if inflicted without
statutory authority. The Supreme Court of Illinois in Rigney v. Chicago, 102 II. 64 (1881),
evolved the definition of damage in the constitutional sense that has been adopted in almost
all the states which require compensation when property is damaged, and held that compensa-
tion is required not only when there is an injury which would be actionable at common law,
but also in all cases in which it ;ppears that there has been some physical disturbance of a
right, either public or private, which the owner of a parcel of land enjoys in connection with
his property and which gives to it an additional value, and where by reason of such disturbance
he has sustained a special damage with respect to his property in excess of that sustained by
the public generally. NICHOLS, TnE LAw oF EamnNr DomAix § 312 (1917).
271 Ibid.
272 OKLA. CoNsT. Art. II, § 24.
OKLAHOMA LAW REVIEW [Vol. 3:172
nuisance or trespass 2 73 and to damage consisting of depreciation in the

market value of the plaintiff's property. 4 It has also been put to question-
able and unprecedented use in cases involving some business interest of the
plaintiff as distinguished from his interest in real property or the normal
incidents of ownership thereof.2 7' Application of the provision properly
has been denied in other cases not involving any interest in real property
270
or the rights and incidents of its ownership.
The cases in which Section 23 has been applied indicate that the term
"private property" at times has been given as broad an interpretation under
this constitutional provision as under the due process clause.27 7 It would
seem that in a few cases the court has carried over the due process concep-
273 British-American Oil Producing Co. v. McClain, 191 Okla. 40, 126 P.2d 530 (1942)
and Fairfax Oil Co. v. Bolinger, 186 Okla. 20, 97 P.2d 574 (1939) (nuisance from oil drilling
operations that caused vibrations) ; Phillips Petroleum Co. v. Vandergriff, 190 Okla. 280, 122
P.2d 1020 (1942) (nuisance from gas booster station causing vibrations) ; Tibbets & Pleasant,
Inc. v. Benedict, 128 Okla. 106, 261 Pac. 551 (1927) (nuisance from blasting) ; Ponca City v.
Drummond, 94 Okla. 138, 221 Pac. 466 (1923) (assignment of sewer easement without owner's
consent) ; Oklahoma City v. Hoke, 75 Okla. 211, 183 Pac. 692 (1919) (nuisance from construc-
tion of dam which caused plaintiff's property to be flooded); E. I. Du Pont de Nemours Powder
Co. v. Dodson, 49 Okla. 58, 150 Pac. 1085 (1915) (nuisance from construction of powder
magazine).
274 Binding-Stevens Seed Co. v. Local Bldg. & Loan Ass'n, 172 Okla. 390, 45 P.2d 132
(1935) (impairment of mortgagee's security due to construction of viaduct near mortgaged
property).
275 Ex parte Tomlinson, 54 Okla.Cr. 367, 22 P.2d 398 (1933) (plaintiff's business inter-
fered with by city ordinance which required police permission for emergency calls by ambu-
lance) ; Choctaw Pressed Brick Co. v. Townsend, 108 Okla. 235, 236 Pac. 46 (1925) (unfair
competition with plaintiff's business due to selling of convict-made goods without label re-
quired by law) ; Pioneer Telephone & Telegraph Co. v. State, 77 Okla. 216, 186 Pac. 934 (1920)
(corporation commission order requiring connecting service with competitor).
276 Harmon v. Okla. Tax Comm'n, 189 Okla. 475, 118 P.2d 205 (1941) (community
property act) ; Croxton v. State, 186 Okla. 249, 97 P.2d 11 (1939) (order of corporation com-
mission under well spacing act); Patterson v. Stanolind Oil & Gas Co., 182 Okla. 155, 77 P.2d
83 (1938) (unitization law); Russell Petroleum Co. v. Walker, 160 Okla. 156, 15 P.2d 125
(1932) and Russell v. Walker, 160 Okla. 145, 15 P.2d 114 (1932) (oil conservation statute) ;
Bilby v. District Court, 159 Okla. 268, 15 P.2d 38 (1932) (alleged improper use of state highway
funds for primary benefit of city); Carson v. Oklahoma Dredging Co., 152 Okla. 147, 4 P.2d 71
(1931) (damage from construction of drainage ditch--expressly excluded by terms of Section
23) ; Gibbons v. Missouri, K. & T. R. R., 142 Okla. 146, 285 Pac. 1040 (1930) (statute author-
izing highway commission to order removal of obstructions at railroad crossings) ; Ex parte
Tindall, 102 Okla. 192, 229 Pac. 125 (1924) (habeas corpus proceeding brought by person
charged with having violated order of corporation commission) ; State v. Norman, 86 Okla.
36, 206 Pac. 522 (1922) (contention that bank guaranty law took private property of deposi-
tors without compensation); Missouri, 0. & G. Ry. v. State, 29 Okla. 640, 119 Pac. 117 (1911)
(railway commission order to operate joint depot); Noble State Bank v. Haskell, 22 Okla.
48, 97 Pac. 590 (1908), aff'd 219 U.S. 104, 31 Sup.Ct. 186, 55 L.Ed. 112 (1911), amended
219 U.S. 575, 31 Sup.Ct. 299, 55 L.Ed. 341 (1911).
277 OXIA. CONST. Art. II, § 7: "No person shall be deprived of life, liberty, or property,
without due process of law."
1950] LIABILITY WITHOUT FAULT 175
tion of "property" as including any right of substance, tangible or intan-
gible.278 It is to be doubted whether "private property" as used in Section
23 was intended to be so loosely construed. Section 23 is in juxtaposition
with the eminent domain provision of the Oklahoma Constitution. As a
matter of reasonable interpretation, "private property" would seem to in-
clude the normal incidents of ownership, such as the right to exclusive
possession, protected by the law of trespass, and the right to use and en-
joyment, protected by the law of nuisance, but not to embrace all of the
vague and intangible rights of substance protected by the due process
clause. Other states have so construed similar constitutional provisions.
Moreover, the cases in which Section 23 has been held to apply to such
"property" interests as the right to be free from the illegal competition of
convict labor, 279 or not to be unreasonably restricted in the carrying on of a
legitimate business, 2 0 or not to be forced to provide facilities for a com-
petitor,"' are all cases in which the due process clause alone was a sufficient
basis to strike down an unreasonable exercise of governmental authority
and the questionable application of Section 23 was wholly unnecessary
and redundant. In each of these cases the court also held that there had
been a violation of the due process clause. In each of the cases where Sec-
tion 23 was held inapplicable and not violated, it was also held that there
had been no infringement of the due process clause 8 2 and that the particu-
lar statute on regulation was within the police power of the state. Thus it
would seem that Section 23 is an unnecessary auxiliary in such cases and
that its subordinate role is superfluous.
If the Oklahoma court would interpret Section 23 as similar constitu-
tional provisions have been construed in other states, protection would be
limited to the owner's interest in being free from physical invasion of his
property and his interest in its use and enjoyment, and hence application
of the provision would be more understandable and certain. This would
mean that Section 23 would be relevant in proper cases involving trespass
or nuisance. Since the bulk of the cases where the provision has been used
have involved those torts, and since the court has frequently construed Sec-
tion 23 and the eminent domain provision of Section 24 together, such an
interpretation would appear logical. The use of the phrases "taken or dam-
aged" and "with or without compensation" also indicates that the "private
property" referred to is an interest in real property including the normal
incidents of its ownership.
27 8
ROTTSCBHAErER, CONSTITUTIONA. LAW §§ 244-246 (1939).
270 Choctaw Pressed Brick Co. v. Townsend, 108 Okla. 235, 236 Pac. 46 (1925).
2 80
Ex parte Tomlinson, 54 Okla.Cr. 367, 22 P.2d 398 (1933).
281 Pioneer Telephone & Telegraph Co. v. State, 77 Okla. 216, 186 Pac. 934 (1920).
282 See cases cited supra note 276.
The use of the phrase "private use" in Section 23 also indicates that
the section has reference to real property, and is intended to supplement
the eminent domain provision of Section 24. The proviso pertaining to
"private ways of necessity, or for drains and ditches across the lands of
others for agricultural, mining, or sanitary purposes," probably is intended
to confer the right of condemnation for purposes closely connected with the
public interest and in the furtherance of a 'quasi public use.288 The due
process clause of the Fourteenth Amendment of the Federal Constitution
and the due process clause of the Oklahoma Constitution inhibit the appro-
priation of private property except for purposes which are of a public char-
acter. 14 The use of the word "private" in the phrase probably does not
mean a strictly private use, i.e., one having no relation to the public interest,
but instead means a use analagous to those specified under the eminent
domain provisions.2 85 Although the cases suggest no such limitation, it may
well be that it was intended that application of Section 23 be confined to
situations where damage is occasioned during the exercise of a private use
analagous to eminent domain and not to apply under other circumstances
where no such power is being utilized.
The Oklahoma court has assumed that its construction of the mean-
ing and intent of Section 24 also applies to Section 23. Since the history of
Section 24 demonstrates an intention that compensation should be awarded
for consequential damage irrespective of negligence, the same intent has
been inferred as to Section 23.286 In other words the two sections have been
construed together in so far as concerns liability without fault, and the
meaning of "damaged." Since, as we have seen, the two sections to some
extent supplement one another, the same construction as to the word "dam-
aged," and the interpretation that fault is not an essential under either
section, was to be expected. But over and beyond this, the Oklahoma court's
interpretation of Section 24 has given some indication that it is sufficient
for the plaintiff's action that there is causation in fact, and hence an acci-
283 See Pine Martin Min. Co. v. Empire Zinc Co., 90 Colo. 529, 11 P.2d 221 (1932).
284 Madisonville Traction Co. v. Saint Bernard Min. Co., 196 U.S. 239, 25 Sup.Ct. 251,
49 L.Ed. 462 (1905).
285 Clark v. Nash, 198 U.S. 361, 25 Sup.Ct. 676, 49 L.Ed. 1085 (1905).
286 For a discussion of the history of the eminent domain provision, see Oklahoma City
v. Collins-Dietz-Morris Co., 183 Okla. 264, 79 P.2d 791 (1938); Arkansas Valley & W. R. R.
v. Witt, 19 Okla. 262, 91 Pac. 897 (1907) ; and Blincoe v. Choctaw, 0. & W. R. R., 16 Okla. 286,
83 Pac. 903 (1905). Apparently Section 24 in the Oklahoma Constitution and the language
that property "shall not be taken or damaged" (emphasis supplied) is derived from the Consti-
tution of Illinois, which was amended in 1870 to afford relief when there had not been a non-
negligent "taking." Brown v. Seattle, 5 Wash. 35, 31 Pac. 313 (1892), dissenting opinion 32
Pac. 214 (1893), construes a similar provision in the Washington Constitution as the Oklahoma
court interprets Section 24, and Pueblo v. Strait, 20 Colo. 13, 36 Pac. 789 (1894) is in accord
as to the Colorado Constitution.
dental invasion is actionable. Such an interpretation conceivably may be
justified in the case of Section 24 upon the ground that it is part of the
price to be paid for the privilege of exercising eminent domain. But in the
case of Section 23, where no general power of eminent domain is involved,
it does not comport with reason or fairness to impose liability for accidental
invasions. In the case of Section 23, although it may be reasonable to inter-
pret the provision as imposing strict liability for damage occasioned by
ultrahazardous activity, it would seem that it is neither necessary nor
proper to impose liability for accidental invasions merely because of the
construction of Section 24 and the propinquity of the two sections.
As has been stated, the most frequent use of Section 23 has been in
conjunction with cases involving nuisance. When the provision is germane,
no inquiry is made as to fault and the defendant has been held liable irre-
spective of negligence. 8 Furthermore, the cases have made but little effort
to analyze the nature of the defendant's conduct. It is clear, however, that
it need be neither intentional nor negligent, and that strict liability may be
imposed where an ultrahazardous activity occasions harm. 88 Although
no case has squarely passed upon the point, it would seem that Section 23
should not be applicable to a purely accidental invasion2 9 To hold other-
wise truly would be to make the defendant an insurer and to revert to the
stringent liability imposed by the early common law. Such a result would
be unfortunate and foreign to current notions as to the proper basis for
tort liability.
In FairfaxOil Co. v. Bolinger' ° the plaintiff sued for damages to the
walls of her house occasioned by vibrations from the drilling operations of
the defendant upon the adjoining premises. It was alleged that the drilling
operations constituted both a nuisance and a violation of Section 23. The
defendant contended that its operation could not be a nuisance because the
property where the operations were being carried on was zoned for drilling
by a valid city ordinance and there was, therefore, a statutory privilege, 91
and that unless the plaintiff established actionable negligence, she could not
recover. The court rejected the defendant's argument and held for the
plaintiff on the ground that Section 23 precluded the legalization of a
nuisance which in fact did substantial damage to the property of another.
The court reasoned that although the valid zoning ordinance might prevent
288 Ibid.
289 See Larkins-Warr Trust v. Watchorn Petroleum Co., 198 Okla. 12, 174 P.2d 589
(1946).
290 186 Okla. 20, 97 P.2d 574 (1939).
291 50 O LA. STAT. § 4 (1941) provides: "Nothing which is done or maintained under
express authority of a statute can be deemed a nuisance."
the defendant's operation from being a nuisance per se, it afforded no pro-
tection when there was a nuisance in fact due to the actual damage inflicted
upon the plaintiff and that "such is the purpose and effect of Section 23,
article 2, of the Constitution." The fact that no negligence was established
on the part of the defendant was held immaterial. Upon the basis of nui-
sance and Section 23, the court imposed liability without fault. It may be
noted that the defendant's conduct was both ultrahazardous and intentional
in the sense that the drilling was continued after the defendant had knowl-
edge of the harm occasioned to the plaintiff.
In Phillips Petroleum Co. v. Vandergriff292 the defendant was held
liable for damage from vibrations that were caused in part by the operation
of its casinghead gas booster station, which was used for pumping natural
gas and other petroleum products through its pipe line. The booster sta-
tion was located just outside the city limits and three blocks from the plain-
tiff's property. The defendant produced evidence to show that an ice plant,
oil wells, and other booster stations operated by other companies also
emitted vibrations and contributed to the plaintiff's damage. The court
held that the defendant, as a joint tortfeasor, was responsible for the entire
result even if others contributed to the injury. The defendant cited Gulf
Pipe Line Co. v. Sims 293 and contended that it was not liable in the absence
of proof of negligence. The court held that the Sims case had no applica-
tion and in referring to that decision said, "that was an action for personal
injuries in which provisions of Section 23, article 2, of the Constitution were
in no wise involved." The court announced the rule that "where the facts
show that a lawful business is being conducted in such a manner as to con-
stitute a private nuisance causing substantial injury to property, the ag-
'2 4
grieved party may recover compensation.
If the Sims case is allowed to stand, an invidious distinction is made
between property damage and personal injuries. Under Section 23, a prop-
erty owner.may be permitted to recover for physical damage to his prop-
erty or for any impairment of its enjoyment, 29 ' but where the same type of
activity causes personal injuries, no matter how aggravated, the plaintiff
must suffer his loss unless he can establish negligence. The court tends to
call the activity a nuisance if property damage is involved, overlooking
that it is the ultrahazardous character of the condition or activity that gives
rise to liability, and yet it ignores the true basis for liability when the same
hazard results in damage to the plaintiff's person. It is the ultrahazardous
292 190 Okla. 280, 122 P.2d 1020 (1942).
293 168 Okla. 209, 32 P.2d 902 (1934).
294 See syllabus by the court, 190 Okla. 280, 122 P.2d 1020 (1942).
295 British-American Oil Producing Co. v. McClain, 191 Okla. 40, 126 P.2d 530 (1942).
nature of the activity that makes it a nuisance and justifies the application
of Section 23. The ultrahazardous nature of the activity also justifies the
imposition of liability without fault when damage is to the person rather
than to property. The underlying principles are the same in each instance.
Just because it is thought that Section 23 compels that result in the case
of property damage does not mean that it is inequitable to impose strict
liability in the case of personal injuries. It is grossly unjust to refuse in
proper cases to impose strict liability because the case does not come within
Section 23. If liability today is to depend upon the nature of the defend-
ant's conduct it is desirable that consistent treatment be accorded to the
same type of conduct, regardless of whether the damages are to the person
or property. A rule of law which imposes strict liability as to property
damage but not as to personal injuries, where the circumstances are the
same, has little to recommend it."' It is suggested that the considerations
of policy which make it fair to impose strict liability as to property damage
have equal force when personal injuries are involved, and the language of
the Sims case, because it results in a palpably unfair distinction, should
be overruled unequivocally.
Still another Oklahoma case involved damage to a property owner
occasioned by vibrations. In British-AmericanOil Producing Co. v. Mc-
Clah20 7 drilling operations by the defendant both damaged the plaintiff's
property and caused annoyance and inconvenience. The defendant con-
tended that it was not liable unless the plaintiff established negligence or
a nuisance. The court held that the defendant was liable for the damage
to the house and for interference with its enjoyment. The court said, "But
our constitution has modified the common law.... In a case of this character
the use need not be of a careless or negligent nature, or unreasonable or
unwarrantable, to entitle the injured party to recover.. ." The court in
holding that damages might be awarded for annoyance and inconvenience
stated that a "substantial interference with the free use and enjoyment of
premises constitutes not only damages to the property but amounts to a
taking of the same," and that "private property" is not limited to a tangible
subject matter or corpus but also includes the right to the use and enjoy-
ment thereof. 9 s There is an intimation that the defendant's conduct need
not amount to a nuisance in order for the plaintiff to recover upon the basis
of Section 23. The court may mean that what it terms a nuisance in fact.
2 00
PROSSER, TORTS 77-78 (1941).
207191 Okla. 40, 126 P.2d 530 (1942).
298 Note that in essence it is a personal right that is being protected here, i.e., the mental
repose of the plaintiff. If the language of the Sims case is upheld, the result is not only a dis-
tinction between property damage and personal injuries, but also between different kinds of
personal injuries.
as distinguished from a nuisance per se, will result in liability, or it may
mean that the ultrahazardous nature of the activity is sufficient for liability
even if it is not technically a nuisance according to its use of the term. It
is not indicated that the court meant that the plaintiff could recover for an
accidental invasion as such.
As a practical matter it may not make much difference as to which
particular theory of liability the plaintiff chooses to use. Regardless of
whether strict liability, Section 23, nuisance, or even negligence, is the basis
for his suit, the result may be the same. For example, in Wood Oil Co. v.
Washington, 99 the suit was based at least nominally upon negligence and
Section 23. Nuisance and strict liability were not mentioned by the court.
But the decision contains no discussion of negligence either, the sole in-
quiry being as to cause in fact and as to whether circumstantial evidence
might support the jury's finding for the plaintiff. The fact situation was
that plaintiff sued for damage to her house caused by the shooting of a
nearby oil well by the defendant, and for damage to her garden caused
by the oil spraying from the defendant's well. The evidence was conflicting
as to whether the defendant shot its well at the time the damage occurred,
but the court held that it was reasonable for the jury to conclude that it did
regardless of the company's evidence to the contrary. Nothing was said
about due care, whether ordinary precautions had been taken, and whether
harm to the plaintiff was foreseeable. The language of the decision is such
that reasonably it may be inferred that what the court was interested in
was causation rather than negligence. Of course the duty of due care may
be so great that it approximates strict liability."' It would also seem that
Section 23 could have been relied upon by the plaintiff and would have
given greater assurance of recovery.
Damage occasioned by blasting has also been included within the scope
of Section 23. In Tibbets & Pleasant, Inc. v. Benedict 0 ' the defendant
contractor was excavating for a city sewer and using explosives. The trial
court instructed the jury that the plaintiff could not recover in the absence
of negligence. Upon appeal the case was reversed for error in the instruc-
tion, the court holding that negligence need not be shown and citing City
of Muskogee v. Hancock"0 2 with approval.
290 199 Okla. 115, 184 P.2d 116 (1947).
300 Green v. General Petroleum Corp., 205 Cal. 328, 270 Pac. 952, 60 A.L.R. 475 (1928),
noted in 17 CArIF. L. REv. 188 (1929); 27 Mcr. L. Rav. 351 (1929); 13 MImN. L. Rav. 520
(1929); 10 OaE. L. REv. 192 (1931); 2 So. CA~ia. L. REv. 90 (1928), is the leading case which
follows Rylands v. Fletcher and imposes strict liability in such cases.
301 128 Okla. 106, 261 Pac. 551 (1927) (both sections 23 and 24 held applicable).
302 58 Okla. 1, 158 Pac. 622 (1916). E. I. Du Pont de Nemours Powder Co. v. Dodson,
49 Olda. 58, 150 Pac. 1085 (1915) is in accord.
The only decision of the Oklahoma court which at first blush may
seem to be inconsistent with this line of cases imposing strict liability for
property damage under Section 23, is the case of Larkins-Warr Trust v.
Watchorn Petroleum Co.3 0 3 In that case both the plaintiff and the defend-
ants operated oil wells some 200 feet apart, each producing from the same
sand at about the same depth. Trouble developed in the defendant's well
and in operations to remedy that situation, large quantities of water from an
upper stratum went into the Well and down into the oil bearing sand threat-
ening injury to the sand. Later the defendants were forced to plug their
well and introduced into the oil bearing sand at the bottom of their well
several foreign substances that eventually sealed it. The plaintiff alleged
that the water admitted to the oil bearing sand flooded his well and it was
only after considerable time and expense that he could resume production.
The defendants did not deny that their efforts to save their well caused the
water to do damage to the plaintiff's well. The plaintiff also claimed that the
defendant's efforts to block off and seal its well did additional damage,
which the defendants denied. The jury found that the defendants had not
been negligent and the trial court held that Section 23 had no application.
Upon appeal the judgment for the defendants was affirmed.
The court in the Watchorn case held that the defendant's only duty
to the plaintiff was to use every means a prudent operator would adopt to
stop the flow of water and to avoid injuring the plaintiff. In addition the
court pointed out that the defendants entered into the performance of a
duty thrust upon them and that it could not be said that anything they did
was deliberately done with the intent to injure the plaintiff's property or
that it was done indifferently. In other words the defendants' conduct was
neither intentional nor negligent. The court then said "as we understand
the defendants, they do not minimize the obligation upon them, but they
do insist that in consideration of this and of the participation by plaintiffs
with them in what is recognized as a hazardous business, liability for harm
that touches all of them from the operation of one (not involving negli-
gence) does not attach as insisted by the plaintiffs. ..."
The court, in resting its decision in part upon the last mentioned
ground, recognized that for strict liability to be imposed, the activity must
not only be ultrahazardous but the risks must be one-sided rather than
mutual. Here both the defendant and the plaintiff were engaged in pre-
cisely the same activity. Even though it be regarded as dangerous and apt
to cause harm, despite reasonable precautions, as between them it was a
normal, common hazard. Notwithstanding the language of Section 23,
which does not specify the type of conduct necessary for a "taking or dam-
303 198 Okla. 12, 174 P.2d 589 (1946).
aging" of private property, and the broad general language of its prior
decisions, the court refused to impose liability in a situation where there
was no basis for any of the three traditional grounds for tort liability.
Section 23 was thus limited by the general theory of tort liability and held
not to embrace conduct outside the scope of what is generally regarded as
an actionable delict. The fair inference is that an accidental invasion will
not result in liability under Section 23, and the constitutional provision is
interpreted as fortifying the imposition of liability for intentional or negli-
gent conduct or in proper cases for ultrahazardous activity.
The case also indicates that the defendants may have had a privilege
of necessity due to the emergency which was not of defendants' own choos-
ing.5 04 The court cited Oklahoma City v. Hoke,"'5 which held that under
Section 23 a city was liable for a negligent abatement of a nuisance created
by another, but was not liable in the absence of fault. It would seem that
the court's reliance upon the Hoke case was unfortunate as the two cases
are clearly distinguishable. s°6 The court was upon much firmer ground in
pointing out that strict liability was inapplicable due to the mutuality of
the risk.
The Oklahoma cases indicate that it is difficult to predict when Section
23 will be applied and to ascertain the scope of its operation. However, it
would seem that when the cases are compared and contrasted, a pattern
begins to emerge. It is certain that ultarhazardous activity may result in
liability when Section 23 is found to be apposite. It would seem that the
section should not be applied except in the case of property rights associ-
ated with the ownership of land. It should not be applied to accidental
invasions. If there is neither intentional nor negligent conduct and the basis
for strict liability resulting from ultrahazardous activity is absent, the con-
stitutional provision should not create a new and independent field of tort
liability and in effect make the defendant an insurer regardless of the de-
lictual nature of his conduct. In addition, it may have been intended that
Section 23 should apply only where the defendant is engaged in the exercise
of a power analagous to that of eminent domain, but no cases have so lim-
ited the provision. The cases interpreting Section 23 also show that there is
a broad field of liability without fault in Oklahoma and that such liability
upon the basis of this provision should not preclude its just application
304 In the case of private necessity, however, the one asserting the privilege is liable for
any harm he may occasion, although exercise of the privilege may not be opposed. In the case
of public necessity, in the absence of statute, the privilege is absolute and there is no liability
for damage occasioned. Mitchell v. Oklahoma Cotton Growers Ass'n, 108 Okla. 200, 235 Pac.
597 (1925) ; PROSSER, TORTS § 22 (1941).
305 75 Okla. 211, 182 Pac. 692 (1919).
308 In the Hoke case a third person created the nuisance which the city was privileged
in proper cases not covered by Section 23, and if substantial justice and
consistency is to be achieved it is essential that liability without fault be
recognized where ultrahazardous activities occasion damage.
Section 24, in so far as the "damaging" of private property for "pub-
lic use" is concerned, has been applied to situations similar to those in which
it was held that Section 23 was pertinent. The eminent domain provision
has been held applicable in cases involving explosives, 307 maintenance of a
pesthouse in a residential neighborhood,"0 ' deprivation of access to prop-
erty,30 9 maintenance of a roundhouse and switchyard, 1 ° where an oil burn-
ing locomotive caused vibrations,"' where a sewer project resulted in dam-
age to the plaintiff's premises, 312 and where there is a diversion of water
or change of the natural flow as a result of a highway or other public works
project. 18 In short, property has been held to be damaged under this sec-
tion of the Constitution in cases involving trespass and nuisance. More-
over, negligence is not essential for recovery.314 The damage that is the
basis for recovery under this part of Section 24 may be to the real prop-
316 17
erty,31r to the use and enjoyment thereof, to personal property thereon,
or consist of depreciation of the market value of the property in
question. 18
to abate; in the Watchorn case no nuisance to the defendant was involved, and what was done
was not pursuant to the privilege of abatement, or any privilege at all. If the cases are com-
pared in terms of necessity, in the Hoke case there was public necessity which is absolutely
privileged, except there may be liability for negligence; in the Watchorn case if there was neces-
sity, it was private and there is liability for harm done regardless of fault.
307 Stoweli v. Engeison, 201 P.2d 919 (Okla. 1949); Tibbetts & Pleasant v. Benedict,
128 Okla. 106, 261 Pac. 551 (1927); City of Muskogee v. Hancock, 58 Okla. 1, 158 Pac. 622
(1916).
308 Oklahoma City v. Vetter, 72 Okla. 196, 179 Pac. 473 (1919).
309 Chicago, R. I. & Pac. Ry. v. Jennings, 175 Okla. 524, 53 P.2d 691 (1936); Chicago,
R. I. & Pac. Ry. v. Larwood, 175 Okla. 96, 51 P.2d 508 (1935); City of Tulsa v. Hindman,
128 Okla. 169, 261 Pac. 910 (1927).
310 St. Louis & S. F. R. R. v. Ledbetter, 83 Okla. 78, 200 Pac. 701 (1921).
311 St. Louis & S. F. R. R. v. Matthews, 174 Okla. 167, 49 P.2d 752 (1935).
312 State v. Fletcher, 168 Okla. 538, 34 P.2d 595 (1934); Page v. Oklahoma City, 129
Okla. 28, 263 Pac. 448 (1927).
318 State ex tel. Highway Comm'n v. Horn, 187 Okla. 673, 105 P.2d 416 (1940) ; State
Highway Comm'n v. Adams, 178 Okla. 270, 62 P.2d 1013 (1936); State Highway Comm'n v.
Brixey, 178 Okla. 118, 61 P.2d 1114 (1936), overruling Stedman v. State Highway Comm'n,
174 Okla. 308, 50 P.2d 657 (1935); Hawks v. Walsh, 177 Okla. 564, 61 P.2d 1109 (1936); State
Highway Comm'n v. Smith, 146 Okla. 243, 293 Pac. 1002 (1930).
314 See cases cited supra notes 268-273.
315 St. Louis & S. F. R. R. v. Matthews, 174 Okla. 167, 49 P.2d 752 (1935).
310 St. Louis & S. F. R. R. v. Ledbetter, 83 Okla. 78, 200 Pac. 701 (1921).
317 Blincoe v. Choctaw, 0. & W. R. R., 16 Okla. 286, 83 Pac. 903 (1905).
318 Chicago, R. I. & Pac. Ry. v. Jennings, 175 Okla. 524, 53 P.2d 691 (1936); Chicago,
R. I. & Pac. Ry. v. Larwood, 175 Okla. 96, 51 P.2d 508 (1935) ; Public Service Co. v. Raburn,
162 Okla. 81, 19 P.2d 167 (1933) ; Oklahoma City v. Vetter, 72 Okla. 196, 179 Pac. 473 (1919).
The provisions of this section are a limitation upon the sovereign's
right of eminent domain 19 and apply to a "taking or damaging" of private
property by the state, a governmental subdivision, or by private persons or
corporations authorized to exercise functions of a public character A20 The
history of the phraseology of Section 24 shows that the word "damaged"
was omitted from the Constitutions of older states, and formerly decisions
interpreting "taken for public use" uniformly held that consequential
damages were damnum absque injuria. 21 To remedy this situation the Con-
stitution of Illinois was amended by adding the words "or daimaged" and
other states, including Oklahoma, followed that example. 222 As a result,
the Oklahoma court has held that "if the injured party has been consequen-
tially damaged by the construction of a public improvement, whether it
was done carefully and with skill or not, he is entitled to compensation for
such damage under the eminent domain provisions of the Constitution..."
and that it is not error for a trial court to refuse to instruct the jury upon
the question of negligence. 23
By consequential damage it is meant that the damage was not direct
and there was a concurrence of some other unforeseeable event not attri-
butable to the defendant, which cooperated to occasion the damage to the
plaintiff. 24 In other words, the Oklahoma court has interpreted Section 24
as authorizing recovery even though the defendant's conduct was not what
is usually described as the proximate cause of the damage. Negligence,
therefore, is not essential for liability. It is also clear that recovery will not
be limited to cases where there is a trespass32 and that a nuisance may
cause the imposition of strict liability under Section 24.20 This is true al-
319 City of Tulsa v. Richmond, 123 Okla. 255, 253 Pac. 279 (1926).
320 Eichman v. Oklahoma City, 84 Okla. 20, 202 Pac. 184 (1921).
321 See Oklahoma City v. Collins-Dietz-Morris Co., 183 Okla. 264, 79 P.2d 791 (1938).
322 Ibid. See also Edwards v. Thrush, 26 Okla. 472, 109 Pac. t32 (1910). For a discussion
of the history and interpretations of this constitutional provision, see NICuOLs, THE LAW OF
EMNENT DomerN §§ 108-110, 312 (1917).
323 Ibid. The following state constitutional provisions inhibit the taking or damaging
of private property for public use without just compensation: ALA. CONST. Art. I, § 25; ARz.
CoNsT. Art. II, § 17; ARx. CoNsT. Art. II, §§ 22, 23; CA.L. CONsT. Art. I, § 14; CoLo. CONST.
Art. II, § 15; GA. CONsT. Art. I, § 2-301; ILL. CoNsT. Art. I, § 13; Ky. CONST. Art. I, § 13; LA.
CONsT. Art. I, § 2; MINN. CONST. Art. I, § 13; MIss. CoNsT. Art. III, § 17; Mo. CONST. Art. I,
§§ 26-28; MONT. CoNsT. Art. III, § 14; NEB. CoNsT. Art. I, § 21; NEV. CoNsT. Art. I, § 29; N. M.
CoNsT. Art. II, § 20; N. D. CoNsT. Art. I, § 14; PA. CONsT. Art. I, § 10; S. D. CONST. Art. VI,
§ 13; TEx. CONST. Art. I, § 17; UTAH CONST. Art. I, § 22; VA. CONST. Art. IV, § 58; WASH.
CONST. Art. I, § 16; W. VA. CONST. Art. III, § 9; WYo. CONST. Art. I, §§ 32, 33.
3 24
Loiseau v. Arp, 21 S.D. 566, 114 N.W. 701, 14 L.RA. (N.s.) 855 (1908).
325 Stedman v. State Highway Comm'n, 174 Okla. 308, 50 P.2d 657 (1935), overruled
o,n other grounds, State Highway Comm'n v. Brixey, 178 Okla. 118, 61 P.2d 1114 (1936).
326 Cases cited supra notes 268-273.
though the basis for declaring the defendant's wrong to be a nuisance is

the ultrahazardous nature of the condition or activity. 27 But over and be-
yond this customary tort liability, there is a suggestion in some of the cases
that accidental invasions resulting from public works may be compensable.
In one case the court declared, ". . . the Constitution, as we have pointed
out, recognizes a right of action independent of the commission of a tort
in the accrual thereof. 3 28 In the second syllabus of another case it was
stated that "the use of the words 'or damaged' in addition to the word
'taken,' in section 24, art. 2, of the Constitution, indicates a deliberate
purpose not to confine a recovery to cases where there is a physical inva-
sion of the property affected, but to make the test of liability the fact that
private property has been 'damaged' for the public use, without regard to
the means by which the injury was effected. ' 3 29 These cases, as well as
others, 330 evidence a construction of Section 24 that may make a holder
of the power of eminent domain an "insurer" that harm does not occur to
other property owners, at least during the course of an appropriation of
property for public use. However, the cases in which the court has spoken
in terms of such a stringent liability are, for the most part, ones which in-
volve damage occasioned by the construction of highway projects and 33 1
where the legislature has given the necessary statutory permission to sue.
It may be felt that the presence of express legislative authorization for suit
implies that the plaintiff should be allowed to recover if he can prove dam-
ages. In addition, most of these cases may have involved intentional conduct
in the sense that the defendant constructed a highway or bridge knowing
full well that it would cause some change in drainage or the natural flow
or disposition of surface waters. 2 As to the disposition of surface water,
Oklahoma has modified the common-law view, which regarded surface
water as a common enemy, to the extent that each proprietor has the right
to protect himself against surface water, provided he can do so without
327' Ibid.
328 State ex rel. Highway Comm'n v. Horn, 187 Okla. 605, 105 P.2d 235 (1940).
320 State Highway Comm'n v. Smith, 146 Okla. 243, 244, 293 Pac. 1002 (1930).
330 See State v. Adams, 187 Okla. 673, 105 P.2d 416 (1940) ; Stedman v. State Highway
Comm'n, 174 Okla. 308, 50 P.2d 657 (1935) ; Blincoe v. Choctaw, 0. & W. R. R., 16 Okla. 286,
83 Pac. 903 (1905).
331 See cases cited supra note 313. Oklahoma now holds that it is essential that there
be legislative permission for suit where the defendant is the state or a governmental subdivision
or body, even though suit is brought under Section 24 by condemnation proceedings. See State
Highway Comm'n v. Brixey, 178 Okla. 118, 61 P.2d 1114 (1936), overruling Stedman v. State,
174 Okla. 308, 50 P.2d 657 (1935). The problem of whether a special statute is essential for
suit against the state under eminent domain provisions is discussed at length in Note, 2 A.L.R.
2d 677 (1948).
injury to his neighbor.8 33 Construction which occasions a change in the flow
of surface water, in some cases at least, may also be regarded as ultra-
hazardous if it involves a risk of serious harm which cannot be wholly
eliminated by the exercise of utmost care and if it is not a matter of com-
mon usage.334 In addition to the uncertainty as to whether Section 24 im-
poses liability for accidental invasions not the result of ultrahazardous
activity, there also is some question as to whether a defendant must be
engaged in the exercise of its power of eminent domain at the time of the
damage.
In St. Louis & S.F. Ry. Co. v. Matthews, 35 the plaintiff, upon the
basis of Section 24, was allowed to recover damages for injuries to his
house from vibrations caused by the operation of the defendant's oil burn-
ing locomotives. The court held that even though there was no negligence
involved, the plaintiff could recover upon the basis of Section 24. The
damage in question was not incidental to an appropriation, the result of
construction of public works, or an injury occasioned by the exercise of the
power of eminent domain. Instead it involved an unreasonable interference
with the use and enjoyment of the plaintiff's property, which caused sub-
stantial damage, i.e., it was a nuisance. In St. Louis & S.F. Ry. Co. v.
Ledbetter,33 6 the plaintiff likewise was allowed to recover upon the basis
of Section 24 although the court recognized that the manner in which the
defendant operated its roundhouse and switchyard might also be a nui-
sance. 337 It would seem logically that it might be argued that Section 24
should have no application in such cases because the harm done was not
incidental to a "public use," and that if either Section 23 or 24 is applicable,
it is the former section that is relevant, because the carrying on of normal
activities is a "private," as distinguished from a "public," use. It certainly
seems reasonable to suppose that it was not intended that Section 24 should
result in the imposition of liability in all cases, even where the injury was
not incidental to the exercise of the power, just because the defendant is
vested with the power of eminent domain. Such a construction would exact
a dear price for the privilege of exercising such power. Furthermore, since
333 Gulf, C. & S. F. Ry. v. Richardson, 42 Okla. 457, 141 Pac. 1107 (1914): "He has no
right to sacrifice his neighbor's property in order to protect his own."
334
RESTATEmENT, TORTS § 520 (1934).
335 174 Okla. 167, 49 P.2d 752 (1935).
336 83 Okla. 78, 200 Pac. 701 (1921).

337 Choctaw, 0. & G. R. R. v. Drew, 37 Okla. 396, 130 Pac. 1149 (1913), involved facts
similar to the Ledbetter case, was decided upon the grounds of nuisance, and made no reference
to Section 24. Accord: Arizona Hercules Copper Co. v. Protestant Episcopal Church Corp.,
21 Ariz. 470, 190 Pac. 85 (1920) ; Matthias v. Minneapolis, St. P. & S. S. M. Ry. Co., 125 Minn.
224, 146 N.W. 353 (1914).
the same result could have been reached in these cases upon the grounds
of nuisance alone, it is superfluous as well as confusing to predicate liability
upon the basis of Section 24.
Although it is difficult to speak with any assurance as to the decisions
or the principles that pertain to the application of Section 24, it may be
suggested that most of the cases which involve a damaging of private prop-
erty by public use are ones involving independently tortious conduct.
However, several of the decisions contain language which suggests a more
extensive liability based upon a responsibility for all damage that occurs
during the course of the exercise of the power of eminent domain, which
in effect makes the defendant an insurer. Moreover, the implication of at
least two cases is that liability under Section 24 may be imposed upon the
donee of the power of eminent domain for damage done while not in the
exercise of such power. These implications are grave and far-reaching. It
is to be hoped that the Oklahoma court will carefully consider liability
under Section 24 and re-examine some of the problems here discussed.
The interpretations given to Sections 23 and 24 demonstrate that
strict liability is far from a historical anomaly in Oklahoma and that cases
involving the imposition of liability without fault form a substantial seg-
ment of tort liability in this jurisdiction. The Constitution of Oklahoma
has recognized the postulates which give rise to strict liability and the
Oklahoma court has implemented the underlying policies that found their
expression in the constitutional provisions. It would seem that as a matter
of policy and fair construction, the effect of Sections 23 and 24 should be
circumscribed by general principles of tort liability and in proper cases
be held to aid and further the three traditional grounds for tort liability.
If such an interpretation is given, these sections become of importance
where the basis for liability is the ultrahazardous nature of the defendant's
conduct because the Constitution then makes mandatory the recognition
of the principles of strict liability. It is believed that a construction of these
provisions which imposes liability for accidental invasions is questionable,
at least in the case of Section 24 and particularly undesirable in the case
of Section 23. Moreover, the existence of these provisions in the Oklahoma
Constitution should place liability without fault upon a firmer footing and,
by analogy, lead to the imposition of strict liability, in proper cases, where
Sections 23 and 24 are in nowise involved.
3. Strict Liability Imposed by Statute. In addition to the imposition

of liability without fault by the Constitution of Oklahoma, there are various
statutes which by their terms enact strict liability. In several situations
the legislature has allocated the risk and shifted the burden of bearing the
loss. Such statutes are to be distinguished from criminal statutes, the viola-
tion of which may be negligence per se.
A typical example is an Oklahoma statute which provides "No in-
flammable product from any oil or gas well shall be permitted to run into
any tank, pool or stream for watering stock; and all waste of oil and refuse
from tanks or wells shall be drained into proper receptacles at a safe dis-
tance from the tanks, wells or buildings, and be immediately burned or
transported from the premises, and in no case shall it be permitted to flow
over the land. Salt water shall not be allowed to flow over the surface of
the land." 38
The above statute, where applicable, has been interpreted ,as imposing
strict liability for the escape of oil waste or salt water onto the lands of
another and negligence is not essential for liability. 3 ' In effect the rule
of Rylands v. Fletcher is imposed by statute. However, where the statute 3 40
does not apply, it has been held that there is no liability without fault.
The legislative history of the statute leaves no doubt that strict liability
was intended to be imposed because the statute, as originally drawn, con-
tained the word "negligently" and in the 1910 code revision the word was
omitted.3 4' The statute has been upheld as a constitutional exercise of the
police power. 42
The statute has been held not to apply to refineries or tank farms
apart from producing wells 343 on the ground that the title to the statute
338 52 OxLA. STAT. § 296 (1941).
339 C. L. McMahon Inc. v. Lentz, 192 Okla. 153, 134 P.2d 563 (1943); Mid-Continent
Petroleum Corp. v. Poage, 188 Okla. 626, 112 P.2d 166 (1940); Magnolia Petroleum Co. v.
Ford, 183 Okla. 14, 79 P.2d 588 (1938); Texas Co. v. Mosshamer, 175 Okla. 202, 51 P.2d 757
(1935); Indian Terr. Ilium. Oil Co. v. Graham, 174 Okla. 438, 50 P.2d 720 (1935); Kanola
Corp. v. Palmer, 167 Okla. 430, 30 P.2d 189 (1934); Knupp Oil Corp. v. Lohman, 129 Okla.
288, 264 Pac. 824 (1928); Comanche Drilling Co. v. Shamrock Oil & Gas Co., 122 Okla. 253,
254 Pac. 20 (1926); Devonian Oil Corp. v. Smith, 124 Okla. 71, 254 Pac. 14 (1926); Owen-
Osage Oil & Gas Co. v. Long, 104 Okla. 242, 231 Pac. 296 (1924); Midland Oil Co. v. Ball,
115 Okla. 229, 242 Pac. 161 (1924); Pulaski Oil Co. v. Edwards, 92 Okla. 56, 217 Pac. 876
(1923); Selby Oil & Gas Co. v. Rogers, 94 Okla. 269, 221 Pac. 1012 (1923).
340 Sinclair Prairie Oil Co. v. Stell, 190 Okla. 344, 124 P.2d 255 (1942) ; Shell Petroleum
Corp. v. Wilson, 178 Okla. 355, 65 P.2d 173 (1935); Johnson Oil Refining Co. v. Thomas, 174
Okla. 600, 51 P.2d 813 (1935); Johnson Oil Refining Co. v. Carnes, 174 Okla. 599, 51 P.2d 811
(1935).
341 Knupp Oil Corp. v. Lohman, 129 Okla. 288, 264 Pac. 824 (1928), and Devonian Oil
Corp. v. Smith, 124 Okla. 71, 254 Pac. 14 (1926), discuss the legislative history of the act.
342 Verland Oil & Gas Co. v. Walker, 100 Okla. 258, 259, 229 Pac. 235, 236 (1924), where
the court said, "Protection of the purity of streams and lakes for the preservation of life,
health, and happiness of the people, as well as animal life, is the public policy of the state."
343 Shell Petroleum Corp. v. Blair, 178 Okla. 361, 65 P.2d 180 (1935) and Shell Petroleum
Corp. v. Wilson, 178 Okla. 355, 65 P.2d 173 (1935) (tank farms); Johnson Oil Refining Co.
v. Carnes, 174 Okla. 599, 51 P.2d 811 (1935) and Johnson Oil Refining Co. v. Thomas, 174
Okla. 600, 51 P.2d 813 (1935) (refineries).
refers to "disposition of waste from wells.1 344 The statute also has been
held not to apply where the plaintiff and the defendant are both using the
same land, e.g., where the defendant has leased mineral rights and the
plaintiff has a grazing lease, because in such case there has been no escape
of the substance onto the land of another and its presence on the defend-
ant's own land is not deemed to be proscribed by the statute. 45
In Sinclair PrairieOil Co. v. Stel1346 it was held that the statute was
inapplicable where the plaintiff's deceased husband, involved in an auto-
mobile accident, was thrown into a stream and drowned. It appeared that
the stream would have been dry, save for the escape of salt water in viola-
tion of the statute. The court held that violation of the statute was not the
"proximate cause of the husband's death" and that liability without fault
would not be applied. 47 The court did not discuss the question of whether
the defendant owed a duty to the deceased, but confined its decision to
proximate cause.348 It would seem that the kind of harm that was realized
was not the type that the statute was designed to avert and that the statu-
tory duty imposed does not embrace this type of risk. The result is the same
whether we interpret the statute as imposing strict liability or as making
violation of its terms negligence per se. As previously pointed out in this
article, duty is apt to be analyzed in relational terms in the case of strict
liability and something in the nature of proximate cause serves as a limita-
tion upon the extent of liability.
The question of whether contributory negligence is a defense, when
violation of the statute is alleged, has been raised, but apparently not
finally determined. It has been held that it was not error to refuse an
instruction on contributory negligence if there was no evidence to sustain
such a plea, regardless of whether the defense is available.14' Also, where
344 Ibid.
345 Marland Oil Co. v. Hubbard, 168 Okla. 518, 34 P.2d 278 (1934) ; Peters Petroleum
Corp. v. Alred, 156 Okla. 249, 10 P.2d 705 (1932) ; Tidal Oil Co. v. Pease, 153 Okla. 137, 5 P.2d
389 (1931) (defendant not liable where plaintiff's cattle came upon his land). But cf. Texas
Co. v. Masshamer, 175 Okla. 202, 51 P.2d 757 (1935).
346 190 Okla. 344, 124 P.2d 255 (1942).
347 The court said: "Plaintiff directs our attention to certain cases from the Supreme
Court of Kansas .... It appears that Kansas has a statute somewhat similar to our own....
Although the statute was referred to in the opinion, it appears that the opinion was predicated
in the main upon the general principle of 'liability without fault', as laid down in the ancient
English case of Rylands v. Fletcher,... which doctrine has been accepted in Kansas. But this
court has specifically declined to follow said doctrine to its fullest extent. Gulf Pipe Line Co.
v. Sims, 168 Okla. 209, 32 P.2d 902; Gulf Pipe Line Co. v. Aired, 182 Okla. 400, 77 P.2d 1155."
190 Okla. at 347, 124 P.2d at 257.
3 48
Verland Oil & Gas Co. v. Walker, supra note 342, states that under the statute, a duty
not to pollute a stream is owed to the whole world.
349 Carter Oil Co. v. Jackson, 194 Okla. 621, 153 P.2d 1013 (1944).
a riparian landowner sued a large group of separate leaseholders for dam-
ages occasioned by their pollution of a stream in violation of the statute, it
was held that the riparian owner is not entitled to recover where his tenant
also contributed to the damage, in violation of the statute, unless the plain-
tiff can separate the amount of damage resulting from the acts of his tenant
from that occasioned by the defendants. 5 0 The scope of the defense of
contributory negligence may depend upon whether the statute is regarded
as imposing strict liability or merely making violation of its terms negli-
gence per se. If, as should be done, it is construed as a strict liability statute,
then such a defense is more limited."
It is well settled that the plaintiff in order to recover must establish
the fact of causation, i.e., that the violation of the statute was a substantial
factor in producing the damage and that, but for the violation, the plain-
tiff would not have been hurt. For example, if there is no proof that the
defendant allowed oil waste or salt water to escape, the plaintiff has failed
to prove his case3 52 and it is not sufficient to show that the defendant al-
lowed such matter to escape after the damage to the plaintiff occurred."'3
Furthermore, where the evidence as a whole failed to make it appear more
probable that the landowner's injury was caused by salt water from the
defendant's wells than by some other cause, a verdict for the plaintiff will be
reversed. 54 These cases do not mean that the plaintiff will not be allowed
in proper cases to prove his case by circumstantial evidence or to use the
doctrine of res ipsa loquitur. 5 Instead, they simply mean that in order to
recover, the plaintiff must show that it was the violation of the statute that
produced the injury.
Although the Oklahoma court has held that, apart from a producing
well, the plaintiff must prove negligence where salt water or oil waste
escapes and does damage, there are other Oklahoma cases which suggest
that strict liability should be imposed regardless of the statute. In Co-
manche Drilling Co. v. Shamrock Oil & Gas Co.35 the defendant allowed
waste oil to accumulate within an earthen embankment and a heavy rain
caused part of the earthen wall to give way. The oil escaped and flooded
through a draw to the plaintiff's premises, accumulated around a boiler
and caught fire. Both the plaintiff and the defendant were carrying on oil
350 Walters v. Prairie Oil & Gas Co., 85 Okla. 77, 204 Pac. 906 (1922).
351 RESTATE=NT, ToRTS § 524 (1934).
352 Pine v. Bowles, 179 Okla. 604, 66 P.2d 1077 (1937).
353
M idco Oil Corp. v. Hull, 182 Okla. 21, 75 P.2d 1126 (1938).
354 Shell Petroleum Corp. v. Wor]ey, 185 Okla. 265, 91 P.2d 679 (1939).
355 See Prest-O-Lite, Inc. v. Howery, 169 Okla. 408, 37 P.2d 303 (1934), for an excellent
discussion of circumstantial evidence and inferences the jury may make from the evidence.
356 122 Okla. 253, 254 Pac. 20 (1926).
LIABILITY WITHOUT FAULT
operations. The court held that the statute applied and that the defendant
was liable, but implied that in the absence of statute the defendant would
still be liable and cited several American cases that adopt the rule of
Rylands v. Fletcher.117 The court failed to note, however, that since the
defendant and the plaintiff were engaged in the same ultrahazardous ac-
tivity, the case fell under one of the exceptions to strict liability.35 8 Since
the risks were mutual rather than one-sided, liability should be predicated
upon fault. Furthermore, the court perhaps gave insufficient consideration
to the additional factor of rain being a cause of the damage.
Other Oklahoma cases, without reference to the statute, have im-
posed liability for the escape of inflammable substances upon the ground
of negligence. In Northup v. Eakes3" the defendants were the owners of
separate oil and gas leases and permitted crude oil to flow into a creek
above the plaintiff's barn. The oil was ignited by some unknown cause and
floated downstream to the barn, which caught fire and burned. Although
the decision may rest upon negligence, that issue was not discussed, the
main question being whether defendants were joint tortfeasors and which
one of the defendants was liable for the harm.", The court also cited with
approval a decision based upon Rylands v. Fletcher.
In addition to the language in the Comanche case, the case of Texas
Co. v. Robb,"' which has been discussed previously herein, expresses sym-
pathy with the view that strict liability should be imposed for the escape
of inflammable substances. However, the later Oklahoma cases take a
contrary position and insist that if the statute is not applicable, negligence
must be established."' In the absence of statute, some jurisdictions have
3 63
imposed strict liability for the escape of oil.
It would seem that independently of the statute, liability might be
imposed in many of the situations arising under the statute. Since the
production of oil may be regarded as ultrahazardous, that basis for finding
357 The court cited Brennan Const. Co. v. Cumberland, 29 App.D.C. 554, 15 L.RA.
(x.s.) 535, 10 Ann.Cas. 865 (1907), Kinnard v. Standard Oil Co., 89 Ky. 468, 12 S.W. 937
(1890), and Berger v. Minneapolis Gaslight Co., 60 Minn. 296, 62 N.W. 336 (1895), all of
which applied the doctrine of Rylands v. Fletcher.
358 Cf. Larkins-Warr Trust v. Watchorn Petroleum Co., 198 Okla. 12, 174 P.2d 589
(1946).
59 72 Okla. 66, 178 Pac. 266 (1918).
360 The Comanche case, supra note 356, makes this observation as to the Northup case.
36188 Okla. 150, 212 Pac. 318 (1923).
363 Brennan Const. Co. v. Cumberland, 29 App.D.C. 554, 15 L.RA. (N.s.) 535, 10 Ann.
Cas. 865 (1907) ; Berger v. Minneapolis Gaslight Co., 60 Minn. 296, 62 N.W. 336 (1895) ; Brady
v. Detroit Steel & Spring Co., 102 Mich. 277, 60 N.W. 687, 26 L.RA. 175 (1894). Cf. Kaufman
v. Boston Dye House, Inc., 280 Mass. 161, 182 N.E. 297 (1932), noted in 12 B. U. L. REV. 734
(1932) and 31 MicH. L. Rav. 1178 (1933).
liability may be present. In addition there are many instances where the
defendant's conduct may be classified as either intentional or negligent,
and liability could rest on that ground. The characterization of such con-
duct as a nuisance, however, does not alter the fact that liability-forming
conduct must be found. Over and beyond this, however, is the question of
whether by virtue of the doctrine of Rylands v. Fletcher, strict liability
should be imposed for the escape of salt water or waste oil, or leaking of
pipe lines. The Oklahoma court to date has not committed itself with
finality as to its answer to this question.
Several other Oklahoma statutes, which have been discussed previ-
ously, by their terms impose strict liability. Thus, under the circumstances
contemplated by the particular statute, fault is not essential to recovery
where the plaintiff is injured by the defendant's dog,364 or the dog injures.
livestock, sheep, or poultry;36 5 or cattle trespass upon the plaintiff's
land; 366 nor need negligence be proved where a railroad engine emits sparks
and starts a fire,367 or the fire is a nuisance, 368 or if the conduct or condition
maintained upon the defendant's land is a nuisance. 69 In all of these cases
there is statutory imposition of strict liability as distinguished from a crim-
inal statute the violation of which is negligence per se.
In addition there are several other Oklahoma statutes which, as a
matter of tort law, impose liability without fault. For example, the duty
is imposed upon railroads to fence their roads, except at public highways
and station grounds,370 and in the event there is a failure to do so, the rail-
road is liable "for all animals killed by reason of the failure to construct
such fence. ' 37' Where stock are injured on the railroad right of way on
account of a failure to maintain a lawful fence, the railroad is liable regard-
less of negligence in the running or management of the train.3 72 However,
if the plaintiff willfully or negligently permitted the cattle to stray onto the
tracks, it has been held a good defense, 73 although ordinarily the doctrine
364 4 OKLA. STAT. § 42.1 (1947).
365 4 OI.A. STAT. § 41 et seq. (1941).
366 4 OY.A. STAT. § 91 et seq. (1941) (herd laws).
367 2 O-LA. STAT. § 748 (1941).
368 50 OyLA. STAT. §§ 18, 19 (1941).
369 50 OyacA. STAT. § 1 et seq. (1941).
370 66 OxLA. STAT. § 141 et seq. (1941).
371 Ibid.
372 Davis v. Connelly Ranch Co., 103 Okla. 94, 229 Pac. 492 (1924) ; Muskogee Elec.
Traction Co. v. Minugh, 91 Okla. 36, 215 Pac. 747 (1923) ; New v. Elliott, 88 Okla. 126, 211
Pac. 1025 (1922) ; Missouri, K. & T. Ry. v. Minor, 75 Okla. 10, 181 Pac. 142 (1917) ; St. Louis,
I. M. & S. Ry. v. Dawson, 57 Okla. 655, 157 Pac. 751 (1916) ; Chicago, R. I. & P. Ry. v. West-
heimer & Daube, 44 Okla. 287, 144 Pac. 356 (1914).
373 Missouri, K. & T. Ry. v. Bandy, 75 Okla. 57, 181 Pac. 313 (1919).
of contributory negligence is not available to the defendant. 37 4 What is

probably meant is that reckless conduct on the part of the plaintiff will
preclude recovery. Furthermore, the fact that an animal was killed by a
passing train may be proved by circumstantial evidence.37 5 Of course the
statute does not apply where the animals come on the track at a place not
required by law to be fenced, and in such a case recovery is dependent
upon proof of negligence.3 76 Also, the statute is not construed to cover other
types of damage, e.g., that occurring where cattle, instead of being killed
because of the failure to fence, cross over an unfenced right of way to a
field of a third person and eat a poisonous substance 77 or damage a grow-
378
ing crop.
Strict liability is also imposed upon railroads with respect to the con-
dition of passenger vehicles. An Oklahoma statute provides that "a carrier
of persons for reward is bound to provide vehicles safe and fit for the pur-
poses to which they are put, and is not excused for default in this respect
by any degree of care.1 379 Although the Oklahoma court has discussed this
statute upon the assumption that its violation constitutes negligence per
se, 38 it is clear that in reality the statute imposes liability regardless of
fault. Aside from the above statute, there is also statutory imposition of
a duty of utmost care in the transportation of passengers. 8 1
Still another example of a strict liability statute is the Oklahoma act
which pertains to the collection of gas in mines and the fencing off of
abandoned mines and the posting of notices. 382 Absolute duties are imposed
374 Midland Valley R. R. v. Hardesty, 38 Okla. 559, 134 Pac. 400 (1913).
376 Missouri, K. &T. Ry. v. Simerly, 72 Okla. 251, 180 Pac. 551 (1919).
376 Atchison, T. & S. F. Ry. v. Huston, 111 Okla. 274, 239 Pac. 472 (1925); Ft. Smith
& W. R. R. v. Dixon, 51 Okla. 722, 152 Pac. 350 (1915).
377 Kurn v. Immel, 184 Okla. 571, 89 P.2d 308 (1939).
378 Box v. Chicago, R. I. & P. Ry., 56 Okla. 243, 155 Pac. 1144 (1916) ; Missouri, 0. & G.
Ry. v. Webb, 46 Okla. 740, 148 Pac. 1042 (1915) ; Missouri, 0. & G. Ry. v. Brown, 46 Okla.
735, 148 Pac. 1040 (1915).
37013 OKLA. STAT. § 33 (1941).
380 Sand Springs Ry. v. Westhafer, 92 Okla. 89, 218 Pac. 525 (1923).
38113 OKLA. STAT. § 32 (1941). See Oklahoma Ry. v. Austin, 20 Okla.B.AJ. 757 (1949).
382 45 OKLA. STAT. § 519 (1941). In Whitehead Coal Mining Co. v. Pinkston, 71 Okla.
124, 175 Pac. 364 (1917), it was held that plaintiff could recover for wrongful death upon the
basis of negligence per se where the decedent was suffocated by gas in an unposted, abandoned
mine shaft which he had entered to retrieve a piece of jewelry which had been dropped into
the shaft by his picnic "date." The court overruled the defendant's demurrer and, upon the
ground that the facts alleged in the petition made the deceased a licensee, rejected the argu-
ment that the deceased was a trespasser. Contributory negligence was not discussed. In Mc-
Alester-Edwards Coal Co. v. Hoffar, 66 Okla. 36, 166 Pac. 740 (1917), the plaintiff, who was
a "shot firer" in the defendant's mine, pursuant to his duties, went to a part of the mine which,
unknown to him, contained standing gas which was ignited by his lamp and exploded. It was
held that the statute had been violated and that the plaintiff might recover for negligence per se.
by the statute and a violation of its terms is actionable although no negli-
gence is involved.
4. Negligence per se. Aside from such statutes as those discussed,

there are numerous criminal statutes the violation of which may constitute
negligence per se. In such cases it is not the criminal statute which creates
tort liability, for at most the criminal statute affords a standard of care
which a reasonable man would observe.383 It is the courts which determine
civil liability and create the rules.384 Just as in the ordinary negligence case
remoteness or policy considerations may relieve a negligent defendant of
liability, so also such considerations may limit liability in negligence per
se cases. 388 In other words, even if the plaintiff is of the class protected and
the harm is of the kind the statute sought to prevent, the defendant may
not be held accountable. Such delimitation of liability is usually accom-
plished by employing the language of proximate cause.38 0 When the cases
are approached from the perspective that all the criminal statute does is
to provide a standard of care which would be observed by a reasonable
man, it is evident that it is not the violation of every statute that will con-
stitute negligence per se. 3 T If the disobedience is excusable or reasonable,
the defendant should not be held liable.18 8 So, too, if the violation of the
statute is but a remote factor in the chain of causation. 3 9 The purpose of
the legislation is of course of paramount importance, and the plaintiff must
establish that he is one of a class of persons the statute was intended to
protect and that the damage that occurred was of a type the legislation was
designed to prevent. 390
It is usually held that the effect of a violation of a criminal statute,
when it constitutes negligence per se, is to stamp the defendant's conduct
with all the attributes of common law negligence and to dispense with the
necessity of any further proof of negligence. 3 9' However, even though the
383 Thayer, Public Wrong and Private Action, 27 HARv. L. REv. 317, 322 (1914) ; PROSSER,
TORTS § 39 (1941) ; RESTATENT,ToRTs §§ 285, 286 (1934).
384 Morris, The Relation of Criminal Statutes To Tort Liability, 46 HAv. L. REv. 453
(1933) ; PROSSER, ToRTs 274 (1941).
38
5 PROSSER, ToRTs 267-268 (1941).
386 Ibid.
387
Marland Refining Co. v. Duffy, 94 Okla. 16, 220 Pac. 846 (1923) (no negligence per
se where defendant was driving unlicensed car, as no causal connection) ; RESTATEiENT, ToRTs
§ 288 (1934).
8 88
See Oklahoma Producing & Refining Corp. v. Freeman, 88 Okla. 166, 212 Pac. 742
(1923) ; PRossER, ToRTs 271-274 (1941).
389 Note, 1 OXIA. L. REv. 317 (1948).
0
39 PROSSER, ToRs § 39 (1941) ; RESTATEMENT, TORTS § 286 (1934).
391 Chicago, R. I. & P. Ry. v. Pitchford, 44 Okla. 197, 143 Pac. 1146 (1914); Chicago,
R. L & P. Ry. v. Martin, 42 Okla. 353, 141 Pac. 276 (1914) ; PROSSER, ToRTs 274 (1941).
plaintiff is unable to establish that he belongs to the class of persons pro-
tected or that his damage was of the type the legislation sought to prevent,
the better view is that, although the violation does not constitute negligence
per se, this does not preclude an action for common law negligence and
that in proper cases it may nonetheless be considered as having some bear-
92
ing upon the conduct of a reasonable man and as evidence of negligence.1
The Oklahoma court has so held.3 93 Moreover, a statutory imposition of
duty may constitute a mere minimum and a reasonable man may be re-
quired to do more than the statute commands, so that mere observance of
3 94
the statute may not be sufficient to constitute due care.
In conformity with these principles the Oklahoma court has held that
a motorist may not recover upon the basis of negligence per se when he
collides with an animal upon a public highway in violation of the Herd
Laws, since motorists are not of the class protected nor the injury of the
type the statute sought to prevent. 9 5 And the same result was reached
where the plaintiff alleged both a violation of a statute prohibiting the lay-
ing out of poison 90 and an injury he sustained when a can of rat poison ex-
ploded. 9" Nor may there be recovery for wrongful death upon the basis of
an alleged violation of the statute prohibiting the escape of salt water or
oil waste where the deceased was thrown into a pool that would not have
been there if the statute had been observed. 98 However, if the plaintiff
and the harm are covered by the statute, its violation may be negligence
per se. Thus, when a statute required coal oil to be inspected and labeled
and the defendant sold the plaintiff gasoline as coal oil, it was negligence
per se.3 9 9 Furthermore, a motorist's violation of the rules of the road may
be negligence per se, 400 and a breach of a railroad's statutory duty to dis-
charge and load passengers at duly appointed places may be negligence
per se.401 Many other instances, too numerous to mention, illustrate the
same proposition.
The principal difference between an application of negligence per se
892 PROSSER, TORTS 275-276 (1941).

393 Slick Oil Co. v. Coffey, 72 Okla. 32, 177 Pac. 915 (1918).
894 Missouri, K. & T. Ry. v. Stanton, 78 Okla. 167, 189 Pac. 753 (1920). Notes, 37 McH.
L. RFv. 150 (1938) ; 22 MmN. L. Rxv. 901 (1938).
395 Champlin Refining Co. v. Cooper, 184 Okla. 153, 86 P.2d 61 (1938) ; Miller v. Dobbs,
180 Okla. 576, 71 P.2d 737 (1937).
390
3
21 OKLA. STAT. § 1197 (1941).
97 Larrimore v. American Nat'1 Ins. Co., 184 Okla. 614, 89 P.2d 340 (1939).
398 Sinclair Prairie Oil Co. v. Stell, 190 Okla. 344, 124 P.2d 255 (1942). Of course there
must be causation in fact. See Marland Refining Co. v. Duffy, 94 Okla. 16, 220 Pac. 846 (1923).
399 Spencer v. Bolt, 82 Okla. 280, 200 Pac. 187 (1921).
400 Tully v. Wetzel, 97 Okla. 22, 222 Pac. 539 (1924), is a typical example.
401 Chicago, R. I. & P. Ry. v. Pitchford, 44 Okla. 197, 143 Pac. 1146 (1914).
and strict liability is that contributory negligence is a more certain defense

in case of the former than the latter. Otherwise, the result is much the same
in that ordinarily no inquiry will be made as to fault, it being sufficient if
the plaintiff establishes duty, causation and damage. However, in the case
of negligence per se the violation of the statute may be excusable or reason-
able, in which event the doctrine will not be applied, but in the case of a
statute which imposes strict liability, the reasonableness of the particular
violation may be immaterial.4 °2 Other than these distinctions, the practical
consequence of a court's determination that the violation of a criminal
statute is negligence per se, is similar to its decision that the case is one
where liability without fault may be properly applied.
5. Escape of DangerousSubstances. For the most part, in the absence

of statute or a controlling constitutional provision, the Oklahoma cases
have not imposed strict liability for the escape of dangerous substances,
but rather have rested responsibility upon proof of negligence. Unless there
is a condition or an activity which is characterized as a nuisance, it is essen-
tial that fault be established. This approach upon the basis of negligence
has been followed in cases involving poisonous substances, water, electric-
ity, gas and other substances. However, where danger is involved, the
defendant will be held to a standard of utmost care.
(a) Poison. It is readily foreseeable that poisonous substances may
occasion death or serious harm if the utmost care is not used in dealing
with them. However, there are many poisonous substances that have great
utility and many such elements are used both by industry and the general
public. Such substances have great value when properly used and ordinarily
become a source of danger only when their true nature is unknown. Conse-
quently, as might be expected, statutes have been passed in most states
governing the sale and use of poisons and violation of their terms may
be branded negligence per se.
The Oklahoma legislature has enacted statutes dealing with the sale,
adulteration and mislabeling of foodstuffs,4 °3 and the sale of poison without
proper labeling is made a misdemeanor.40 4 Another statute provides that
"whoever shall, except in a safe place on his own premises, lay out strych-
nine or other poison, is guilty of a misdemeanor."40 5 In case any of these
402 PROSSER, TORTS 271 (1941). Thus some statutes impose an absolute duty for the
violation of which there is no excuse, and neither ignorance nor due care will avoid liability.
Typical examples are the Federal Safety Appliance Act, pure food acts, and acts prohibiting
the eniployment of child labor.
403 63 OKLA. STAT. § 181 et seq. (1941).
404 59 OxrA. STAT. § 345 (1941).
405 21 OKLA. STAT. § 1197 (1941).
statutes are violated and harm is thereby occasioned to the plaintiff, no
further proof of negligence need be shown. The result is in practical effect
much the same as if the doctrine of strict liability were imposed. The duty
is imposed by statute and its breach will be conclusive evidence of negli-
gence.4 06
There have been several Oklahoma cases dealing with injuries to
cattle that have come into contact with poisonous substances under the
control of defendants. Liability has been imposed upon several different
theories. In Midland Valley R. R. v. Rippe40 7 both negligence and negli-
gence per se were applied. In Missouri, K. & T. Ry. v. Rose, 408 decided
the same term, negligence alone was discussed as a basis for liability. In
Moores v. Rumsey409 both negligence and nuisance were relied upon to
impose liability and in Welker v. Annett 410 it was decided that the eminent
domain provisions of the Oklahoma Constitution4 1 ' did not apply so as to
enable the plaintiff to recover against a county.
In the Rippe case the plaintiff owned a pasture adjacent to the defend-
ant railroad's right of way. The defendant maintained on its property a
dipping vat, which contained arsenic and other substances, used to dip
cattle for "Texas ticks." A heavy rain caused the vat to overflow and part
of the substance flowed to the plaintiff's pasture and accumulated in a
pool, and part remained near the vat. The evidence was inconclusive as
to whether the cattle were poisoned from drinking the substance on the
plaintiff's land or upon the defendant's. The plaintiff also alleged that the
railroad was negligent in failing properly to fence its land so as to prevent
the cattle from trespassing. The court cited with approval the proposition
that persons using dangerous agencies are required to use the utmost care
and adopt every known safeguard to prevent injuries, and held that the
railroad was negligent in not properly fencing the area around the vat.
The court conceded that the defendant would not be liable unless its negli-
gence was the proximate cause of the death of the cattle, but did not con-
sider either the rain which caused the vat to overflow or the possible
trespass of the cattle as-superseding causes to relieve the defendant of
liability. The court in effect also held that violation of the criminal statute412
in laying out the poison constituted negligence per se.
The Rose case, on the other hand, did not involve negligence per se.
406 See Osborne v. McMasters, 40 Minn. 103, 41 N.W. 543, 12 Am.St.Rep. 698 (1889).
407 61 Okla. 314, 161 Pac. 233 (1916).
400 61 Okla. 156, 160 Pac. 734 (1916).
40D 169 Okla. 103, 36 P.2d 15 (1934).
410 44 Okla. 520, 145 Pac. 411 (1914).
411 Art. II, §§ 23, 24.
412 21 ORLA. STAT. § 1197 (1941).
The defendant railroad was transferring some cattle dip from a tank car
to a dip vat on the railroad property. In some unknown manner the hose
connection came loose and some of the poisonous dip escaped and formed
a pool on the right of way. As was known by the agents of the railroad, it
was the custom in the community to graze cows on the city commons ad-
jacent to the railroad property. The plaintiff's cow went from the commons
to drink from the pool formed near the dip vat. The defendant's local agent
was informed of the pool but thought it was plain water and nothing was
done about it. The defendant as a defense relied upon the contention that
the plaintiff's cow was a trespasser and its only duty was not to wantonly
injure her. The court held that the railroad was bound to know of the poi-
sonous character of the dip, and "when with this knowledge, this poisonous
fluid was allowed to escape from the tank and accumulate in pools acces-
sible to the cow, and no steps were taken to prevent her from drinking it,
the company failed to discharge the duty it owed to her, even though she
was as contended by the plaintiff in error, a trespasser. .. "
The close affinity between cases of this type and some of the cases
characterizing the defendant's conduct as a nuisance is shown by the
Moores case,41 3 which has been previously discussed. There the defendant
left in his pasture an uncovered barrel containing arsenic and molasses
which had been used to kill boll weevils and the plaintiff's cattle were at-
tracted by the substance and poisoned. The analogy to attractive nuisance
cases414 was not mentioned as such by the court, but in addition to discuss-
ing negligence per se, it found that the defendant had maintained a nui-
sance. If the defendant's conduct may be labeled the maintenance of a
nuisance, it is either because of the defendant's negligence, or because,
although due care was exercised, the risk is to be allocated to the defendant
due to the ultrahazardous nature of the poison.4 15 The characterization of
the activity as a nuisance does not alter the fact that the responsibility
exacted is a form of strict liability.
Of course, regardless of the theory upon which the plaintiff rests his
case, it is essential that he establish causation in fact. This is illustrated
by Prest-O-Lite Co. v. Howery410 where the plaintiff riparian owner sued
413 169 Okla. 103, 36 P.2d 15 (1934).
414 See Foster, The Attractive Nuisance Doctrine in Oklahoma, 18 OKLA. B. A. J. 1279,
1287 (1947).
415 PROSSER, TORTS 453 (1941). Cf. cases involving poisonous trees: Crowhurst v. Amer-
sham Burial Board, 4 Ex.Div. 5, 48 L.J.Ex. 109 (1878); and cf. Wilson v. Newberry, L.R. 7
Q.B. 31, 41 LJ.K.B. 31 (1871).
416 169 Okla. 408, 37 P.2d 303 (1934). See also Eagle Biological & Supply Co. v. Breed,
90 Okla. 7, 215 Pac. 424 (1923), where the plaintiff's hogs died of cholera after having been
treated by the defendant for "flu," the court refusing to allow the inference that the treatment
caused the cholera.
the defendant for the value of livestock and poultry which had allegedly
died as a result of drinking water in a stream that had been polluted by
chemical substances discharged into the stream in the manufacture of
acetylene gas. The plaintiff's evidence failed to establish that any of the
substances deposited in the stream by the defendant were harmful to ani-
mals or that they died as a result of drinking the allegedly contaminated
water. The court held that, although negligence may be established by cir-
cumstantial evidence, an inference of fact may not be based upon another'
inference, and that since causation had not been established, the plaintiff
could not recover.
The Oklahoma cases illustrate that, although negligence ordinarily
must be established for recovery in cases involving the escape of poisonous
substances, the duty of care that will be imposed is exceedingly great. In
practical effect the responsibility imposed approximates strict liability. It
may be anticipated that courts will be less apt to delimit liability than in
cases of ordinary negligence.417 The same approach is followed in cases
involving contaminated food sold for human consumption. In Safeway
Stores v. Fuller415 recovery was denied because the plaintiff failed to prove
that he had been poisoned by eating allegedly tainted sausage purchased
at the defendant's store. Causation in fact was not made out. In Linker v.
Quaker Oats Co. 41 the plaintiff received injuries from ground glass in a
package of oats and the doctrine of res ipsa loquitur was allowed to support
recovery. None of the Oklahoma cases involving poisonous substances
purport to apply strict liability. Since the observance of the utmost care
ordinarily may remove any likelihood of damage, and because poisons are
in relatively common usage, it may be doubted whether extreme danger
alone should be sufficient to warrant the imposition of liability without
fault. It reasonably may be asserted that the cases are not ones where the
doctrine of strict liability should apply. Imposition of a duty of utmost
care plus the doctrine of res ipsa loquitur would seem to suffice as a matter
of social policy.
(b) Gas. The Oklahoma cases dealing with the escape of gas likewise
have shunned strict liability and require proof of negligence for recovery.
However, the extreme danger involved creates a higher duty of care 420 and
417 See Rasmussen v. Benson, 133 Neb. 499, 275 N.W. 674 (1937), on rehearing, 135
Neb. 232, 280 N.W. 890, 122 A.L.R. 1475 (1938), where the plaintiff sued for the wrongful
death of decedent, which was caused by heart trouble brought on by shock and fear that his
dairy customers had been poisoned because his cows had been fed poisoned bran that had been
purchased, unlabeled, from the defendant, who negligently sold the bran as cattle feed.
418 189 Okla. 556, 118 P.2d 649 (1941).
419 11 F.Supp. 794 (N.D.Okla. 1935).
42
0 Julian v. Sinclair Oil & Gas Co., 168 Okla. 192, 32 P.2d 31 (1934).
plaintiffs have been awarded damages in cases of freak accidents involving
unforeseeable consequences where liability might not have been imposed
if an extremely dangerous substance had not been involved. Circumstantial
evidence may be admitted to prove the plaintiff's case.42 ' In practically
all of the cases where damage has been occasioned by the leaking or escape
of gas, recovery has been allowed. This may be an indication that something
more than negligence is the basis for liability, in fact if not in theory.
In Julian v. Sinclair Oil & Gas Co.422 due to a break in the defendant's
gas line, apparently caused by friction and rubbing against an oil line, gas
escaped into a storm cellar on the defendant's property. The plaintiff, an
employee, went into the cellar during a storm and his lantern caused the
accumulated gas to explode. The court held that the plaintiff had the
status of a licensee and that a duty of utmost care was owed to him. In
allowing recovery the court more or less assumed that there had been negli-
gence. In another case423 where the plaintiff's unoccupied property was
damaged as a result of a gas explosion, the point at which the gas escaped
could not be established, but there was evidence that it could have escaped
through the negligence of the defendant's employees. The court held "that
where there is more than one theory as to the cause of escaping gas, the
jury may adopt the theory that is the most plausible in their minds and is
reasonably supported by the evidence." It has also been held that the de-
fendant's negligence may consist of a failure to discover a leak in its line.
In Bellevue Gas & Oil Co. v. Carr4 24 the plaintiff was a scavenger and while
going down an alley, his lantern ignited gas which had leaked from the
defendant's line, causing an explosion. The evidence disclosed that there
had been a leak in the line for about a year. The court held for the plaintiff,
stating that, although the defendant was not an "insurer," it was obligated
to use a high degree of care, that every reasonable precaution must be taken
to avoid harm to others, and that since the defendant had constructive
notice of the condition, it was liable.
A fortiori,where the company receives actual notice of the escape of
gas or a leak in its line, it is obligated to exercise reasonable diligence to
cut off the gas and repair the line.425 A failure to make adequate inspection
or tests to discover leaks may also result in liability, even though a third
person, such as a plumber, turns on the gas valve, since such an intervening
agency may be anticipated.426 The negligence of employees in making meter
421 Oklahoma Natural Gas Co. v. Jopling, 121 Okla. 10, 247 Pac. 69 (1925).
422 168 Okla. 192, 32 P.2d 31 (1934).
423 Oklahoma Natural Gas Co. v. Jopling, 121 Okla. 10, 247 Pac. 69 (1925).
424 61 Okla. 290, 161 Pac. 203 (1916).
4 25
Nonnamaker v. Kay County Gas Co., 123 Okla. 274, 253 Pac. 296 (1926).
426 Oklahoma Natural Gas Co. v. Courtney, 182 Okla. 582, 79 P.2d 235 (1938).
tests 7 and a failure to maintain a constant pressure 428 may also make the
utility liable. However, a failure to establish causation in fact is fatal to
the plaintiff's case.420 Evidence which makes it necessary to speculate as
to what caused the explosion of escaping gas may not be sufficient to with-
43
stand the defendant's demurrer and res ipsa loquitur will not be applied. 1
The Oklahoma court also has held that a gas company is liable to a
rescuer who went to the aid of a customer of the defendant, and whose
clothing caught on fire due to the defendant's failure to maintain a con-
stant gas pressure in the line to the customer's stove.43 The usual rules as to
foreseeable harm to the plaintiff are frequently relaxed in rescuer cases,432
but due to the constitutional provision requiring submission of the issue
of contributory negligence to the jury,433 the rescuer doctrine is modified
in Oklahoma.4 34 The defendant has also been held liable for harm of a type
that was not readily foreseeable. In Oklahoma Natural Gas Co. v.
Graham438 the plaintiff was allowed to recover damages for a common cold
contracted because she had to go through the rain and cold to reach a tele-
phone to report that the defendant had negligently disconnected the gas
service. It would appear that the court imposed a somewhat more exten-
sive liability than that usually applied in negligence cases.
It would seem that most of the American cases have required proof
of negligence where injuries result from the escape of gas.436 The English
cases, however, have applied the rule of Rylands v. Fletcher.3 7 One factor
that militates against the imposition of strict liability is that gas, water,
or electric conduits or lines usually are constructed and maintained under
legislative sanction and hence an exception to Rylands v. Fletcher is
raised.4 8 Otherwise, unless it may be said that gas lines are a matter of
common usage, it would seem that the usual basis for strict liability is pres-
ent inasmuch as experience demonstrates that gas is likely to escape despite
the utmost care, and that serious damage may be occasioned.
427 Oklahoma Gas & Electric Co. v. Oklahoma Ry., 77 Okla. 290, 188 Pac. 331 (1920).
428 Margay Oil Corp. v. Jamison, 177 Okla. 433, 59 P.2d 790 (1936).
429 Okmulgee Gas Co. v. Kelly, 105 Okla. 189, 232 Pac. 428 (1924).
430 Lawson v. Anderson & Kerr Drilling Co., 184 Okla. 107, 84 P.2d 1104 (1938).
431 Merritt v. Oklahoma Natural Gas Co., 196 Okla. 379, 165 P.2d 342 (1946).
432 Wagner v. International Ry., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1 (1921), noted
in 7 CORN. L. Q. 272 (1922), 9 VA.L. REv. 376 (1923).
433 OXLA. CoNsr. Art. XXIII, § 6.
434 Oklahoma Power & Water Co. v. Jamison, 188 Okla. 118, 106 P.2d 1097 (1940).
435 188 Okla. 521, 111 P.2d 173 (1941).
436 Note, 15 L.R.A. (N.s.) 535 (1908).
437 Northwestern Utilities v. London Guar. & Acc. Co., [1936] A.C. 108, 105 L.J.P.C. 18.
438 Gould v. Winona Gas Co., 100 Minn. 258, 111 N.W. 254, 10 L.R.A. (N.s.) 889 (1907) ;
Schmeer v. Gaslight Co., 147 N.Y. 529, 42 N.E. 202, 30 L.R.A. 653 (1895); Price v. South
Metropolitan Gas Co., 65 LJ.Q.B. 126 (1895); PRossFR, ToRTs 465 (1941).
(c) Electricity. The transmission of electricity obviously involves a
great source of potential danger. However, its use is so essential in an indus-
trial age and its transmission is so common that courts ostensibly have
refused to impose liability without fault although, admittedly, the standard
of care which is imposed is so great that it almost amounts to the same
thing. A functional approach to the cases indicates that the liability of
public utilities, as a practical matter, is much more stringent than that
ordinarily imposed in negligence cases.4 3 If the liability is not strict it is
at least stringent. This is rationalized upon the basis that the extreme
danger imposes a higher duty than that which pertains to ordinary activi-
ties, but the fact situations involved in many of the cases indicate that the
fault element, if any, is so slight that there may be a closer analogy to strict
liability than to negligence. Courts frequently protest that the transmitter
of electric energy is not an insurer and reassure the defendant that negli-
gence must be shown, but then proceed to allow recovery where at least
it is doubtful that there was any fault at all. Furthermore, the defenses
which are successful in such cases frequently would also bar recovery if
the actions were based upon the theory of strict liability.
The alleged negligence of the transmitter of electricity most often
takes the form of uninsulated wires, sagging lines, faulty construction and
maintenance of lines, allowing the insulation to wear off, or failure to in-
spect the lines. The fact that any of these things occur is generally sufficient
to take the case to the jury and to support their finding of negligence. If
it can be established that the plaintiff was a trespasser at the time of con-
tact, in some cases it may be a good defense.4 4 If the plaintiff was reckless
or foolhardy, he may not be permitted to recover.44 ' If causation in fact
is not made out, of course the plaintiff fails.442
The Oklahoma court has imposed liability where the consequences
were scarcely foreseeable and where unanticipated outside agencies com-
bined to occasion the damage. For example, the defendant maintained both
power and telephone lines, the latter being abandoned, and a section of
the telephone line sagged against a barbed wire fence. A fire of unknown
origin in an abandoned building caused the electric wire to break and it fell
across the abandoned telephone wire which charged the fence and electro-
439 GREEx, THE JuDiciAL PRocEss IN TORT CASES C. 5 (2d ed. 1939), evinces a functional
approach and lumps together cases involving public service companies, regardless of the theory
of tort liability the cases purport to apply. This realistic approach demonstrates that such cases
are sui generis and cannot be adequately explained by the customary negligence rationale.
440 Miller v. Oklahoma Power & Water Co., 194 Okla. 193, 148 P.2d 980 (1944), but cf.
Ladow v. Oklahoma Gas & Electric Co., 28 Okla. 15, 119 Pac. 250 (1911).
441 Kaw City v. Johnson, Adm'r, 20 Okla.BA.J. 1061 (1949).
442 Keefer v. Public Service Co., 185 Okla. 94, 90 P.2d 409 (1939).
cuted the plaintiff who was leaning against the fence. It was held that there
was negligence in allowing the telephone wires to remain when they were
no longer in use and that the plaintiff might recover. 443 So, too, where the
defendant maintained electric lines with faulty insulation near the plain-
tiff's telephone wires and a small boy threw an extension cord over the de-
fendant's line causing it to come into contact with the telephone wires,
thus damaging the plaintiff's telephone system.4 44 The court held that if
an electric company's wires become broken, disarranged, or out of order,
and parties are injured in coming into contact therewith, the damage is
prima facie caused by negligence. 445 The court further held that the con-
duct of the boy was not an intervening cause sufficient to relieve the defend-
ant from liability. In City of Altus v. Wise 446 the defendant had erected upon
a school ground a pole supporting wires and transfrmers. Attached to one
of the transformers was an insulated ground wire, the insulation of which
had worn off at a point where it came into contact with a strand of barbed
wire. Some unknown third person disengaged some electric wires attached
to the pole, the ground wire was charged, and the plaintiff's son was elec-
trocuted. The court held that the intervening act of the unknown third per-
son did not cut off liability, and in discussing the foreseeability of such
conduct stated that the users of such dangerous energies are "bound to
anticipate the even more remote possibilities." It would seem that what
the court actually decided, apart from what was said, was that there need
be no foreseeability, because practically everything is foreseeable in the
sense that the court used the term.
The Oklahoma cases sometimes state that a prima facie case of negli-
gence is made out once the fact of causation is established. It has been held
that the plaintiff established a prima facie case where a child slipped on a
muddy path and came into contact with a guywire that was charged due
to improper insulation; 44 7 where the deceased in moving some telephone
wires came into contact with uninsulated electric wires; 448 where a boy
threw an extension cord over an uninsulated power line causing it to sag
and to come into contact with a telephone line; 44 and where, without out-
443 Southwestern Light & Power Co. v. Fowler, 119 Okla. 244, 249 Pac. 961 (1926).
444 Oklahoma Gas & Electric Co. v. Butler, 190 Okla. 393, 124 P.2d 397 (1942) ; City of
Marlow v. Parker, 177 Okla. 537, 60 P.2d 1044 (1936) (similar facts).
445 Citing buncan Electric & Ice Co. v. Chrisman, 59 Okla. 67, 157 Pac. 1031 (1916),
and Shawnee Light & Power Co. v. Sears, 21 Okla. 13, 95 Pac. 449 (1908).
446 193 Okla. 288, 143 P.2d 128 (1943).
447 Shawnee Light & Power Co. v. Sears, 21 Okla. 13, 95 Pac. 449 (1908).
448 Duncan Electric & Ice Co. v. Chrisman, 59 Okla. 67, 157 Pac. 1031 (1916).
440 Oklahoma Gas & Electric Co v. Butler, 190 Okla. 393, 124 P.2d 397 (1942).
side intervention, uninsulated electric wires sagged and came into contact
with a telephone line.4 50 In such cases a defense based upon the contention
that due care had been exercised will seldom defeat recovery. 4"' The prac-
tical effect is much the same as if negligence were not at issue in the case.
The defendant may maintain a successful defense if he is able to prove
that the plaintiff was himself guilty of reckless conduct. In a recent Okla-
homa case4 5 - the deceased climbed to the top of a highway bridge and was
electrocuted when he deliberately grabbed a poorly insulated high voltage
wire in order to dim the light of the city. The Oklahoma court quite prop-
erly held that such conduct precluded recovery. Regardless of whether
negligence or strict liability is deemed to be the proper basis for the suit,
the result should be the same. Moreover, where the plaintiff has the status
of a trespasser at the time he comes into contact with the power line, the
general principles pertaining to the duties of occupiers of land have been
applied in some cases. Thus where the deceased was engaged in removing
a lateral line and received a shock from the defendant's high line, it was
held that he was a trespasser and recovery was denied.458 However, where
a telephone worker in repairing a line came into contact with the defend-
ant's uninsulated electric wires and a city ordinance required insulation,
it was held that regardless of his status and even if he was a trespasser, the
defendant was liable.454 Even in the absence of a city ordinance, the same
result has been reached where an employee of a telephone company, in
repairing the telephone wires, came into contact with an uninsulated power
450
Weleetka Light & Water Co. v. Northrop, 42 Okla. 561, 140 Pac. 1140 (1914). See
also Pioneer Telephone & Telegraph Co. v. Tulsa Vitrified Brick & Tile Co., 60 Okla. 129, 159
Pac. 477 (1916), where it was held that a telephone company must exercise the greatest care
to prevent its wires from coming into contact with a power line which transmitted electricity
to the plaintiff's building and started a fire.
451 See Oklahoma Gas & Electric Co. v. Wilson, 172 Okla. 540,45 P.2d 750 (1935), where
it was held that the defendant's having exercised the utmost care was a good defense. The de-
cedent was electrocuted when a gin pole which he was grasping and which was attached to
a truck, came into contact with an uninsulated high tension line which was at the prescribed
height. The court held that the defendant could not foresee the use of equipment that would
touch the high line at the point that it did, and that there was no negligence. See also Keefer
v. Public Service Co., 185 Okla. 94, 90 P.2d 409 (1939), where the deceased was killed by a
bolt of lightning, which allegedly ran along the defendant's high voltage line thirty-eight feet
above the road and "flashed" when between two poles and hit the deceased seventy-five feet
away. The defendant's evidence showed that it was employing all safety devices known to the
trade and that it was highly improbable that a heavy charge of electricity would leave a line
in the middle of a span. The court refused to apply the doctrine of res ipsa loquitur and held
that no negligence had been established. It may also be doubted whether the plaintiff estab-
lished causation in fact.
452 Kaw City v. Johnson, 20 Okla.BA.J. 1061 (1949).
453 Miller v. Oklahoma Power & Water Co., 194 Okla. 193, 148 P.2d 980 (1944).
4
34 Ladow v. Oklahoma Gas &Electric Co., 28 Okla. 15, 119 Pac. 250 (1911).
5
line. Moreover, recovery has been allowed in a similar case even where
the lineman failed to take proper precautions, did not open the switch, and,
contrary to instructions, neglected to wear rubber gloves.450 It would seem
that if contributory negligence were given its customary efficacy as a de-
fense, recovery should have been denied. Apparently the court relegated
the defense of contributory negligence to the same status that it has in
strict liability cases. Furthermore, the attractive nuisance doctrine may
be applied in the case of infant trespassers in order to permit recovery
where the defendant maintained exposed electric wires in its transformer
house near a school yard and the transformer house was unfenced, un-
guarded, and no notices were posted.457 In another case an eleven-year-
old boy was injured when he threw a piece of wire across an uninsulated
power line which was eight to ten feet above the ground in the boy's back-
yard; recovery was allowed. 4 58
The cited cases demonstrate that although perfunctory regard may
be paid to the elements that are essential for recovery based upon negli-
gence, a different treatment is being accorded to such elements than that
usually given. The cases at least verge on strict liability, regardless of the
language employed. It might be preferable to exercise judicial candor and
openly impose liability without fault. There can be but little dispute as to
the ultrahazardous character of the transmission of electric energy. The
risks are one-sided rather than mutual. Experience has demonstrated that
despite the use of great care, electricity may and does escape and occasion
serious harm. The foundation for liability without fault is present, although
the activity may have a privilege due to legislative sanction. 5 9 If such ac-
tivity is deemed to be privileged, then under proper tort theory, negligence
is necessary for recovery. In addition to the extreme hazard which at least
increases the duty of care, it may well be that there are unarticulated prac-
tical considerations that influence both courts and juries. Since the defend-
ants are usually public utilities which have an ability to pass along the loss
to the general public in the form of increased rates, there is a tendency to
hold them liable without fault even though the courts profess to require
negligence. The courts may "protest too much" when they disavow making
the utility an insurer. If as a practical matter the cases do not actually
impose strict liability, they at least occupy a hiatus between negligence and
liability without fault.
455 City of Stilwell v. Bone, 195 Okla. 325, 157 P.2d 459 (1945).
456 Oklahoma Gas & Electric Co. v. Oliphant, 172 Okla. 635, 45 P.2d 1077 (1935).
457 Consolidated Lead & Zinc Co. v. Corcoran, 37 F.2d 296 (10th Cir. 1930).
458 City of Marlow v. Parker, 177 Okla. 537, 60 P.2d 1044 (1936).
45
9 PROSSER, TORTS 465 (1941).
IV. THE ECONOMIC FACTOR-CAPACITY TO BEAR LOSS
We have seen that the creation of an unusual or unreasonable hazard
may entail the imposition of liability without fault where there is a one-
sided unusual risk involving extreme danger, and where experience dem-
onstrates that notwithstanding all reasonable precautions, things may go
amiss. From the social point of view, while the activity is desirable, it may
be so only if the risk of loss is borne by the actor. The creation of such
a risk without accepting responsibility, therefore, may be in a sense un-
reasonable. But in such cases there is another important factor which
creates liability and which, although omnipresent, is seldom mentioned.
Capacity to bear the loss is one of the most important and influential fac-
tors which may lead to the imposition of strict liability. 0 0
Until recent times it has not been considered judicious to refer to
the practical importance of economic considerations in the allocation of
tort liability. Individualistic notions of abstract justice or natural law-
concern with legal metaphysics, rather than the result of concrete cases-
theoretically have made courts and even juries oblivious to the factor of
ability to absorb the loss or to pass it along.40 ' Yet an analysis of the result
of actual cases, jury verdicts, and court decisions indicates that even where
the negligence formula is utilized, the economic factor is of substantial
importance although it is denied formal recognition. 4 2
Contemporary no-
tions of right and justice and the social conscience of the community are
bound to be served.
The negligence formula was devised during an era of extreme indi-
vidualism, at a time when society was upon the threshold of industrializa-
tion. The inexorable defenses to an action based upon negligence were
formulated at a time when new industry was to be encouraged and in a
period when it was thought that a maximum of progress could be achieved
by giving entrepreneurs carte blanche and leaving the rest of society to
look out for itself. When industrialization became a fait accompli, it was
inevitable that the values of the expansion era would be modified or
460 See Freezer, Capacity to Bear Loss as a Factorin the Decision of Certain Types of
Tort Cases, 78 U. or PA. L. Rlv. 805, 807 (1930), where the author states: "Capacity to bear
the loss is one factor in determining the existence of a duty on the part of the defendant in at
least some negligence cases .... Very rarely is this expressly referred to, and only occasionally
by inference, but it is believed that it nevertheless speaks with a still small voice in the results
which have been reached in a number of cases." A sequel to the foregoing article appears in
79 U. oF PA. L. REv. 742 (1931). Also see GRF:EN, JUDGE AND JURY c. 4 (1930) ; PROSSER, ToRTS
26-27 (1941).
461 GREEN, JUDGE AND JURY at 124-126 (1930).
4162 PROSSER, TORTS 26-27 (1941).
abandoned, and that new devices should be employed to mitigate the sever-
ity of the defenses of contributory negligence and assumption of risk.463
Although technically clinging to the original negligence formula, the ame-
liorating devices of comparative negligence and last clear chance were
introduced.4 6 4 Furthermore, juries have demonstrated a marked proclivity
to resolve the negligence issue in favor of the plaintiff, particularly when
a corporate defendant or a policyholder has been involved.46 5 Although
some courts and juries doubtlessly have been influenced by which of the
parties has the deepest pocketbook, or have shown undue solicitude for the
underdog, recognition of the economic factor has usually taken the form
of giving consideration to the relative ability to bear the loss, to absorb
it or to avoid it, rather than to express a crude emotional bias in favor of
the poor over the rich.4 6 The defendants in tort cases are quite often corpo-
rations and automobile owners and the like, who, by means of insurance,67
4
prices, or rates, often are able to distribute the loss to the public at large.
Rather than leave the loss on the individual plaintiff, who may be finan-
cially ruined by it, courts and juries have tended to find reasons to shift
it to the defendant when it is felt that it will occasion no undue hardship.
The sentiment is that such a result hurts neither; the plaintiff avoids the
loss and the defendant can charge it to the expense of doing business.
Liability without fault for ultrahazardous activities, the vicarious
liability of a master for the torts of servants, the liability of a manufacturer,
and workmen's compensation acts are typical examples of the efficacy of
the economic factor. 0 8 Moreover, the severe liability imposed upon carriers
and utilities, even though ostensibly there be adherence to the negligence
formula, evidences the vigor of the economic element of capacity to absorb
or shift the loss, and the fact that lawyers for such concerns traditionally
settle all but the most doubtful cases is strong evidence of its actual pres-
ence.4 19 It is inevitable that law must be attuned to contemporary mores
and economics. Whether it is desirable to compromise venerable legal prin-
ciples for new needs is beside the point.
403 GREEN, JUDGE AND JuRY c. 4 (1930).
4
04 Ibid.
405 PROSSER, TORTS 26 (1941) ; GREEN, JuDG;E AND JURY at 126 (1930).
0
46 PROssER, ToRTs 26 (1941).
467 Ibid.
468 Pound, The End of Law as Developed in Legal Rules and Doctrines,27 HARv. L. R v.
195, 233 (1914).
409 Freezer, Capacity to Bear Loss as a Factorin thze Decision of Certain Types of Tort
Cases, 79 U. oF PA. L. Rlv. 742, 743-753 (1931) ; GREEN, JmGE AND JURy 99 (1930).
Today capacity to bear the loss is an admitted basis for liability in
some cases and in others it is present, although disavowed. Workmen's
compensation acts and respondeat superior admittedly are based upon
economic considerations. In some other fields of tort law there is a Pro-
crustean endeavor to fit the case to the negligence formula. In the case
of carriers, utilities, manufacturers and dealers, and where a governmen-
tal unit may be held liable, the duty of care which frequently is imposed
is considerably greater than that which customarily obtains, there is less
effect given to intervening agencies or events, foreseeability is less impor-
tant and the liability, if not strict, is at least more extensive.
An apt illustration of theoretical adherence to the negligence formula,
but a dilution of its principles because of economic considerations, is shown
by the law, which recently has been emerging, as to the liability of manu-
facturers and dealers. Since MacPherson v. Buick Motor Co.,470 it may be
observed that courts are imposing a more strict standard of duty upon
manufacturers and dealers in case of injuries to customers than was previ-
ously exacted.4 1' Duties have been defined which were not recognized
previously. It is quite probable that an important reason for this shift in
the nature of liability is that it is felt that a reputable manufacturer or
dealer should stand behind his products and make good the loss, and that
it is not too onerous to exact such a responsibility because it can be charged
to the cost of doing business and it may be passed along by either an in-
crease in prices or insurance. 472 Furthermore, some courts have not been
content to pay lip service to negligence principles and to stretch their pur-
port, but have discarded negligence entirely in favor of the theory of implied
warranty. Under the warranty theory strict liability may be imposed to
make the manufacturer or dealer the guarantor of his products even though
he has exercised due care. 73 Liability is extended beyond the immediate
buyer to the ultimate consumer and even to others who may be injured.47 4
The courts which have so expanded the doctrine of warranty have done
so because of economic considerations.
The liability of carriers and gas and electric utilities has been discussed
470 217 N. Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann.Cas. 1916C 440 (1916).
471 Freezer, Capacity to Bear Loss as a Factorin the Decision of Certain Types of Tort
Cases, 78 U. oF PA. L. Rav. 805, 811-814 (1930).
472 Ibid.
473
PRossaa, TORTS 688-693 (1941). Oklahoma, however, has rejected the implied war-
ranty theory in a case involving an exploding beer bottle. Soter v. Griesedieck Western Brewery
Co., 200 Okla. 302, 193 P.2d 575 (1948), noted in 1 OxlA. L. REv. 301 (1948).
4 74
PROSSER, TORTS 688-693 (1941).
previously. The Oklahoma decisions, as is quite generally the case, purport
to base liability upon negligence. An examination of the facts and the re-
sults in such cases, however, indicates that a more extensive liability in fact
is being exacted. Utilities are held to a higher standard of care, a greater
duty is imposed, foreseeability is less important, and the vague factors
which are included within the concept of proximate cause are less apt to
475
delimit liability.
One of the most significant recent developments in the law of torts is
the trend towards removal of governmental immunity.47 6 Furthermore, in
the case of municipal corporations, there has been a marked tendency to
expand the category of proprietary functions and to restrict the category
of governmental functions. It may be assumed that one of the influential
factors behind the relinquishment of immunity and the expansion of the
category of proprietary functions is the economic consideration that it may
be better to place the loss upon the government, which can distribute it by
taxation or otherwise, than to have it borne by the hapless individual
citizen.478 It may also be noted that in negligence cases, juries have a pro-
pensity to favor the plaintiff where the individual is permitted to sue a
governmental unit or agency, and that this bias may reflect economic
considerations.
The most significant and important example of recognition of capacity
to bear the loss as a legitimate basis for liability is legislation providing
for the recovery of compensation claims by injured workmen. 479 Typical
workmen's compensation statutes or employer liability acts impose an
insurance system for the compensation of injured workers, even if the
employer himself was neither negligent nor vicariously at fault. Contribu-
tory negligence, assumption of risk, and the fellow servant rule usually
have been abolished as defenses. 4s As long as the injury was received in
Cases, 79 U. oF PA. L. REv. 742, 743-753 (1913).
4 76
For example, see the Federal Tort Claims Act, 60 STAT. 842 (1946), 28 U.S.C.A. §§
921 to 946 (Supp. 1946), noted in 27 NEB. L. REv. 30 (1947) and 56 YALE L. J. 534 (1947);
N. Y. Court of Claims Act § 8, discussed in James, Accident Liability: Some Wartime Develop-
ments, 55 YALE L. J. 365 (1946).
Cases, 78 U. or PA. L. REV. 805, 815-841 (1930).
478 Ibid.
479 See 85 OxzA. STAT. § 1 et seq. (1941), and Federal Employer's Liability Act, 35 STAT.
65 (1908), as amended, 45 U.S.C. § 51 et seq. (1946).
4
§0 PROssER, TORTS 520 (1941).
the course of and arose out of the employment, the employee will be per-
mitted to recover in accordance with the established schedule, unless his
injury was willfully inflicted or incurred because of intoxication. 48 ' The
fund out of which the claim may be satisfied may be one controlled by the
state and derived from assessments against employers, it may be an insur-
ance fund with a private company, or in some states the employer may be
allowed to be his own insurer. 8 2 Workmen covered by compensation acts
are not usually permitted to bring a civil action in tort for injury; the sacri-
fice of a tort claim is often deemed to be part of the consideration for a
compensation claim under the statutes.8 8 Workmen not covered by such
statutes must seek recovery under the usual tort theory and may be faced.
with the customary common-law defenses which make a successful action
most difficult. 4 4 In Oklahoma, since contributory negligence and assump-
tion of risk are ordinarily for the jury, an exempted employee is in a some-
what better position than non-covered employees in other jurisdictions. s5
The Oklahoma statutes provide for compensation to injured employees
in certain occupations which are designated as "hazardous," where at the
time of the injury the employee was engaged in work or on a job which is
regarded as "hazardous. 484 The term "hazardous" includes a number of
occupations, some of which are not usually regarded as dangerous, and
"hazardous work" in effect covers manual labor or mechanical work as
distinguished from clerical work.4 7 Neither use of the term has reference
to the type of activity which may result in the application of strict liability.
It is not the creation of a one-sided risk carrying with it extreme danger
that is the basis for such legislation. Rather it is the social desirability of
shifting the loss; and since a fund may be created by assessment or insur-
ance, it is felt that an undue burden is not imposed upon any individual
employer.
481
For example, see 85 OKLA. STAT. § 11 (1941).
482 DODD, ADmINISTRATION OF WORxsmN's COMPENSATION C. XI (1936).
483 PROSSER, TORTS § 70 (1941). See 85 OKLA. STAT. § 12 (1941).

484 Ibid. Estimates as to the number of uncompensated industrial accidents at common
law have ranged all the way from 70 to 94 percent. See PROssER, TORTS 518 (1941).
485 OKLA. CONST. Art. XXIII, § 6.
4868 OKr.A. STAT. §§ 2, 3 (1941). See Seismograph Service Corp. v. Mason, 193 Okla.
623, 145 P.2d 967 (1944) ; Hurley v. O'Brien, 192 Okla. 490, 137 P.2d 592 (1943) ; City of
Hobart v. Wagoner, 191 Okla. 689, 132 P.2d 926 (1943).
487 See E. M. Mildred Agency v. Yates, 200 Okla. 168, 191 P.2d 581 (1948) ; Renner v.
Board of County Comm'rs, 195 Okla. 400, 158 P.2d 341 (1945) ; King v. Carl B. King Drilling
Co., 194 Okla. 71, 147 P.2d 463 (1944).
In recent years court dockets have been crowded with workmen's
compensation cases. By legislation a new economic and social philosophy
has been implemented into law and applied to the employer-employee rela-
tion. Understandably, courts at first were hostile to such legislation and to
its philosophy. Today, however, they have become inured to the concept
and by judicial legislation are expanding both the terms and purport of the
statutes. Moreover, the insurance theory inevitably has permeated and
colored the judicial approach to related problems. The camel's nose got
under the tent. Courts which have frequently considered the employer's
obligations to his employees may consciously or unconsciously carry over
such principles to problems involving the employer's responsibility to third
persons. The analogy has been almost irresistible. Respondeat superior
has expanded and grown along with the development of workmen's com-
pensation. Its extension would seem to be due to the same philosophy which
underlies compensation legislation and also to the perception that there
may be some analogy between the employer's responsibility to his workers
and that owed to the public generally.
The employer's liability for the torts of his servants is much more
extensive today than it was in the last century."' The fact that the em-
ployee violates express instructions and does that which was forbidden
in many instances is no defense. 8 ' The fact that the employee's conduct
was negligent, reckless, willful, or even illegal may not preclude vicarious
liability."' Even though the employee's purpose was but in part to serve
his master, the latter may be required to answer in damages.4 9' Consider-
ation is being given by some courts to the theory of "work induced" torts
that are said to be occasioned by environmental factors even though the
488
Seavey, Speculations as to Respondeat Superior,HARvARD LEGAL EssAYs 433 (1934).
The extension of the employer's liability has not been limited to tort cases. There also has been
an increase in the power of an agent to bind his principal in contracts. See Seavey, Agency
Powers, 1 OE:A. L. Rnv. 3 (1948).
489 RESTATEENT, AG eY § 230 (1933). See Barall Food Stores, Inc. v. Bennett, 194
Okla. 508, 153 P.2d 106 (1944); Patsy Oil and Gas Co. v. Odom, 186 Okla. 116, 96 P.2d 302
(1939) ; Breene v. Crawford, 175 Okla. 186, 53 P.2d 244 (1935).
490 See Barall Food Stores, Inc. v. Bennett, 194 Okla. 508, 153 P.2d 106 (1944) ; Ada-
Konowa Bridge Co. v. Cargo, 163 Okla. 122, 21 P.2d 1 (1933) ; PROSSER, TORTS § 63 (1941).
491 See Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Co., 49 F.2d 146 (10th
Cir. 1931); McKinney v. Bland, 188 Okla. 661, 112 P.2d 798 (1941); Russell-Locke Super
Service Co. v. Vaughn, 170 Okla. 377, 40P.2d 1090 (1935) ; REsTATEm:ENT, AGENCY § 235 (1933).
servant ostensibly was serving only his own ends.492 Where dangerous
instrumentalities are intrusted to an employee, some courts impose strict
liability upon the employer even though the worker leaves the scope of
his employment.4 93 In addition, where there is an inherently dangerous
undertaking or a non-delegable duty, the employer may be liable for the
torts of an independent contractor or the latter's servants. 4 4 The cases
also indicate a trend towards a narrowing of the category of independent
contractors, and an increasing tendency to broaden the concept of
servants.495
These relatively recent developments in the law of agency confirm the
long suspected efficacy of the economic factor in determining liability. It
requires but little reflection to perceive that the basic factor, which has
occasioned greater accountability on the part of employers, is the feeling
that since an employer benefits from the normal activities of employees,
he should accept the "bitter with the better" and stand the loss when those
serving him occasion harm. It is sensed that such vicarious liability should
be a cost of doing business and that, as between the injured plaintiff who
has no practical recourse against the servant, and the employer who had an
opportunity to select, train, control, and profit from the services of his
employees, the latter should bear the loss. 4 6 The employer may in turn
4192 Horn v. Broadway Garage, 186 Okla. 535, 99 P.2d 150 (1940) (aggressor cannot
recover) ; Oklahoma Ry. v. Carlton, 175 Okla. 426, 52 P.2d 1039 (1936) (voluntary partici-
pants denied recovery); J. C. Hamilton Co. v. Bickel, 174 Okla. 32, 49 P.2d 1065 (1935) (em-
ployer liable when participation involuntary) ; Pawnee Ice Cream Co. v. Cates, 164 Okla. 48,
22 P.2d 347 (1933) (non-participant may recover) ; Anderson & Kerr v. State Ind. Comm'n,
155 Okla. 137, 7 P.2d 902 (1932) (employer liable when custom to horseplay) ; Oklahoma-
Arkansas Telephone Co. v. Fries, 128 Okla. 295, 262 Pac. 1062 (1928) (non-participant may
recover). See Horovitz, Assaults and Horseplay Under Workmen's Compensation Laws, 41
ILL. L. REv. 311 (1946).
493 See also Joy v. Winder, 78 F.2d 283 (10th Cir. 1935) ; Maloney Tank Mfg. Co. v.
Mid-Continent Petroleum Co., 49 F.2d 146 (10th Cir. 1931) ; Ada-Konowa Bridge Co. v. Cargo,
163 Olda. 122, 21 P.2d 1 (1933); Rawley v. Commonwealth Cotton Oil Co., 88 Okla. 29, 211
Pac. 74 (1922) ; PROSSER, TORTS 480-481 (1941).
494 Marian Machine, Foundry & Supply Co. v. Duncan, 187 Okla. 160, 101 P.2d 813
(1940) ; Oklahoma City v. Caple, 187 Okla. 600, 105 P.2d 209 (1940) ; Tankersley v. Webster,
116 Okla. 208, 243 Pac. 745 (1925) ; Minnetonka Oil Co. v. Haviland, 55 Okla. 43, 155 Pac.
217 (1916) ; Missouri, K. & 0. Ry. v. Ferguson, 21 Okla. 266,.96 Pac. 755 (1908). For opposing
views as to this matter, see Morris, The Torts of an Independent Contractor, 29 ILL. L. REV.
339 (1935), and Steffen, The Independent Contractorand the Good Life, 2 U. or Cm. L. REv.
501 (1935).
• 95 PaossER, TORTS § 64 (1941).
4196 Seavey, Speculations as to Respondeat Superior,HARVARD LEGAL EssAys 433, 445-451
(1934).
minimize the loss by carrying insurance or increasing his prices and he and
his insurer may try to collect from the errant employee. These economic
considerations have outweighed what might be called the moral precept
497
that it is unjust to make one man answerable for the fault of another.
In so far as liability is imposed because of capacity to bear the loss
and without reference to the reasonableness or unreasonableness of the
defendant's conduct, it is liability without fault. To some lawyers and
judges trained in the decisions of the last century and steeped in the philos-
ophy of individualism, such strict liability is most distasteful and to them
it may be contrary to natural right and justice. But philosophies and the
exigencies of the times have changed and the law which is meted out today
must serve the needs and the values of the twentieth century. The empha-
sis, fortunately or unfortunately, is no longer upon individualism but upon
man being a civilized and responsible member of society, owing certain
duties and obligations in exchange for the freedom and privilege obtained
from and protected by organized society. Not only legal philosophers but
the man on the street who sits in the jury box, and, increasingly, legislators
and judges themselves have perceived that economics and law are inexor-
ably interwoven and that law perforce must echo the social conscience of
the age, in fact if not in theory. Finespun legal theories-such as the negli-
gence formula devised in the last century-cannot withstand the impact of
a change in values. If the courts are laggardly, juries or finally legislatures
will undo the anachronism and make law responsive to the peculiar needs
of the time and place.498 Judicial Canutes cannot turn back the sea, and
497 Mr. Justice Holmes was a severe critic of respondeat superior on the ground that
"common sense is opposed to making one man pay for another man's wrong unless he actually
brought the wrong to pass." Holmes, Agency, 5 HARv. L. Rxv. 14 (1891). Likewise the first
workmen's compensation act that was passed in the United States was regarded as unjust,
opposed to common sense, and contrary to "natural justice." In Ives v. South Buffalo Ry., 201
N.Y. 271, 293, 94 N.E. 431, 439, 34 L.RA. (N.s.) 162, Ann.Cas. 1912B, 156 (1911), New York
held its workmen's compensation act unconstitutional upon the ground that there was no
legislative power to make an employer responsible for injury incurred without fault. The court
said: "When our constitutions were adopted, it was the law of the land that no man who was
without fault or negligence could be held liable in damages for injuries sustained by another.
That is still the law.... The argument that the risk to the employee should be borne by the
employer because it is inherent in the employment may be economically sound; but it is at
war with the legal principle that no employer can be compelled to assume a risk which is in-
separable from the work of the employee, and which may exist in spite of a degree of care by
the employer far greater than may be exacted by the most drastic law...
ax, JuDOE AND JuRy 122-123 (1930).
498 GP
in the long run emphasis upon principle will not thwart the current sense
of justice.499 The economic factor will not be denied. It may be anticipated
that it will become of increasing importance and have a more reputable
import as time goes by and will be considered as one phase of public
policy 0 0 It may be predicted that liability without fault, where the loss
may be diffused, will steadily encroach upon the domain of negligence be-
cause of the needs of modern industrialized society, and although fault
will be a dominent element throughout much of tort law, strict liability will
likewise assume a significant role.5° '
V. CONCLUSION
Our examination and review of some of the pertinent Oklahoma tort
cases indicates that liability without fault is far from being an historical
anomaly in this jurisdiction and that strict liability is regularly imposed
in a variety of situations. The basic postulates or factors which may occa-
sion such liability are the ultrahazardous character of the particular ac-
tivity and capacity to bear the loss. Either or both factors may operate
to overcome the predisposition to predicate liability upon unreasonable
conduct. From the standpoint of the plaintiff, it is usually his interest in
security of person and property that is being protected when strict liability
is applied. From the defendant's standpoint, it is not his immediate con-
duct, but the fact that he created an unusual or unreasonable hazard, or
that he has the ability to absorb or diffuse the loss, that occasions the im-
position of liability without fault.
Strict liability does not make the defendant an insurer. There are a
number of recognized exceptions and limitations upon the doctrine. For
example, a greater foreseeability of the particular harm to the particular
plaintiff is required than under the negligence formula. The same consid-
erations which enter into a determination of proximate cause in negligence
cases likewise pertain to ultrahazardous activities, and usually the concur-
rence or intervention of unanticipated agencies or persons is more apt to
cut off liability. Moreover, for strict liability to be applicable, it is not
499 Ibid., where Dean Green says in part: "... . nineteenth century morality was a severe
thing. It demanded absolutes. Either a defendant was responsible or he was not. Compromises
were not to be endured.... The judges had been interested in principles; juries were interested
in doing justice between the parties. The judges evolved a nice scheme for determining responsi-
bility, the juries gave verdicts which wrecked the scheme .... "
500 Douglas, Vicarious Liability and the Administration of Risk, 38 YALE L. J. 584
(1929) ; Laski, The Basis of Vicarious Liability, 26 YALE L. J. 105 (1916).
5OSee James, Accident Liability: Some Wartime Developments, 55 YALE L. J. 365-
366 (1946).
sufficient that the activity is merely dangerous. The activity or condition

must create an unusual, non-customary, one-sided risk and involve a sub-
stance or operation which may go amiss despite all reasonable precautions.
Where economic considerations alone afford a basis for strict liability, the
situation is generally one where the defendant has the ability to himself
avoid the loss and to pass it along.
To some it may come as a surprise that there are so many situations
in Oklahoma where the court has and is imposing liability without fault.
In summary, the Oklahoma decisions have imposed strict liability in the
following situations and under the following theories:
1. In cases involving explosives and wild animals, as a matter of common-
law policy.
2. In cases involving what has been termed a nuisance, and where, at least in
part, the ultrahazardous nature of the activity or condition contributes
to its characterization as a nuisance.
3. In cases where the eminent domain provisions of the Oklahoma Constitu-
tion are held to be applicable. This would appear to be one of the most
important and ill-defined grounds for the imposition of liability without
fault.
4. Where strict liability is imposed by statute, or where the violation of a
criminal statute is held to be negligence per se. The use of the doctrine of
res ipsa loquitur also has a tendency to result in the imposition of strict
liability.
5. In certain kinds of tort cases, viz., those involving carriers, utilities,
manufacturers, and governmental units subject to suit, although lip serv-
ice is paid to the negligence formula. As a practical matter something
verging on strict liability is actually imposed.
6. Workmen's compensation laws impose strict liability as a matter of eco-
nomic or social policy and the effects of such legislation have been felt in
related fields such as that of respondeatsuperior,where vicarious liability
is imposed without fault.
It is obvious that the above instances of strict liability occupy an
important and substantial part in the field of tort litigation in Oklahoma.
The moral precept that there should be no liability without fault, although
not an empty aphorism, is by no means invariably applied. Negligence will
continue to be the basis of the bulk of tort litigation, but it may be predicted
that strict liability will become of increasing importance as the law of the
twentieth century is adjusted to the needs of modern industrialized society.
Liability without fault is and will be imposed in Oklahoma. Rylands v.
Fletcher, although perhaps at variance with the moral precepts of laissez-
faire, is consonant with the social responsibilities exacted in an era of eco-
216 OKLAHOMA LAW REVIEW [Vol. 3:172
nomic maturity and as long as there continues to be a sociological approach
to law, it may be anticipated that both the creation of a unique hazard
containing a threat to security and capacity to bear the loss will be of
fundamental importance in the allocation of tort liability.

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Consideration has been given in the first installment of this article to

2. Strict Liability Imposed by the Constitution.Perhaps the most im-

nuisance or trespass 2 73 and to damage consisting of depreciation in the

though the basis for declaring the defendant's wrong to be a nuisance is

335 174 Okla. 167, 49 P.2d 752 (1935).

336 83 Okla. 78, 200 Pac. 701 (1921).

3. Strict Liability Imposed by Statute. In addition to the imposition

of contributory negligence is not available to the defendant. 37 4 What is

4. Negligence per se. Aside from such statutes as those discussed,

892 PROSSER, TORTS 275-276 (1941).

and strict liability is that contributory negligence is a more certain defense

5. Escape of DangerousSubstances. For the most part, in the absence

483 PROSSER, TORTS § 70 (1941). See 85 OKLA. STAT. § 12 (1941).

sufficient that the activity is merely dangerous. The activity or condition

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