No. 4233.United States Court of Appeals, Tenth Circuit.
July 14, 1951. Rehearing Denied August 18, 1951.
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B.W. Tabor, Tulsa, Okla., and Tom Wallace, Sapulpa, Okla. (Clayton B. Pierce, Truman B. Rucker, Oklahoma City, Okla., and Everett S. Collins, Sapulpa, Okla., were with them on the brief), for appellants.
Keith Martin, Kansas City, Mo., and Glenn A. Young, Sapulpa, Okla. (Louis W. Krings, Kansas City, Mo., and John W. Young, Sapulpa, Okla., were with them on the brief), for appellee.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
PICKETT, Circuit Judge.
Plaintiff brought this action to recover for personal injuries and damage to property which plaintiff incurred while occupying a room as a guest, on the third floor of a hotel owned by the defendants, Nick Douvas and Lorraine Douvas, and operated by the defendant, Anderson Hotels of Oklahoma, Inc. All of the allegations of negligence charged by the plaintiff were disposed of adversely to him except the allegation that the defendants failed to have installed in the room occupied by the plaintiff a rope fire escape as required by the Oklahoma statutes. Verdict and judgment were for the plaintiff in the sum of $11,000 for personal injuries, and $250 for loss of personal belongings. This appeal was taken by the defendants.
The principal question presented here is whether 63 Okla.St.Ann. 172,[1] insofar as it
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relates to hotels, was repealed by subsequent legislation. On April 28, 1908, Chap. 38 of the 1907 and 1908 Oklahoma Session Laws was approved, Sec. 2 thereof now being Sec. 172. This Chapter was entitled “An Act to provide certain buildings, public and private institutions, and places of public assemblage, and places of public resort, hotels, lodging apartment and other public houses, with fire escapes, and providing penalties for violation thereof.” At the same session Chap. 43 was approved May 27, 1908. This was “An Act to provide for the inspection and management of hotels and public lodging houses, defining hotels, providing for fire escapes, and prescribing penalties.” Sec. 4 required rope fire escapes in hotels not over two stories in height and not equipped with metallic fire escapes.[2] Sec. 20 repealed all acts or parts of acts inconsistent with that Chapter. So far as the requirement for rope fire escapes in hotels is concerned, Sec. 4 of the May 27th Act is in direct conflict with such requirements in Sec. 2 of the April 28th Act. The earlier enactment, without any exceptions, required a rope to be affixed in each room of every hotel two stories or more in height. Sec. 4 of the May 27th Act required that rope escapes be placed only in rooms of hotels which are not over two stories in height, and then only when the building is not provided with the type of a metallic fire escape which the Act required.
The Oklahoma law is settled that where two statutes are inconsistent and repugnant, the latest expression of the legislature will be held to prevail and to repeal the repugnant provisions of the earlier statute. In re Initiative Petition, 203 Okla. 438, 222 P.2d 1032, 1034; Harrigill v. State, Okla. Cr.App., 214 P.2d 263, 269; Hines v. Harmon, 178 Okla. 1, 61 P.2d 641; James v. Board of Commissioners of McCurtain County, 103 Okla. 141, 229 P. 554; City of Pawhuska v. Pawhuska Oil Gas Co., 64 Okla. 214, 166 P. 1058; Ex parte James, 4 Okla. Cr. 94, 111 P. 947. In the James case it was said that where two acts passed by the same legislature contain repugnant provisions, the one which last received executive approval or which was passed over the executive veto will be held to repeal the repugnant provisions of a former act. It is also well settled in Oklahoma that a statute which contains a repealing clause such as that embodied in the May 27th Act operates to repeal all earlier statutes or parts thereof which are in conflict. Greer v. Bird, 93 Okla. 246, 220 P. 579; Nettles v. Carson, 77 Okla. 219, 187 P. 799. It seems to us also that the May 27th Act was comprehensive and designed to deal specifically with the operation of hotels and public lodging houses in the State of Oklahoma, while the April 28th Act was a general statute having to do with fire escapes in public buildings. The subsequent Act fully covered and embraced all provisions of the former relating to fire escapes in hotels. In such cases the later statute is considered a substitute for and will be construed as a repeal of the prior statute by implication, even though the later statute makes no reference to the earlier one. Skelton v. United States, 10 Cir., 88 F.2d 599, 604; Ex parte Olden,
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88 Okla. Cr. 56, 199 P.2d 228, 234; Application of Jackson, 179 Okla. 577, 66 P.2d 1101, 1103; Board of Education v. McCracken, 62 Okla. 173, 162 P. 782; Hine v. Gokey, 23 Okla. 870, 102 P. 77; City of Ardmore v. Chicago, R.I. P.R. Co., 172 Okla. 373, 45 P.2d 540.
It is suggested that the inclusion of Sec. 2 of the April 28th Act in the 1941 revision of the Oklahoma Statutes amounted to a reenactment of that section. The Oklahoma Courts have had occasion to pass upon this subject at different times and have held that such inclusion does not operate to give validity to the repealed statute. School Board of Consol. School Dist. No. 47 v. Monsey, 198 Okla. 41, 175 P.2d 76; Thomas v. State, 83 Okla. Cr. 25, 172 P.2d 651; In re Initiative Petition, supra; Harrigill v. State, supra; Ex parte Olden, supra. It follows that the rope fire escape provisions of the earlier act were effectively repealed by the later legislation.
The second cause of action in the complaint sought judgment for the loss of wearing apparel, personal effects, bags and baggage of the plaintiff which were destroyed by the fire. The verdict of the jury was against the defendant, Anderson Hotels of Oklahoma, Inc., for the sum of $250. Judgment was entered for that amount against both defendants. The hotel company urges that this judgment cannot stand for the reason that it is based solely on the negligence of the defendant in failing to comply with the rope statute. Apparently in Oklahoma, the only defense which a hotelkeeper has for loss of personal effects of a guest in the hotel is that the loss was caused by one of the exceptions named in the statute,[3] the amount of recovery being limited to $250. 15 Okla.St.Ann. §§ 501, 503b; Park-O-Tell Co. v. Roskamp, 203 Okla. 493, 223 P.2d 375; Busby Hotel Theatre Co. v. Thom, 125 Okla. 239, 257 P. 314; Abercrombie v. Edwards, 62 Okla. 54, 161 P. 1084; Huckins Hotel Co. v. Hooper, 44 Okla. 307, 144 P. 177. No claim is made that the loss was the result of one of the exceptions.
Judgment is reversed except as to that part which awarded the plaintiff $250 against Anderson Hotels of Oklahoma, Inc., and that part of the judgment is affirmed.
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