Burks Motors, Inc. v. International Harvester Co., 5--5425

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN
• Citation: Burks Motors, Inc. v. International Harvester Co., 466 S.W.2d 907, 250 Ark. 29 (Ark. 1971)
• Decision Date: 01 March 1971
• Docket Number: No. 5--5425,5--5425
• Parties: BURKS MOTORS, INC., Appellant, v. INTERNATIONAL HARVESTER COMPANY, Inc., et al., Appellees.

Page 907

466 S.W.2d 907

250 Ark. 29

BURKS MOTORS, INC., Appellant, v. INTERNATIONAL HARVESTER COMPANY, Inc., et al., Appellees.

No. 5--5425.

Supreme Court of Arkansas.

March 1, 1971.

Rehearing Denied May 10, 1971.

Wootton, Land & Matthews, Hot Springs, for appellant.

Wright, Lindsey & Jennings, Little Rock, for appellees.

FOGLEMAN, Justice.

This is an appeal by Burks Motors, Inc., from that part of the judgment involved in International Harvester Company v. Pike, 249 Ark. ---, 466 S.W.2d 901 (1971), relating to contribution by International to Burks. This judgment in favor of Pike was against appellant and appellee, jointly and severally, for $87,000. Burks was granted judgment against International for contribution of 91% of the judgment. Burks appealed from this judgment, contending that it was entitled to a greater contribution by International. Burks does not question the issues of liability or the amount of the judgment, but seeks only to modify the judgment in respect to contribution. It asserts that it was liable to Pike for negligence only, that the jury found that Burks' negligence and that of International Harvester contributed only 10% to the cause of Pike's damages, and that Burks' only responsibility was limited to 9% of the negligence involved as a concurring cause. We do not agree with appellant's construction of the jury verdict.

Pike's cause of action against both Burks and International was based upon both breach of warranty and negligence. Burks prayed for determination of relative fault between it and International, and judgment over against International under the Uniform Contribution among Tortfeasors Act (Ark.Stat.Ann. § 34--1001, et seq. (Repl.1662)) for its proportionate liability. Burks also asked judgment over against International for any recovery for breach of warranty.

The case was submitted to the jury upon interrogatories. No interrogatory was submitted as to whether Burks was liable for breach of warranty, because it was clearly entitled to judgment over against International for any breach of implied warranty. The circuit judge stated that he would be willing to submit further interrogatories to the jury after it had answered those submitted, if any were necessary to have further information from it to avoid any confusion.

Before any interrogatory was submitted, it was agreed by all parties that, if the jury found that International was guilty of negligence which was a proximate cause of Pike's damages, and answered other interrogatories submitted, the court would then submit a final interrogatory requiring allocation of International's liability between negligence in design on the one hand and negligence in assembly and repair on the other for the purpose of an action by International against Hendrickson Manufacturing Company, the alleged supplier of the torque rod assembly. ¹ When the jury first retired, the only interrogatories submitted were directed to findings whether International Harvester was guilty of negligence constituting a proximate cause, whether Burks was guilty of such negligence, whether International was guilty of a breach of warranty which was a proximate cause, and whether Pike assumed the risk of his own injury. After these interrogatories were answered, the circuit judge submitted an interrogatory calling for apportionment of responsibility between International and Burks. The interrogatory and the answer are as follows:

Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.

ANSWER:

s/C. O. Shuffield,

Foreman

This interrogatory was requested by Pike. Objection was made by Burks only on the ground that it failed to submit the issue of negligence on the...