International Harvester Co. v. Burks Motors, Inc.

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN; HARRIS; BYRD
• Citation: International Harvester Co. v. Burks Motors, Inc., 481 S.W.2d 351, 252 Ark. 816 (Ark. 1972)
• Decision Date: 12 June 1972
• Docket Number: No. 5--5906,5--5906
• Parties: INTERNATIONAL HARVESTER CO., Appellant, v. BURKS MOTORS, INC., Appellee.

Page 351

481 S.W.2d 351

252 Ark. 816

INTERNATIONAL HARVESTER CO., Appellant, v. BURKS MOTORS, INC., Appellee.

No. 5--5906.

Supreme Court of Arkansas.

June 12, 1972.

Rehearing Denied July 17, 1972.

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

Wootton, Land, Matthews, Hot Springs, Bernard Whetstone, Little Rock, for appellee.

FOGLEMAN, Justice.

This appeal is a sequel to International Harvester Company v. Pike, 249 Ark. 1026, 466 S.W.2d 901, and Burks Motors, Inc. v. International Harvester Company, 250 Ark. 29, 466 S.W.2d 907, Supplemental Opinion on Rehearing, 250 Ark. 641, 466 S.W.2d 943. The factual background is adequately stated in those opinions. In the first opinion, we reversed a judgment for personal injuries and property damage suffered by Earl Pike against International due to the failure of the trial court to grant a mistrial because of prejudicial remarks during closing arguments, and to submit the issue of Pike's negligence to the jury. It was there recognized that Burks Motors had filed its separate appeal on a single point which was adverse to International; that the question submitted as to Burks' liability to Pike was based on the issue of negligence only, while International's liability hinged on either negligence or implied warranty or both; and that, as between International and Burks the total responsibility was fixed at 91% on International and 9% on Burks, and as between negligence in design and negligence in repair, the jury's allocation was 90% and 10%, respectively.

Burks appealed from the judgment on its prayer for contribution under the Uniform Contribution Among Tortfeasors Act (Ark.Stat.Ann. § 34--1001 et seq. (Repl.1962)) against International for 91% of the judgment against it, contending that it was entitled to a greater contribution. Burks only sought a modification, not a reversal of that judgment. The judgment was based upon answers to interrogatories by which the jury found both International and Burks guilty of negligence which was a proximate cause of the injuries and damage and allocated the responsibility as above set out. We refused the prayer for modification.

In a petition for rehearing and clarification, Burks asked that we state that its judgment against International for contribution was final and binding between these parties by reason of the judgment itself and International's failure to seek contribution from Burks or to ask reversal of that judgment on appeal. International filed a petition for amplification of the opinion on Burks' appeal asking that we declare that the entire judgment against it was reversed and remanded and that as a result the judgment for contribution was nullified. A similar petition was filed in its own appeal, claiming that unless and until there was an adjudication of liability against International on retrial, it could not possibly be a joint tortfeasor from whom contribution could be obtained. Burks also filed a petition for rehearing asking that we state that the judgment against it was reversed and remanded so that Pike would have no judgment against Burks, or, in the alternative, that we state that it was entitled to a 91% contribution from International.

In our supplemental opinion on rehearing, we unanimously held that the judgment against Burks must be affirmed. By a division of four to three, we held that International had waived the point that there was error in the assessment of the liability between it and Burks. We said that points raised by the post opinion motions other than that pertaining to finality of the judgment against Burks depended upon future developments and that they must be litigated in the trial court in the light of those developments, pointing out that Burks could not be entitled to a money judgment against International under any circumstances until Burks had either paid the judgment or discharged more than its pro rata share. We denied the petitions for rehearing except as to the finality of the judgment against Burks and as to Burks' entitlement to a money judgment. Our mandate recited the affirmance of the Burks judgment against International.

Matters decided by us on the Burks appeal and on the petitions for rehearing are the law of the case and govern our action on this appeal to that extent, even if we were now inclined to say that we were wrong in those decisions. Farmers Cooperative Assn. v. Phillips, 243 Ark. 809, 422 S.W.2d 418. See also, Arkansas State Highway Comm. v. Lemley, 250 Ark. 186, 464 S.W.2d 605; Wilson v. McDaniel, 250 Ark. 316, 465 S.W.2d 100; Sigmon Forest Products, Inc. v. Scroggins, 250 Ark. 385, 465 S.W.2d 673; St. Louis Southwestern Ry. Co. v. Jackson, 246 Ark. 268, 438 S.W.2d 41. Nothing is before us for adjudication but the proceedings subsequent to our mandate. Fortenberry v. Frazier, 5 Ark. 200, 39 Am.Dec. 373, relied upon in St. Louis Southwestern Ry. Co. v. Jackson, supra.

After the filing of the mandate, the circuit court on July 30, 1971, credited the judgment against Burks with the payment on June 22, 1971, to Pike by National Union Insurance Company, a liability insurance carrier for Burks, of $65,887, consisting of $50,000 for bodily injuries, $10,000 for property damage and $5,887 accrued interest. This judgment allowing the credit contained a recitation that the payment in no way abrogated or interfered with the right of Burks or National Union to recovery over against International Harvester, Hendrickson Mfg. Co., O & S Co. or any other parties made third party tortfeasors in the action.

On the same date Burks filed its motion for summary judgment against International asking for a money judgment of $59,957.17, which Burks alleged was 91% of the amount paid Pike. International replied that substantial fact issues existed. It contended that, since there was no judgment against it in favor of Pike, International could not be said to be a joint tortfeasor with Burks, until there is such a judgment or some judgment finding that it is a joint tortfeasor. Subsequently, International filed a cross-complaint against Burks, seeking judgment over against Burks for $20,000 paid by International to Pike as a settlement and compromise of his claim. International denied any liability to Pike and alleged that in consideration of its $20,000 payment, Pike executed a release which extinguished Burks' liability to him. International also alleged that there was a disproportion of fault between it and Burks and that the release of Burks entitled International to contribution from Burks as a joint tortfeasor under Ark.Stat.Ann. § 34--1001, the amount and proportion of which should be determined in this action. The circuit court granted Burks' motion and rendered a money judgment in its favor for $57,527.17, on the basis of the original judgment for 91% contribution by International.

International contends that there are material fact issues to be litigated in a new trial and that the question of contribution cannot arise until it has been established in a new trial that International is liable to Pike. Appellant argues that the contribution claimant must first prove that the contribution defendant was originally liable to the injured party before the question of contribution can arise. There are two flaws in this argument. First, appellant overlooks the fact that these very matters were at issue on the first trial, and are settled by the law of the case, if not res judicata. The jury verdict was on interrogatories. The jury found that Burks and International were both negligent and that the negligence of each was a proximate cause. We stated in the supplemental opinion on rehearing that International had waived its contention in its motion for new trial that the judgment against it in Burks' favor was erroneous by failure to press the point on appeal. We did not consider International's contention that Burks' negligence was an efficient intervening cause, as a matter of law, relieving it of any liability, to be an attack on the apportionment of liability. We rejected that contention on International's appeal. That is the law of the case and is binding, not only on the parties but on the courts. As a result, as between International and Burks, the two were found to be joint tortfeasors and their contribution determined. We pointed out that a money judgment was not proper until Burks had paid more than its pro rata share. This, it has now done. In Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169, we held that a judgment against the tortfeasor from whom contribution was sought was not essential, where...