Larson Mach., Inc. v. Wallace

• Decision Date: 10 March 1980
• Docket Number: No. 78-308,78-308
• Citation: 268 Ark. 192,600 S.W.2d 1
• Parties: LARSON MACHINE, INC., G & G Manufacturing Co., and Bruce Oakley, d/b/a Oakley Fertilizer & Chemical Corp., Appellants, v. Arnold WALLACE and Vada Wallace, Appellees.
• Court: Arkansas Supreme Court

Page 1

600 S.W.2d 1

268 Ark. 192

LARSON MACHINE, INC., G & G Manufacturing Co., and Bruce Oakley, d/b/a Oakley Fertilizer & Chemical Corp., Appellants, v. Arnold WALLACE and Vada Wallace, Appellees.

No. 78-308.

Supreme Court of Arkansas.

March 10, 1980.

Supplemental Opinion on Denial of Rehearing April 28, 1980.

Lightle, Beebe & Raney, Searcy, Friday, Eldredge & Clark by Joseph E. Kilpatrick, Jr., Donald H. Bacon, Gannaway, Darrow & Hanshaw, Little Rock, for appellants.

Boyett & Morgan, P. A., Searcy, for appellees.

FOGLEMAN, Chief Justice.

Arnold Wallace and his wife brought this personal injury suit for damages for severe, serious, painful and permanent injuries to his right leg and foot. The original defendants were Larson Machines, Inc., a manufacturer who produced fertilizer spreaders, and G & G Manufacturing Company, the manufacturer of a power take-off shaft and safety shield which was a component of the fertilizer spreaders manufactured by Larson. Bruce Oakley, who, as Oakley Fertilizer & Chemical Corporation, sold fertilizer to Arnold Wallace and furnished him a fertilizer spreader purchased by Oakley from Larson was a third party defendant. On May 24, 1973, Wallace was distributing the fertilizer he had purchased from Oakley using a Larson fertilizer spreader he had obtained from Oakley for that purpose. He was pulling the spreader with a tractor and got off the tractor to make an adjustment. As he dismounted, his pants leg was caught in the power take-off shaft, which was not protected by a safety shield. As a result, his pants and boot were wrapped around the shaft and his foot and leg badly mangled.

In their original complaint the Wallaces had sought to recover from Larson and G & G for negligence and breach of implied warranties of merchantability and fitness for a particular purpose in the design and manufacture of the safety shield. After a full trial, the jury returned a verdict on interrogatories propounded to it. The jury found that the damages Wallace had suffered amounted to $180,000 and apportioned the negligence among the parties as follows 40% to Arnold Wallace, 25% to Larson, 25% to G & G, and 10% to Oakley. It also found that Larson and G & G had breached various warranties to Wallace which were the proximate cause of his injuries, but did not find that Oakley had breached any warranties to Wallace. Judgment was ultimately entered on the verdict on May 18, 1978.

Due to the allegations of various bases of liability of the three defendants, the multiple cross-complaints among the defendants seeking indemnity and contribution from each other, and the many motions made during and after the trial, which took place in April, 1978, numerous complex questions arose during the trial and have been presented on these appeals by Oakley, Larson and G & G. In this opinion, we will first treat those points asserted by Oakley against the judgment in favor of Arnold Wallace and then proceed to the points raised by Larson and G & G that are material to the disposition of the case as to the Wallace judgment. Thereafter, we will take the remaining issues between Oakley, on the one hand, and Larson and G & G on the other. Where the questions relate to the evidence deduced, we will of course view the evidence in the light most favorable to the Wallaces, drawing all inferences reasonably deducible in their favor. Where there are conflicts in the evidence, we will remember that the jury resolved them, and all questions of credibility, against the appellants.

Oakley contends that the trial court erred in overruling his motion to dismiss the Wallaces' amended complaint against him. The motion asserted that the Wallace cause of action against Oakley was barred by the three-year statute of limitations.

As pointed out above, the Wallaces alleged that Arnold Wallace suffered his injury on May 24, 1973. They did not file suit until November 13, 1974. In the complaint then filed Larson was the only defendant. On June 11, 1975, the Wallaces amended their complaint to make G & G a defendant along with Larson. Oakley was not a party to the action in any capacity before September 5, 1975, when G & G filed a third party complaint against him, alleging that, if the safety shield was missing when the fertilizer spreader was leased to Wallace, Oakley knew or should have known that it was and knew or should have known that the spreader, in that condition, was dangerous and unfit for use. G & G asserted that, if these allegations were true, the negligence of Oakley was a proximate cause of Wallace's injury. G & G sought indemnity from Oakley and contribution under the Uniform Contribution Among Joint Tortfeasors' Act. Larson responded to that pleading by filing, on September 23, 1975, a response which included a cross-complaint against Oakley, stating that if Arnold Wallace was damaged as alleged, the damages were caused by the negligence of Oakley and that Oakley was liable to Larson by way of indemnity or contribution on any damages recovered against Larson. Oakley then filed a general denial of the allegations of the third party complaint of G & G and the cross-complaint of Larson. In that pleading, he asserted that Arnold Wallace was contributorily negligent, in addition to alleging that the protective shield manufactured by G & G was defective in design and manufacture and that Larson knew or should have known, of the potential hazard, but failed to test the shield or to provide adequate warning.

It was not until September 27, 1977, that the Wallaces asserted any cause of action against Oakley. On that date, they filed their complaint against Oakley, as a third party defendant, alleging that Oakley had been brought into the suit by G & G and adopting, by reference, all of their allegations as to liability of the original defendant, as allegations of liability on the part of Oakley. Obviously, this pleading, filed more than four years and four months after the date the Wallaces alleged that Wallace was injured, asserted a cause of action which was barred by the three-year limitation of Ark.Stat.Ann. § 37-206 (Repl.1962), if that statute applies, and if it cannot be said that the cause of action had been asserted against Oakley within three years after May 24, 1973.

Oakley promptly filed a motion to dismiss the complaint of the Wallaces against him, pleading the three-year statute of limitations as a bar to any cause of action they had against him. Oakley argues that the statutory period continued to run until the Wallaces filed their "Complaint against Third- Party Defendant," relying upon such cases as Bridgman v. Drilling, 218 Ark. 772, 238 S.W.2d 645, where third party practice was not involved. However logical Oakley's arguments may seem, they are inconsistent with a prior holding of this court. In their original complaint, the Wallaces had alleged that the fertilizer spreader, a Model 815 Broadcaster, was in a defective condition, which was unreasonably dangerous to Arnold Wallace at the time it was distributed. Similar allegations were made in the amendment to the complaint of the Wallaces by which G & G was made a party defendant. Under Ark.Stat.Ann. § 34-1007 (Repl.1962), one who is a third party defendant under the Uniform Contribution among Joint Tortfeasors Act (Ark.Stat.Ann. § 34-1001 et seq. (Repl.1962)) shall make his defense to the complaint of the plaintiff and to the third party complaint in the same manner as defenses are made by an original defendant to an original complaint.

In Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820, a landowner and his tenant filed suit against Elms Planting Company for damages to their cotton crop occasioned by the use of a chemical dust by the planting company in spraying its rice crop. Elms Planting Company filed a cross-complaint against Chapman Chemical Company, alleging that if Elms Planting Company was in fact liable in any amount, the Chemical Company, if not primarily and solely liable, was at least a joint tortfeasor. The Planting Company invoked the provisions of Act 315 of 1941 (Ark.Stat.Ann. § 34-1001 et seq.). The Chemical Company had not been made a defendant in the original suit of the plaintiffs, who filed a motion to dismiss the suit against the Chemical Company. This motion to dismiss was overruled and the Chemical Company moved to dismiss upon the ground that Act 315 had no application because it had no liability to the plaintiffs. This motion was also overruled. The case proceeded to trial and a verdict was rendered in favor of plaintiffs against the Chemical Company but against the plaintiffs on their claim against the Elms Company. On appeal, the Chemical Company insisted that there was error in joining it in the suit against the Elms Company because, since it was not named as a defendant by the plaintiff and no relief was prayed against it, the Uniform Contribution Among Joint Tortfeasors Act did not authorize this action. This court sustained the judgment against the Chemical Company, even though the judgment in favor of the Elms Company was also affirmed. We pointed out that under Act 315 a defendant seeking contribution may serve a complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff's claim against him. We said:

Here the injured parties, the original plaintiffs, do not concede that they have no cause of action against the third party defendant, the Chemical Co. On the contrary, it is asserted that the plaintiffs did have and now have a cause of action against the third party defendant. Plaintiff's contention is that they had a cause of action against the Elms Co. on which they were content to rely, and they did not elect to complicate that case by making the Chemical Co. a party. But it said in cross appellant's brief, that now that the Chemical Co. has been made a party, although not on their motion, the...