Lead Opinion
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 merchantibility 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 contributorially 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,
In Chapman Chemical Co. v. Taylor,
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 judgment against the Chemical Co. should be affirmed. Indeed the position of the cross appellants, the original plaintiffs, is that not only should the judgment against the Chemical Co. be affirmed, but that the judgment against the Elms Co. should be reversed for the reason that under the undisputed testimony its liability as well as that of the Chemical Co. was established.***
It is true, as Oakley argues, that the statute of limitations was not involved there. The important thing, however, is that the original plaintiffs in that case never filed any pleading against the Chemical Company. They were entitled to judgment against the Chemical Company on the basis of tíie allegations of the complaint against the original defendant and those of the third party complaint against the Chemical Company, as third party defendant. We quoted and relied upon a statement from Baltimore Transit Co. v. State,
There are some cases holding that the period of limitations continues to run until the plaintiff actually amends his pleadings to assert a cause of action against a third party defendant. See Lommer v. Scranton-Spring Brook Water Service Co., 3 FRD 27 (M.D. Pa. 1943); but see same case 4 FRD 104 (M.D. Pa. 1944); Hankinson v. Pennsylvania Railroad Co.,
When the third party complaint alleges a direct liability of the third party defendant to the plaintiff on the claim set out in the plaintiff’s complaint, the third party “shall” make his defenses to the complaint and no amendment to the complaint is necessary or required, and the parties are at issue as to their rights respecting the claim without any amendment of the complaint by the plaintiff. Atlantic Coast Line R. Co. v. United States F. & Guaranty Co.,
The Wallaces did not originally assert a cause of action against Oakley, but they would have been entitled to judgment against Oakley under the rule in the Chapman Chemical Company case even if they had never filed a pleading against him. Because the duty of Oakley to defend against the allegations of the Wallaces, in the complaints against Larson and G & G, existed at the time Oakley was served with the pleadings, and because three years had not then elapsed after Arnold Wallace was injured, the cause of action was not barred by the statute of limitations.
Oakley next contends that recovery by the Wallaces was barred because Arnold Wallace assumed the risk of injury inherent in the use of the fertilizer distributor in the condition it was when he was injured. Larson and G & G also raise this issue.
Arnold Wallace was 49 years of age. He divided his time between his occupation as a carpenter and work on a cattle farm he had owned for 10 to 20 years. On the day before his injury, he picked up a Parson fertilizer spreader at Oakley’s place of business. Oakley told Wallace that he would have to return the spreader by 8:00 a.m. the following day. Since the power take-off shaft was on the front of the fertilizer spreader, the shaft was raised to a vertical position when being transported as it was by Wallace. The spreader was attached to the rear of Wallace’s pickup truck by employees of Oakley. Wallace did not examine the spreader, but assumed that it was “okay.” On the way to the farm, nothing fell off the spreader. Wallace’s son was waiting for him when he reached the farm. While Arnold Wallace went into his house to change his clothes and eat a sandwich, his son disengaged the spreader from the pickup truck and hooked it onto a Moline “rice-type” tractor, which is “built low to the ground,” and has a permanent draw bar and power take-off shaft at the rear. Unlike other types of tractor, the operator of this tractor must mount and dismount from its rear. The draw bar is fixed and part of it is underneath and near the middle of a platform at the rear of the tractor. One mounting or dismounting this tractor steps on this platform. The power take-off shaft is located in the middle of, and four to six inches above, a step at the rear of the tractor used for mounting it. The step is about 14 inches deep and three feet long and 18 inches above ground level. There is about 18 inches clearance on the step on each side of the shaft. One sitting on the seat is directly above the power take-off shaft. There were “handholds” on the rear of the tractor to facilitate the operator’s mounting and dismounting. Wallace’s son had never pulled a fertilizer spreader before and did not know that there should be a shield on the power take-off shaft.
As soon as Arnold Wallace had eaten, he went outside and, driving another tractor to which a disc and harrow were attached, followed the fertilizer spreader being pulled by the tractor his son was driving, until 7:00 or 7:30 p.m. Nothing fell off the spreader during this time. Since there were about four or five acres which had not been fertilized when the Wallaces had to stop on account of approaching darkness, Arnold Wallace arose about 6:00 a.m. the next morning and undertook to complete the operation in time to return the spreader at 8:00 a.m. At about 7:15 a.m. the machine stopped dropping fertilizer, so Wallace stopped the tractor in order to take it out of gear and let the power take-off shaft swing. Although Arnold Wallace had many years experience in operating farm equipment with power take-off shafts, this was the first Larson fertilizer spreader Wallace had ever used. Since he was unfamiliar with it, he left the power take-off turning “real” slowly, dismounted the tractor, and went to the rear of the fertilizer spreader, knowing that the fans which spread the fertilizer were not turning. He recognized that a chain was off a sprocket, which was turning very slowly. He used a screwdriver to replace the chain on the sprocket, and then remounted the tractor to finish the fertilizing. After going a short distance, an identical malfunction occurred, so Wallace commenced a repetition of his earlier procedure. He had taken the tractor out of gear, left the power take-off running very slowly, stepped down on the platform with his right foot off the seat, attempting to “back out,” put his left foot on the platform, and his right foot on the ground and then his britches leg became caught in the power take-off shaft, as a result of which his britches leg and boot were wound around the shaft and ligaments and tendons were torn from his foot and leg.
Wallace never realized that there was not a safety shield on the power take-off shaft on the fertilizer spreader until he was caught in it. All the power take-off shields on his own equipment were metal or of the same color as the equipment. He had never seen a plastic safety shield on a power take-off shaft. Although the power take-off shaft was only 18 inches from him as he operated the equipment, he did not ever look at it before the accident. Wallace testified there was no reason to look at, or check, the shaft as long as it was operating properly. He said that Oakley had a reputation for furnishing good equipment and Wallace assumed that the spreader was “field ready,” i.e., ready for work, with all shields in proper place and all universal joints in proper order. Wallace said that he was in a hurry because Oakley had given him a deadline for the return of the spreader.
When Wallace had stepped off the tractor, he was about 18 inches away from the shaft. Wallace had known that if he got into the power take-off shaft, he would get hurt. He had heard almost every year about someone being killed or hurt in a power take-off shaft. He knew that there was some danger if the shield was not in place. He said there was no way one could get off the tractor without stepping near the power take-off shaft. He left the shaft running intentionally, so he could see what had happened when the equipment quit distributing fertilizer. A hand clutch which engages and disengages the power take-off is located near the rear of the tractor. It can be operated either from the tractor seat or the ground. To stop the running of the power take-off shaft, all that was necessary was to “hit” the hand clutch. There was a shield on the power take-off shaft on the tractor. He intentionally and deliberately left the power take-off shaft in gear the second time there was a malfunction in order to facilitate the replacement of the chain on the sprocket.
There is no doubt that the evidence that Arnold Wallace was negligent is more than substantial, and the jury so found. This does not mean that he assumed the risk as a matter of law. The question of assumption of risk is generally one of fact for the jury. Haynes Drilling Corp. v. Smith,
Oakley and the other appellants place great reliance upon Spradlin v. Klump,
Oakley also contends that the negligence of Arnold Wallace was an efficient independent intervening proximate cause. He contends that the act of Wallace in stepping into the shaft while the power take-off was still in operation due to his deliberate failure to disengage the shaft was completely independent of any misconduct of Oakley in furnishing the equipment without a safety shield. The question of intervening efficient cause is simply a question whether the original act of negligence or an independent intervening cause is the proximate cause of an injury. Arkansas Power & Light Co. v. Marsh,
Proximate cause is the efficient and responsible cause, but it need not be the last or nearest one. Bennett v. Bell,
Larson contends that the trial court erred in failing to direct a verdict in its favor for two reasons: (1) the actions of Bruce Oakley amounted to an independent intervening cause as a matter of law and (2) there was no proof that any negligence or breach of warranty proximately caused the Wallaces’ damage.
As to intervening cause, appellant relies on testimony of Fritz Wanzenberg, an expert witness, who testified on behalf of the Wallaces that Oakley had told him that the safety shields self-destructed after a few uses. Larson argues that this shows that Oakley knew shortly after he purchased the machines that the safety shields were missing and that, knowing for months that the shields were missing, he continued to provide the machines for his customers’ use. The cause of the injury, according to Larson, was Oakley’s failure to replace the shields and Oakley’s loan of the fertilizer spreader to Wallace was an efficient, intervening cause.
Larson also relies on Cowart v. Jones,
The question of foreseeability is material in determining the question presented here. We have taken the position, in reliance upon a statement of the rule in Cooley on Torts, that in no case is the connection between an original act of negligence and an injury broken by an intervening act of negligence of another if a person of ordinary sagacity and experience, acquainted with all the circumstances, could have reasonably anticipated that the intervening event might, not improbably, but in the natural and ordinary course of things, follow his act of negligence or if the misconduct is of a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of some subsequent cause, an intervening cause will not excuse the original misconduct but will be held to be the result of it, and that the original act or omission will not be considered too remote to be a proximate cause if, according to the usual experience of mankind, the result ought to have been apprehended; and that the test is in the probably injurious consequences which were to be anticipated, not in the subsequent event and agencies which might arise. Southwestern Bell Telephone Co. v. Adams, supra. See also, Arkansas Kraft Corp. v. Johnson, supra. The intervening act or omission of a third person is not a superseding cause when the original actor’s negligent conduct is a substantial factor in bringing about an injury, if the actor, at the time of his negligent conduct realized that a third person might so act or if the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent. Hill v. Wilson,
Certainly Oakley was an intelligent adult. There is evidence that he knew that the safety shield was made of thin, flimsy plastic that would remain on the power take-off shaft until it was bent “or something like that” and that it “wouldn’t stay one trip to the field.” He did not know whether the shaft had a shield on it when Wallace picked up the spreader, but did know that he had been unable to keep these shields on the equipment in the past. Fritz Wanzenberg, an expert witness called by appellees, testified that Oakley told him that, “to the best of his knowledge,” the safety shield had been removed because it self-destructed while he had it “in his own cognizance.” Wanzenberg also testified that Oakley had said that these safety shields could self-destruct and that one of them had.
Oakley testified that, at the beginning of the 1973 season, there were safety shields on the power takeoff shafts on the two Larson fertilizer spreaders he had purchased in 1972, and that he had never replaced the power take-off shafts on either. He did not recall the conversation with Wanzenberg, but would not deny that it had occurred. He did testify that he had not told anyone that the shields melted. He did say that these shields will “bust” if they hit something. He denied that he had ever told anyone that there was not a shield on the particular implement he let the Wallaces have at the time it left his place of business. He said that he occasionally inspected equipment loaned to purchasers of fertilizer, in keeping with custom in the business, when it was returned. Oakley stated that if he were buying a power take-off shield, he would buy a metal one.
It is not possible for us to say that Larson could have reasonably foreseen that the fertilizer spreaders it sold to Oakley would have been furnished to farmers without any safety shields on them. Yet the jury had to find Oakley did so, or Oakley could not have been guilty of negligence. We find that Oakley’s negligence was an efficient intervening cause and that the verdict against Larson must be reversed for that reason. G & G is also entitled to a reversal of the judgment against it on the question of intervening causes.
This brings us to the question whether Oakley is entitled to a judgment over against Larson and G & G. Oakley contends that the trial court erred in refusing to grant a judgment over against Larson and G & G in his favor and to conform the judgment to the jury verdict, which contained a finding that Oakley had not breached any warranties to Arnold Wallace and that his negligence was less than that of Larson and G & G. The case was submitted to the jury on interrogatories. Wallace, Larson, G & G and Oakley were all found to be guilty of negligence which was the proximate cause of the “occurrence.” The jury also found that both Larson and G & G had breached implied warranties of merchantibility and of fitness for a particular purpose, but found that Oakley had not breached either implied warranty. The jury found that Arnold had sustained damages of $180,000 but that his wife Vada had not sustained any damages.
Oakley contends that, on the face of the verdict, the jury plainly found in his favor on his “counterclaim” against the other two defendants. Oakley had filed such a pleading, alleging that the shield was defectively manufactured and designed and constituted a breach of implied warranty of fitness for a particular purpose. He also alleged that G & G failed to test and inspect the safety shield and failed to provide adequate warning to all the parties involved and that Larson manufactured and distributed the product which included the safety shield and knew, or should have known, of the potential hazards involved. He prayed for judgment over against both Larson and G & G for indemnity and for contribution. Oakley moved for judgment on his counterclaim and total indemnification for all sums he would otherwise be required to pay to appellees. The court entered judgment against Oakley, Larson and G & G, jointly and severally, for $108,000, being the remainder after deducing 40% of the verdict for damages because of Wallace’s own negligence.
Oakley is not entitled to contribution from Larson and G & G, in the view we take of the case, because Oakley, Larson and G & G are not joint tortfeasors and do not share a common liability. C & L Rural Electric Cooperative Corp. v. Kincaid,
There was no express contract for indemnity by either Larson or G & G, and Oakley does not so contend. The basis for the right to indemnity in a case where there is no express contract therefor is liability upon an implied contract or quasi-contract. Ingram v. Smith,
The right to indemnity, where one of the parties is not liable to the injured party for a joint wrong, must be based upon a relationship other than that of joint tortfeasors. Welter v. Curry,
Oakley based his claim for indemnity upon breaches of implied warranties to him by Larson and G & G. There was no error in the denial of Oakley’s motion for judgment because it was premature. We held long ago that no right of action on a contract for indemnity accrues until the indemnitee is subjected to damage on account of his own liability. Carter v. Adamson,
The fact that there is no express contract for indemnity here does not matter, insofar as the accrual of the cause of action is concerned. It is a general rule of law that the indemnitee on an implied covenant for indemnity against loss or damage cannot recover from the indemnitor upon a mere showing that the indemnitee has incurred liability, but he must show that he has suffered actual loss by payment or satisfaction of a judgment or by other payment under compulsion. Faulkner v. McHenry,
We have heretofore intimated that the right to a money judgment for indemnity against a manufacturer does not exist until the party seeking judgment has paid the judgment. Burks Motors, Inc. v. International Harvester Co.,
The failure of one seeking indemnity to pursue his right by third party pleading bringing in a new party would not preclude him from subsequently maintaining an action. C & L Rural Electric Cooperative Corp. v. Kincaid, supra. It was appropriate, however, for a third party complaint (or cross-complaint) for indemnity to be served on a party to the action before the cause of action accrues, to avoid a multiplicity of actions. Sheftman v. Balfour Housing Corp., supra; Morey v. Sealright Co.,
Inasmuch as Oakley moved prematurely for judgment for indemnity, we find no error in the denial of his prayer for judgment over against Larson and G & G, but remand the case for determination of the question of Oakley’s entitlement to such a judgment, when and if he pays the judgment in favor of Wallace.
The judgment in favor of Wallace against Oakley is affirmed. The judgments against Larson and G & G are reversed. The cause is remanded for further proceedings with reference to Oakley’s claim for indemnity.
Notes
Applegate v. Riggall,
This case was treated on a second appeal and a judgment was again reversed on other grounds sub. nom. Standhardt v. Flintkote Co.,
Lead Opinion
Appellee Arnold Wallace and the appellant Bruce Oakley have filed their petitions for rehearing herein. The petition of Arnold Wallace is denied. We find no merit in the petition of Bruce Oakley in any particular except one. Oakley calls our attention to the fact that after Larson Machine Company, Inc. and G & G Manufacturing Company are eliminated from the case on the ground that a verdict should have been directed in their favor, the apportionment of negligence made by the jury is no longer applicable. So long as Larson and G & G were parties, Wallace was entitled to recover his damages from any of the three parties found negligent, even though he was more negligent than any one of them, but his negligence was less than 50 percent of the total negligence. See Walton v. Tull,
It must be remembered that the comparison made by the jury was on the basis of fault rather than negligence. Wallace’s fault was based only on negligence, as was Oakley’s. On the other hand, the fault apportioned to Larson and G & G was based upon both negligence and breach of warranty. Thus, if fault based upon breach of warranty had been eliminated when the question went to the jury, we can only speculate as to how the jury might have apportioned fault between Wallace and Oakley. This only further complicates the matter, and it can only be satisfactorily resolved by a reversal of the judgment against Oakley and a remand of the case to the circuit court for retrial. To that extent Oakley’s petition for rehearing is granted. In all other respects, that petition for rehearing is denied.