author:
John I. Purtle, Justice. Darrell Hickman, Justice,
      John F. Stroud, Justice,

text:
    Marvin Dewayne MOORE v. STATE of Arkansas
    CR 79-224
    594 S.W. 2d 245
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980

      Harold L. Hall & Stephen Safly, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

We exercised our discretion to grant the Petition for Review of the opinion of the Court of Appeals pursuant to Rule 29.6(b) and (c) of the Rules of the Supreme Court.

During appellant’s trial for possession of controlled substance with the intent to deliver, the trial court overruled his motion to suppress evidence as having been obtained by an illegal search and seizure. The only point raised on appeal is that the trial court erred in denying the motion to suppress. We are of the opinion the motion should have been granted.

Bruce Burkhalter had been arrested for possession of a controlled substance and in an effort to gain favorable treatment he agreed to cooperate with the local police and Special Agent James R. Adkins of the DEA in setting appellant up for a charge of possession or delivery. In keeping with the plan, Burkhalter informed Adkins and others on January 31, 1978, that appellant would arrive in Little Rock from Texas on February 1, 1978, between the hours of 6:00 and 10:00 p.m., with 10 ounces of PCP for delivery to a man named Arthur Batch. The officers learned from Texas officials appellant would be driving a Toyota station wagon with Texas license number NVF 868. The identification of the vehicle was known by Adkins and others no later than 6:00 p.m. on February 1, 1978. A surveillance was placed on Batch at 6:00 p.m. and the arrest of appellant occurred about 8:45 p.m. When appellant and Batch made contact at a local motel the officers closed in and arrested appellant. He was immediately taken from the Toyota station wagon bearing Texas license number NVF 868 and handcuffed. His wife and child were taken from his vehicle and placed in another police vehicle. The Toyota was secured at that time.

A deputy prosecuting attorney and Officer Adkins were in their command post in the First National Bank Building. It was a cold night with temperatures below freezing and the streets were very slick. After the Toyota was secured the officers at the scene requested instructions from Adkins and the deputy prosecutor. They were instructed to search the vehicle without a warrant. At the hearing on the motion to suppress Adkins stated:

Well, they secured the vehicle. I asked them to verify that it was Moore driving and when they did, I conferred with the assistant prosecuting attorney, Robert Crank, and we gave them the go ahead to search the vehicle.

Acting upon the advice of Officer Adkins and the deputy prosecuting attorney, the officers searched the appellant’s vehicle. After about 20 minutes they located the appellant’s shaving kit which contained the contraband.

At the conclusion of the hearing on the motion to suppress the court found that probable cause existed and further stated:

Okay. It’s the Court’s view that the probable cause existed to search the vehicle and this probable cause was fully established only very shortly before the vehicle was searched and that is, they established the gray station wagon with Texas License Plate NVF 868; that exigent circumstances existed in this case in that it was below freezing temperature on the night in question; the roads were slick, and Mr. Crank is not a magistrate, he would have had to, at that time of night, traveled some distance from his location which was apparently the, one of the downtown buildings. The two year old child and the wife were to be considered under the circumstances in this case; arid I feel that exigent circumstances existed and the search was valid. Anything else?

We are involved in this case with the Fourth Amendment to the Constitution of the United States which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

We also consider the Arkansas constitutional provisions relating to searches and seizures which are set out in art. 2 § 15 as follows:

The right of the people of this State to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.

We are not unmindful of the “automobile exception” which has developed over the past several years. However, we do not view the present case an “automobile exception” case. We think the present facts fit into the “suitcase doctrine” as set out in Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977), affirmed, 442 U.S. 753, 99 S.Ct. 2586, 61 L. Ed. 2d 235 (1979).

The primary holding in Sanders was that in the absence of exigent circumstances police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband. In the present case there was probable cause and the automobile was properly stopped. Officer Martin performed the warrantless search only after being directed to do so by Special Agent Adkins and the deputy prosecuting attorney. The trial court was correct in holding there was probable cause. However, the court further held that exigent circumstances existed for the reason the streets were slick and the temperature was below freezing. Circumstances excusing a search without a warrant must be exigent. These circumstances must be “jealously and carefully” drawn. Jones v. United States, 357 U. S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1959). These exceptions are cases involving danger to the officers or risk of loss or destruction of evidence. United States v. United States District Court, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). The United States Supreme Court has held that in the limited situations where a warrantless search may be conducted, the burden of proof is upon those seeking to justify the exception to show there was a need for it. United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951); and Chimel v. Calif., 395 U.S. 752, 89 S. Ct. 2034, 53 L. Ed. 2d 538 (1969). The reason for sometime allowing a warrantless search of an automobile is based upon the inherent mobility of an automobile which often makes it impracticable to obtain a warrant before the search. United States v. Chadwick, 433 U.S. 1 (1977). The automobile here was secured and the shaving kit was in the exclusive control of the police.

In the present case the officers knew at least 24 hours in advance which vehicle the appellant would be driving. It was known with certainty which vehicle he was driving at least two hours prior to the time he was apprehended. During this time the appellant, Batch, and several teams of officers had been able to drive around the streets of Little Rock without any apparent mishaps. There was no valid reason why a warrant could not have been obtained during this time even if it did require someone to go get a search warrant during bad weather. So far as we are concerned, the Fourth Amendment is not suspended during inclement weather.

We think a person has a reasonable expectation, relying on the Fourth Amendment to the Constitution of the United States and art. 2 § 15 of the Constitution of Arkansas, of privacy in the matter of his personal luggage, including a shaving kit. There could hardly be anything which would be considered more private than a shaving kit which ordinarily includes one’s toothbrush, toothpaste, shaving equipment, medication and other highly personal items. We hold that the warrantless search under the circumstances as related above was improper and the motion to suppress should have been granted. The case is reversed and remanded to the Court of Appeals with directions to remand it to the trial court with directions to grant the motion to suppress the evidence obtained without a warrant.

Reversed and remanded.

George Rose Smith, Hickman and Stroud, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I am sympathetic to the statements of Justice Stroud. Since I have been a member of this Court, I have expressed similar sentiments regarding the law of search and seizure as it has been developed by the United States Supreme Court and other courts. See, Moore v. State, 261 Ark. 274, 551 S.W. 2d 185 (1977) (supplemental opinion on rehearing) (Hickman, J., dissenting). That law has become a legal maze difficult to understand and impossible to administer. We have allowed the police to enter a man’s house and arrest him without a warrant, but having done that, not allowed them to search the house. Moore, supra. The police may not search a suspect’s suitcase when found in a taxicab, Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977), but they may search a defendant’s purse when both have been taken to the police station. Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979). A car stopped on the highway has been held the proper subject of a warrantless search sometime after the driver’s arrest, Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), while a car found in the defendant’s driveway has been held not to be. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 564 (1971). To me, while these cases can be subtly distinguished, they cannot be persuasively reconciled.

The Constitution of the United States in its pure form, unadulterated by court decisions, is not difficult to understand nor to interpret. Amendment 4 reads:

[Unreasonable searches and seizures.]—The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The majority in this case does not deny that the police could have gotten a search warrant later. In fact, according to the case law the vehicle could have been searched later if it were properly impounded by the police. See, Cooper v. California, 386 U.S. 58 (1967). The search was not unreasonable. The police violated no statute. There is no evidence of bad faith on their part. It is simply a case of the majority following a long line of precedents that seem to march forever into a technical maze that not even the judges can navigate with any confidence.

The Supreme Court of the United States, in the case of Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) decided that the only way to enforce the Fourth Amendment prohibition against unreasonable searches was to forbid the use of any evidence obtained in such a search. This is called the exclusionary rule. There is no provision for such a rule in the United States Constitution. It is simply a device created by the United States Supreme Court to enforce the Constitution. The rule is based on the premise that evidence, tainted by an illegal search, should not be used against an individual. Furthermore, it is designed to deter the errant policeman from ignoring or willfully violating the law. While such reasons are valid and while such a rule can be defended logically and legally, the United States Supreme Court has failed to set forth reasonable guidelines on searches and seizures. It has become impossible to administer the law. Judges cannot agree on what the law is regarding search and seizure. In the case before us, three judges of the Court of Appeals found the search reasonable; three found it unreasonable. Both cite cases to support their judgment. We, too, are divided. What is the average policeman to think of such confusion? How is he to know when a search is lawful?

There is no doubt that the exclusionary rule had had a therapeutic effect on the criminal justice system. Policemen today are well informed regarding individual rights and in Arkansas policemen must be qualified as they have never been required to be before. See Ark. Stat. Ann. §§ 42-1005 et. seq. (Repl. 1977).

I have come to the conclusion that the exclusionary rule must be abandoned, that rather than rewarding the guilty defendant, we should punish the guilty policeman. We should look at each case as to determine if there was prejudice to the individual, if there was a willful violation of individual civil rights, and, most of all, if the search was reasonable. The law of search and seizure, as it has developed, has been a paste-pot job of exceptions to exceptions without any reference to the language of the Constitution. The language is not absolute. The word is reasonable. Ironically, the law has become unreasonable.

The dilemma to an appellate judge, a trial judge, or even a policeman, is what to do about it. Of course, each person must make their own decision and if they are in authority they must do their best to follow the law and comply with their oath of office. I have concluded that foremost in any search and seizure case, the plain language of the constitution should be applied to the facts before any effort is made to find a decision that might be exactly in point. The passion of appellate judges to find a case exactly in point, distinguish cases that cannot be reasonably distinguished, or extend the law ad infinitum, is what has led to the problem. There cannot be precedents for every conceivable case and we should not try to create them. There should, on the contrary, be general guidelines followed with reason.

When I apply that approach to the case before us, I can only conclude that the search in this case was reasonable. It was late at night; the police had to act quickly. There was inclement weather and it, in fact, would not have been reasonable to do anything except search the vehicle. Our rules permit it. Rules of Crim. Proc., Rule 12.4. The idea that appellate judges can sit back in the comfort of their offices months later and suggest that the municipal judge should be rousted out, or found at some social gathering, and asked for a warrant is nonsense. It is not a question of what could have been done. It is a question of whether what was done was reasonable.

John F. Stroud, Justice,

dissenting. Obviously the drafters of the Fourth Amendment to the United States Constitution and the drafters of Article 2, § 15 of the Arkansas Constitution could not have contemplated the search and seizure of automobiles in 1791 or in 1874. It was, therefore, inevitable that an automobile exception would evolve from the courts when automobiles became commonplace. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), held:

[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. . . . [T]hose lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise . . . 267 U.S. 153-156, 45 S. Ct. 285, 69 L. Ed. 551, 552.

The automobile exception was expanded in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), where the United States Supreme Court held that a warrantless search of an automobile taken to a police station after the accused and others had been arrested while riding in the automobile was not a violation of the Fourth Amendment inasmuch as the police officers had probable cause to arrest the occupants and an immediate search in connection with the arrest would have been constitutionally permissible. They concluded, therefore, that it was not unreasonable to take the automobile to the police station before making the search as probable cause for the search still existed.

In 1977, the United States Supreme Court decided the case of United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L.Ed. 2d 538 (1977), which has been cited as establishing the “suitcase doctrine.” It was held to be illegal when the arresting officers made a warrantless search of a double-locked footlocker found inside the trunk of a parked automobile. The court opened Pandora’s box by commenting that the expectation of the defendants that the contents of the footlocker would remain free from public examination was an important consideration.

In the same year, the Arkansas Supreme Court in Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977), held illegal the warrantless search of a suitcase that had been removed from the trunk of a taxi by the arresting officers. There was no question of probable cause, as the officers acted on a tip from a reliable source that the suitcase contained marijuana, which in fact it did. The court found no exigent circumstance and pointed out that luggage, unlike an automobile, is generally not open to public view; that a person expects privacy in personal luggage to a greater degree than in an automobile; and that once the suitcase was seized, there was no longer a mobility factor. The United States Supreme Court affirmed the decision in 1979 in Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979), and held that a warrant is required to search personal luggage taken from an automobile to the same extent as it is required to search luggage in other locations. I agree with the comments of Justices Blackmun and Rehnquist in their dissenting opinion where they said, 99 S.Ct. 2595, 2597, 61 L. Ed. 2d at 248, 250:

The Court today goes farther down the Chadwick road, undermines the automobile exception, and, while purporting to clarify the confusion occasioned by Chadwick, creates in my view, only greater difficulties for law-enforcement officers, for prosecutors, for those suspected of criminal activity, and, of course, for the courts themselves. Still hanging in limbo, and probably soon to be litigated, are the briefcase, the wallet, the package, the paper bag, and every other kind of container.
The lines that will be drawn will not make much sense in terms of the policies of the Fourth and Fourteenth Amendments. And the heightened possibilities for error will mean that many convictions will be overturned, highly relevant evidence again will be excluded, and guilty persons will be set free in return for little apparent gain in precise and clearly understood constitutional analysis.

The majority has obviously reached the point unanimously refuted by this court less than two years ago in Berry v. State, 263 Ark. 446, 565 S.W. 2d 418 (1978), where heroin was found during a warrantless search of a bank bag and a closed, but unlocked, briefcase, both discovered within the passenger compartment of an automobile. Justice George Rose Smith indicated that if such evidence were suppressed: “persons having contraband drugs in their possession could prevent a search for such drugs in an automobile simply by carrying the articles in a suitcase rather than in a sack or in a box.”

I think it farcical to distinguish between searches on the basis of whether the contraband is found in a briefcase, suitcase, or shaving kit, but if I engage in such semantics, the facts of this case more nearly square with the Berry case than the Sanders case. In Sanders, the arresting officers had a tip that the marijuana was in that particular suitcase, but in both Berry and this case, the officers were conducting a general search incident to the arrest, without direction or knowledge of the receptacle involved. Secondly, the size and shape of a shaving kit more nearly resemble a briefcase than a suitcase. Thirdly, if expected privacy is argued, how can one say that a toothbrush deserves more privacy than one’s personal papers carried in a briefcase? Finally, if personal luggage is to be afforded especial immunity not applied to other receptacles, then surely the luggage should be in place where luggage is customarily kept—not secreted in the jack compartment of a vehicle.

Although this case can be affirmed by compliance with the law as last expressed by this court in the Berry case, I believe we unnecessarily stir muddy waters by attempting to make subtle distinctions in the type of receptable used to secrete contraband within an automobile. I would adopt a clear and reasonable position that can be understood by law enforcement officers and the public generally and one that is not based on the type of container harboring the illegal drugs.. The rule adopted by this court on January 1, 1976, as Rule 12.4 of the Arkansas Rules of Criminal Procedure for Search and Seizure Incidental to Arrest should be followed by this court:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

The pendulum has swung too far in protecting the rights of those accused of crime as compared to the rights of the public generally to be protected from criminal acts. In recent years, the appellate courts of this country seem to have been diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding, but instead, have been almost consumed by a quest for technical error.

In Stone v. Powell, 428 U.S. 465, 490, 96 S. Ct. 3037, 3050, 49 L. Ed. 2d 1067, 1085 (1976), Justice Powell said:

Application of the [exclusionary] rule thus deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice. . . .

Mr. Justice Stone expressed my feelings in McGuire v. United States, 273 U.S. 95, 99, 47 S. Ct. 259, 260, 71 L. Ed. 556, 558 (1927):

[a] criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule. . .

The time has come to begin to pull the pendulum back toward center, and I would affirm the trial court.


source: Caselaw Access Project

author: John F. Stroud, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Paul A. HORTON, d/b/a HORTON ENGINEERING COMPANY v. William D. GADDY, Commissioner of Revenues
    79-325
    594 S.W. 2d 848
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980
    Rehearing denied March 31, 1980

      Woodward & Kinard, Ltd., by: Joe D. Woodward, for appellant.

      James R. Eads Jr., Robert G. Brockmann, Joseph V. Svoboda, Barry E. Coplin, H. Thomas Clark, Jr., and Martha S. Stephenson, by: Timothy J. Leathers, for appellee.
   John F. Stroud, Justice.

This is a suit to determine if the oil reclaimed from the sediment in the bottom of oil storage tanks should be taxed under the Arkansas Severance Tax statutes. We disagree with the decision of the trial court in its determination that the tax was due.

Appellant has been engaged for many years in the business of cleaning oil field storage tanks in or around Columbia County, Arkansas. After oil has been stored in the tanks, a substance known as BS&W (basic sediment and water) collects at the bottom. When the BS&W in the storage tank builds sufficiently, the tank must be cleaned or the oil in the remainder of the tank will be of a substandard quality and, thus, unmarketable. Appellant removes the BS&W with a large suction device, cleans the inside of the tank and then takes the BS&W to his own treating plant where, by various processes, he extracts the salvageable crude oil. Appellant does not pay the oil lease operator for the BS&W, as it is given to him in exchange for his cleaning services.

Appellee claims, pursuant to Ark. Stat. Ann. § 84-2102 (Repl. 1960), that the process described above subjected appellant to liability for the severance tax from January 1,1963, to December 1, 1965, on the oil he extracted from the BS&W. This statute provides, in pertinent part:

There is hereby levied ... [a] ‘severance tax’ . . . predicated ... at the rates hereafter in the section provided:
(e) . . . on oil, five per cent (5%) of the market value at time and point of severance;. . . (Emphasis added).

In 1967, appellee filed a certificate of indebtedness with the Circuit Clerk of Columbia County for the severance tax claimed to be due from appellant for the period in question. Appellant then filed a petition in Columbia County Chancery Court asking that the certificate of indebtedness be quashed and that the appellee be enjoined from proceeding further in collecting the tax.

The case was submitted on the testimony of appellant and a stipulation of the relevant facts. The Chancellor denied and dismissed appellant’s petition for injunction and held that severance tax in the amount of $2,886.81 was due from appellant for the period from January 1, 1963, to December 1, 1965. From that order appellant brings this appeal, alleging that the trial court’s finding was contrary to the law and the evidence.

Appellant does not claim an exemption, but contends that the correct interpretation of the severance tax statutes relieves his tank cleaning and oil salvage business from any severance tax liability. The most pertinent part of § 84-2102, as noted previously, is the phrase that reads, “5% of the market value at the time and point of severance.” Ark. Stat. Ann. § 84-2Í01 (Repl. 1960) defines “sever,” “time of severance” and “point of severance,” which are critical to the determination of the issues here. They provide, in part, as follows:

(c) ‘sever’ . . . shall mean natural resources cut, mined, dredged or otherwise taken or removed, from commercial purposes, from the soil or water; . . .
(d) ‘point of severance’ shall mean the place at which transportation of natural resources has been or is about to be commenced for their use or processing after being severed;
(e) ‘time of severance’ shall mean the date on which transportation of natural resources has been or is about to be commenced for their use or processing after being severed;

Appellant contends that the time and place of severance of the BS&W should be the same as that of the oil from which it settled. The time of severance of the oil sold to a refining company occurs when the oil reaches the storage tank and, thus, becomes ready for removal and transportation. In Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973), this court held that oil consumed by the operator to produce steam to inject into the earth to increase the productivity of its oil wells was used for commercial purposes and, accordingly, subject to the severance tax. Addressing the point of severance, the court noted, at 254 Ark. 849, 497 S.W. 2d 31:

It seems quite clear to us that, when the oil reached the storage tank, transportation was about to be commenced for its use, either by appellant for fuel or to the market for sale.

Appellee contends that the severance does not occur until appellant removes the oil from the BS&W at his treatment plant and places it in a storage tank for immediate sale to a refining company. We disagree with this premise and believe the more reasonable view is that the place of severance for the BS&W is the same as for the oil in the upper part of the storage tank which is not so heavily mixed with sand, sediment and water.

Thus, pursuant to § 84-2102, appellant is liable for severance tax in the amount of 5% of the fair market value of the BS&W at the time and place of severance—when the BS&W (containing more oil) reached the storage tank of the lease operator and was about to be transported by appellant. In this case it was the uncontroverted testimony that the BS&W was worthless when it was removed from the tank. Therefore, at the time and point of severance, as the BS&W was worthless, no tax liability resulted. This is consistent with the custom of the oil industry as evidenced by the stipulation of the parties that royalty is not ordinarily paid on BS&W. We do not, however, preclude the possibility of a severance tax being due on BS&W in the future if the oil suspended in it becomes so valuable that it becomes saleable.

This construction of § 84-2101 and § 84-2102 is also supported by the rule of statutory interpretation that taxing statutes are to be strictly construed against the taxing authority. Cook v. Arkansas-Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210 (1946); Thompson v. Chadwick, 221 Ark. 720, 255 S.W. 2d 687 (1953); Morley v. Pitts, 217 Ark. 755, 233 S.W. 2d 539 (1950). The parties stipulated that until 10 or 15 years ago, BS&W was burned, buried or used to dust-proof oil field roads. The General Assembly, therefore, could not have contemplated taxing oil salvaged from BS&W when it adopted the Severance Tax Act in 1947, and we are not willing to stretch its construction to that extent. Accordingly, the order and decree of the trial court must be reversed.

John I. Purtle, Justice,

dissenting. I respectfully dissent. In order to reverse, the chancellor, the majority has overruled Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973) and ignored or misconstrued Ark. Stat. Ann. § 84-2101 (Repl. 1960), particularly (d). Some additional facts are necessary in order to explain my position in this case.

Oil is normally collected from the various wells and stored in holding tanks until it is sold to the refineries. When a purchaser takes possession of the oil it is metered when it leaves the storage tank. The outlet from the storage tank is located about one foot above the bottom of the tank. The contents of the oil storage tank below the outflow valve are called BS&W. This portion in the bottom of the tank is not suitable for marketing to the refineries in its present form. Appellant then comes to the tank and takes possession of the product below the outlet line and takes it to his plant where it is processed at considerable expense before being finally placed in a storage tank similar to the ones from which he obtained the material. When he has completed the process he sells to the refineries from the storage tank just as the original producers had sold theirs. It appears to me the severance point has simply been removed from one point to another. Practically all of the oil in the storage tanks has been moved a considerable distance from the well for the purpose of storing it. Appellant’s oil from his tanks, after he has produced the BS&W, is sold and distributed exactly in the same manner as was the product from the tanks from which he obtained the BS&W. Whatever expense he has incurred in refining this product is a business expense and deductible the same as the expense incurred by the owners and producers from whom he obtained his product. His profit is smaller but so are the taxes. The statute defines the “point of severance” as “the place at which transportation of natural resources has been or is about to be commenced for their use or processing after being severed.” I believe the severance point for appellant’s crude oil is at the outlet valve from his storage tank as it is delivered to the refineries just as it is with the original owners.

I was unable to find anything in the record, other than the statement of appellant, that the BS&W was worthless when he took possession of it at the storage tanks. In fact, it is obviously not a worthless product.

There is no evidence in this record to indicate appellant is connected with the operators or producers in this area other than as a businessman dealing at arm’s length. However, if this product continues to rise in price and the outlet valve is raised another foot from the bottom of the storage tank, it is obvious that the product, whether called BS&W or something else, would be much more valuable. Under these circumstances, a close friend, relative, or subsidiary organization, could make a handsome profit as well as evade severance tax on still more oil. It is logical that it would not be too long before the untaxable oil exceeds the amount in quantity of the taxable oil.

No severance tax has been paid on the product which appellant processes. Under the majority opinion no tax will ever be paid on this oil, which is apparently at this time the same grade and quality of that for which taxes are collected from other producers and operators. It is true that some taxable oil is used in the process but it is also true that appellant is given credit for any oil used upon which a severance tax has already been paid. I can see no logical reason to exclude oil from the severance tax simply because a different process is used to place it into the market. The statute, which is set out in the majority opinion, clearly appears to cover this oil as well as the oil sold from the other tanks. For the above reasons I would affirm the decree of the chancellor in this case.

I am authorized to state that Mays, J., joins me in this dissent.


author: Richard L. Mays, Justice.

text:
    Randy ROSS v. STATE of Arkansas
    CR 79-212
    594 S.W. 2d 852
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980

      James C. Cole, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

In 1976, appellant, Randy Ross, a fifteen year old Malvern, Arkansas resident, entered a plea of guilty to the charge of aggravated robbery and was sentenced to five years in the state penitentiary with four years suspended. Although appellant’s suspended sentence was not expressly conditional, the trial court revoked the appellant’s suspension approximately two years after he had been released from the state penitentiary for violating the terms and conditions of his suspended sentence when he committed the separate crimes of battery and aggravated assault. On appeal, appellant argues that the trial court lacked authority to revoke his suspended sentence on the basis of a violation of an implied condition. We agree.

Ark. Stat. Ann. § 41-1203 (Repl. 1977) authorizes a court to establish certain reasonable conditions which may be imposed in connection with a suspended sentence and provides in part as follows:

(1) . . . The court shall provide as an express condition of every suspension or probation that defendant not commit an offense punishable by imprisonment during the period of suspension or probation.
(4) If the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.

In spite of the failure of the trial court to expressly condition appellant’s suspended sentence as required by statute, the state contends that good behavior is an implied condition of every suspension and need not be expressed in writing or otherwise since a person should be presumed to know that his suspended sentence is contingent upon his refraining from criminal conduct. The state primarily relies on Gerard v. State, 235 Ark. 1015, 363 S.W. 2d 916 (1963), in which we held that the failure to provide certain written conditions in connection with a suspended sentence did not deprive the trial court of the power to revoke suspended sentences. In Gerard, supra, however, we were not confronted with the lack of any expressed conditions since the trial judge had orally admonished the defendant of certain conditions of his suspended sentence during the imposition of the sentence. Moreover, our holding in Gerard, supra, preceded the adoption by the General Assembly of a requirement of written conditions in connection with suspended sentences. In light of this current legislative expression, all conditions for a suspended sentence, including any requirement of good behavior, must be in writing if the suspended sentence is to be revokable. Therefore, courts have no power to imply and subsequently revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence. This result not only comports with any due process requirements owed to a defendant upon the imposition of a suspended sentence but may serve to deter criminal conduct which a defendant might otherwise commit but for a full appreciation of the extent of his jeopardy.

Reversed


author: Per Curiam.

text:
    Homer Lloyd MOORE v. STATE of Arkansas
    CR 79-227
    609 S.W. 2d 894
    Supreme Court of Arkansas
    March 3, 1980
   Per Curiam.

The appellant, Homer Lloyd Moore, through his attorney, has again filed what amounts to a motion for a rule on the clerk. In a per curiam opinion issued January 21,1980, we denied Moore a similar motion.

This time, his attorney, Vincent E. Skillman Jr., has attached an affidavit stating that the record was tendered late because of a computation error which was his, that is, Skillman’s. Before, Skillman had said the error was just made due to the fault of no one. We pointed out that this was not good cause to grant a belated appeal according to our rule.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause and pursuant to our per curiam opinion, In Re: Belated Appeals in Criminal Cases, dated February 5, 1979, grant the motion. A copy of this opinion will be forwarded to the Committee on Professional Conduct as is our practice.


author: John A. Fogleman, Chief Justice. John A. Fogleman, Chief Justice.

text:
    LARSON MACHINE, INC., G & G MANUFACTURING CO., and Bruce OAKLEY, d/b/a OAKLEY FERTILIZER & CHEMICAL CORP. v. Arnold WALLACE and Vada WALLACE
    78-308
    600 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered March 10, 1980
    Supplemental opinion on denial of rehearing April 28, 1980

      Friday, Eldredge & Clark, by: Donald H. Bacon and Joseph E. Kilpatrick, Jr., for appellant Larson Machine, Inc.

      Gannaway, Darrow & Hanshaw, for appellant G & G Manufacturing Co.

      Lightle, Beebe & Raney, for appellant Bruce Oakley.

      Boyett <6 Morgan, P.A., for appellees.
   John A. 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 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, 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 spreáder, 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 315a 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 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, 183 Md. 674, 39 A. 2d 858, 156 ALR 460, that a statute authorizing a defendant to implead a third party defendant applies only when there is a common liability to an injured person in tort, and is inapplicable where the injured person has no right of action against the third party.

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., 160 F. Supp. 709 (E.D. Pa. 1958); Carlise v. Monongahela Railway Co., 16 FRD 426 (W.D. Pa. 1954); Horan v. Pope & Talbot, Inc., 119 F.Supp. 711 (E.D.Pa. 1953). Some courts have held that the original plaintiff has a choice as to whether he will amend his pleadings to seek relief against the third party defendant and that the plaintiff cannot recover against a third party defendant without having amended his pleadings to assert a cause of action against that third party defendant. Salazar v. Murphy, 66 N.M. 25, 340 P. 2d 1075 (1959); Thompson v. Cranston, 2 FRD 270 (W.D. N.Y. 1942) (and cases cited therein). Most, if not all of them, are based upon a rule or statute different from ours in important respects. While our statute permits the filing of a third party complaint against one “who is or may be liable as a joint tortfeasor to him or the plaintiff,” it also provides that the plaintiff “shall” amend his pleadings to assert any claim against the third party defendant that he might have asserted had he joined the third party defendant as a defendant in his original complaint. Our statute specifically makes the adjudication of the third party defendant’s liability to the plaintiff binding upon the third party defendant. Ark. Stat. Ann. § 34-1007 (Repl. 1962). Our statute is different from those patterned after Rule 14 of the Federal Rules of Civil Procedure, under which the plaintiff “may” amend his pleadings to assert a claim against the third party defendant, and the effect of the adjudication of the third party’s liability is declared by our statute. See Monarch Motorists Industrial Corp. v. American Motorists Insurance Co., 276 F. Supp. 972 (D.C. N.Y. 1967). Therefore, we must conclude that the decision in Chapman Chemical Co. v. Taylor, supra, is a proper construction of our statute and that the statute of limitations ceased to run at least as early as the filing of Oakley’s answer.

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., 52 F. Supp. 177 (M.D. Ga. 1943); Lommer v. Scranton-Spring Brook Water Service Co., 4 FRD 104 (M.D. Pa. 1944). See also, F & D Property Co. v. Alkire, 385 F. 2d 97 (10 Cir. 1967).

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, 200 Ark. 1098, 143 S.W. 2d 27. The question here is not whether Arnold Wallace should have known that the safety shield was missing. It is not sufficient that he knew that leaving the tractor in gear so the power takeoff shaft would continue turning would be hazardous if the safety shield was not in place. In order to say that he assumed the risk as a matter of law, we should have to say that, under the undisputed evidence, with all reasonable inferences drawn in favor of Arnold Wallace, intelligent persons could only conclude Arnold Wallace actually knew that the safety shield was not in place and actually appreciated the inherent danger as a result of its absence at the time he dismounted from the tractor after having failed to disengage the clutch that caused the power from the tractor to turn the power take-off shaft. Hudgins v. Maze, 246 Ark. 21, 437 S.W. 2d 467; Bugh v. Webb, 231 Ark. 27, 328 S.W. 2d 379; Haynes Drilling Corp. v. Smith, supra; McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753. Of course, Arnold Wallace could be said to have assumed the risk as a matter of law if the danger was so obvious or apparent that knowledge and appreciation thereof should be imputed to him. Brackett v. Queen, 162 Ark. 525, 258 S.W. 635; Caster v. Hicks, 181 Ark. 299, 25 S.W. 2d 760; Western Coal & Mining Co. v. Corkille, 96 Ark. 387, 131 S.W. 963; Hall v. Patterson, 205 Ark. 10, 166 S.W. 2d 667. One cannot be heard to say that he did not know of a dangerous condition that was so obvious that it was apparent to those of ordinary intelligence. Fullerton v. Henry Wrape Co., 105 Ark. 434, 151 S.W. 1005.

Oakley and the other appellants place great reliance upon Spradlin v. Klump, 244 Ark. 841, 427 S.W. 2d 542. There is one important difference. In Spradlin the moving rollers, which were essentially similar to those in a clothes wringer, were open and obvious. In this case, if the testimony of Arnold Wallace is to be believed, the absence of the safety shield, the purpose of which was to protect one from coming into contact with the revolving power take-off shaft, was not open and obvious, even though he made no inspection. Wallace said that the safety shields on all equipment he had previously used had been the same color as the equipment. Nothing in the record that is abstracted shows that the absence of the safety shield was apparent to one of ordinary intelligence having the background of knowledge and experience that Wallace had. We think the question whether Arnold Wallace assumed the risk was for the jury.

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, 195 Ark. 1135, 115 S.W. 2d 825. Like any other question of proximate causation, the question whether an act or condition is an intervening or concurrent cause is usually a question for the jury. Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S.W. 473. See also, Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971). We did find that there was such an independent intervening cause in Cowart v. Casey Jones Contractor, Inc., 250 Ark. 881, 467 S.W.2d 710, upon which Oakley relies. In that case, however, the separate intervening cause was the continued use of a crane by a lessee with the knowledge that it lacked certain safety devices. The suit was brought by the personal representative of an employee of the lessee who was fatally injured when struck by the crane. It was brought against the owner of the equipment who had delivered it to the lessee without safety devices that would have prevented the injury to the lessee’s employee. As we have pointed out, there is evidence in this case from which a jury could find that Arnold Wallace did not know that the safety device was not in place.

Proximate cause is the efficient and responsible cause, but it need not be the last or nearest one. Bennett v. Bell, 176 Ark. 690, 3 S.W. 2d 996. The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability, if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable. Butler v. Arkansas Power & Light Co., 186 Ark. 611, 54 S.W. 2d 984; Arkansas Power & Light Co. v. Marsh, supra; Hayes v. Missouri Pac. R.R. Co., 208 Ark. 370, 186 S.W. 2d 780. The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is of itself sufficient to stand as the cause of the injury. Butler v. Arkansas Power & Light Co., supra; Arkansas Power & Light Co. v. Marsh, supra. The intervening cause must be such that the injury would not have been suffered except for the act, conduct or effect of the intervening agent totally independent of the acts or omission constituting the primary negligence. Arkansas Power & Light Co. v. Marsh, supra; Hayes v. Missouri Pac. R.R. Co., supra. In order for Oakley to have been relieved of liability by the negligence of Arnold Wallace, as a matter of law, we should have to say that Wallace’s conduct was not reasonably foreseeable and merely possible, but not within the range of probability as viewed by the ordinary man. Hayes v. Missouri Pac. R.R. Co., supra. We are not able to say this. As we understand the evidence, the basic purpose of the safety shield was to prevent persons who came in proximity to the shaft from coming into contact with it. It would be rather difficult to say that the likelihood that one such as Wallace would come in contact with the shaft in the absence of the safety shield was not foreseeable. It is also reasonable for one to conclude that Wallace would not have been injured had the safety shield been in place. Oakley’s background in dealing with such an implement as this would certainly justify the inference that he knew or should have known of the probability of one such as Wallace being injured if the safety shield was not in place. Wallace testified that Oakley had told him, after the occurrence, that he was not sure whether there was a safety shield on the fertilizer spreader when it was delivered to Wallace, but if the shield was not in place, its absence was due to the fact that the spreader came with a very flimsy thin plastic shield that would not stay on the equipment for one trip to the field and that he and his employees had been unable to keep them on the equipment. This question of intervening cause was for the jury.

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, 250 Ark. 881, 467 S.W. 2d 710. The question there was different from that posed here by Oakley. Assuming that the evidence is sufficient to show that the safety shield was defectively designed and manufactured, the basic question is whether the actions of Oakley in furnishing the spreader to his customers without the safety shield were foreseeable by Larson. In Cowart, we held that the continued use of a crane by a lessee of that equipment with the knowledge that it lacked certain safety devices was a separate and intervening cause of fatal injuries to an employee of the lessee in an action against the lessor. There, in sustaining a directed verdict for the lessor, we pointed out that the equipment had been in the lessor’s possession for three or four weeks, that the crane had been assembled on the job site and operated by the lessee and the lessor had exercised no control over the operation of the crane by the lessee, that the lessee was aware during his use of the crane that the safety devices were not on the crane, and that it was customary to take a precautionary measure in the absence of these safety devices. There are many similarities here. As will be seen, a critical factor there was the lessee’s knowledge of the lack of safety devices and his use of the equipment in disregard of that hazard. See Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W. 2d 74. The intervention of an intelligent and responsible human being is an appropriate consideration. See Southwestern Bell Telephone Co. v. Adams, 199 Ark. 254, 133 S.W. 2d 867; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647, 18 LRA N.S. 905. We did not go into the question of foreseeability in Cowart, but we did cite both Hartsock v. Forsgren, 236 Ark. 167, 365 S.W. 2d 117, and Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W. 2d 74, as authorities supporting our treatment of the question of proximate cause. Both consider that question. Furthermore, there was evidence in the case indicating that it was the custom in the trade for lessees of cranes lacking the safety devices to compensate by use of other devices and practices.

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, 216 Ark. 179, 224 S.W. 2d 797.

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, 221 Ark. 450, 256 S.W. 2d 337. Although Oakley seeks here to have contribution from Larson and G & G under Ark. Stat. Ann. § 27-1763 et seq (Repl. 1979) on the basis of comparative fault, he did not seek recovery on that basis in the trial court. Since this issue is raised for the first time on appeal, we do not consider it. Dunkum v. Moore, 265 Ark. 544, 580 S.W. 2d 183. The question then is whether Oakley is entitled to be indemnified by Larson or G & G, or both. Oakley’s motion was based on both negligence and breaches of warranties, reiterating the allegations of defective design, breach of implied warranty of fitness for a particular purpose, improper testing and inspection, and inadequate warnings made in his counterclaim.

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, 16 N.C. App. 147, 191 S.E. 2d 390 (1972), cert. den. 282 N.C. 304, 192 S.E. 2d 195; Rieger v. Frankstram Realties, Inc., 68 N.Y.S.2d 243 (1946). Indemnity may be permitted where the indemnitor has breached a duty of his own owed to the indemnitee. Williams v. Johnston, 92 Idaho 292, 442 P. 2d 178 (1968). Cf. Jack Morgan Construction Co. v. Larkan, 254 Ark. 838, 496 S.W. 2d 431; Oaklawn Jockey Club, Inc. v. Pickens-Bond Construction Co., 251 Ark. 1100, 477 S.W. 2d 477.

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, 260 Ark. 287, 539 S.W. 2d 264; Jack Morgan Construction Co. v. Larkan, supra. But it may arise from a special relationship between the parties. Dulin v. Circle F. Industries, Inc., 558 F. 2d 456 (8 Cir., 1977). See also, Southern Farm Bureau Cas. Ins. Co. v. Gooding, 263 Ark. 435, 565 S.W. 2d 421; Voss v. Arthurs, 129 Ark. 143, 195 S.W. 680. Of course, it is a legal relationship that is required. Millenson v. Dept. of Highways, 41 Colo. App. 460, 590 P.2d 979 (1978). It has been appropriately said that the doctrine of indemnity is based upon the equitable principles of restitution which permit one who is compelled to pay money, which in justice ought to be paid by another, to recover the sums so paid unless the payor is barred by the wrongful nature of his own conduct. Lunderberg v. Bierman, 241 Minn. 349, 63 N.W. 2d 355 (1954); AID Insurance Services v. Riley, 25 Ariz. App. 132, 541 P. 2d 595 (1975). See also, Orton v. Markward and Karafilis, Inc., 83 Mich. App. 548, 269 N.W. 2d 219 (1978); Restatement of the Law, Restitution, § 76; 1 Dooley, Modern Tort Law 547, § 26.07 and Supp. 1979; Tolleson v. Jennings, 60 Ark. 190, 29 S.W. 276; Southern Farm Bureau Can. Ins. Co. v. Gooding, supra; C & L Rural Electric Cooperative Corp. v. Kincaid, 221 Ark. 450, 256 S.W. 2d 337.

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, 21 Ark. 287. The rule that one complaining of the breach of a contract of indemnity must, in order to be entitled to recover from the indemnitor, show that he has paid the obligation in controversy, seems to be well settled. Latimer v. Texas & N.O. R. Co., 56 S.W. 2d 933 (Tex. Civ. App., 1933). See also, Celeste v. Prudential-Grace Lines, Inc., 358 N.Y.S. 2d 729, 315 N.E. 2d 782 (1974). There must be loss, not merely liability, before indemnity is due. Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42 (1928). No money judgment may be rendered for indemnity until the party seeking indemnity has suffered an actual loss. Board of Education, School Dist. 16 v. Standhardt, 80 N.M. 543, 458 P. 2d 795 (1969)

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, 235 Pa. 298, 83 A. 827 (1912); St. Paul Fire & Marine Ins. Co. v. Thompson, 152 Mont. 396, 451 P. 2d 98 (1969); Ingram v. Smith, 16 N.C. App. 147, 191 S.E. 2d 390 (1972), cert. den. 192 S.E. 2d 195. See also, Beights v. W. R. Grace & Co., 282 N.C. 304, 62 F.R.D. 546 (W.D. Okla., 1974). A cause of action for indemnification, in the absence of a specific contract providing otherwise, does not accrue until payment has been legally made by the indemnitee. District of Columbia v. D. C. Transit System, Inc., 248 A. 2d 184 (D.C. App., 1968); Milstein v. City of Troy, 272 App. Div. 625, 74 N.Y.S. 2d 892 (1947); Sheftman v. Balfour Housing Corp., 30 Misc. 2d 924, 219 N.Y.S. 2d 361 (1961). See also, Beights v. W. R. Grace Co., 282 N.C. 304, 62 F.R.D. 546 (W.D. Okla., 1974).

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., 250 Ark. 641, 466 S.W. 2d 943.

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., 41 Misc. 2d 1068, 247 N.Y.S. 2d 306 (1964); Board of Education, School Dist. 16 v. Standhardt, 80 N.M. 543, 458 P. 2d 795 (1969); Beights v. W. R. Grace & Co., supra.

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.

Supplemental Opinion on Rehearing delivered April 28, 1980

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.

Hickman, Stroud and Mays, JJ., not participating.

John A. Fogleman, Chief Justice.

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, 234 Ark. 882, 356 S.W. 2d 20, 8 ALR 3d 708; Riddell v. Little, 253 Ark. 686, 488 S.W. 2d 34; Wheeling Pipe Line, Inc. v. Edrington, 259 Ark. 600, 535 S.W. 2d 225. When Larson and G & G were eliminated, it would appear that Wallace was more negligent than Oakley. Still, we cannot say on the basis of this jury verdict that Wallace was guilty of more or less than 50 percent of the total negligence and we are unwilling to say that simply because his negligence exceeds that attributed to Oakley by the jury, that Oakley is entitled to a dismissal. In other words, we cannot automatically translate the jury verdict into a finding that Wallace’s fault amounted to 80 percent and Oakley’s to only 20 percent. See Fitzhugh v. Elliott, 237 Ark. 88, 371 S.W. 2d 533.

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.

Hickman, Stroud and Mays, JJ., not participating.

        Applegate v. Riggall, 229 Ark. 773, 318 S.W. 2d 596.

       This case was treated on a second appeal and a judgment was again reversed on other grounds sub. nom. Standhardt v. Flintkote Co., 84 N.M. 796, 508 P. 2d 1283 (1973).


author: George Rose Smith, Justice.

text:
    James Edward JENNINGS v. STATE of Arkansas
    CR 79-221
    594 S.W. 2d 855
    Supreme Court of Arkansas
    Opinion delivered March 10, 1980

      John W. Achor, Public Defender, by: James H. Phillips, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In appealing from a rape conviction, with a 40-year sentence, the appellant contends that the State’s proof does not show the required forcible compulsion and that the sentence is excessive.

The Criminal Code provides that a person commits rape if he engaged in sexual intercourse “by forcible compulsion,” which includes a threat of death or physical injury. Ark. Stat. Ann. §§ 41-1801 and -1803 (Repl. 1977). The Code was not intended to change the traditional doctrine with respect to the use of force. Commentary to § 41-1801.

The prosecutrix testified that Jennings surprised her outside of her apartment, subdued her by the application of a headlock, and threatened to kill her if she made any noise. He forced her into the apartment and raped her. She made no resistance because she was afraid he would kill her. Jennings testified that the woman consented to intercourse, for a payment of $25. The conflicting testimony presented an issue of fact for the trial judge, who heard the case without a jury. Under our decisions the State’s proof was sufficient to sustain the conviction. Spencer v. State, 255 Ark. 258, 499 S.W. 2d 856 (1973); Rogers v. State, 249 Ark. 117, 458 S.W. 2d 747 (1970); Threet v. State, 110 Ark. 152, 161 S.W. 139 (1913).

Rape is a Class A felony, for which the range of punishment by imprisonment is 5 to 50 years or for life. § 41-901. Since the sentence imposed is within the limits fixed by the legislature, it is our duty to uphold it, even though we might think it to be unduly severe. Atwell v. State, 244 Ark. 739, 427 S.W.2d 1 (1968); Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518 (1963).

Affirmed.


author: Frank Holt, Justice.

text:
    Larry Eugene SPILLERS v. STATE of Arkansas
    CR 80-22
    595 S.W. 2d 650
    Supreme Court of Arkansas
    Opinion delivered March 10, 1980
    Rehearing denied April 14, 1980

      Duncan & Davis, by: A. Wayne Davis, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of false imprisonment in the first degree (Ark. Stat. Ann. § 41-1703 [Repl. 1977]) and battery in the first degree (Ark. Stat. Ann. § 41-1601 [Repl. 1977]) and assessed his punishment at 3 1/2 years and 9 1/2 years, respectively. Appellant contends that the trial court erred in failing to grant a mistrial when the prosecuting attorney was allowed to breach a pretrial agreement not to use the appellant’s nor his codefendant’s cross-implicating statements.

Appellant and his codefendant each made an in custodial statement to the police implicating the other. The attorney for the codefendant filed a motion for severance alleging that his client would suffer undue prejudice if tried with the appellant. At the pretrial hearing, appellant’s attorney made an oral motion that any cross-references in the statements should be deleted if the trials were not severed but did not move for severance. From a review of the record, it is apparent that the trial court denied the codefendant’s severance motion with the understanding that the prosecuting attorney had agreed “that no effort would be made to introduce the written statements.”

During the prosecuting attorney’s opening statement, he said: “After staying in jail for a number of days, Mr. Walker [the codefendant] revealed who the other individual in the car was, the individual, the defendant, Eugene Spillers [appellant].” Appellant sought a mistrial asserting this was a breach of the agreement, the statements were not shown as being voluntary, and the statements were fundamentally unfair. In chambers the court denied appellant’s motion for a mistrial because no prejudicial error had occurred inasmuch as the statement merely identified one of the occupants of the automobile. The court instructed that there would be “no further reference . . . . [a]s to what one said concerning his involvement or the involvement of anybody else.” The court then observed that the statement by the prosecuting attorney had no probative value whatsoever in determining the guilt or innocence of the defendants.

A mistrial is an extreme remedy which should be granted only where the error is so prejudicial that justice cannot be served by a continuation of the trial. Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115 (1973). Here we hold that, even though the stipulation may have been breached in the opening statement, which we do not condone, no prejudicial error is demonstrated. The appellant’s defense did not relate to his identity. He maintained that the gun fired accidentally wounding the victim. Further, he was identified by four prosecution witnesses. The prosecution’s reference to the statement did no more than place appellant at the scene of the incident. Also, the court instructed the jury that the opening statement or remarks of an attorney should not be considered as evidence.

The prosecuting attorney never sought to introduce the cross-implicating statements into evidence, however, the prosecuting attorney referred to appellant’s statement during his cross-examination of the appellant. The reference was made during a series of questions concerning the appellant’s destination on the night of the incident. The prosecuting attorney noted several inconsistencies in his prior written statement as to the direction of the automobile and the location of certain roads. The prosecuting attorney was attempting to impeach the appellant’s credibility. First, it appears there was no objection to the series of questions concerning the appellant’s statement. Further, when the appellant took the stand in his own behalf, he became subject to impeachment like any other witness. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975); and Rooks v. State, 250 Ark. 561, 466 S.W. 2d 478 (1971). Here the reference to appellant’s statement during cross-examination of him, was not substantive evidence of innocence or guilt, but merely for impeachment purposes or to attack the credibility of the witness. There was therefore no need for a determination of its voluntariness as argued by appellant. Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971); Rooks v. State, supra, Williams v. State, supra, and Zachry v. State, 260 Ark. 97, 538 S.W. 2d 25 (1976). Neither was the Bruton rule violated inasmuch as both the appellant and the codefendant testified at the trial and were subject to cross-examination. Bruton v. U.S., 391 U.S. 123, 98 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); Gammell & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); and Bell and Walker v. State, 258 Ark. 976, 530 S.W. 2d 662 (1975). In Bell, we said: “[T]he device of cross-examination enabled the appellants to avail themselves of every opportunity to refute any testimony adverse to their position.”

There was also a reference to appellant’s codefendant’s statement during the prosecuting attorney’s cross-examination of the codefendant as to whether the appellant was in possession of a knife shortly before the incident. Appellant’s attorney objected to use of the codefendant’s cross-implicating statement on the basis there was no showing of its voluntariness and its use would be contrary to the prosecution’s representations about use of the statement. In denying the motion the court ruled the statement could be used to impeach the witness as to previous inconsistent statements. There was “no effort” to introduce the statement. As previously discussed, the codefendant was subject to cross-examination and his statement could be used for impeachment purposes. Certainly, the court did not abuse his discretionary authority.

We need not reach appellant’s contention that Ark. Stat. Ann. Vol. 4A, Rules of Crim. Proc., Rule 22.3 (Repl. 1977) was violated by the court’s denial of the codefendant’s motion for severance inasmuch as appellant, himself, failed to move for severance before the trial. Burnett and David v. State, 262 Ark. 235, 556 S.W. 2d 653 (1977).

Affirmed.