Brown & Root, Inc. v. Gragg

• Decision Date: 11 July 1969
• Docket Number: No. 15504,15504
• Citation: 444 S.W.2d 656
• Parties: BROWN & ROOT, INC., Appellant, v. Sharon Lee GRAGG et al., Appellees. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 656

444 S.W.2d 656

BROWN & ROOT, INC., Appellant, v. Sharon Lee GRAGG et al., Appellees.

No. 15504.

Court of Civil Appeals of Texas Houston (1st Dist.).

July 11, 1969.

Rehearing Denied Sept. 11, 1969.

William R. Eckhardt, Vinson, Elkins, Searls & Connally, of counsel, Houston, for appellant.

Joseph D. Jamail, John Gano, Houston, for appellees Sharon Lee Gragg and her minor children.

James G. Sargent, Houston, for appellee-intervenor, United States Fidelity & Guaranty Co. PEDEN, Justice.

Suit for damages for the injuries to and the death of James B. Gragg in an explosion at the Rezloff Chemical Company on August 9, 1965. The suit was brought by the widow, Sharon Lee Gragg, individually and as next friend of her three minor children, against the appellant, Brown & Root, Inc., the Ohio Injector Co., Pfaudler Co., Crane Packing Co., Southern Engine & Pump Co. and Gould Pumps, Inc. Appellee United States Fidelity & Guaranty Co. filed an intervention to recover benefits paid under the Workmen's Compensation Act.

Brown & Root built the Retzloff plant and had not yet completed it when the explosion occurred, but Retzloff had begun operating it. Brown & Root had installed the steam line and valve leading to the large steel vessel known as the R--500 reactor which exploded, causing the death of James Gragg. He was a Retzloff employee and was engaged in operating the reactor when it exploded.

The capacity of the reactor was about 3,000 gallons; it was only about one-fourth to one-third full of methyl parathion, an insecticide, when the explosion occurred. The reactor was made of steel. Its interior was lined with glass, and there was a steam jacket beneath it and around its sides. The product had been placed in the reactor and steam had been introduced into the jacket to help distill off a fluid that had been used as a carrier or vehicle for the methyl parathion. After a certain amount of this carrier fluid had been distilled off, the valve in the steam line had been closed to allow the methyl parathion to cool, and a few hours later, at about 9:50 a.m. on August 9, 1965, it exploded. Appellees' theory is that although the valve in the steam line had been closed, the valve had leaked steam into the jacket of the reactor causing the chemical to be heated until it exploded; that when Brown & Root's employees installed the steam line and valve they did not properly clean out the line, and metal particles or other foreign material scarred the valve seat so that steam was allowed to pass through the valve even when it had been closed.

Defendant Pfaudler Co. built the R--500 reactor; Ohio Injector Company made the steam valve; Gould Pumps made a pump which was to be used to pump the product either into or out of the reactor; Crane Packing Co. sold a seal that had been placed in the pump, and Southern Engine & Pump Co. sold the pump. Appellees named each of these companies as a party-defendant, along with appellant, Brown & Root, and charged each with negligent design and installation, with failure to properly inspect, and with breach of warranty.

Brown & Root's answer contained a general denial and charged Gragg with contributory negligence. It also filed a cross-action against each of the other parties named as defendants in the plaintiffs' petition, alleging that it would show the court and jury that it was the negligence of these cross-defendants who, if the plaintiffs' allegations of negligence were correct, violated duties which they owed to Brown & Root, thereby entitling Brown & Root to indemnity or contribution. Pfaudler Co. and Ohio Injector Co. also filed cross-actions against the others named as defendants in the plaintiffs' suit.

Appellant's first point of error is that its motion for a mistrial should have been granted just after selection of a jury because of material prejudice to it in that appellees received the benefit of jury strikes of defendants with whom they had no conflict of interest as to any fact to be determined by the jury; appellant's second point is that the cause should be reversed and remanded because appellees' having received such juror strikes was materially unfair to the appellant.

The appellees took a non-suit as to Ohio Injector Co. after selection of the jury was begun and as to Southern Engine &amp Pump Co. after the jury had been selected but before the first witness testified. However, Southern Engine & Pump Co. was still a cross-defendant in two cross-actions.

In his voir dire examination of the jury, appellees' counsel told the venire that he didn't know what the evidence would be but that his case would be directed against Brown & Root because if the evidence came in as he thought it would he believed the other parties would be absolved. He stated twice that he couldn't be sure of this, but that his case would be centered from the beginning at this point unless things changed.

Brown & Root complains of the trial court's having overruled its motion in limine by which it sought to question counsel for the other parties as to existence of an agreement whereby the appellees would receive the benefit of jury strikes of one or more of the other parties. The motion further urged that in the event it was found that no conflict of interest existed between the appellees and one or more of the other parties, that they be limited to a total of six jury strikes, and in that event Brown & Root would take a non-suit on its cross-action against such defendant.

The appellant's counsel was permitted to question other counsel in the case only after selection of the jury had been completed.

At this point in the trial appellees' counsel was questioned about any agreement made with parties other than the appellant and the intervenor. He stated that he had consulted with them as to their jury strikes, and he had told each of them, as he recalled, that if the evidence developed as it now looked like it would, he would probably dismiss as to them. He suggested that as far as their interests were the same that they attempt to correlate their effort not only on jury strikes but also on the trial. He said he had told them it might develop that he couldn't dismiss them; that something might happen which would keep one of them in.

They did confer in selecting jurors, and an examination of the jury lists shows that there were no duplications in their strikes.

We overrule the first point. Had appellant been able to show the existence of an unqualified agreement to dismiss parties in exchange for their jury strikes, it would have been entitled to relief, but it could not do so.

Whether two or more parties are each entitled to six jury strikes under Rule 233, Texas Rules of Civil Procedure, depends on whether they have interests that are, at least in part, antagonistic on one or more fact issues. Retail Credit Co. v. Hyman, 316 S.W.2d 769 (Houston Tex.Civ.App.1958, writ ref.). In the instant case the trial judge was not in a position to determine, when called upon to do so, that the parties in question had no antagonism between them as to any fact issue. A lack of antagonism was not demonstrated by the recited statement by appellees' counsel, and the parties in question had on file current pleadings alleging that James Gragg's death was caused by the negligence of one or more of such other parties; although depositions had been taken from a number of those who might have been expected to testify, the discovery shown in the record does not foreclose the possibility that Brown & Root or some other party might have been able to raise a fact issue in support of these allegations. Careful preparation for trial does not always prevent an attorney from being surprised by the introduction of evidence vital to the outcome of his client's cause.

'Parties on the same side of the docket may be entitled to separate peremptory challenges even though no affirmative relief is sought by one against the other. The plaintiff here charged each of the defendants with different acts of negligence and the jury by its answers might have acquitted one defendant of negligence and found that the other was responsible for the collision. Miss Tamburello alleged that the negligence of Crutchfield was the sole cause of the accident, and the defendants also advised the trial court that they were each claiming that the accident was caused solely by the negligence of the other. Their interests were clearly antagonistic on some of the issues submitted to the jury, and it is our opinion that the trial court erred in denying them six peremptory challenges each.' Tamburello v. Welch, 392 S.W.2d 114 (Tex.Sup.1965).

Appellant also complains about the other parties' having collaborated in making their jury strikes. Parties who are entitled to separate strikes may confer in making them. Parker v. Traders & General Insurance Co., 366 S.W.2d 107 (Eastland Tex.Civ.App.1963), modified 375 S.W.2d 714 (Tex.Sup.1964).

We also overrule appellant's second point of error. We know of no Texas authority for reversing the judgment in a cause by reason of its having developed during the trial that the allegations in the parties' petition indicating antagonisms as to fact issues were not substantiated.

Appellant's third point asserts that the trial court erred in overruling its motion for mistrial based on inflammatory and materially prejudicial jury argument by appellees' attorney. We will not recite all of the statements complained of. They were not so prejudicial that they could not have been cured by a proper instruction.

One matter about which appellant complained in its motion for mistrial was that appellees' counsel informed the jury of the effect of its answers. No ojbection was made to the argument on this basis, and the motion for mistrial was not made until the jury had retired to consider its verdict. This was too late. Texas Employers' Ins. Association v. Haywood, 153 Tex. 242, 266 S.W.2d 856 (1954).

Another basis for...