Diamond Shamrock Corp. v. Wendt

• Decision Date: 29 August 1986
• Docket Number: No. 13-85-148-CV,13-85-148-CV
• Citation: 718 S.W.2d 766
• Parties: DIAMOND SHAMROCK CORPORATION, Appellant, v. Dan WENDT and Medina Valley A.I. Laboratory, Incorporated, Appellees.
• Court: Texas Court of Appeals

Page 766

718 S.W.2d 766

DIAMOND SHAMROCK CORPORATION, Appellant, v. Dan WENDT and Medina Valley A.I. Laboratory, Incorporated, Appellees.

No. 13-85-148-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 29, 1986.

On Rehearing Oct. 9, 1986.

Roger Townsend, Charles W. Hurd, III, Reagan M. Brown, Houston, Robert J. Hearon, Jr., Pamela Stanton Baron, G. Michael Lawrence, Graves, Dougherty, Hearon & Moody, Austin, Kathleen B. Burke, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for appellant.

John O'Quinn, William Fred Hagans, O'Quinn & Hagans, Houston, Robert Summers, Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, for appellees.

Before SEERDEN, UTTER and BENAVIDES, JJ.

OPINION

SEERDEN, Justice.

Appellant complains of the judgment against it in a suit over the death of Wendt's bull, named "Superman 1024," which was killed on the premises of appellee, Medina Valley A.I. Laboratory, (Medina), by application of an insecticide, Vapona, manufactured by Diamond Shamrock Corporation (Shamrock) and applied to the bull by employees of Medina. Pursuant to jury answers to special issues, the trial court entered judgment, jointly and severally against Shamrock and Medina for $1,500,000 actual damages, and against Shamrock separately for $7,000,000 exemplary damages. The judgment also awarded prejudgment interest and attorney's fees, and granted Medina indemnity against Shamrock for all sums.

We reverse the judgment of the trial court and remand the case for a new trial.

Appellants raise numerous points of error relating to the lack of and sufficiency of evidence both as to liability and damages, actual and exemplary, the manner of calculating interest and attorney's fees, and the granting of indemnity to Medina. In light of our disposition of point of error thirteen, we do not reach any of the other complaints.

In its thirteenth point of error, appellant claims error in the alignment of the parties for trial and in the allocation of peremptory challenges.

Prior to voir dire examination of the jury panel, appellant's attorney requested that the parties be realigned so that Medina and Wendt be considered plaintiffs and Shamrock be considered the defendant. The trial court rejected this request and indicated that it would allocate twelve peremptory challenges to Wendt, six to Medina, and six to Shamrock. Appellant objected to this proposed allocation of peremptory challenges. He initially requested that the strikes be apportioned six for Wendt, six for Shamrock, and three for Medina. Throughout the voir dire, he continued to complain of the apportionment made by the trial court, and at the conclusion of voir dire, he again objected to having to share his strikes with Medina and proposed that each of the parties, Wendt, Medina, and Shamrock, be allotted six peremptory challenges. This request was also denied by the trial judge and twelve peremptory challenges were given to Wendt, six to Medina, and six to Shamrock.

The number of peremptory challenges allocated to each party is governed by Tex.R.Civ.P. 233. This rule was re-written in 1984 and presently incorporates the concepts of both the old Rule 233 and former Tex.Rev.Civ.Stat.Ann. art. 2151a (Vernon Supp.1985).

The existence of antagonism, per se, is a question of law. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 919 (Tex.1979). In determining whether antagonism exists, the trial court must consider the pleadings, information disclosed by pre-trial discovery, information and representations made during voir dire of the jury panel, and any information brought to the attention of the trial court before the exercise of the strikes by the parties. Garcia v. Central Power and Light Co., 704 S.W.2d 734, 736 (Tex.1986); Patterson at 919. The antagonism must be finally determined after voir dire and prior to the exercise of the strikes of the parties. Garcia at 736.

The nature and degree of the antagonism, and its effect on the number of peremptory jury strikes allocated to each litigant or side, are matters left to the discretion of the trial court. See King v. Maldanado, 552 S.W.2d 940, 943 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.); Dean v. Bitulthic Co., 538 S.W.2d 825, 826 (Tex.Civ.App.--Waco 1976, no writ). In considering the number of peremptory challenges to be allocated between the litigants or sides, the trial court must determine, based on the information gleaned from pleadings, pre-trial discovery, and representation made during voir dire examination, what antagonism, if any, exists between the parties. Scurlock Oil Company v. Smithwick, 29 Tex.Sup.Ct.J. 449, 451-52 (June 25, 1986). In multiple party cases, the trial judge shall equalize the number of peremptory challenges so that no litigant or side is given an unfair advantage and so as to promote the ends of justice. Tex.R.Civ.P. 233. While the rule uses the term "equalize," a better description of the function of the trial judge in deciding upon the number of peremptory challenges each litigant will receive is the term "allocate." See Garcia at 736. Exact numerical equality between sides is not the purpose of equalization of peremptory challenges. Rather, the purpose is to equalize the positions of the parties to prevent one side, antagonistic among the parties on certain matters of fact with which they will be concerned, but primarily united in opposition to the other side, from selecting the jury. Patterson at 920.

Though both Medina and Shamrock filed general denials, it was clear from the conversations with the court prior to jury selection that neither was claiming that Wendt was in any way responsible for the loss of Superman. While Medina never admitted liability, it was also clear from the conference between the attorneys and the trial court, as well as statements made in voir dire, that both Wendt's presentation and Medina's defense was the improper labeling by Shamrock. In fact, the only possible justification Medina had for its employees applying the highly toxic insecticide to the animal was Shamrock's insufficient labeling and other failures; the same claims made by Wendt against Shamrock.

At the hearing prior to the voir dire relating to the alignment of the parties, it was brought out that neither Medina nor Shamrock contended that Wendt should not be compensated for the loss of his bull. Each of them claimed the other to be responsible for the loss. It is also apparent that Wendt and Medina had substantial common interests. Medina's insurance carrier had denied liability and refused to defend Medina in the case. While no agreement had been reached between the attorneys for Wendt and Medina, they had discussed proceeding jointly in a separate suit against Medina's insurance carrier, should Shamrock "put it all off" on Medina. The attorneys for Wendt and Medina had several conversations about striking the jury and discussed "a profile of a good juror for both of us that would be in common." Medina's attorney candidly admitted that he only attended one deposition in the case to hold down expenses for Medina. He frankly told the court that "the real controversy is between these two guys (Wendt and Shamrock)" and "We are really interested only in getting from Diamond Shamrock what the plaintiff (Wendt) might be able to get from us." The attorney for Wendt admitted that he turned down Medina's offer to take a judgment against it and go against its insurance company because it would "mess up my lawsuit against you (Shamrock)."

At the outset of the voir dire, attorney for plaintiff, after briefly stating the facts surrounding the death of Superman, said "Mr. Wendt's very valuable bull was killed at Medina Valley because Diamond Shamrock's chemical killed it." This theme, that the death was caused because of the chemical (not the action of Medina's employees) continued to be emphasized by both Wendt and Medina through the entire voir dire. In addition, Wendt's attorney qualified the jury as to gross negligence and punitive damages with respect to the conduct of Shamrock, but not of Medina. Wendt's only reference to Medina's conduct during voir dire was informing the jury panel, "as to Medina Valley, the evidence will be that they applied the Vapona to Superman and the issue in the case, I believe what the court is going to ask you about that is whether they did so negligently or whether the question would be they did so negligently or whether they were misled by the labels and it is not their fault."

"What I want to ask you is this: Do you feel that a business that handles and cares for animals or cares for other people's property ought to do so carefully? Do you agree with that?" Not suprisingly, no one on the panel voiced disagreement.

Medina never expressly denied negligence but inquired of the prospective jurors if they would require Wendt and Diamond Shamrock to prove their negligence. It then proceeded to comment that both Wendt and Medina were contending that Vapona was not fit and was not as represented. Medina also never commented on damages in its voir dire.

Shamrock's voir dire position essentially was that the Vapona had proper instructions on the label and that the person using the product should be responsible for following the instructions. It also complained that Wendt's figures as to the value of Superman were inflated.

We have found no case similar to this case relating to proper alignment of the parties. The cases dealing with alignment have all parties on one side, whether plaintiff or defendant, with a...