Dunn v. Patterson Dental Co.

• Decision Date: 30 January 1979
• Docket Number: No. 8614,8614
• Citation: 578 S.W.2d 428
• Parties: Frank Jerome DUNN, Jr., Appellant, v. PATTERSON DENTAL CO. et al., Appellees.
• Court: Texas Court of Appeals

Page 428

578 S.W.2d 428

Frank Jerome DUNN, Jr., Appellant, v. PATTERSON DENTAL CO. et al., Appellees.

No. 8614.

Court of Civil Appeals of Texas, Texarkana.

Jan. 30, 1979.

Rehearing Denied March 20, 1979.

Gayle E. Oler, Oler & Hoffman, Dallas, for appellant.

John H. Martin, Thompson, Knight, Simmons & Bullion, Dallas, for Fraser-Sweatman.

R. Chris Harvey, James K. Peden, III, Strasburger & Price, Dallas, for Patterson Dental.

C. Edward Fowler, Jr., Bailey, Williams, Westfall, Lee & Fowler, Dallas, for Puritan-Bennett & Medicall.

James S. Maxwell, Charles L. Perry, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for Western Enterprises.

CORNELIUS, Chief Justice.

This is a products liability case in which appellant, a dentist, sought damages for personal injuries he received when a piece of his office equipment exploded. The defendants, appellees here, were the seller of the equipment (Patterson Dental Company), the assembler (Frazier-Sweatmen Company), the manufacturer of a component part (Western Enterprises, Inc.), and the company which serviced the equipment and had recently changed the oxygen cylinders thereon (Medicall, Inc.). The jury found against appellant on the negligence and liability issues, and a take nothing judgment was entered. The only complaint on appeal is that the trial court erred in allowing the four appellees six peremptory jury challenges each, for a total of twenty-four, while appellant was allowed only six.

Tex.R.Civ.P. 233 provides that "Each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court, and to three in the county court."

The term "each party" as used in the rule is not the same as "each person," but means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965); Retail Credit Company v. Hyman, 316 S.W.2d 769 (Tex.Civ.App. Houston 1958, writ ref'd); King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.); 3 McDonald's, Texas Civil Practice, Sec. 11.12.1, p. 163. The question of antagonism is to be determined by the information available at the time to the trial court revealed from an analysis of the pleadings, as well as from facts disclosed by pre-trial proceedings and which have been specifically called to the court's attention. Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974). The inquiry is whether there is antagonism as to fact issues on which the jury will pass. Perkins v. Freeman, supra; 3 McDonald's Texas Civil Practice, Sec. 11.12.2, p. 164.

Appellant alleged that each of the appellees, Frazier-Sweatman Company, Western Enterprises, Inc. and Patterson Dental Company, was negligent in the design, manufacture, assembly and/or sale of the product and the faulty component, and that Medicall, Inc. was negligent in servicing the equipment and in connecting certain oxygen cylinders thereto and in failing to adequately train its serviceman. Appellant also alleged breach of express and implied warranties and relied upon the doctrine of strict liability. All of the appellees denied liability and in addition sought to place the blame for the accident on one or more of the other appellees. Each of them cross-claimed against the others seeking indemnity and/or contribution based upon alleged specific acts of negligence, except that neither Western nor Frazier-Sweatman sought any relief against the seller, Patterson Dental Company. Appellant's counsel conceded that, on the basis of the pleadings alone, all of the appellees were antagonistic and he made no request to restrict their peremptory challenges until after voir dire of the jury panel. At that time he moved the court to allow all the appellees a total of only six strikes. The motion was based upon certain statements he contended had been made by the appellees' attorneys in voir dire to the effect that none of them accused any other appellee of wrongdoing, thus negating any antagonism among them. The trial court denied the motion. Appellant here urges that, on the basis of the statements he attributes to appellees' counsel, the trial court should have held that the appellees were not antagonistic and restricted their peremptory challenges to six.

The problem with appellant's argument is that he has not brought forward a statement of facts, except a partial one showing his motion, and we are unable to determine the nature and import of what, if anything, the counsel for appellees said with reference to their positions regarding fault. The appellees deny that they made any statements on voir dire which had the effect attributed to them by the appellant. When only a partial statement of facts has been presented, we must presume there was sufficient evidence before the trial court to sustain its action. Englander Co., Inc. v. Kennedy, 428 S.W.2d 806 (Tex.1968); Blancas v. Blancas, 495 S.W.2d 597 (Tex.Civ.App. Texarkana 1973, no writ). The trial judge here may well have concluded that the statements were not made, or that if made, the context in which they were made militated against the effect which it is claimed they had. As antagonism is shown by the pleadings, and we have no record of any concessions made which would change that, we cannot say the court was wrong in concluding that at least some antagonism existed among the appellees.

Appellant also contends that the court erred in failing to follow the provisions of Tex.Rev.Civ.Stat.Ann. art. 2151a (Supp.1978) which modified Rule 233 and requires the court to equalize the peremptory challenges allowed under that rule. Article 2151a provides "After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party."

There is considerable disagreement as to the meaning of Article 2151a and its effect on Rule 233, but we interpret the statute as requiring the trial court to equalize the number of challenges between the plaintiff's side and the defendant's side after the necessary alignment has been made to identify those sides. For example, if there are multiple defendants who are antagonistic, each is entitled to a complement of challenges, but the plaintiff is entitled to a number equalling the total allowed the defendants. Construing the statute in that manner is the only way to give effect to its plain language and to render its enactment meaningful.

Before the enactment of Article 2151a, Texas followed the "single issue" rule with regard to the number of challenges allowed multiple parties aligned on the same side of a lawsuit. According to that rule, the presence of a single issue which was not common to persons on the same side of the suit entitled each person to his own set of challenges. The operation of this rule resulted in cases of unfairness, because multiple parties with a common interest in defeating a solitary opponent could multiply their challenges by assuming inconsistent positions on a single issue. This, together with the undisputed right of the multiple parties to collaborate in the use of their challenges, resulted in a windfall which gave the multiple parties a distinct advantage against their common adversary. This advantage prompted a move to enact a statute or court rule which would require, after proper alignment of parties, the equalization of peremptory challenges between sides. See Jones, Peremptory Challenges-Should Rule 233 Be Changed ?, 45 Tex.L.Rev. 80 (1966). Article 2151a was enacted in 1971.

It has been argued that Article 2151a only requires equal challenges for each Party, rather than for each Side. But that was the requirement under Rule 233 and previous case law. If that is still to be the case, why was the statute enacted? The reason for the statute must have been to provide for a corresponding increase in a party's challenges so as to equalize them with those of antagonistic multiple parties aligned against him in order to avoid disadvantage to the single party. This interpretation is confirmed, we believe, by that portion of the statute which states that the challenges must be equalized "in accordance with the ends of justice so that No party is given an unequal advantage because of the number of peremptory challenges allowed That party." (Emphasis supplied.) If each party is always to be allowed only six challenges, what is the purpose of the quoted language? It seems obvious that the intent of the statute is to provide for an increase in one party's challenges to offset the combined challenges of multiple parties aligned against him. Whatever we think of the wisdom of the Legislature in enacting Article 2151a, we are bound to give effect to its intention if it can be ascertained. The cardinal rule of statutory construction is that statutes are to be construed, if possible, to give them meaning and effect, not to render them meaningless and useless. The appellees suggest that Article 2151a was enacted only to codify the pre-existing common law rule and make it mandatory, and also to give the trial court the power to align the parties according to their true interests. The answer to that suggestion is that Rule 233 had already made the common law rule mandatory, and the trial court was already possessed of power, prior to the adoption of Article 2151a, to align the parties according to their true interests.

Some contend that the statute was designed to give the trial court the discretion, in multiple party cases, to increase or reduce the challenges on either side in order to do substantial justice, even though the number of challenges per side is not equal. At least three cases by our Courts of Civil Appeals have so construed the statute. King v. Maldonado, supra; ...