Garcia v. Central Power & Light Co.
| Decision Date | 29 January 1986 |
| Docket Number | No. C-4640,C-4640 |
| Citation | 704 S.W.2d 734 |
| Parties | Tina Marie GARCIA, Individually and as Next Friend of Andrea Lynn Garcia, a Minor, Petitioners, v. CENTRAL POWER & LIGHT CO. et al., Respondents. |
| Court | Texas Supreme Court |
Dan Pozza, Pasqual & Pozza, San Antonio, for petitioners.
Darrell L. Barger, Hunt, Hermansen, McKibben & Barger, Ronald B. Brin, Brin & Brin, Georgia D. Flint, Richard E. Flint, P.C., Corpus Christi, Gay C. Brinson, Jr., Vinson & Elkins, Houston, Cecil D. Redford, Corpus Christi, for respondents.
This is a wrongful death suit brought by the surviving beneficiaries of David Garcia for actual damages against Sargent & Lundy, Mid-West Conveyor, Inc., and H.B. Zachry Company and for exemplary damages against Central Power & Light Company. After a trial to a jury, a take-nothing judgment was rendered against the Garcias. In their sole issue on appeal, the Garcias argued the trial court's allowance of peremptory challenges was erroneous. The court of appeals disagreed and affirmed the trial court's judgment. 703 S.W.2d 696. We reverse the judgments of the courts below and remand this cause for trial.
David Garcia was employed by CP & L as a helper in the coal-handling section of the Coleto Creek Power Station in Goliad County, Texas. On February 5, 1982, Garcia was assigned to work on a bulldozer in the area of the coal reclaim pile. His job was to bulldoze coal toward the center of the reclaim pile so that the coal would fall down the feeder grates onto an underground conveyor belt that carried the coal to the plant for fuel. Garcia was bulldozing near the reclaim pile when he called the control room and stated that he saw something on the "reclaim." Garcia then apparently got off his bulldozer and entered the cut out place in the coal pile. His body was subsequently found buried in the coal pile, and he died shortly thereafter.
The Garcias filed suit against CP & L alleging gross negligence because of its alleged failure to provide a safe working place for its employees. The Garcias also brought suit for joint and several liability against Sargent & Lundy (the design engineer of the power station), Mid-West (the supplier of the power station's coal-handling conveyor system), and Zachry (the general contractor of the power station), alleging specific acts of negligence and/or products liability with reference to their respective responsibilities for the design and construction of the Coleto Creek Power Station and its coal-handling system.
Mid-West and Sargent & Lundy both filed cross-actions against each other, CP & L, and Zachry, affirmatively pleading the doctrine of comparative fault, and sought indemnity and/or contribution from such cross-defendants in the event Mid-West and Sargent & Lundy were found liable for the accident. CP & L also filed a cross-action against Sargent & Lundy and Mid-West, seeking indemnity and/or contribution from these two defendants if CP & L was found liable. In addition, each cross-defendant answered by way of denial to the respective cross-actions asserted against them. The trial court sustained Zachry's plea of privilege to be sued in Bexar County in response to the Garcias' original petition, and, when the Garcias filed a second petition again naming Zachry as a defendant, the trial court sustained Zachry's plea in abatement. However, Zachry remained a defendant as a result of the cross-actions filed by Sargent & Lundy and Mid-West.
The cause eventually proceeded to trial and the trial court allocated, without objection, six peremptory challenges to the Garcia family, and a total of ten peremptory challenges to the four defendants. However, after the voir dire examination, the Garcias moved to allocate the peremptory challenges six and six as opposed to six and ten because the attorneys' representations during voir dire indicated that there was no antagonism among the defendants as a matter of law. TEX.R.CIV.P. 233. Alternatively, the Garcias argued that if antagonism did exist, it was so slight that it would be an abuse of discretion to award defendants ten peremptory challenges compared to the Garcias' six. The trial court overruled the Garcias' motion.
Trial was to a jury which answered twenty-three special issues. By a ten-to-two verdict, the jury found that Garcia was 100% negligent, and the trial court accordingly rendered a take-nothing judgment against the Garcias.
The Garcias' sole complaint on appeal was the overruling of their motion to allocate the same number of peremptory challenges to each side based on their assertion that there was no antagonism between the respective defendants as a matter of law. The court of appeals affirmed the trial court's ruling, stating that antagonism was present because of the cross-actions between the defendants and because the jury was asked to allocate causation among each of the four defendants.
In allocating peremptory challenges when multiple litigants are involved on one side of a lawsuit, a trial court must determine whether any of those litigants on the same side are antagonistic with respect to an issue of fact that the jury will decide. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex.1979). In this case, the trial court conducted a pre-trial hearing immediately before the voir dire examination. At this pre-trial hearing, the defendants informed the court that they were united in asserting that Garcia was 100% contributorily negligent and requested that they be allocated twelve or fourteen strikes. Although recognizing that some antagonism might exist among the defendants because a comparative causation issue would be submitted to the jury, the Garcias contended at that time that eight or nine peremptory challenges would be sufficient. The trial court thereupon awarded the defendants a total of ten peremptory challenges and granted the Garcia's six peremptory challenges. A voir dire examination followed.
During the voir...
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