Garcia v. Central Power & Light Co., No. C-4640

CourtSupreme Court of Texas
Writing for the CourtHILL
Citation704 S.W.2d 734
PartiesTina Marie GARCIA, Individually and as Next Friend of Andrea Lynn Garcia, a Minor, Petitioners, v. CENTRAL POWER & LIGHT CO. et al., Respondents.
Decision Date29 January 1986
Docket NumberNo. C-4640

Page 734

704 S.W.2d 734
Tina Marie GARCIA, Individually and as Next Friend of Andrea
Lynn Garcia, a Minor, Petitioners,
v.
CENTRAL POWER & LIGHT CO. et al., Respondents.
No. C-4640.
Supreme Court of Texas.
Jan. 29, 1986.
Rehearing Denied March 19, 1986.

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.

Page 735

OPINION

HILL, Chief Justice.

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 continue reading

Request your trial
33 practice notes
  • Pojar v. Cifre, No. 13-03-234-CV.
    • United States
    • Court of Appeals of Texas
    • February 23, 2006
    ...law, such error will usually lead to reversal of the judgment and remand for new trial. See, e.g., Garcia v. Cent. Power & Light Co., 704 S.W.2d 734, 737 (Tex. 1986) ("When the trial is hotly contested and the evidence sharply conflicting, the error results in a materially unfair trial with......
  • Texas Commerce Bank Reagan Through Texas Commerce Bank Nat. Ass'n v. Lebco Constructors, Inc., No. 13-91-423-CV
    • United States
    • Court of Appeals of Texas
    • June 30, 1993
    ...will decide. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5 (Tex.1986) (on motion for rehearing); Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex.1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex.1979); Tex.R.Civ.P. 233. If no antagonism exists, each side must rece......
  • Hyundai Motor Co. v. Alvarado, No. 04-92-00387-CV
    • United States
    • Court of Appeals of Texas
    • November 25, 1998
    ...Christi 1987, writ ref'd n.r.e.). The existence of antagonism is a question of law. Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex.1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 919 Mario's pleadings alleged various acts of negligence against both Reyes and Hyundai. The......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • November 26, 1986
    ...held that rule is not applicable when the trial court improperly apportions peremptory challenges. Garcia v. Central Power & Light Co., 704 S.W.2d 734 (Tex.1986). While disapproving of the basis utilized by the court of appeals in upholding the trial court's apportionment of peremptory chal......
  • Request a trial to view additional results
33 cases
  • Pojar v. Cifre, No. 13-03-234-CV.
    • United States
    • Court of Appeals of Texas
    • February 23, 2006
    ...law, such error will usually lead to reversal of the judgment and remand for new trial. See, e.g., Garcia v. Cent. Power & Light Co., 704 S.W.2d 734, 737 (Tex. 1986) ("When the trial is hotly contested and the evidence sharply conflicting, the error results in a materially unfair trial with......
  • Texas Commerce Bank Reagan Through Texas Commerce Bank Nat. Ass'n v. Lebco Constructors, Inc., No. 13-91-423-CV
    • United States
    • Court of Appeals of Texas
    • June 30, 1993
    ...will decide. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5 (Tex.1986) (on motion for rehearing); Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex.1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex.1979); Tex.R.Civ.P. 233. If no antagonism exists, each side must rece......
  • Hyundai Motor Co. v. Alvarado, No. 04-92-00387-CV
    • United States
    • Court of Appeals of Texas
    • November 25, 1998
    ...Christi 1987, writ ref'd n.r.e.). The existence of antagonism is a question of law. Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex.1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 919 Mario's pleadings alleged various acts of negligence against both Reyes and Hyundai. The......
  • Scurlock Oil Co. v. Smithwick, No. C-4838
    • United States
    • Supreme Court of Texas
    • November 26, 1986
    ...held that rule is not applicable when the trial court improperly apportions peremptory challenges. Garcia v. Central Power & Light Co., 704 S.W.2d 734 (Tex.1986). While disapproving of the basis utilized by the court of appeals in upholding the trial court's apportionment of peremptory chal......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT