Garcia v. Central Power & Light Co., 13-84-304-CV

Citation703 S.W.2d 696
Decision Date13 June 1985
Docket NumberNo. 13-84-304-CV,13-84-304-CV
PartiesTina Marie GARCIA, et al., Appellants, v. CENTRAL POWER & LIGHT CO., et al., Appellees.
CourtCourt of Appeals of Texas

Dan Pozza, Pasqual & Pozza, San Antonio, for appellants.

Ronald B. Brin, Brin & Brin, Corpus Christi, Gay C. Brinson, Jr., Vinson & Elkins, Houston, Cecil D. Redford, Richard E. Flint, Head & Kendrick, Corpus Christi, Ryan E. Stevens, Darrell L. Barger, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for appellees.

Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a wrongful death suit brought by the Plaintiffs (Appellants herein) as the surviving beneficiaries and heirs of David Anthony Garcia, deceased, for actual damages against Defendants (Appellees herein), Sargent & Lundy, Mid-West Conveyor, Inc. (Mid-West), and H.B. Zachry Company (H.B. Zachry); and for exemplary damages against Central Power & Light Company (CP & L). After a trial to a jury, a take-nothing judgment was rendered against appellants. Appellants do not challenge the findings of the jury. We affirm the judgment of the trial court.

The record shows that David Anthony Garcia was employed by Central Power & Light Co. 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 the bulldozer in the area of the coal reclaim pile. His job was to bulldoze coal toward the center of the pile so that the coal would fall down the feeder grates and onto an underground conveyor belt that carried the coal to the plant for fuel. Garcia was dozing near the "live storage pile" when he called the control room and stated that he saw something on the "reclaim." Garcia apparently got off this "coal dozer" and entered the cut-out place in the active coal pile. His body was subsequently found buried in the coal pile, and he died shortly thereafter.

Appellants filed suit against appellee, CP & L, alleging gross negligence because of the alleged failure to provide a safe working place for its employee. Appellants also brought suit for joint and several liability against Sargent & Lundy (the design engineer); Mid-West (the contractor of the coal-handling system); and H.B. Zachry (the general contractor), alleging specific acts of negligence and/or products liability with reference to their respective responsibilities for the design and construction of the plant. 1

All four appellees (defendants) were united in denying that there was any defective product or negligence causing the accident and in contending that appellants' decedent was 100% negligent, which contributed to his death. However, Mid-West and Sargent & Lundy also alleged that the accident was caused solely by another defendant's actions or omissions. 2

After evidence was presented, twenty-three special issues on the liability of each appellee and the decedent were submitted to the jury. By a ten-to-two verdict, the issues were answered against appellants and for exoneration of all four appellees. A take-nothing judgment was rendered against appellants. Appellants timely filed a motion for new trial in which they complained of the allocation of peremptory challenges to the appellees. This motion was denied, and appellants have appealed.

Appellants' sole complaint on appeal is that the trial court erred in allocating ten peremptory challenges to the four appellees and allocating appellants only six such challenges. In support of all four points of error, appellants contend that the trial court's award of peremptory challenges was error because no antagonism or, alternatively, insufficient antagonism, existed between the defendants (appellees). Further, appellants contend that the allowance of a total of ten peremptory challenges to the appellees and the allowance of only six such challenges to them resulted in a trial that was materially unfair, thus requiring reversal. We disagree.

Rule 233, Texas Rules of Civil Procedure, (Vernon Supp.1985), provides that each party to a civil suit tried in a district court shall be entitled to six peremptory challenges. The term "each party," as used in the Rule, does not mean the same thing as the word "person," but means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd n.r.e.); Retail Credit Co. v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.--Houston 1958, writ ref'd). When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic right to trial by jury. See Rivas v. Liberty Mutual Insurance Co., 480 S.W.2d 610, 612 (Tex.1972).

The antagonism must exist between litigants on the same side, vis-a-vis each other. Antagonism does not exist merely because of differing conflicts with the opposing side; i.e., when a plaintiff sues multiple defendants alleging different acts or omissions against each defendant. Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979). 3 Antagonism would exist, however, if each of the defendants alleged that the fault of another defendant was the sole cause of plaintiff's injury. Shell Chemical Co. v. Lamb, 493 S.W.2d 742 (Tex.1973); Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965).

The existence of antagonism is not a matter within the discretion of the trial court; it is a question of law whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue to be submitted to the jury. Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974). The existence of antagonism must be determined prior to the exercise of the strikes by the parties. The trial court must consider the pleadings, information disclosed by pretrial discovery, information and representations made during voir dire of the jury panel and any other information brought to the attention of the trial court. Id. at 534; see generally Sheehan & Hollingsworth,Allocation of Peremptory Challenges Among Multiple Parties, 10 St. Mary's L.J. 511 (1979). Further, the existence or nonexistence of cross-actions or third-party actions is not determinative, but it is a factor to be considered by the trial court. Patterson Dental Co. v. Dunn, 592 S.W.2d at 918; see Turner v. Turner, 385 S.W.2d 230, 238 (Tex.1964).

Rule 233 requires the trial court to first align the parties before determining the question of jury strikes. In the present case, the trial court aligned the parties timely. The propriety and correctness of the alignment is not questioned in this appeal. Rather, appellants contend that, since all four appellees had a common defensive theory (i.e., contributory negligence on the part of Garcia), they should have been designated as one "party" and, therefore, they were only entitled to a total of six peremptory challenges. By this argument, appellants have confused the antagonism issue by focusing on the position of each defendant as against the plaintiff, rather than focusing on the positions of the defendants against each other. The essential consideration is whether the defendants are antagonistic with respect to each other. See Perkins v. Freeman, 518 S.W.2d at 533; Greiner v. Zinker, 573 S.W.2d 884, 885 (Tex.Civ.App.--Beaumont 1978, no writ).

During the pre-trial hearing conducted immediately before the voir dire examination, the trial court asked for discussion on the allocation of peremptory challenges. Appellants briefly presented to the trial court a statement of the case and their pleadings against each appellee. 4 Counsels for the appellees (CP & L, Sargent & Lundy and Mid-West) informed the court that they were all united in denying their respective allegations of negligence and/or strict liability and that their pleadings assert the contributory negligence of appellants' decedent as the cause of his death. Counsel for appellee H.B. Zachry, acting by agreement of all four defendants (appellees), requested twelve or fourteen strikes to be allocated among them. The remaining three defendants (appellees) also agreed to allow appellee CP & L half of the strikes allocated among them on the understanding that they would be entitled to confer in making peremptory challenges.

At this time, counsel for appellants presented the following argument:

"whether the antagonism exists, and if the Court will look at their answers and affirmative defenses, I don't think they name a single other Defendant in any of their respective pleadings. There may be some antagonism in just asking for the allocation of fault under Dunn or under 22.12A--under Duncan under 22.12A but that antagonism would be very minor ...

Whatever small amount of antagonism may exist on the part of these respective Defendants can be cured by eight or nine as a total to them, in accordance with the case which Justice Spears cites with approval from Patterson vs. Dunn...." (Emphasis added)

Thereafter, the trial court granted CP & L four peremptory challenges and each of the other three appellees were allowed two challenges; a total of ten peremptory challenges between all four defendants (appellees). The trial court then granted appellants six peremptory challenges.

We hold that the trial court properly determined that antagonism existed among the various defendants in light of the circumstances as they appeared immediately prior to jury selection. Aside from appellants' admission of antagonism with respect to the fact and comparative causation issues to be submitted to the jury (special issues numbers 1-15), the pleadings themselves established antagonism as between the appellees. Both Mid-West and Sargent & Lundy pled that the accident was caused solely by the actions of "plaintiff's decedent, David Anthony Garcia," any other defendant, third-party defendant and strictly liable defendant. See Shell Chemical Co....

To continue reading

Request your trial

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