Patterson Dental Co. v. Dunn

• Decision Date: 19 December 1979
• Docket Number: No. B-8436,B-8436
• Citation: 592 S.W.2d 914
• Parties: PATTERSON DENTAL COMPANY et al., Petitioners, v. Frank Jerome DUNN, Jr., Respondent.
• Court: Texas Supreme Court

Page 914

592 S.W.2d 914

PATTERSON DENTAL COMPANY et al., Petitioners, v. Frank Jerome DUNN, Jr., Respondent.

No. B-8436.

Supreme Court of Texas.

Dec. 19, 1979.

Rehearing Denied Jan. 16, 1980.

Thompson & Knight, John H. Martin, Strasburger & Price, James K. Peden, III, and R. Chris Harvey, Seay, Gwinn, Crawford, Mebus & Blakeney, James S. Maxwell and Charles L. Perry, Bailey, Williams Westfall, Lee & Fowler, C. Edward Fowler, Jr., and Stephen G. Koerner, Dallas, for petitioners.

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

SPEARS, Justice.

This case involves the "equalizing" by the trial court of peremptory challenges between multiple parties in a civil suit as required by Tex.Rev.Civ.Stat.Ann. art. 2151a (Vernon Supp.1978-79). ¹ Plaintiff-respondent Dunn, a dentist, sued four defendants on negligence and products liability theories for personal injuries received when a piece of equipment he was operating in his dental office exploded. The fire and explosion resulted when Dunn opened the valve of an oxygen cylinder which was connected to a two-cylinder manifold system. After trial to a jury, a take-nothing judgment was rendered against Dunn. The court of civil appeals reversed and remanded the cause for a new trial. 578 S.W.2d 428. We affirm the judgment of the court of civil appeals but on different grounds.

Respondent Dunn sued Patterson Dental Company, the retail vendor of the manifold system; Fraser-Sweatman, Inc., the designer and manufacturer of the system; Western Enterprises, Inc., the manufacturer of certain component parts of the system; and Puritan-Bennett Corp. (Medicall, Inc.), the company that serviced the system. All four defendants were united in denying that there was any defective product or negligence causing the incident and in contending that the plaintiff was guilty of "misuse," but each sought indemnity and/or contribution from other defendants if there were blame placed on that defendant for the explosion. Each also alleged that another defendant's actions were the sole cause of the accident.

The trial court called a panel of forty-six jurors. The court allowed each of the defendants six peremptory challenges, a total of twenty-four, but allowed plaintiff Dunn only six. Dunn objected and moved that all defendants collectively receive only six, the same number he was allowed. The trial court denied this motion. After the evidence was presented, forty-four special issues were submitted to the jury. By a ten to two verdict, the issues were answered against plaintiff Dunn and for exoneration of the four defendants. The court of civil appeals held that under article 2151a which requires equalizing the peremptory challenges plaintiff Dunn should receive twenty-four peremptory challenges. We believe the court of civil appeals has misinterpreted the statute.

The practice of allowing peremptory challenges by parties to a civil suit was unknown to the common law. The practice in Texas began as a creature of statute and is now permitted by the Texas Rules of Civil Procedure. Rule 233 provides: "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." A peremptory challenge, commonly referred to as a "strike," is defined by rule 232 as one "made to a juror without assigning any reason therefor." These rules are derived without change from their predecessor statutes, articles 2147 and 2148, and have controlled civil trials for more than one hundred years.

The term "party" in rule 233 is not synonymous with "litigant" or "person." Rather, "party" refers to a litigant or a group of litigants having essentially common interests. Perkins v. Freeman, 518 S.W.2d 532, 533 (Tex.1974). Though their interests need not be completely identical, litigants on the same side of the docket are deemed to be a "party" under the rule when their interests are not antagonistic in a matter in which the jury is to be concerned. Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 744 (Tex.1973).

Until article 2151a was enacted in 1971, Texas courts had engrafted into rule 233 the "single issue" test for determining the number of strikes to be allowed multiple parties aligned on the same side of a lawsuit. Under that test the presence of a solitary issue which was not common to all parties on the same side entitled each party on that side to a full set of six strikes. In other words, the community of interest of the parties on the same side must be complete before separate sets of strikes would be disallowed. Once antagonism on a single issue was found, each party received a full complement of six strikes. Application of the rule resulted in justifiable criticism of unfair results when multiple parties, each with a full set of strikes, collaborated in exercising those strikes in aid of their primary, common interest of defeating a common opponent on the other side. See Jones, Peremptory Challenges Should Rule 233 Be Changed?, 45 Tex.L.Rev. 80, 84 (1966).

The unfairness created by the single-issue rule was undoubtedly the reason article 2151a was enacted by the legislature in 1971. Intended to relax the rigidity engrafted into rule 233, the statute 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.

The court of civil appeals here has interpreted the statute as requiring numerical equality of the number of strikes allowed each side. Petitioners argue that the holding conflicts with prior decisions of other courts of civil appeals. King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.); Dean v. Texas Bitulithic Co., 538 S.W.2d 825 (Tex.Civ.App. Waco 1976, no writ); Austin Road Co. v. Evans, 499 S.W.2d 194 (Tex.Civ.App. Fort Worth 1973, writ ref'd n. r. e.). In those cases, an adjusting or proportionalizing of the strikes given to antagonistic parties on the same side was allowed by the trial court and upheld on appeal. We must determine what effect article 2151a has on the provisions of rule 233.

The threshold question to be answered in allocating strikes when multiple litigants are involved on one side of a lawsuit is whether any of those litigants on the same side are antagonistic with respect to a question that the jury will decide. Where no antagonism exists, each side must receive the same number of strikes. See Perkins v. Freeman, supra ; Council v. Bankers Commercial Life Ins. Co., 558 S.W.2d 487, 489 (Tex.Civ.App. Beaumont 1977, writ ref'd n. r. e.); Lipshy v. Lipshy, 525 S.W.2d 222, 224 (Tex.Civ.App. Dallas 1975, writ dism'd); Roy L. Martin & Assocs. v. Renfro, 483 S.W.2d 845, 849 (Tex.Civ.App. San Antonio 1972, writ ref'd n. r. e.); Retail Credit Co. v. Hyman, 316 S.W.2d 769, 771 (Tex.Civ.App. Houston 1968, 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 Mut. Ins. Co., 480 S.W.2d 610, 612 (Tex.1972); Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex.1965). The antagonism must exist on an issue of fact that will be submitted to the jury, not on a matter that constitutes a pure question of law. Further, the antagonism must exist between litigants on the same side, vis-a-vis each other. Antagonism does not exist because of differing conflicts with the other side; e. g., when a plaintiff sues several defendants alleging different acts or omissions against each defendant. Antagonism would exist, however, if each of the defendants alleged that the fault of another defendant was the sole cause of plaintiff's damage. Shell Chem. Co. v. Lamb, supra ; Tamburello v. Welch, supra. The existence or non-existence of cross-actions or third-party actions is not determinative. Retail Credit Co. v. Hyman, supra ; See Tamburello v. Welch, supra (no cross-action, but antagonism existed); Turner v. Turner, 385 S.W.2d 230, 238 (Tex.1964) (cross-action filed but no antagonism on fact issue).

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, and other information brought to the attention of the trial court. Perkins v. Freeman, supra, at 534. Information and representations made during Voir dire of the jury panel also may be considered. Each case should be considered under the relevant circumstances. The existence of antagonism is not a matter within the trial court's discretion; 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. See generally Sheehan & Hollingsworth, Allocation of Peremptory Challenges Among Multiple Parties, 10 St. Mary's L.J. 511, 512-523 (1979).

Here, Dunn seeks to uphold the result of the court of civil appeals' holding by arguing that no antagonism existed between the four defendants. The pleadings, however, clearly reflect that the defendants each blamed the others for the explosion of the equipment and pleaded that specific acts and omissions of others were the sole cause of plaintiff's injuries. Moreover, special issues were submitted to the jury on which defendants took opposite positions. Therefore, both the trial court and the court of civil appeals correctly concluded that there was antagonism between the defendants that entitled them to additional strikes. Tamburello v. Welch, supra.

Once the parties have been aligned on "sides," and it is determined that antagonism exists between parties on the same side, the provisions of article 2151a require the trial court to "equalize the number of...