Ralston v. Toomey
| Citation | 246 S.W.2d 308 |
| Decision Date | 29 October 1951 |
| Docket Number | No. 6178,6178 |
| Parties | RALSTON et al. v. TOOMEY et al. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Sanders, Scott, Saunders & Smith, Amarillo, Frank Tatum, Dalhart, for appellants.
Morgan, Culton, Morgan, Britain & White and Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellees.
This suit resulted from a highway accident in which an automobile and a truck collided. The appellants, R. H. Ralston and Virgil Wilbanks, were in the automobile. The appellee Floyd Crume was the driver of the truck. The second appellee Everett Toomey, owner of the truck, was not involved in the accident. A trial to a jury resulted in a judgment in favor of the appellees and against the appellants. Toomey was awarded the sum of $850 and Crume was granted $36. From this judgment the appellants have perfected their appeal to this court.
It appears that originally, in Cause 1218, the appellants sued the truck owner for damages and personal injuries resulting from the wreck but never at any time did they sue the truck driver, Crume. Later, in Cause No. 1220, both appellees sued the appellants for damages done the truck and for personal injuries sustained by Crume. This suit was filed by attorney L. A. White, who represented both of the appellees. Thereafter, the appellee Toomey alone filed an amended answer in Cause 1218, in which he alleged a cross action against the appellants. Toomey's answer, which was signed by White as his attorney, contained a third party complaint against the truck driver, the appellee Crume. Crume's answer, which contained a cross action against the appellants, Ralston and Wilbanks, was filed by attorney Tom Morris. For the purpose of the trial, the court consolidated the two causes.
The appellants' first complaint is directed to the action of the trial court in granting to each of the appellees six peremptory challenges.
Rule 233, Texas Rules of Civil Procedure, which is Article 2148 unchanged, provides that each party to a civil suit in a district court shall be allowed six peremptory challenges. It is only when there is a diversity of interest between the co-parties that they are allowed separate sets of challenges. This court stated the rule in Lofland v. Jackson, 237 S.W.2d 785, 792:
'The rule is well established that more than one defendant having identical interests and a common defense in a suit constitute but one party. If there is no suggestion of antagonism of interests between defendants found in the pleadings and no adverse issues pleaded by them, they constitute one party and are entitled to only six peremptory challenges to the jury panel in the district court. But the rule is different if the pleadings show that one defendant has asked for judgment over against another defendant. The question then to be determined is whether or not there is a conflict of interest between the defendants. In the case of Gussett v. Nueces County, 235 S.W. 857, 861, the Commission of Appeals lays down the following rule: 'It is well settled in Texas that each party to a civil suit in a district court shall be entitled to six peremptory challenges, and parties defendant asking judgment over against each other are within the rule. * * *'
'The rule applies where any of the interests of codefendants are antagonistic and in such event each defendant constitutes a separate party to the suit and is entitled to his statutory number of jury challenges.'
In this case a controversy existed between the appellees Toomey and Crume. Toomey in his third party complaint against his truck driver, Crume, alleged that the negligent acts of Crume, if any, were 'a breach or violation of a duty owed to' Toomey. He prayed for full indemnity against Crume for any amount which should be adjudged against him, or, in the alternative, he prayed that he be awarded contribution from the third party defendant for any amount which should be granted the appellants as a result of their suit against him. Thus there was an antagonism of interests between the appellees, since Toomey would be liable to the appellants if it were proved that Crume was guilty of negligence. In that event, if it should also be proved that Crume was guilty of a breach of duty toward Toomey, Crume would be liable to Toomey. Even though Toomey and Crume had a common interest to defeat the main action in which Toomey was being sued by appellants, there was a separate controversy between Crume and Toomey. Certainly their interests were not identical. Because the appellants failed to prove their claim, the suit between Toomey and Crume proceeded no further than the pleadings. Under the pleadings, the jury could have been required to determine material issues between them. Waggoner v. Dodson, 96 Tex. 6, 68 S.W. 813; Kincaid v. Chicago, R. I. & G. Ry. Co., Tex.Civ.App., 119 S.W.2d 1084, err. dism.; Edwards v. West Texas Hospital, Tex.Civ.App., 107 S.W.2d 729, err. dism.; Hannay v. Harmon, Tex.Civ.App., 137 S.W. 406; 11 Texas Law Review 373.
But the appellants insist that the antagonism alleged to exist between the appellees was fictitious and was created but for two purposes: first, to secure 12 peremptory challenges; and, second, to 'secure the benefit of a front in which Toomey appeared to be asking a judgment over against Crume.' As we have seen, the original suit was filed by the appellants against Toomey, and Crume was not a party to the suit. Shortly thereafter the appellees, Toomey and Crume, came to attorney White and authorized him to file a suit against the appellants. The suit was filed and docketed as Cause No. 1220. Some time later White informed Crume that he would be disqualified to represent him and recommended another attorney for Crume. In his testimony Crume did not recall whether White had told him why he was disqualified to represent him, but he did say that he had instructed White to get some one who was honest and competent to represent him. Thereafter, Toomey, through Mr. White, filed a third party complaint against Crume in Cause No. 1218. Mr. Morris filed an answer as well as a cross action for Crume against Wilbanks and Ralston for personal injuries sustained in the collision. Mr. Morris testified that he had no contract of employment with any one. He said that in the event of a recovery by Crume, he expected a contingent fee out of the recovery, but in the event there was no recovery, he would look for his fee to the company carrying the insurance on the truck and its operator.
We see nothing in this arrangement which would have lessened the diversity of interest or the sincere antagonism which would have existed between the appellees in the event of recovery by the appellants. There existed both in the pleadings and in the circumstances of the collision a jury issue of...
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