Retail Credit Co. v. Hyman, 13287

• Citation: 316 S.W.2d 769
• Decision Date: 18 September 1958
• Docket Number: No. 13287,13287
• Parties: RETAIL CREDIT COMPANY et al., Appellants, v. S. H. HYMAN, Appellee.
• Court: Texas Court of Appeals

Page 769

316 S.W.2d 769

RETAIL CREDIT COMPANY et al., Appellants, v. S. H. HYMAN, Appellee.

No. 13287.

Court of Civil Appeals of Texas, Houston.

Sept. 18, 1958.

Rehearing Denied Oct. 16, 1958.

Fulbright, Crooker, Freeman, Bates & Jaworski, W. N. Arnold, Jr., Houston, for appellant, Retail Credit Co.

Ingram & Moore, Wharton, Talbert, Giessel & Cutherell, Henry P. Giessel, Houston, for appellant, Walter S. Nelson.

L. L. Duckett, Duckett & Duckett, El Campo, George E. Pletcher, Albert P. Jones, Helm, Jones, McDermott & Pletcher, Houston, for appellee.

BELL, Chief Justice.

Appellee sued the Retail Credit Company and its alleged agent, W. S. Nelson, Jr., for damages resulting to the plaintiff from injuries received by him in a collision between an automobile driven by plaintiff and one driven by Nelson. An original answer was filed by an attorney representing both defendants. It was a joint answer. Thereafter, each defendant, represented by different attorneys, filed separate answers. Each answer, however, contains the same defenses, namely, a general denial and four specified acts of contributory negligence on the part of plaintiff. Liability of Retail Credit Company is predicated alone on the doctrine of respondeat superior. Retail Credit Company filed a petition against Nelson alleging that it did not own the car driven by Nelson and it was guilty of no negligence and if it should be held liable it should be granted judgment over against Nelson. Nelson filed no answer to this cross-action.

Prior to trial plaintiff, under Rule 169, Texas Rules of Civil Procedure, had propounded to both defendants requests for admission of certain facts including the request for an admission that at the time of the collision Nelson was the agent of Retail Credit Company and was operating his vehicle in the course of his employment by Retail Credit Company. Both defendants admitted the truth of such assertions.

At the time the jury was to be selected both defendants moved that the court allow each of them six peremptory challenges because Retail Credit Company had filed a cross-action against Nelson seeking indemnity. This motion was overruled.

After judgment had gone against the defendants in favor of the plaintiff and against Nelson in favor of Retail Credit Company, each defendant filed a motion for new trial, setting up as grounds for new trial, among other things, the action of the trial court in denying to each of the defendants six peremptory challenges, thus giving the defendants only a total of six such challenges between them.

The court heard evidence on this issue. Mr. Moore, attorney for Nelson, testified that had the court permitted each defendant six strikes that Nelson would have exercised challenges on the jurors Bennie Chudalla and R. L. Bednar. The reason such challenge would have been made was because Chudalla was a Union man and would probably have been antagonistic to a corporation. He would have challenged Bednar for the same reason and additionally because he resided in the area of the County where some of the attorneys for plaintiff resided.

Mr. Arnold, attorney for Retail Credit Company, testified he would have exercised challenges on the jurors Mrs. J. M. Borak and Mrs. W. E. Rauh. He would have challenged Mrs. Borak because she was well acquainted with one of the attorneys for plaintiff who had represented her family in some legal matters. This latter fact was denied by such attorney. He would have challenged Mrs. Rauh because she lived near the plaintiff and attended the same church. Mrs. Rauh had also known one of defendant's attorneys, Mr. Giessel.

All of these persons served on the jury. The defendants exercised the six peremptory challenges allowed by the court.

While there is a statement of facts covering testimony on motion for new trial, there is no statement of facts reflecting the testimony on the trial of the case on its merits.

The sole questions presented by this appeal are whether the trial court committed error in not allowing each defendant six peremptory challenges, and, if there was error, whether it is one that calls for reversal of this case.

Rule 233, T.R.C.P., which was old Article 2148, R.C.S., 1925, unchanged, reads as follows:

'Each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court, * * *'

The word 'party', as used in the rule, does not mean the same thing as the word 'person'. Hargrave v. Vaughn, 82 Tex. 347, 18 S.W. 695. The mere fact that there may be multiple parties-defendant does not entitle each person to six peremptory challenges. Whether such defendants are parties within the meaning of Rule 233, so as to be entitled to separate peremptory challenges, depends on whether their interests are, at least in part, antagonistic in a matter that the jury is to be concerned with. To express it otherwise, there must be antagonism between the defendants, or plaintiffs, on a fact issue because the jury is concerned only with fact issues. If the liability of the defendants is legally based on the same ultimate facts, there is no factual antagonism between them. We think this is the effect of many decisions discussing Article 2148 which is now Rule 233. Baldridge v. Klein, Tex.Civ.App., 56 S.W.2d 897, writ dismissed; Jones v. Ford, 60 Tex. 127; Hargrave v. Vaughn, supra; Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772; Waggoner v. Dodson, ...