Scurlock Oil Co. v. Smithwick

• Citation: 701 S.W.2d 4
• Decision Date: 12 September 1985
• Docket Number: No. 13-84-332-CV,13-84-332-CV
• Parties: SCURLOCK OIL COMPANY and Missouri Pacific Railroad Company, Appellants, v. Maria C. SMITHWICK, Individually, et al., Appellees.
• Court: Texas Court of Appeals

Page 4

701 S.W.2d 4

SCURLOCK OIL COMPANY and Missouri Pacific Railroad Company, Appellants, v. Maria C. SMITHWICK, Individually, et al., Appellees.

No. 13-84-332-CV.

Court of Appeals of Texas,

Corpus Christi.

Sept. 12, 1985.

Rehearing Denied Nov. 7, 1985.

A.E. Pletcher, White, Huseman, Pletcher & Powers, Corpus Christi, James W. Kronzer, Houston, James A. Smith, Port Lavaca, Jack W. Tucker, Jr., Weitinger, Steelhammer & Tucker, Houston, Lev Hunt, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for appellants.

Russell McMains, Edwards, McMains & Constant, Corpus Christi, William Seerden, Cullen, Carsner & Seerden, Emmet Cole, Jr., Cole, McManus, Cole & Easley, Victoria, for appellees.

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

OPINION

BENAVIDES, Justice.

This wrongful death action arose from a motor vehicle collision. Appellees are the deceased's surviving spouse, children, and parents. The petition named as defendants appellant Scurlock Oil Company and its employee Ernest Joe Lewis, Victoria Carrier Service (Carrier) and its employee Ronnie Wayne Bounds, and appellant Missouri Pacific Railroad Company (MoPac). Appellees alleged that the collision occurred on December 9, 1982 between a Scurlock truck operated by Lewis and a Carrier vehicle operated by Bounds, and that the deceased was employed by MoPac and being transported by Carrier in the course of that employment when the accident occurred. The jury found that Lewis was negligent and that his negligence was a proximate cause of the collision; that Bounds was acting as a borrowed employee of MoPac within the course of his employment; and that Bounds was not negligent. The trial court therefore entered a take-nothing judgment against Bounds, Carrier, and MoPac; but, pursuant to jury findings on damages suffered by appellees, entered judgment totalling over $4,100,000 against Scurlock. Lewis was dismissed at the commencement of the trial.

The collision that killed the deceased in this case also killed Clay Dove, whose representatives instituted a wrongful death action in another county. In that action the jury assessed liability for Clay Dove's death at 90% to MoPac and 10% to appellant. In its first point of error appellant contends that the trial of this action should have been abated until the Dove appeal was final "so that principles of res judicata and/or estoppel by judgment could be effectively utilized." Similarly, in its second point of error appellant contends that the jury findings in the Dove case should control the determination of the percentage of fault respectively attributable to MoPac and appellant in this action as well. ("Dove case" referred to is styled Missouri Pacific Railroad Company v. Bert L. Huebner, Administrator of the Estate of Clay Carroll Dove, Deceased, Et Al. and numbered 13-84-166-CV in the records of our Court--same cause affirmed the trial court judgment in the 103rd District Court of Matagorda County, Texas in an opinion issued May 30, 1985 with motion for rehearing overruled September 5, 1985.)

The results of the Dove case are inapplicable to the case before us because appellees were not a party to the previous action. Due process requires that the doctrines of res judicata and collateral estoppel operate only against persons who have had their day in court, either as a party to the prior suit or as a privy. Bonniwell v. Beech Aircraft Corporation, 663 S.W.2d 816 (Tex.1984); Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.1971); Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). Similarly, abatement requires a complete identity of parties and issues. Dolenz v. Continental National Bank of Fort Worth, 620 S.W.2d 572 (Tex.1981). The authorities are consistent in stating that there is no general prevailing definition of privity; however, a recurring theory suggests that persons are privy to a judgment if, through that judgment, they acceded to mutual or successive rights to the property concerned. Privity is not established by the mere common interest of persons in the same question. Benson, 468 at 363; Lemon v. Spann, 633 S.W.2d 568 (Tex.App.--Texarkana 1982, writ ref'd n.r.e.); Olivarez, 564 S.W.2d at 199. Appellees were not a party to the Dove action and we find no privity of interest with any of the Dove litigants. We note also that the Dove case is on appeal and is not a final judgment. Appellant's first two points of error are overruled.

In its third point of error appellant contends that appellees MoPac, Carrier, and Bounds "were all aligned ... in fastening the sole responsibility for the occurrence on Scurlock"; thus, the trial court erred by granting to appellees and MoPac a total of nine peremptory challenges, plus a total of six to Bounds and Carrier, but only six to appellant. Appellant contended at trial that it was harmed by the "excessive" number of jury strikes because the panel was enlarged from thirty to thirty-three veniremen, and that jurors number 31 and 33 were selected for the jury, both of whom were objectionable to appellant and both of whom "would not have been on this panel if a proper number of strikes had been given to all sides." Neither at trial nor on appeal has appellant stated why the jurors were objectionable. Appellant failed to direct us to a portion of the record which shows whether appellant challenged those jurors for cause or whether any, or all, of appellant's six allotted peremptory strikes were even used. We perceive an analogy between peremptory challenges and challenges for cause. In this case, appellant did not identify the objectionable jurors to the trial court until after the jury panel was selected and sworn; to preserve error, appellant should have made its objection before the exercise of peremptory strikes. Carpenter v. Wyatt Construction Company, 501 S.W.2d 748 (Tex.Civ.App.--Houston [14th Dist.] 1973 writ ref'd n.r.e.). Appellant should have advised the trial court, prior to exercising his peremptory challenges, that he wanted to challenge particular unacceptable jurors in addition to those peremptorily challenged. Speer v. Continental Oil Company, 586 S.W.2d 193 (Tex.Civ.App.--Eastland 1979, writ ref'd n.r.e.). Moreover, the record reflects that the appellant made no requests for additional strikes until after the jury was called to be sworn, and the remainder of the panel was excused from the case, nor did appellant advise the court of which two jurors were objectionable until after the jury was in fact sworn. The said request and objections coming the day after the jury was sworn and impaneled and the remainder of the panel excused. We hold that under such circumstances, appellant has not preserved his complaint.

In addition, we hold that the record shows that the strikes were not distributed 15-6, as appellant claims, but rather 9-6-6; there was a bona fide dispute between Carrier-Bounds and MoPac over the employment status of Bounds that is revealed by both the pleadings and the jury issues. While Carrier-Bounds might have been aligned with MoPac on the issue of whether appellant's driver was negligent, it was clearly not aligned with appellant on the "borrowed servant" issue. TEX.R.CIV.P. 233 instructs the trial judge to "decide whether any of the litigants aligned on the same side of the docket are anagonistic with respect to any issue to be submitted to the jury ..." [Emphasis added]. The trial court did not abuse its discretion in aligning the parties as it did.

Finally, under Rule 233, the trial court need not award the opposing sides identical numbers of peremptory jury strikes. Thomas v. Oil & Gas Building, Inc., 582 S.W.2d 873 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.); Dean v. Texas Bitulithic Company, 538 S.W.2d 825 (Tex.Civ.App.--Waco 1976, writ ref'd n.r.e.). The record reflects that the trial court took care to ensure that appellees and MoPac did not collaborate with the attorneys for appellees and Bounds. Our review of the record convinces us that neither the trial nor the judgment was materially unfair to appellant; consequently, no abuse of discretion is shown and appellants third point of error is overruled. Thomas, supra, at 877.

At this point appellees contend that Scurlock's other points of error should be overruled because, in a Motion to Disregard Certain Findings Of The Verdict, appellant admitted its own liability and urged the entry of judgment predicated on the jury's determination of damages. Appellant Scurlock did request the court to disregard the jury finding that Bounds was not negligent, and to enter judgment consonant with the Dove trial "so as to give full effect to the judgment findings" from that action. Appellees argue that Scurlock has thus ratified the jury's answers on damages. Appellees further argue that because the Dove judgment recites the fact that Scurlock was found liable and because Scurlock has not brought forward an evidentiary attack on the jury's liability findings, those findings are admitted and any challenge to the damages is waived.

We note, however, that the point of Scurlock's motion was for the trial court to accept the Dove judgment as final, and to interweave those findings with the damages found in this trial. Since the trial court rejected this contention, appellant was entitled to appeal alternate theories even if the arguments seem facially inconsistent. Miner-Dederick Construction Corporation v. Mid-County Rental Service, Inc., 603 S.W.2d 193, (Tex.1980).

In its fourth point of error appellant Scurlock contends that the trial court erred by allowing the introduction of a settlement agreement that Scurlock had entered into with the Dove family in the Bay City litigation. Appellees called Ernest Joe Lewis as an adverse party. Lewis testified that at the time of the accident he was driving the oil tanker-truck for appellant (his employer), but had since retired. Lewis was named as a defendant i...