Tamburello v. Welch

• Decision Date: 02 June 1965
• Docket Number: No. A-10499,A-10499
• Citation: 392 S.W.2d 114
• Parties: Frances M. TAMBURELLO et al., Petitioner, v. Carl A. WELCH, Respondent.
• Court: Texas Supreme Court

Page 114

392 S.W.2d 114

Frances M. TAMBURELLO et al., Petitioner, v. Carl A. WELCH, Respondent.

No. A-10499.

Supreme Court of Texas.

June 2, 1965.

Rehearing Denied July 7, 1965.

Talbert, Giessel, Cutherell, Barnett & Stone, Houston, for petitioner Tamburello.

Robert O. Campbell, Houston, for petitioner Crutchfield.

Bray & Wallace, Houston, for respondent.

WALKER, Justice.

This case arose out of a three-car collision. The only question to be decided is whether the trial court's refusal to allow each of the defendants six peremptory challenges constitutes reversible error. Judgment was rendered on the verdict in favor of Carl A. Welch, plaintiff, against Clarence E. Crutchfield and Miss Frances M. Tamburello, defendants, jointly and severally, for $9,258.25. The Court of Civil Appeals affirmed, holding that the error, if any, was harmless. 383 S.W.2d 936.

The accident occurred at the intersection of North Shepherd Drive and 28th Street in the City of Houston. Plaintiff was driving south on Shepherd, which is a through street. Vehicles traveling in either direction on 28th Street are controlled by stop signs at its intersection with Shepherd. Crutchfield had been driving east on 28th Street, but the evidence is conflicting as to whether Miss Tamburello was going west on 28th Street or north on Shepherd just prior to the accident. There was first a collision between the automobiles of the two defendants, and the Tamburello vehicle then swerved into the west traffic lane of Shepherd Drive and ran head-on into the plaintiff's car.

Plaintiff alleged that each of the defendants was guilty of a number of negligent acts and omissions which were a proximate cause of the collision. Crutchfield answered with a general denial and pleas of contributory negligence, new and independent cause, and unavoidable accident. Miss Tamburello also interposed a general denial and further alleged that the accident was caused solely by the negligence of Crutchfield. Defendants moved that they each be allowed six peremptory challenges. Since neither of them had prayed for affirmative relief against the other, the trial court concluded that there was no conflict of interest justifying additional strikes. The motions were accordingly overruled.

Rule 233, Texas Rules of Civil Procedure, provides that each party to a civil suit tried in district court shall be entitled to six peremptory challenges. In Retail Credit Co. v. Hyman, Tex.Civ.App., 316 S.W.2d 769 (writ ref.), it was pointed out that the 'word 'party', as used in the rule, does not mean the same thing as the word 'person'. Hargrave v. Vanghn, 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.'

Parties on the same side of the docket may be entitled to separate peremptory challenges even though no affirmative relief is sought by one against the other. The plaintiff here charged each of the defendants with different acts of negligence, and the jury by its answers might have acquitted one defendant of negligence and found that the other was responsible for the collision. Miss Tamburello alleged that the negligence of Crutchfield was the sole cause of the accident, and the defendants also advised the trial court that they were each claiming that the accident was caused solely by the negligence of the other. Their interests were clearly antagonistic on some of the issues submitted to the jury, and it is our opinion that the trial court erred in denying them six peremptory challenges each. See St. Louis, S. F. & T. Ry. Co. v. Rutland, Tex.Com.App., 292 S.W. 182; Kincaid v. Chicago, R. I. & G. Ry. Co., Tex.Civ.App., 119 S.W.2d 1084 (writ dis.); Edwards v. West Texas Hospital, Tex.Civ.App., 107 S.W.2d 729 (writ dis.); International & G. N. R. Co. v. Bingham, 40 Tex.Civ.App. 469, 89 S.W. 1113, (no writ).

Whether the error is such as to require a reversal of the trial court's judgment is a more difficult question. Even before the adoption of the Rules of Civil Procedure, a refusal to allow the proper number of peremptory challenges was regarded as immaterial in the absence of a showing that the party affected was required to accept one or more jurors whom he wished to challenge. See Wolf v. Perryman, 82 Tex. 112, 17 S.W. 772; Snow v. Starr, 75 Tex. 411, 12 S.W. 673. Rules 434 and 503 now provide that no judgment shall be reversed and a new trial ordered for an error of law committed in the course of the trial unless the appellate court is of the opinion that the error was reasonably calculated to and probably did cause the rendition of an improper judgmnet.

Each of the defendants in the present case exhausted the three peremptory challenges allowed them by the trial court. At the hearing on the motion for a new trial, the attorney for each defendant testified that if given an opportunity to do so he would have struck three jurors who served on the case. They made no attempt, however, to give their reasons for wishing to challenge such jurors, and did not offer any proof indicating that the individuals named by them were biased, prejudiced, or failed to render an impartial verdict. Plaintiff says that the defendants could have stated why they wanted to strike these particular members of the panel, and that it was also incumbent upon them to establish that the six jurors were prejudiced and that their sitting on the case probably caused the rendition of an...