Thomas v. Oil & Gas Bldg., Inc.

Decision Date19 April 1979
Docket NumberNo. 1348,1348
PartiesReve THOMAS, Appellant, v. OIL & GAS BUILDING, INC., Wally Lucio and E. D. Hand, Appellees.
CourtTexas Court of Appeals

BISSETT, Justice.

This is a slip and fall case. Reve Thomas brought suit against Wally Lucio, E. D. Hand and Oil & Gas Building, Inc., to recover damages allegedly sustained by her when she slipped and fell in a hallway in a building owned by Oil & Gas Building, Inc.

Reve Thomas sought a joint and several judgment against the three defendants, each of whom filed a general denial and a plea of contributory negligence. In addition, Oil & Gas Building, Inc., brought a cross-action against Wally Lucio and E. D Hand for indemnity, or in the alternative, contribution, should plaintiff recover any money damages against it.

Trial was to a jury. All issues respecting the liability of Wally Lucio and Oil & Gas Building, Inc., were answered favorably to them. The jury, however, convicted E. D. Hand of negligence which proximately caused the fall. In answer to the comparative negligence issue, the jury found that the percentage of negligence attributable to Reve Thomas was 45% And that attributable to E. D. Hand was 55%. With regard to the damage issues, the jury found that the reasonable medical expenses incurred by Reve Thomas in the past were $1,956.45; the amount of medical costs she would, in reasonable probability, incur in the future were $500.00; and the amount for loss of earning capacity in the past was $1,000.00. Based on the jury verdict, judgment was rendered for Reve Thomas against E. D. Hand for $1,901.05 and that she take nothing against Wally Lucio and Oil & Gas Building, Inc. Only Reve Thomas has perfected an appeal to this Court.

Some several weeks before plaintiff slipped and fell, an officer of the defendant Building contracted with the defendant Hand for the purchase and installation of carpet in the central hallway of an office building, which was owned by the Building. Hand then hired the defendant Lucio to install the carpet. There was no contact thereafter between the Building and Hand, and there was never any contact between the Building and Lucio.

By her first point of error, plaintiff attacks the trial court's action in allowing the defendants a total of nine peremptory challenges to the jury panel, as opposed to only six such challenges allowed to her. Prior to the jury voir dire, plaintiff orally moved the trial court to equalize the jury strikes so that the total number of strikes allocated to her would equal the total number allocated to all of the defendants combined. In support of her motion, plaintiff argued that there was no practical antagonism between the three defendants, as evidenced by the pleadings and by a representation by counsel for all defendants that they intended to collaborate in making their jury strikes. This motion was overruled, and the court allocated six strikes to plaintiff and three each to the defendants.

Rule 233, T.R.C.P., provides that each party to a civil suit tried in a district court shall be entitled to six peremptory challenges. The term "each party," as used in the Rule, does not mean the same thing as the word "person," but means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. Retail Credit Company v. Hyman, 316 S.W.2d 769 (Tex.Civ.App. Houston 158, writ ref'd). The question of antagonism is to be determined by the information available at the time to the trial court revealed from an analysis of the pleadings, as well as from facts disclosed by pre-trial proceedings and which have been specifically called to the court's attention. Perkins v. Freeman, 518 S.W.2d 532 (Tex.Sup.1974). The inquiry is whether there is an antagonism as to fact issues on which the jury will pass. Perkins, supra.

To be considered in connection with Rule 233 in multiple party cases is Tex.Rev.Civ.Stat.Ann. art. 2151a (Supp.1978-79), which became effective on July 15, 1971. It reads:

"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."

In construing article 2151a, this Court held, in King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.) that:

". . . in multiple party cases, Article 2151a does not require, as a matter of law, that each side, after alignment, is entitled to the same number of peremptory challenges as that allowed the opposite side. If the Legislature, in enacting the statute, had intended in all such cases for each side to have the same number of peremptory challenges following proper alignment of the parties, the statute would have so stated. Since it did not do so, the matter is left to the sound discretion of the trial court."

See also Dean v. Texas Bitulithic Co., 538 S.W.2d 825 (Tex.Civ.App.1976, writ ref'd n. r. e.).

After the parties were aligned by the trial court, it became the court's duty to equalize the number of peremptory challenges "in accordance with the ends of justice so that no party is given an unequal advantage." The interests of the defendants in this case were clearly antagonistic on some of the issues. Any advantage which the three defendants may have derived by being allowed to collaborate in making their strikes was offset by the granting of only three peremptory challenges to each of the defendants instead of six.

Plaintiff further contends that the allocation of nine extra strikes to the three defendants was materially unfair. In support of that contention plaintiff argues that it filed a "Bill of Exceptions" with the trial court which advised the court that had she been given the additional strikes, she would have struck four named persons. The document which is contended to constitute a Bill of Exceptions appears in the transcript, not in the statement of facts.

Rule 372(f), T.R.C.P., reads:

"Bills of exceptions not in the statement of facts shall be presented to the judge for his allowance and signature."

The record does not reveal that the purported bill was ever presented to the judge for his allowance. The document does not bear the signature of the trial judge. The asserted "Bill of Exceptions" is not in compliance with Rule 372(f); we do not consider it for any purpose. See Goodpasture v. Coastal Industrial Water Authority, 490 S.W.2d 883 (Tex.Civ.App. Houston (1st Dist.) 1973, writ ref'd n. r. e.); Scoggins v. Scoggins, 531 S.W.2d 245 (Tex.Civ.App. Tyler 1975, no writ); Burchfield v. Geitz, 516 S.W.2d 229 (Tex.Civ.App. El Paso 1974, no writ).

Under the record here presented, we do not believe that the action by the trial court in allocating three peremptory challenges to each defendant and six peremptory challenges to plaintiff resulted in a trial or judgment that was materially unfair to plaintiff. No abuse of discretion is shown. Plaintiff's first point is overruled.

The jury, in answer to Special Issue No. 2, answered "No" to the inquiry as to whether Lucio's failure to warn plaintiff of the glue on the floor of the hallway was negligence which proximately caused the fall, and in answer to Special Issue No. 3, answered "No" to the inquiry as to whether Lucio's failure to barricade or rope-off entrances to the hallway was negligence which was a proximate cause of the fall. Those answers are attacked by plaintiff in her third and fourth points as being against the overwhelming weight and preponderance of the evidence.

The carpet installation process involved spreading of glue on the existing vinyl floor of the Building and then laying rubber-backed carpet over the glue. The following diagram shows the layout of the hallways of the Building, and the offices that open into the hallways:

(See following illustration.)


Lucio's procedure in laying the carpet was as follows: a piece of carpet the length of the hallway would be laid lengthwise, but rolled or folded over to cover only about half the length of the hall; glue would then be spread on the uncovered half of the hall; the carpet would then be unrolled onto the glue and that half of the carpet glued in place. The remaining unglued half would then be flipped back to expose the other half of the hall and the same process would be repeated until the entire floor was covered with carpet. Following this procedure, Lucio had carpeted the east end of the Building the morning of July 12. During the afternoon of July 12, when the plaintiff fell, he was engaged in carpeting the west end.

It is undisputed that the spreading of glue on the vinyl floor of the Building created a slippery and dangerous condition. There is also evidence that a person who is unfamiliar with adhesives would be unlikely to appreciate the slippery or dangerous condition of the floor at the time plaintiff fell. It is undisputed that plaintiff was not familiar with adhesives.

On the day of her injury, plaintiff entered the building through its Front Entrance, turned left down the central hallway and proceeded to the office of Mr. Clyde Wright, where she remained for a short period of time. At the time she entered the Building, she noticed a carpet truck which was parked near the entrance. She said that the presence of the truck gave her the impression that the Building was being measured for the installation of carpet over the coming weekend. After leaving Mr. Wright's office, p...

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