*2 SEERDEN, Before UTTER and BENA- VIDES, JJ.
OPINION SEERDEN, Justice.
Appellant complains judgment of a suit over death of bull, “Superman 1024,” named premises appel- which was killed on the of lee, (Medi- Laboratory, Medina A.I. na), application insecticide, by Vapo- of an na, by manufactured Diamond Shamrock (Shamrock) applied Corporation tо the employees bull of Medina. Pursuant issues, jury special answers to the trial judgment, jointly court entered sever- ally against Shamrock Medina for $1,500,000 damages, actual $7,000,000 separately exem- plary damages. also award- ed prejudgment attorney’s interest and fees, granted indemnity Medina against Shamrock for all sums. reverse the of the
We court and remand the case for a new trial. points
Appellants raise numerous of er- sufficiency ror to the lack of of both as to and dam- evidence ages, exemplary, actual manner of calculating fees, attorney’s interest and granting indemnity of and the Medina. light disposition our of error thirteen, we do nоt reach of the other complaints. error, appellant
In its thirteenth in the of the claims error for trial and the allocation nature and the an and its tagonism, effect on the strikes to each allocated Prior to of the voir dire examination litigant or are matters left panel, attоrney King trial court. See realigned so that Maldanado, (Tex.Civ. *3 be plaintiffs considered and Sham- 1977, App. Corpus Christi writ ref'd n.r. — rock be considered the defendant. The tri- e.); Co., 825, v. Bitulthic 538 Dean S.W.2d rejected court request al and indicated 1976, writ). (Tex.Civ.App. 826 — Waco peremptory it would allocate that twelve сonsidering In peremptory the number of Wendt, Medina, challenges to six to and six challenges to be allocated the liti between objected Appellant to Shamrock. to this sides, gants the deter or trial court must proposed peremptory allocation of chal- mine, gleaned based on the information lenges. initially He that the pre-trial rep pleadings, discovery, from and apportioned strikes be six for during resentation made voir dire examina Shamrock, and for Medina. three tion, antagonism, any, what if exists be dire, Throughout the voir he continued to parties. Compa tween the Sсurlock Oil complain apportionment of the by made the Smithwick, ny 29 Tex.Sup.Ct.J. court, trial and at the conclusion of voir 25, 1986). (June In multiple party 451-52 dire, again objected having he to to share cases, judge trial equalize the shall num the proposed strikes with his Medina and peremptory challenges ber of that no Wendt, Medina, parties, each of the litigant side or is an unfair advan Shamrock, peremptory be allotted six chal- tage promote jus and so as to the ends lenges. request This by was also denied tice. TEX.R.CIV.P. 233. the rule While judge trial the twelve chal- n usesthe “equalize,” descrip term a better lengеs given Wendt, were to six to tion of the function of the trial six to Shamrock. deciding upon the litigant challenges each will is the receive peremptory challenges The number of Ex term “allocate.” See Garcia at 736. governed to by allocated each is equality is not act numerical bеtween sides Tex.R.Civ.P. 238. This rule was re-written equalization purpose the presently incorporates 1984 and the con- Rather, purpose the is to cepts of both former the old Rule 233 positions pre equalize the of the (Vernon art. 2151a Tex.Rev.Civ.Stat.Ann. side, antagonistic par the among vent one Supp.1985). ties on certain matters of fact with which concerned, they primarily be but united will per se, antagonism, existence of opposition to the other from select question is a of law. Dental Patterson ing jury. Patterson at 920. Dunn, (Tex. 919 Co. 1979). In determining antagonism whether Though both Medina and filed exists, the trial consider court must denials, general it was clear from the con- by pre-tri pleadings, information disclosed prior versations with the court se- discovery, representa al information and claiming lection that neither was during tions made of the voir dire any way responsible for the Wendt was panel, brought information to the Superman. loss While Medina never attention of the trial court the exer liability, admitted it was also clear from the by parties. of the strikes cise Garcia attorneys conference between the Co., Light court, v. Central Power and as well as made in statements (Tex.1986); Patterson at presentаtion that both Wendt’s finally improper 919. must be de and Medina’s defense was the prior fact, by termined after voir dire to the labeling Shamrock. for its possible justification exercise strikes of the Gar Medina had employees applying highly at 736. toxic insecti- cia cide to the animal was informing Shamrock’s insuffi- vоir dire jury panel, was “as labeling failures; cient and other the same Valley, the evidence will be that by claims made Wendt they applied Vapona Superman the issue in I hearing prior At the believe to the what the voir dire parties, going you court is to ask about that is brought out that neither Medina nor thеy negligently did so or whether Shamrock contended that Wendt should not question they negli- would be did so compensated be for the loss of his bull. gently they or whether were misled Each of them claimed the other to re- their fault.” labels and it is not sponsible for the loss. It apparent is also I you you “What want to ask is this: Do that Wendt and Medina had substantial feel that a business that handles and cares common interests. Medina’s insurance for animals or cares people’s for other carrier had denied and refused to *4 property ought to do carefully? you Do defend Medina in the case. While agree suprisingly, with thаt?” Not no one agreement had been reached between the panel disagreement. on the attorneys Medina, voiced for Wendt and they had proceeding jointly discussed in separate a Medina never expressly negli- denied suit carrier, Medina’s insurance gence inquired but prospеctive ju- “put should Shamrock it all off” on Medi- if they require rors would Wendt and Dia- na. attorneys The for Wendt and Medina prove mond Shamrock to negligence. their had several striking conversations about proceeded It then to comment that both profile discussed “a good of a Wendt and contеnding Medina were juror for both of us that would be in com- Vapona was not fit repre- and was not as mon.” Medina’s attorney candidly admit- sented. Medina also never commented on ted that only he deposition attended one in damages in its voir dire. the case expenses to hold down for Medina. frankly He told the court that “the real position Shamrock’s voir dire essentially controversy is between guys these two Vapona was that the proper had instruc- (Wendt Shamrock)” really and “We are person tions on the label and that using only getting interested in from Diamond product responsible should be for fol- plaintiff (Wendt) Shamrock what the might lowing the complained instructions. It also get be able to from attorney us.” The figures that Wendt’s as to the value of Wendt admitted that he turned down Medi- Superman were inflated. na’s offer to take a judgment against it and go against its company insurance because We hаve found no case similar to up my would “mess lawsuit you proper alignment case (Shamrock).” dealing align cases with At the outset of the attorney side, ment have all on one plaintiff, after briefly stating the facts plaintiff defendant, goal, or awith common surrounding the Superman, death of said Garcia, sеe or party situations which a very “Mr. Wendt’s valuable bull was killed on one side has settled with a on the at Medina because Diamond Sham- side, other see Scurlock Oil Co. at 450. theme, rock’s chemical killed it.” This Here, there is no settlement between the death was caused because of the chemi- рarties, yet plaintiff’s (not cal the action of employees) Medina’s antagonism toward one of the defendants emphasized continued to both Wendt is not the same as toward the other defend through and Medina the entire voir dire. Nevertheless, plaintiff ant. actively addition, In attorney qualified Wеndt’s seeking recovery against both defendants. gross negligence as to punitive circumstance, Under this we hold the damages respect with to the conduct of Shamrock, failing align court did not err in but not of Medina. Wendt’s only reference during to Medina’s conduct on the Wendt same side. of peremptory challenges
The number Appellant’s point of error thirteen is sus- litigant presents allotted to each a different tained.
problem. our on point Because decision of error “equalize”
The term disposition thirteen controls the of this challenges misleading, yet is somewhat case, we neеd not comment on exactly that is what the trial court did points of other error. Tex.R.Civ.P. 461. this case. Since the two defendants were is REVERSED and the antagonistic other, obviously to each case REMANDED new trial. they determined were each entitled to the same “equal strikes. To OPINION ON MOTIONS FOR ize,” plaintiff it awarded twelve strikes. REHEARING challenges While were All have files motions for rehear- equal on each the allocation of twelve ing. Wendt’s for rehearing, motion strikes to six to whose eight points complain holding of our so closely interests were with identified regard Shamrock, with allocation resulted advantage in an рut unfair disadvantage.
Shamrock at a substantial
opinion,
In our
we found no error in the
parties,
While the trial court has
but
we found the
allocating peremptory
challenges
awarding
multi-
trial court erred in
Wendt twelve
*5
ple party cases, such
not
challenges,
is
with-
and Medina and
out limitations. Patterson аt 920.
It is
each
Shamrock
six such
not necessary
for us to decide if
Dunn,
Patterson Dental Co. v.
original
request
that peremptory
chal-
(Tex.1979),
920
Supreme
the
Court
lenges
of
six for
three for
held that the extent which “equalizing”
and six for Shamrock should have been
dependent upon
is
is
allowed
several
granted, although
feel,
we
the cir-
factors,
under
including: the circumstances of the
cumstances, granting
request
the
would
information available to the trial
not
an
have been
abuse of discretion.
challenges,
court at the time it
the
awards
degree
antagonism,
the extent and
of
We hold that it was error
selecting
collaborate in
court to
Wendt
award
twelve
struck,
jurors
to be
and other consider
challenges
Medina, who,
though
promote
justice
of
ations
the ends
aligned
opposite
on the
such com-
had
prevent unequal advantage. The discretion
mon interest with Wendt and who had con-
allocating
trial court in
strikes is not
profile
sulted with
on the
of jurors
Wendt
unbridled.
mutually advantageous
them,
strikes, and
allow
only
Shamrock six. Such
believe
We
that the information before
practical
allocation of strikes had the
effect
the trial court when it made its allocation
litigants
of giving
those
united
showed
clearly
an abuse
its discretion.
eighteen
challenges
Shamrock
Wendt and
discussed
pro-
Medina had
giving
Shamrock six.
good juror
file
for both
them. Med-
company
ina’s insurance
had refused cover-
hotly
This trial was
insofar as
contested
age.
throughout
Medina contended
was concerned
Wendt
between
controversy
the real
between
was
Wendt
Medina on one side and
on
other,
Although
Diamond
the trial
error in
court’s
negate
negligence
did
allocating
peremptory challenges
not
Medina’s
his
extra
re
position
materially
sulted in a
his
clear that
unfair trial and harm
was
Dia-
presumed
dаngerous
is
a matter
mond’s
killed
as
of law.
at
insecticide
his bull.
Garcia
737;
Inc.,
Lopez
information
Paving,
v. Foremost
29 The
trial court at
371, 373,
(Tex.
Sup.Ct.J.
771 Wendt. It apparent begin- opinion was from the is conflict with our ning that neither defendant attributed Smithwick, opinion in Scurlock Oil Co. v. negligence to Wendt. The issue which (Tex.App.1985), rev’d on oth the two aligned defendants could have been (1986). Tex.Sup.Ct.J. 449 We grounds, er on damages. However, Medina did opinion, Supreme that in its first note not damages ever discuss before the apportionment of Court reviеwed on voir dire. and, challenges in preemptory Smithwick conclusion as this duty coming
It is the
to the same
judge, upon
of the trial
while
proper motion,
reasons.
Court,
so for different
equalize the
did
challenges
distinguishable from
so that
are
litigant
or side is
facts in this case
given an unfair advantage.
here is сonsis
See Tex.R.
and our decision
Smithwick
Civ.P. 233. The “equalization”
ruling. We
Supreme
should be
Court’s
tent with
consistent with the
facts known to the trial
the other matters raised
have considered
court at the
eight
time it
through
makes its allocation.
one
points of error
process
This
is particularly critical in multi
merit. Wendt’s
and find them to be without
party litigation
antag
where the
in mo
through eight
one
his
points of error
onism between one defendant and the
rehearing are overruled.
tion for
plaintiff
significantly
is
less than the an
tagonism
plaintiff
between the
and another
point
In Wendt’s
of error number
defendant. The rule has
consistently
been
rehearing
nine on
and Medina’s first
“equalize”
used to
plaintiffs strikes with
rehearing,
on
contended
is
that we erred
that of the
multi-party
defendant’s in
in reversing
the trial court’s
cases. The
rule,
true intent of the
how
awarding
indemnity
Medina
ever,
promote
is to
justice
ends of
contends,
Shamrock. Shamrock also
in its
ensure
litigant
that no
is
unfair ad
rehearing,
of error on
that we
vantage regardless of
litigant
whether the
should have held that the trial court erred
plaintiff
is
or defendant.
awarding
indemnity against
*6
In this
the allocation did result in
an
advantage
unfair
for both Wendt and
Medina.
Wendt was
many
twice as
grants
of the trial court
strikes аs Diamond Shamrock. The infor-
indemnity against Diamond Shamrock for
mation
known to the trial
at the time
all sums for which Medina was held liable
it made its allocation showed little or no
Generally,
to Wendt.
party ap-
when one
real
between Wendt and Medi-
peals
judgment,
from a
a reversal as to
result,
na. The end
when reviewed from
will not justify a reversal as to
view,
Diamond
Shamrock’s
was an
nonappealing party,
the other
but such rule
allocation of peremptory challenges of a
apply
rights
does not
where
respective
nearly
ratio of
three to one
it.
appealing
nonаppealing
rehearing,
In its motion for
Wendt cites
dependent
are so interwoven or
on each
Corp.,
Co. Mobil Oil
Gulf Offshore
require
other as to
reversal
the entire
(Tex.Civ.App.
S.W.2d 496
[14th
— Houston
judgment. Turner,
Braden,
Collie &
Inc.
part,
vacated in
Dist.]
affirmed
Brookhollow,
(Tex.1982).
Mobil, part voir dire was not of the trial court is RE- record. The court held that the record and the cause REMANDED VERSED for a it did not reflect harm in the process. urges Appellant
selection also new trial.