PATTERSON DENTAL COMPANY et al., Petitioners, v. Frank Jerome DUNN, Jr., Respondent.
No. B-8436.
Supreme Court of Texas.
Dec. 19, 1979.
Rehearing Denied Jan. 16, 1980.
592 S.W.2d 914
SPEARS, Justice.
The Court of Civil Appeals had before it only the issue of whether the motion for summary judgment for Petitioners was improvidently granted. The appeal afforded no basis for a rendition of judgment for Respondent, and therefore the decision of the Court of Civil Appeals is in conflict with this Court‘s opinion in Hinojosa v. Edgerton, Tex., 447 S.W.2d 670 (1969).
We agree with the court of civil appeals that the summary judgment evidence does not conclusively demonstrate that the two agreements were actually part of one retail installment agreement. The court of civil appeals correctly reversed the summary judgment for Hall.
The court of civil appeals erred, however, in rendering judgment for Mockingbird AMC/Jeep. In that regard, the opinion of the court of civil appeals is in conflict with Cowan v. Woodrum, supra.
Accordingly, the writ of error is granted. Pursuant to
Oler & Hoffman, Gayle E. Oler, Dallas, for respondent.
SPEARS, Justice.
This case involves the “equalizing” by the trial court of peremptory challenges between multiple parties in a civil suit as required by
Respondent Dunn sued Patterson Dental Company, the retail vendor of the manifold system; Fraser-Sweatman, Inc., the designer and manufacturer of the system; Western Enterprises, Inc., the manufacturer of certain component parts of the system; and Puritan-Bennett Corp. (Medicall, Inc.), the company that serviced the system. All four defendants were united in denying that there was any defective product or negligence causing the incident and in contending that the plaintiff was guilty of “misuse,” but each sought indemnity and/or contribution from other defendants if there were blame placed on that defendant for the explosion. Each also alleged that another defendant‘s actions were the sole cause of the accident.
The trial court called a panel of forty-six jurors. The court allowed each of the defendants six peremptory challenges, a total of twenty-four, but allowed plaintiff Dunn only six. Dunn objected and moved that all defendants collectively receive only six, the same number he was allowed. The trial court denied this motion. After the evidence was presented, forty-four special issues were submitted to the jury. By a ten to two verdict, the issues were answered against plaintiff Dunn and for exoneration of the four defendants. The court of civil appeals held that under
The practice of allowing peremptory challenges by parties to a civil suit was unknown to the common law. The practice in Texas began as a creature of statute and is now permitted by the Texas Rules of Civil Procedure.
The term “party” in
The unfairness created by the single-issue rule was undoubtedly the reason
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.
The court of civil appeals here has interpreted the statute as requiring numerical equality of the number of strikes allowed each side. Petitioners argue that the holding conflicts with prior decisions of other courts of civil appeals. King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App.—Corpus Christi 1977, writ ref‘d n. r. e.); Dean v. Texas Bitulithic Co., 538 S.W.2d 825 (Tex.Civ.App.—Waco 1976, no writ); Austin Road Co. v. Evans, 499 S.W.2d 194 (Tex.Civ.App.—Fort Worth 1973, writ ref‘d n. r. e.). In those cases, an adjusting or proportionalizing of the strikes given to antagonistic parties on the same side was allowed by the trial court and upheld on appeal. We must determine what effect
The threshold question to be answered in allocating strikes when multiple litigants are involved on one side of a lawsuit is whether any of those litigants on the same side are antagonistic with respect to a question that the jury will decide. Where no antagonism exists, each side must receive the same number of strikes. See Perkins v. Freeman, supra; Council v. Bankers Commercial Life Ins. Co., 558 S.W.2d 487, 489 (Tex.Civ.App.—Beaumont 1977, writ ref‘d n. r. e.); Lipshy v. Lipshy, 525 S.W.2d 222, 224 (Tex.Civ.App.—Dallas 1975, writ dism‘d); Roy L. Martin & Assocs. v. Renfro, 483 S.W.2d 845, 849 (Tex.Civ.App.—San Antonio 1972, writ ref‘d n. r. e.); Retail Credit Co. v. Hyman, 316 S.W.2d 769, 771 (Tex.Civ.App.—Houston 1958, writ ref‘d). When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic right to trial by jury. See Rivas v. Liberty Mut. Ins. Co., 480 S.W.2d 610, 612 (Tex.1972); Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex.1965). The antagonism must exist on an issue of fact that will be submitted to the jury, not on a matter that constitutes a pure question of law. Further, the antagonism must exist between litigants on the same side, vis-a-vis each other. Antagonism does not exist because of differing conflicts with the other side; e. g., when a plaintiff sues several defendants alleging different acts or omissions against each defendant. Antagonism would exist, however, if each of the defendants alleged that the fault of another defendant was the sole cause of plaintiff‘s damage. Shell Chem. Co. v. Lamb, supra; Tamburello v. Welch, supra. The existence or non-existence of cross-actions or third-party actions is not determinative. Retail Credit Co. v. Hyman, supra; see Tamburello v. Welch, supra (no cross-action, but antagonism existed); Turner v. Turner, 385 S.W.2d 230, 238 (Tex.1964) (cross-action filed but no antagonism on fact issue).
Here, Dunn seeks to uphold the result of the court of civil appeals’ holding by arguing that no antagonism existed between the four defendants. The pleadings, however, clearly reflect that the defendants each blamed the others for the explosion of the equipment and pleaded that specific acts and omissions of others were the sole cause of plaintiff‘s injuries. Moreover, special issues were submitted to the jury on which defendants took opposite positions. Therefore, both the trial court and the court of civil appeals correctly concluded that there was antagonism between the defendants that entitled them to additional strikes. Tamburello v. Welch, supra.
Once the parties have been aligned on “sides,” and it is determined that antagonism exists between parties on the same side, the provisions of
In ascertaining whether the legislature intended that each side in a suit have an equal number of strikes after alignment, we consider the old law, the evil, and the remedy.
The purpose of allowing strikes is not to allow a party to select a jury; instead, strikes are intended to permit a party to reject certain jurors based upon a subjective perception that those particular jurors might be unsympathetic to his position. When the number of strikes allowed to one side of the suit is grossly disproportionate to the number allowed the other side, it permits the side with the greater number to actually construct the jury. On the other hand, if the remedy provided in
We conclude that exact numerical equality between sides was not the purpose of
Proportionalizing the strikes may be accomplished by increasing the number allotted a sole party on one side, by decreasing the number allotted the multiple parties on the other side, or by both. King v. Maldonado, supra (plaintiff allowed six; two groups of defendants allowed four each and allowed to collaborate); Dean v. Texas Bitulithic Co., supra (plaintiff allowed six; two defendants allowed nine); Austin Road Co. v. Evans, supra (three plaintiffs allowed six each; principal defendant allowed nine). The extent to which equalizing is allowed depends upon the circumstances of the particular case, the information available to the trial court, the extent and degree of the antagonism, whether the parties collaborate in selecting jurors to be struck, the number of jurors available on the panel, and such other considerations as meet the statutory criteria of promoting the “ends of justice” and preventing “unequal advantage.” The process of equalizing the strikes is not without limits, however, and is not subject to the unlimited discretion of the trial judge. Although
In the case before us, we hold that the four-to-one disparity of strikes allowed was erroneous. Forty-six jurors were called, three of whom were excused for cause, leaving forty-three on the panel. The jury was selected from the first thirty-three jurors; that is, the twelfth juror selected was No. 33 on the panel. Plaintiff Dunn struck six of the thirty-three jurors while the four defendants struck at least fifteen, none of which had been struck by Dunn. Thus, the defendants, with twenty-four strikes, were able to exercise fifteen of them on the thirty-three member panel from which the jury was selected, effectively allowing the defendants to select the jury which would try their case. Irrespective of how they were exercised by the four defendants, the disparity of a four-to-one ratio of strikes between the two sides to the lawsuit was erroneous. The trial court had a duty to equalize the strikes in accordance with the language of
Having determined that the trial court committed error in allocating the strikes, we must determine if the error resulted in a trial that was materially unfair, thus requiring reversal. Tamburello v. Welch, supra. In Tamburello, we held that the trial court committed reversible error in requiring two antagonistic defendants to share six strikes as against plaintiff‘s six strikes. After stating that the harmless error rule2 was applicable, we pointed out the difficulty of showing that an improper judgment probably resulted from an error of this na-
In Perkins v. Freeman, supra, a child custody case, the plaintiff-mother was given six strikes, the defendant-father was given six, and the intervenors, paternal grandparents, were given six. Because the pleadings demonstrated that no antagonism existed between the father and his parents, we reversed and remanded, holding that their twelve strikes gave them “an unequal advantage, [that] was so materially unfair that the judgment cannot be upheld.” Id. at 534. No further showing of harm was made or discussed.
Normally, the question whether the trial was materially unfair in either the determination of antagonism or the equalizing of strikes requires that the entire record, including the statement of facts, be examined by the appellate court. See Retail Credit Co. v. Hyman, supra. The presence of error in either instance is to be viewed from the perspective of the trial judge as of the time he makes his determination. Whether any such error resulted in a materially unfair trial, however, must be decided from an examination of the entire trial record. For example, in a case in which the complaining party failed to prove his cause of action or defense, an error in allocating or equalizing strikes could not be said to have resulted in a materially unfair trial. On the other hand, when the trial is contested and the evidence is sharply conflicting, the error results in a materially unfair trial without showing more. Perkins v. Freeman, supra; Tamburello v. Welch, supra; Roy L. Martin & Assocs. v. Renfro, supra.
Here, we have no statement of facts of the testimony at the trial or of the voir dire examination of the jury panel. It is abundantly clear, however, from the number of special issues submitted, the ten-to-two verdict, and the absence of any motion for summary judgment or motion for instructed verdict in the record before us, that the trial was hotly contested. In these circumstances we hold that in the absence of a statement of facts that demonstrates that the non-complaining party would otherwise have been entitled to a judgment or that the case was not seriously disputed on its facts, a disparity of strikes between sides of as much as four-to-one results in a materially unfair trial as a matter of law. See Texas Employers’ Ins. Ass‘n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 921 (1958).
The petitioners contend that Dunn did not properly preserve any error because he only objected to the trial court‘s action in refusing to limit the defendants collectively to six strikes, the number Dunn was allowed. We disagree.
The judgment of the court of civil appeals is affirmed.
GARWOOD, J., not sitting.
GREENHILL, Chief Justice, dissenting.
The court‘s opinion reverts to the doctrine of presumed harm and unassigned error. It states, toward the end, that the exercise of the strikes by the defendants “resulted in a trial that was materially unfair as a matter of law.”
This statement is made in spite of the fact that the plaintiff did not request the trial court to equalize the strikes or to direct the defendants not to collaborate on the exercise of their strikes.
Instead, the plaintiff‘s position at trial was that all four defendants were entitled to a total of only six strikes. The trial court overruled this motion. As I understand this court‘s opinion, it agrees with that ruling of the trial court. At trial, plaintiff made no other request or motion. It was all, or nothing at all. The plaintiff‘s motion was not to limit the strikes by equalizing the defendants’ strikes, but was to limit all defendants to six strikes. That was and is his point. The court has, in my opinion, created a different point for him and sustained it.
Further, the court‘s opinion presumes harm. In this case, there is no statement of facts before the court to show the existence of harm. In those similar cases previously before this court, there has been a statement of facts indicating the existence of harm. Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974); Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965). Moreover, this court “refused” the application for writ of error in Retail Credit Co. v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.—Houston 1958) and thus approved the holding and opinion that a judgment in such a case would not be reversed in the absence of a statement of facts. 316 S.W.2d at 772.