OPINION
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). Appel-lees 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 Mo-Pac; 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. Hueb-ner, 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 is *7 sued 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 estop-pel 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,
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,
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 *8 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.,
At this point appellees contend that Scur-lock’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 evi-dentiary 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.,
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 in appellant’s original petition, but was dismissed when the trial began. Over Scurlock’s objection Smithwick was able to inform the jury that:
Scurlock Oil Company has agreed to accept the guaranty of the remaining Dove family that Mr. Lewis and Scurlock Oil Company will never be required to pay more than two million five hundred thousand dollars in damages regardless of the verdict of the jury in this case.
On the facts of this case, we can think of no legal theory under which this evidence is initially admissible over a proper objection.
Information about settlement agreements should generally be excluded from the jury because the agreement may be taken as an admission of liability.
City of Houston v. Sam P. Wallace and Co.,
We find, however, that Scurlock waived the error. In his closing argument to the jury, appellant’s counsel injected into this trial evidence of both the previous agreement and a similar one entered into by appellees and MoPac in the action now before us as well as an allusion to the liability of MoPac and the result in the Matagorda County case. He stated:
As you know, Mr. Edward [Smithwick’s counsel] says that Scurlock is a hundred percent at fault. At some point he must not have thought Scurlock was one hundred percent at fault because he got the two and a half million dollars from the Railroad. But they did it out of morality and because they thought so much of their employee. And we all know how moral the Railroad is, so I'm sure that’s why they did it.
Mr. Hunt wants us to believe that, on the one hand, that they did it solely for that reason. They want to talk about: Well, Scurlock, you guaranteed two and half million dollars in another case, other facts, in Matagorda County. I can only suggest to you that after what they found out about their conduct, the Railroad’s conduct in Matagorda County, they better get real moral in a hurry in Nueces County.
I don’t think anybody comes forward and puts two and a half million dollars on the line unless they feel like they did something wrong at this time. This is after the other trial. This is this trial after what they found out, now they’re saying: “Yes, we’re moral. That’s why we put it up.” You believe that if you want to. Now I’ve heard about the tooth fairy all my life and I’ve heard about jolly old Saint Nick, but I never heard about generous Saint Mo-Pac. I don’t think she exists, and that’s just my personal opinion.
By using inadmissible evidence for its own purposes, Scurlock at least correlatively brought itself under the rule that error in admitting evidence is harmless if the objecting party subsequently permits the evidence to be introduced.
Badger v. Symon,
The portion of the agreement introduced by appellees revealed only that Scur-lock (in the Dove case) would “never be required to pay more than two million five hundred thousand dollars in damages regardless of the verdict.” When Smi-thwick’s counsel asked Mr. Lewis whether he was aware that Scurlock
guaranteed
the Doves a recovery of at least two and a half million dollars, appellant objected to the matter as prejudicial and inflammatory “about another case that has nothing to do with these facts.” We think that the
guarantee
is objectionable on different grounds than the objection in general because it is a much more detailed and prejudicial suggestion of liability. Appellant’s objection was not sufficiently specific.
Governing Board v. Pannill,
Assuming arguendo that the objection would have been specific enough to properly call the specific complaint to the attention of the trial court and preserve the error for review, and that the complained of evidence was not waived by appellant, *10 such error under the particular circumstances of this case would not require reversal as a harmful error. The impropriety of the guarantee agreement rests upon (1) a suggestion of liability on the part of Scurlock; and (2) a suggestion of a multimillion dollar value (damages) of such guarantee. As to liability, the jury had before it a similar MoPac agreement or guarantee and did not find MoPac liable. We would be hard put to find and indeed here speculate under all the evidence and circumstances of this case that Scurlock was harmed by the complained of error, [especially in the light of the jury’s handling of MoPac’s similar guarantee], to such an extent as to require a reversal of the trial court’s judgment. As to the value, Scurlock does not attack the judgment damages as excessive. In any event, we cannot find that the complained of error would have amounted to such a denial of the rights of appellant in the course of this particular trial as to cause and that such complained of error probably did cause the rendition of an improper judgment. TEX. R.CIV.P. 434. Appellant’s fourth point of error is overruled.
In its fifth point of error appellant contends that the trial court erred by denying special issues inquiring (1) whether Mo-Pac was negligent; (2) whether such negligence was a proximate cause of this accident; and (3) what respective percentage of negligence was attributable to Bounds, Mo-Pac, and appellant. Instead, the trial court submitted issues inquiring whether appellant was negligent through Lewis and whether MoPac was negligent through Bounds (as a “borrowed employee”). We think the trial court submitted much fairer issues than those requested by appellants and, in any case, appellant’s requested issues are only various shades of the controlling issues submitted by the trial court, and as such do not present reversible error. TEX.R.CIV.P. 279. Appellant’s fifth point of error is overruled.
In its sixth, eighth, and tenth points of error appellant Scurlock contends that the trial court erred by submitting special issues “inquiring as to damages other than pecuniary losses resulting to” the widow, three children, and parents of the deceased, because such damages are not authorized under the Texas Wrongful Death Act.
The challenged special issues asked the jury to find the value of the past and future damages suffered for, generally, (a) loss of companionship or consortium and (b) mental anguish, grief and sorrow. We find the case of
Sanchez v. Schindler,
In its seventh, ninth, and eleventh points of error Scurlock contends that there was no evidence entitling the deceased’s wife, children, and parents to damages for mental anguish, grief, or sorrow, because the record does not reflect that any of the “beneficiaries” sustained physical or “special” injuries requiring treatment and special care as a result of the deceased’s death. Appellant asserts that
*11
the lump sum awards in which such complaint of damages were included must fail because of such no evidence contentions. However, the record does not reflect that appellant ever brought the “no evidence” point to the trial court’s attention by either a motion for instructed verdict, an objection to the submission of the fact issue, a motion to disregard the jury finding, a motion for judgment notwithstanding the verdict, or a motion for new trial that distinctly raises the “no evidence” points.
Rosas v. Shafer,
Finally, MoPac contends in a single “cross-point” of error that the trial court erred by entering in the judgment the finding that “Bounds was a borrowed employee of [MoPac].” The jury did find, in response to a special issue, that Bounds was acting as a “borrowed employee” rather than as an “independent contractor” at the time of the accident. MoPac argues, however, that inclusion of the finding concerning Bounds was improper because the judgment expressly stated that nothing was to be recovered from MoPac; thus, whether Bounds was a borrowed servant was immaterial. MoPac’s concern is that this finding might be used against it in future litigation between Bounds and MoPac. However, the jury answer that Bounds was a borrowed employee was not immaterial until after the jury found that Bounds was not negligent, and we cannot say that the issue was improperly submitted to the jury. In addition, the determination of Bound’s status was not relied on by either the trial court or this court in reaching its decision, and it is therefore not res judicata of the issue.
See Burns v. Gonzalez,
All assignments of error are overruled and the judgment of the trial court is affirmed.
Notes
. This case is demonstrative of the problems created in multi-party litigation and Mary Carter and/or guarantee agreements. The briefs presented by the parties and authorities cited therein and the trend toward multi-party, multi-cause of action litigation cry out for uniform rules or standards to assist the courts of the State in the handling of such cases.
The difficulties presented to the appellate courts pale in comparison to the trial courts’ difficulties in resolving arguments with reference to these matters (too little time to resolve too much, affecting too many in a too often too crowded docket) but, the greatest problem is the problem being created for the litigants, plaintiffs and defendants alike. We recognize the dedication of the appellate courts and particularly of the Texas Supreme Court in resolving these issues and the intent to preserve and protect the interests of all litigants within the framework of our judicial system and established rules of procedure and evidence.
We note that in the criminal system certain types of evidence (i.e., extraneous offense to show pattern, scheme, motive or intent) on potentially highly prejudicial evidence have long been admissible with definite admonitory instruction as to the reason for admission and the limitations of the use of such evidence. We take this opportunity (realizing that some will regard it as an inappropriate opportunity, but believing that more will regard any effort to simplify the Mary Carter Dilema as proper) to suggest that a uniform rule by which such agreements may be introduced with uniform limitations and prescribing admonitory instructions in the court’s charge as to why the evidence was admitted and admonishing the jury not to consider same for any other purposes would assist the courts and the litigants. If we trust the juries (and we believe rightfully so) in criminal cases dealing with the freedom of individuals and the protection of the public from crime to follow instructions with respect to evidence of a most highly prejudicial nature, can we not trust the juries in civil cases to hear about the Mary Carter agreements within limits and follow instructions in cases dealing with monetary damages?