Lorusso v. Members Mutual Insurance Co. , 1979 Tex. App. LEXIS 3406 ( 1979 )

OPINION

WARD, Justice.

This is a suit to recover the uninsured motorist’s benefit from the Plaintiff’s insurance carrier as well as a negligent action against the alleged uninsured motorist. The Plaintiff received a take nothing judgment after jury trial. The only question presented is whether the trial Court’s allowance of six peremptory challenges to each of the two Defendants constitutes reversible error. We affirm under the record presented.

There is no statement of facts. Consuelo Lorusso sued Armando Valdez, Jr. for damages which she alleged she sustained in an automobile accident, and she joined Members Mutual Insurance Company as the Plaintiff’s carrier, alleging that Valdez was an uninsured motorist and that coverage for such a motorist existed under her policy. Members Mutual filed a third party complaint against Valdez to preserve its rights of subrogation against the alleged uninsured motorist, and prayed that, to the extent the Plaintiff might recover judgment under the policy and be paid, it be indemnified and have judgment to that extent over against Valdez.

Plaintiff shows by bill of exception that, before the selection of the jury, she objected to the trial Court extending to each of the Defendants six peremptory challenges as they should only be allowed a total of six peremptory challenges. The Plaintiff claimed that the two Defendants had no conflicting interests, and that they had taken their twelve strikes of the jury together in a common room. The objection was overruled, the Court permitting each Defendant six peremptory challenges. The Court noted that each Defendant was represented by different attorneys, and that on the basis of the pleadings antagonism existed between them.

Trial proceeded, and the jury found that the Plaintiff was contributorily negligent and that her negligence was 80% responsible for the accident. By the damage issue, the only elements of recovery submitted were physical pain and mental anguish, both in the past and future, and loss of earning capacity. The jury returned a verdict of “None” to the damage issue submitted.

The rule governing the granting of peremptory challenges is set forth in Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974):

Whether such defendants are parties within the meaning of Rule 233, so as to entitle them 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.

From the transcript and the statements contained in the respective briefs of the parties, we are unable to find where any antagonism existed between the two Defendants in a matter that would concern the jury, since the only issue as presented was a legal one of possible indemnity. The trial court was in error in granting the twelve peremptory challenges.

Article 2151a, Tex.Rev.Civ.Stat.Ann. (Supp. 1978-1979), specifically requires a trial court to align the parties and, after the proper alignment, it is then the duty of the court to equalize the number of peremptory challenges as provided for under Rule 233, Tex.R.Civ.P., and the equalizing of the number of peremptory challenges it to be done “in accordance with the ends of justice so that no party is given an unequal advantage . . . ” The granting of a greater number of peremptory challenges to one side places the other at a serious disadvantage. Because of this premise, the rule and statute mean that the doubling of the number of peremptory challenges to one side, or the denial of peremptory challenges to which a party is entitled, is an action that is calculated to cause a trial to be materially unfair, and to entitle the complaining party to a reversal and remand. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965); Perkins v. Freeman, supra; Council v. Bankers Commercial Life Ins. Co., 558 S.W.2d 487 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.). On the basis of these cases, the Plaintiff argues that the action of the trial Court was so materially unfair that she was denied a fair trial without the necessity of showing anything further.

The Defendants argue that the Plaintiff has not shown by the record how she was in any way injured by the jury selection, and that the harmless error rule applies. Longoria v. Atlantic Gulf Enterprises, Inc., 572 S.W.2d 71 at 80 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.). Certain language in the Tamburello case can be construed to support either argument. We are of the opinion that the final ruling of the court in Tamburello was made in a case where the evidence was sharply conflicting.

In this case, we have no statement of facts. For all we know, the great weight of the evidence might have compelled a finding that the Plaintiff was contributorily negligent as well as being largely responsible for the accident. As far as we know, the evidence may have conclusively shown that she was not hurt. Under this record, we hold that the harmless rule applies and that the Plaintiff has failed to show that the trial Court’s error caused or probably caused the rendition of an improper judgment. Rule 434, Tex.R.Civ.P.

The judgment of the trial Court is affirmed.