Garcia v. Central Power & Light Co. , 1985 Tex. App. LEXIS 11671 ( 1985 )

OPINION ON MOTION FOR REHEARING

In appellant’s Motion for Rehearing, she urges that our opinion in this cause is in conflict with our opinion in Missouri Pacific Railroad Co. v. Huebner, 704 S.W.2d 353 (1985) and an opinion of the San Antonio Court of Appeals in Lopez v. Foremost Paving, Inc. No. 04-84-032-CV (June 12, 1985, not yet reported). We find that both cases are distinguishable from the one before us. We overrule the motion for rehearing.

In Huebner, the administrator had entered into a pretrial agreement with two co-defendants whereby the plaintiffs were guaranteed a certain amount of money. Since the parties in Huebner had entered into an agreement, the settling defendants would not have a jury issue submitted in which they would be antagonistic. In the case at bar, none of the defendants had entered into any agreements with the appellant. Each of the defendants was potentially liable on the fact issues and the comparative fault issues to be submitted to the jury. Although all of the defendants had a common interest in placing the responsibility on the appellant, there was sufficient antagonism with regard to each other to justify the apportionment of jury strikes.

In the Lopez case, the San Antonio Court determined that the defendants had the common purpose of defeating plaintiff’s negligence claims. The court held that the trial court was in error in apportioning the peremptory challenges as they had, but that the error was harmless. In the case at bar, two defendants plead that the accident was the “sole cause” of the negligence of the other defendants as well as the plaintiff’s decedent. Furthermore, the jury here was asked to determine the individual negligence of each of the defendants and to apportion their respective fault.

We have determined that our original opinion is correct and that neither of the above cited opinions conflicts with the opinion. Accordingly, we overrule the motion for rehearing.