Lorusso v. Members Mutual Insurance Co.

603 S.W.2d 818, 23 Tex. Sup. Ct. J. 555, 1980 Tex. LEXIS 372

• Court: Texas Supreme Court
• Decided: July 30, 1980
• Docket: B-8503
• Status: Published

Opinions

BARROW, Justice.

Consuelo Serna Lorusso sued respondents, Armando Valdez, Jr. and Members Mutual Insurance Company, to recover damages for personal injuries sustained in a collision between her car and a car operated by Valdez. The Lorusso car was insured by Members Mutual for liability insurance including uninsured motorist coverage and it was alleged by Lorusso that Valdez was uninsured. Members Mutual filed a third-party action against Valdez for indemnity. The trial court, over objection by Lorusso, allowed Valdez and Members Mutual six peremptory challenges each. A take-nothing judgment was rendered on the jury verdict which found that the percentage of negligence proximately causing the occurrence was Lorusso 80 percent and Valdez 20 percent. See Article 2212a, Tex.Rev.Civ.Stat. Ann.

The court of civil appeals held that the trial court erred in granting the defendants twelve peremptory challenges because no antagonism existed between these two defendants in a matter that would concern the jury. However, that court, with one justice dissenting, held that the record did not show that this error caused or probably did cause the rendition of an improper judgment as required for a reversal under Rule 434.¹ The trial court judgment was accordingly affirmed. 580 S.W.2d 72.

The questions before us are: (1) whether the harmless error rule applies to this asserted error and, if so; (2) whether the error complained of amounted to such a denial of the rights of Lorusso as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case so as to authorize a reversal by the court of civil appeals under Rule 434 and by this Court under Rule 503. In answering these questions we assume, without deciding, that the court of civil appeals correctly held that the trial court erred in granting six peremptory strikes each to Valdez and Members Mutual.²

We hold that the harmless error rule applies to the error in granting defendants six peremptory challenges each. We agree with the holding of the court of civil appeals that Lorusso did not meet the burden required for a reversal under Rule 434 and Rule 503. We therefore affirm the judgment of that court.

Rule 503, which was adopted by this Court in 1941, and remains as a viable part of our Rules of Civil Procedure, provides in part:

“[Tjhat no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, . . . .”³

The obvious purpose of this rule was to abolish the then existing rule of presumed prejudice whereby the prevailing party had the burden of proving that the complaining party was not prejudiced by the error. See Calvert and Perin, Is the Castle Crumbling? Harmless Error Revisited, 20 S.Tex.L.J. 1 (1979); Calvert, The Development of the Doctrine of Harmless Error in Texas, 31 Tex.L.Rev. 1 (1952).

The language of the rule is clear and direct. The rule recognizes that a litigant is not entitled to a perfect trial for, indeed, few trials are perfect. In recognition of this fact, the harmless error rule establishes a sound and common sense policy of not reversing a judgment unless the error or errors can be said to have contributed in a substantial way to bring about the adverse judgment. See King v. Skelly, 452 S.W.2d 691, 696 (Tex.1970). The rule by its very terms applies to all errors in that it draws no distinction as to the type of errors involved in its requirement for reversal. Furthermore, we have specifically held that Rule 503 applies to errors in the granting of the number of peremptory challenges.

In Retail Credit Company v. Hyman, 316 S.W.2d 769 (Tex.Civ.App.-Houston 1958, writ ref’d), it was held that if the court erred in denying each of the two complaining defendants six peremptory challenges, such error would be held harmless unless the appellants proved to the reviewing court that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment as required by Rule 434. It was further held that to determine whether any error caused the rendition of an improper judgment, the reviewing court must look to the whole record of the- trial.

This application of the harmless error rule was expressly approved by this Court in Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965), where it was held that the trial court erroneously required the two defendants to share six strikes. After pointing out that Rules 434 and 503 provide that no judgment shall be reversed and a new trial ordered for an error of law committed in the court of the trial unless the appellate court is of the opinion that the error was reasonably calculated to and probably did cause the rendition of an improper judgment, we said:

“The harmless error rule undoubtedly applies where a party is denied the number of peremptory challenges to which he is entitled. As a practical matter, however, the appellant will usually be unable to show that an improper judgment probably resulted from an error of this nature. . .

We then held that the burden of the complaining party to establish reversible error under Rule 503 would be met by showing that the trial was “materially unfair.” This was done under the record in that case by demonstrating that the evidence in the case was sharply conflicting. Tamburello involved a pure swearing match between the two drivers without any corroborating physical facts for either witness. We held that under these circumstances, the granting of only three jury strikes to a party resulted in a materially unfair trial.

In Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974), we held that where the trial court had erroneously granted the defendant-father six peremptory challenges and the intervenors-paternal grandparents six peremptory challenges while the plaintiff-mother had only six strikes in her child custody case, this error was calculated to cause the trial to be materially unfair. The judgment was accordingly reversed and remanded under the Tamburello test. The Court did not expressly discuss the harmless error test which was approved in Tamburel-lo. Nevertheless, it is apparent that, as pointed out by Perkins, the record there clearly satisfied the test required under Rule 503. The 1,374 page statement of facts was before the Court and demonstrated that this was a bitterly contested child custody case in which twenty-six witnesses testified, and their testimony sharply conflicted, regarding the best interest of the little girl in question. In this situation, it was materially unfair to give one party six strikes and the two aligned parties twelve strikes.

The Tamburello test was recently applied in Patterson Dental Co. v. Dunn, 592 S.W.2d 914 (Tex.1979). We held that the trial court erred under Article 2151a, Tex. Rev.Civ.Stat.Ann., in giving each of the four defendants six peremptory challenges while the plaintiff was given only six challenges. We expressly recognized the Tam-burello requirement that the complaining party show that the trial which resulted in the judgment against him was “materially unfair.” In considering how this is met, we said:

“Normally, the question whether the trial was materially unfair in either the determination of antagonism or the equalization 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 ...”

Although there was no statement of facts in the record, we said that it was abundantly clear from other parts of the record that the trial was hotly contested. We then held that in these circumstances, a disparity of strikes between sides of as- much as four-to-one resulted in a materially unfair trial as a matter of law.

In Dunn, we cited with approval Roy L. Martin & Associates, Limited v. Renfro, 483 S.W.2d 845 (Tex.Civ.App.-San Antonio 1972, writ ref’d n. r. e.), where the court applied the harmless error test to determine that the trial court’s error in granting excessive peremptory challenges required a remand.

We conclude that the harmless error rule applies in determining whether the error of the trial court in giving each of the two defendants six peremptory challenges was such as to require a reversal of the take-nothing judgment. We turn now to the question of whether the record before us meets this test.

We recognize the impossibility of prescribing a specific test for determining whether any error, be it the improper admission or exclusion of evidence, improper argument, or the giving or depriving of a party of the proper number of peremptory challenges, “was reasonably calculated to cause and probably did cause the rendition of an improper judgment.” Such a determination necessarily is a judgment call entrusted to the sound discretion and good senses of the reviewing court. It is clear, however, that such a judgment call must be determined from an evaluation of the whole case. Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835 (Tex.1979).

In any event, there is nothing in the clear language of Rule 503 which would justify a return to the expressly discarded doctrine of “presumed harm.” A test which would require the prevailing party to demonstrate that harm did not result from an error is nothing more than application of the presumed harm doctrine. To apply such a test would require repeal, or at least amendment, of Rule 503. This has not been done directly and should not be done by implication.

A statement of facts in the traditional sense was not brought forward by Lorusso, the complaining party. All that was filed was a partial statement of facts which shows that Lorusso objected to the trial court’s action in permitting each of the two defendants six peremptory challenges. It contains none of the testimony given at the trial. Thus, all we know about the cause of the collision is shown by the pleadings. According to the allegations in Lorusso’s petition, the collision occurred when she attempted a left turn in front of the on-coming Valdez vehicle. The jury verdict is in the transcript and from it we learn the following: All twelve jurors found that in attempting to turn left when the Valdez vehicle was an immediate hazard, Lorusso had failed to yield the right-of-way and that she had failed to keep a proper lookout on the occasion in question. Eleven jurors, with one abstaining, found that she failed to make proper application of her brakes. Each of these negligent acts was found to be a proximate cause. All jurors refused to find that Valdez had kept an improper lookout, but eleven found that he was driving at a negligent rate of speed. The jurors unanimously found that Lorusso had not sustained any damages as a result of the alleged injuries. There is nothing in the pleadings or verdict of the jury to indicate that the case was “sharply contested” on either liability or damages.

The record here does not show how the parties exercised their challenges, i. e., whether all were exercised, or whether there were double strikes. A photostat copy of what purports to be a “List of Jurors” with “Plaintiff’s Strikes” indicated thereon is in the transcript. This copy shows a list of 30 names, six of which are drawn through, and eleven are numbered. A check of these names with the jurors who signed the verdict indicates that these eleven served on the jury, although where the twelfth juror came from is not shown. It is significant that the six challenges purportedly made by Lorusso were all made in the first twenty-four names. Also, it is seen that ten jurors were selected from the first twenty-four names. See Rule 292. It cannot properly be said that this jury list demonstrates that Lorusso was harmed by the trial court’s error in permitting each of the two defendants six peremptory challenges.

We conclude from the limited record brought forward that Lorusso failed to establish that the error in the number of peremptory challenges granted defendant resulted in a “materially unfair” trial so as to require a reversal under Rule 503.

We affirm the judgment of the court of civil appeals.

Dissenting opinion by STEAKLEY, J., in which DENTON, CAMPBELL and SPEARS, JJ., join.

1 . All references to rules are to Texas Rules of Civil Procedure.

2 . Members Mutual was aligned with Valdez insofar as both desired a jury finding that Lo-russo’s own negligence was the cause of the collision. However, Members Mutual was aligned with Lorusso insofar as both sought to show that Valdez’s negligence was a proximate cause of the collision.

3 Rule 434, which applies to a review by the court of civil appeals, contains the same language.