Soto v. Texas Industries, Inc.

820 S.W.2d 217, 1991 WL 250877
CourtCourt of Appeals of Texas
DecidedJanuary 8, 1992
Docket2-90-218-CV
StatusPublished
Cited by9 cases

This text of 820 S.W.2d 217 (Soto v. Texas Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Soto v. Texas Industries, Inc., 820 S.W.2d 217, 1991 WL 250877 (Tex. Ct. App. 1992).

Opinion

OPINION

HILL, Justice.

Juan Jose Soto and Maria Soto appeal from a take-nothing judgment in favor of John Thomas Jones and Texas Industries, Inc., the appellees. The Sotos contend in three points of error that the trial court erred in overruling their objections to defendants’ discriminatory exercise of peremptory challenges; the trial court abused its discretion in failing to submit their requested special issue and instruction regarding res ipsa loquitur; and the jury’s finding that Jones was not negligent is so against the great weight and preponderance of the evidence as to be manifestly unjust.

We affirm because error was not preserved as to the Sotos’ complaint of the discriminatory exercise of peremptory challenges because no record was made of the voir dire examination; because the trial court did not abuse its discretion by failing to submit the Sotos’ requested instruction on the doctrine of res ipsa loquitur since no showing was made that the falling of a wall such as the one in question does not ordinarily occur in the absence of negligence, such a fact is not within general knowledge, and we were not referred to an authoritative source in support of that proposition; and because the jury’s answer of “no” to the question as to whether the negligence of John Jones was a proximate cause of the occurrence in question was not against the great weight and preponderance of the evidence.

The Sotos urge in point of error number one that the trial court erred in overruling their objections to defendants’ exercise of peremptory challenges. Juan Soto is Mexican-American, unable to speak English. Both Mexican-Americans on the jury panel were struck by the appellees.

The Supreme Court of the United States has determined that the use of peremptory challenges to discriminate against potential jurors in a civil case because of their racé is a violation of the excluded juror’s right to equal protection, a right that may be asserted by the party not exercising the peremptory challenges. Edmonson v. Leesville Concrete Co., — U.S. —, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); see also Powers v. Palacios, 813 S.W.2d 489 (Tex.1991) (per curiam).

The trial court held a hearing at which counsel for Jones and Texas Industries gave their reasons for striking the two jurors. Counsel for Jones and Texas Industries stated to the court that one juror, Mr. DelRio, was struck because he had been a juror in a personal injury case in which the jury gave the plaintiff most of what he asked for. Counsel for R.B. Camp Erection Service, Inc., a party that was nonsuited prior to the case’s submission to the jury, stated that Mr. DelRio was struck because he had a sister who worked for Texas Industries.

Counsel for Jones and Texas Industries stated that another juror, a Mrs. McAnally, was struck because she had insurance with Aetna and because he wanted to get on down the list to some of the other jurors that he thought would be good jurors. Counsel for R.B. Camp stated that there was a concern about Mrs. McAnally’s background and her husband’s background at General Dynamics because of the work involved.

When counsel for plaintiff pointed out that another juror worked for General Dynamics and her husband also worked there, counsel for R.B. Camp replied that Mrs. McAnally was involved in statistical analysis where engineers were designing and preparing specifications to be used by follow-up people in the construction process. He stated that a big part of the case was going to be concerned about the fact that *219 his client followed engineering and technical designs and plans. He said that Mrs. McAnally’s husband is an engineer at General Dynamics.

A counsel for Soto stated that there were other engineers on the panel that were not struck and named one in particular. He further said that no evidence had been developed during discovery about any statistical analysis.

The voir dire examination of the veniremembers was not preserved for our review. The trial court overruled the So-tos’ Batson 1 objection, making no findings as to whether the counsel’s peremptory challenges were based on race. The Sotos did not request such findings.

The Texas Court of Criminal Appeals has held that in criminal cases the circumstances of the voir dire is one of the factors relevant to the trial court’s determination. Whitsey v. State, 796 S.W.2d 707, 716 (Tex.Crim.App.1989). The questioning of the jurors at voir dire is listed in that opinion as one of the factors this court is to consider in determining the propriety of the trial court’s ruling on appeal. Id. at 714. We would hold that the circumstances of the voir dire is also one of the factors to be considered by the trial court and this court in determining issues relating to the propriety of peremptory strikes in light of Bat-son and Edmonson in civil cases. Because the voir dire constitutes a part of what is to be considered by the trial court and this court, and because no record has been made of the voir dire, the Sotos present nothing for our review with respect to their Batson complaint. We overrule point of error number one.

The Sotos contend in point of error number two that the trial court abused its discretion in failing to submit their requested special issue and instruction regarding res ipsa loquitur.

Mr. Soto was injured at a construction site when he was hit by a collapsing concrete wall. There was some testimony that the wall was pulled down by a Texas Industries concrete truck when its chute became hooked onto a brace holding up the wall.

The Sotos sought to have the trial court submit to the jury a question that asked if the collapse of the wall was due to the negligence of Texas Industries, Inc. The Sotos’ question included an instruction that the jury might infer negligence if the jury found that the character of the accident was such that it would not ordinarily happen in the absence of negligence, and if the jury found that the instrumentality causing the accident was under the management and control of Texas Industries, Inc. at the time the negligence, if any, causing the accident probably occurred. Instead of submitting the Sotos’ requested question and instruction, the trial court asked the jury if the occurrence in question was proximately caused by the negligence of John Jones, the driver of the cement truck, or Juan Soto. The jury answered “no” as to both John Jones and Juan Soto.

The doctrine of res ipsa loquitur is applicable when the character of the accident is such that it would not ordinarily occur in the absence of negligence and the instrumentality causing the injury is shown to have been under the management and control of the defendant. Mobil Chemical v. Bell, 517 S.W.2d 245, 251 (Tex.1974). In order to rely on the doctrine, the plaintiff must produce evidence from which the jury can conclude, by a preponderance of the evidence, that both the “type of accident” and “control” factors are present.

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Bluebook (online)
820 S.W.2d 217, 1991 WL 250877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-texas-industries-inc-texapp-1992.