Diamond Shamrock Corp. v. Wendt
In Diamond Shamrock Corp. v. Wendt, 718 S.W.2d 766, 770 (Tex. App.--Corpus Christi 1986, writ ref'd n.r.e.), Wendt's prized bull, "Superman 1024," died on Medina Valley A.I. Laboratory's premises after Medina's employees injected it with a Diamond Shamrock-manufactured insecticide. Id. at 767.
Wendt then sued Medina and Diamond Shamrock and received a judgment against both parties. Id.
At trial, the trial court refused Diamond Shamrock's request that Wendt and Medina be aligned on the same side, and instead allocated twelve peremptory strikes to Wendt and six each to Diamond Shamrock and Medina. Id. at 768.
On appeal, Diamond Shamrock complained Wendt and Medina should have been aligned and together received the same number of peremptory strikes as it did. Id. at 768.
The Corpus Christi court of appeals examined the voir-dire testimony to determine if there was any antagonism between Wendt and Medina. Id. at 768-69.
The court noted Wendt and Medina had an apparent common interest, which was to blame Diamond Shamrock for the bull's death. Id. at 769.
When Wendt discussed gross negligence and punitive damages with the venire panel, it mentioned only Diamond Shamrock and not Medina. Id.
Wendt and Medina's common theme throughout the voir dire was that Diamond Shamrock's chemical killed Superman. Id.
Diamond Shamrock, meanwhile, blamed Medina. Id. Both Medina and Diamond Shamrock conceded Wendt was not responsible, and neither contended he should not be compensated. Id. at 768, 769.
Medina never expressly denied negligence, but it did question the venire about requiring Diamond Shamrock and Wendt to prove negligence. Id. at 769.
The Corpus Christi court held "the trial court did not err in failing to align Medina and Wendt on the same side." Id. at 769.
It did so after noting there was "no settlement between any of the parties," 11 and the plaintiff "was actively seeking recovery against both defendants." Id.
But the court determined that "the number of peremptory challenges allotted to each litigant presents a different problem." Id. at 770.
Allocating "twelve strikes to Wendt, six to Medina, whose interests were so closely identified with Wendt's and only six to Diamond Shamrock resulted in an unfair advantage to Wendt," and amounted to an abuse of the trial court's discretion. Id.