(dissenting).
I respectfully dissent from part of the holding of the majority of the Court.
If the Legislature intended by Section 13 of the 1971 enactment to effect remedial legislation I cannot, by resort to any rule of statutory construction, determine what it might have been. As I view it the statute did no more than state pre-existent common law and make it statutory. This has often been done before the occasion here considered.
Had there been provision therein that the court “proportionalize” the number of peremptory challenges allowed parties litigant there might have been room for construction, but the same would not be true of the provision that the court “equalize” the number of peremptory challenges allowed. As I view it the case is one in which the trial court sought to “propor-tionalize” the number of strikes allowed parties. Except for my opinion that the court was limited to six (6) challenges allowable to any party I would not deem what the court did to have amounted to an abuse of discretion.
However, my conclusion is that by the 1971 enactment the Legislature did no more than reduce to written form the law as interpreted and declared in preceding years relative to Rule 233 and its statutory predecessor.
If I am correct in my opinion that the 1971 Statute did not change existing law then the principles of case law continue to *204serve to guide and control the decision in the instant case, both upon the question of error, and upon reversibility because of error.
Thereunder it is obvious that the allowance of more than six peremptory challenges by Austin Road Company would constitute error. Propriety of this statement is obvious when it is to be observed that if Austin Road, in its position as a “party”, had actually been several “persons” whose positions were so identical that as applied to the litigation they should be treated as a single “party” for purposes of alignment they would have been permitted only six peremptory challenges. 35 Tex.Jur.2d, p. 183, “Jury”, Sec. 123, “— Where there are coplaintiffs and codefend-ants in civil suit”; McDonald, Texas Civil Practice, “Jury Trial: General”, Sec. 11.-12.1., “— —(II) Peremptory Challenge”; Turner v. Turner, 385 S.W.2d 230 (Tex.Sup.1964).
I have been cited to no case, and have found none, which specifically holds that an individual “party” to a lawsuit shall not be entitled to more than the six peremptory challenges prescribed by T.R.C.P. 233. Yet it would appear that there should be no doubt that such is the limitation by law. The right of peremptory challenge does not exist at common law, being purely statutory. 50 C.J.S., p. 1069, “Juries”, Sec. 280, “(Peremptory Challenges — Nature and Right) b. In Civil Cases”. T.R.C.P. 233, “Peremptory Challenges” and the statute which was its predecessor, repeated by the Rule, amounted to remedial legislation which specified the entitlement of a “party” to have six peremptory challenges in the course of the selection of a jury to try a case in a District Court in Texas. Six peremptory challenges having been authorized there was a limitation to such number by the rule of statutory construction exemplified by the maxim expressio uni-usest exclusio alterius. 53 Tex.Jur.2d, p. 205, “Statutes”, Sec. 142, “Expressio unius rule”, and the antecedent Sec. 141, at p. 203, “(Implications and Inferences) In general”. Annotated cases include Tyson v. Britton, 6 Tex. 222, and Roberts v. Yarboro, 41 Tex. 449, which speak of the inhibition of any extension of the rule by mere implication or parity of reason. Clearly T.R.C.P. 233 means that a “party” is allowed six peremptory challenges Hit not more than six in a District Court case. In view thereof my holding would be that there was error in permitting Austin Road Company nine peremptory challenges.
Thus I reach the question of reversibility because of the error.
While I am uncertain whether it is the only question the answer to which is determinative of reversibility, one which would be thus determinative is whether the complaining party was thereby compelled to permit a juror to try his case whom he would not have been compelled to accept but for the error.
Tamburello v. Welch, 392 S.W.2d 114 (Tex.Sup.1965) was a case where there was three-car collision. The plaintiff, in the first vehicle, sued both drivers of the second and third. The trial court allowed the defendants a total of six peremptory challenges, against the contention that each, as an individual “party”, was entitled to six (a total of twelve). The holding of the Supreme Court was that each defendant constituted a separate “party”, in consequence of which there had been error in the refusal to permit each to have six peremptory challenges.
The reversal ordered by the Supreme Court, as I construe the opinion, was because there was prejudice to each of the defendants in consequence of the inbalance in the make-up of the jury which tried the case (to be presumed despite the provisions of T.R.C.P. 434 and 503, which the court held to be inapplicable to the question of fair trial involved). In Tamburello it was not because the plaintiff was allowed too many “strikes”, but because each defendant was permitted too few “strikes” that judgment was reversed. In view of the denial of the entitlement of each defendant (as separate “parties”) to six “strikes” by Rule 233 reversibility was more readily perceivable in Tamburello than in the case before *205this court. However, the spirit of the Rule is the same in either case, in that its objective is, to use words out of Section 13 of V.A.T.S. Art. 2151a, “so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”
Here, as was the case in Tamburello, every “person” exercised all the “strikes” allowed by the court. Mrs. Evans took her six, Austin Road its nine. Having been permitted nine “strikes” it would be presumed, absent showing of Austin Road to the contrary, that three of those it struck might otherwise have served on the jury that tried the case. Fully applicable to such situation is language of the Supreme Court in Tamburello, though it was speaking of the situation where each of two “parties” were complaining because each had received too few strikes rather than because their adversary (of each) had received too many, viz: “If each of the defendants had been allowed six peremptory challenges, the jury would have been composed of six persons who served on the jury and six other members of the panel who did not. A jury so constituted might well have exonerated one of the defendants entirely, and it is our opinion that the trial was so materially unfair that the judgment cannot be upheld.”
In Rivas v. Liberty Mutual Insurance Company, 480 S.W.2d 610 (Tex.Sup.1972), the court speaks in interpretation of its opinion in Tamburello to the effect that the error therein ruled upon amounted to a violation of the fundamental right of trial by jury, and that such error raised an inference of probable harm. In other words, as applied to such a situation the “harmless error rule” (T.R.C.P. 434) is without application and the burden to prove “harmlessness” of the erroneous constitution of the jury which tried the case is cast upon him who seeks to uphold the judgment. See also Vol. 45, Texas L.Rev., p. 80, “Peremptory Challenges — Should Rule 233 be Changed?” to which the majority has made reference.
Since the burden to demonstrate probable harm is not required to be borne by Mrs. Evans, its inference being presumed, Austin Road Company bore the contradictory burden of showing that there was absence of probable harm. Of such absence Austin Road has not made demonstration, hence my conclusion that a judgment of reversal is compelled.
My conception of the proper action of this court would be to sever the case as applied to the suits of Mrs. McEneny and Mrs. Carson and their husbands and then to affirm the judgments they obtained as against both Austin Road Company and Mr. and Mrs. Evans.
I would reverse the trial court’s judgment and remand the same for a new trial as applied to Mrs. Evans’ suit for damages for negligent tort against Austin Road Company. The question arises: should the reversal be accompanied by like reversal and remand of that part of the judgment which awards Mrs. Evans and her husband indemnity against Austin Road Company as applied to their liability in damages to Mrs. McEneny and Mrs. Carson? I would so hold.
I believe that it would be necessary that there be another trial of the issue of indemnity between Austin Road Company and the Evanses if there is to be another trial of the issue of liability of the Austin Road Company.
Where the separate recovery of separate parties depended upon the same evidence it was held that the judgment of one could not be upheld when there was reversal of the judgment of the other. Houston Oxygen Co. v. Davis, 139 Tex. 1, 161 S.W.2d 474 (1942), 140 A.L.R. 868 (1942); 4 Tex.Jur.2d, p. 462, “Appeal and Error— Civil”. Sec. 875, “Severability as to parties”. Of course, where the error occasioning reversal affects only the amount of damages in a cross-action having no essential connection with the plaintiff’s claim there might be a reversal only as applied to the erroneous portion of the judgment. 4 *206Tex.Jur.2d, p. 456, “Appeal and Error— Civil”, Sec. 872, “Reversal as to some issues.”
In the instant case I have concluded that the error affects not only the right of Mrs. Evans and her husband to damages, but also their right to claim indemnity of Austin Road Company. That they were fortunate enough to prevail in that aspect, despite the error which occasioned reversal and a new opportunity to try their case for their own damages, would not justify a severance so that they would at the same time retain the victory won before the trial court upon the indemnity issue. The reason they cannot retain their victory as applied to indemnity is that their case, in either aspect, depended in part at least upon the same evidence, having relevance to the same, or common issues. 4 Tex.Jur.2d, p. 459, “Appeal and Error — Civil”, Sec. 874, “Severability of judgment or issues.”
I would reverse the judgment as between Mrs. Evans and Austin Road Company and as to them remand the case.