*1 regardless why the record or the reason filed, all
motion was not sooner became of this power immaterial insofar as the Court concerned. of time within The motion for extension ap- to file the is denied. peal is dismissed. ux., Appellants, et
KING SON WONG al., Appellees. et CARNATION COMPANY Civil (14th Dist.). Houston April Bouldin, Houston, Homer appel- T. lants. Sartwelle, P.
Thomas Russell H. Mc- Mains, Crooker, Fulbright King, & Marvin Houston, appellees. BROWN,
CURTISS Justice. personal is a injury case.
Appellants, plaintiffs below, received personal injuries when defendant’s truck struck the car in riding. found, response special sues, that the defendant driver failed to keep lookout, proper prop- failed to make er brakes, of his and failed to .yield of way. It also found that appellants failed to wear available seat belts, that this was negligence and proxi- mate cause of injuries, and that the failure caused fifty percent of the hus- band’s seventy wife’s. The trial court plaintiffs reducing fifty seventy percent respectively. Appellants filed a motion to disregard *2 386 certainly pre- issues, do assigned think that the seat I belt the seat
findings on (em- types in a of these of accidents” as error lot vent overruling of this the trial, the doctor stat- assigned phasis added). Thereafter new motion for their ed, probably I seat belts with- there “Yes. think in brief that of error points of the likelihood a would reduce jury’s find- out doubt support the to no evidence was keeping you off injury by head or facial a ings on these issues. There the windshield or dashboard.” of otherwise, evidence, to or medical was no using available Driving without percentage of support findings the jury’s negligence, is neither actionable seat belts contribution. Estrada, (Tex. 552 448 S.W.2d Quinius v. n.r.e.), writ ref’d 1969, Civ.App.—Austin recently The Texas Court has bar contributory that would negligence nor Kerby v. Abilene Christian Col- decided Ramsey, 424 S.W.2d recovery. Sonnier (Tex.Sup.1973), lege, 503 526 S.W.2d (Tex.Civ.App.- Dist.] 684 [1st —-Houston our decision in this we feel controls in question 1968, ref’d The n.r.e.). writ Kerby, delivery of In the driver a case. is this case whether a in injured he fell van was a collision when of by amount can be the reduced through the open the door of his van and use available his to attributable to The jury then fell on him. found vehicle seat belts. to that his failure close his door caused question approached, but percent injuries. thirty-five of The his Band, decided, in Mercer v. 484 S.W.2d for judgment Kerby, trial court (Tex.Civ.App. [1st Dist.] ducing by thirty-five per- the award —Houston court stated that writ). no There the appeal, of appeals the court civil cent. On held that jurisdictions have in other cases finding the failure to negligent held on seat duty is to available there use no of finding his door to close amounted precludes the con- a rule belt and contributory negligence and would com- use as a of failure to sideration pletely any recovery. bar The However, in Mercer the court factor. originally civil reversed the court of issue, the unnecessary to decide but, found it appeals court, trial and affirmed the probative value was evidence of because no rehearing, opin- original it withdrew its on the that seat belts to show effect available ion and substituted which reversed and one injuries sustained. had on the would have judgment rendered for the full amount of the award. The case, appellees point to In the at time between case was tried the supporting the de- evidence a safe- sirability the use of seat belts as of ty Appellees also measure. Kerby, by began the Court dis In Wong end of vehicle entire front tinguishing negligence between contribut of the milk front fender struck the ing negligence to an accident and contrib head-on, type was the truck and thus sustained, uting stating which the use of seat belts accident negligence type, merely latter be most In addition would effective. neg increases caused another’s Wong’s Mr. brain concussion claim that recovery. ligence, will not bar It analo whiplash, Wong’s well bro- as as Mrs. open driving with an door to gized whiplash, injuries typi- ken nose and The to use available seat belts. Court then cally preventable by the use of seat belts. concluded that there was no evidence support jury's the case which would only medical scant. finding open thirty- door caused stated, “Well, doctor who testified first I injuries. speculate anyone five like else. Accordingly, reverse able seat belts. elaborate The court went render judgment the trial court and position: on its appellants the full for the conceptual diffi- jury’s damage amount of culty applying mitigation of dam- physical pain anguish. and mental ante- conduct *3 ages, to Plaintiff’s Reversed and rendered. Defendant. dating negligence of the in the analo- holdings gous to fasten seat case ON MOTION FOR REHEARING reduce a Appellees pointed out in their mo- non-negligent Plaintiff’s rehearing incorrectly tion for that we stat- damages occasioned amount of additional opinion ed our that the case was (Citing by his failure to wear seat belts. tried between Al- Cases jurisdictions). cases from other though bearing it has no on our decision Plain- intimating reduction case, in accuracy, the interest of proper in such might tiff’s be fact, was, in note that case denied instance have nonetheless tried before the Court’s first ground duction entered, opinion Kerby. Judgment the Defendant raise the fact failed however, opinions. between the two (Citing sue. oth- cases from Texas and er jurisdictions). is, for rehearing in all other respects, overruled. experts in the instant case con- inability fessed an to determine in- what
juries would have been suffered had the
door- been closed. Even if there were particular injury suffered would not have been suffered had being
avoided truck, thrown it from would not support jury’s finding of percentage contribution. We reverse the COMMERCIAL STANDARD INSURANCE judgments below, of the courts and ren- Appellant, COMPANY, der $94,050. Plaintiff interpret We the second sentence of the SOUTHERN FARM BUREAU CASUALTY Court’s paragraph final that contri- COMPANY, Appellee. INSURANCE injury bution to proven by be cannot evi- dence that particular injury suffered Court of Civil would not have been sustained had seat Corpus Christi. belts been used. tantamount holding April 25, that in Texas law the mitigation of damages has no to a actions which antedate the negligence.
defendant’s In so rejecting this antedative of damages de-
fense, the Texas joined highest state Alabama, Idaho, courts in
Kansas, Carolina, North Oregon, and Washington.
We therefore hold that there is no duty to mitigate damages by wearing avail-