dissenting.
I withdraw the former Dissenting Opinion delivered July 13, 1983, and substitute this one.
Plaintiff Darla Smithson instituted this products liability suit against Cessna Aircraft Company individually, as administra-trix of her husband’s estate and as next friend of her children. The trial court rendered judgment for the plaintiff for $1,200,000. Cessna filed a counterclaim asserting that Benjamin Smithson, Darla’s husband and the pilot instructor of the plane, caused the crash of the airplane through his own negligence. The counterclaim alleged that Smithson failed to maintain flying speed, conducted low altitude maneuvers in a dangerous manner, and failed to supervise the activities of James E. Parker, the pilot trainee.
Plaintiff Smithson responded by a pleading that her action was one in strict liability and that the negligence of her husband was not a factor to be considered either in measuring liability or on issues of indemnity or contribution. Plaintiff Smithson also filed a motion to strike Cessna’s counterclaim, alleging that contributory negligence of a plaintiff is no defense to a products liability case. The trial court then struck Cessna’s counterclaim.
Cessna also filed a separate answer alleging that Smithson’s death was caused by his failure to use the shoulder harness installed in the plane, by his misuse of the plane in flying with more than the maximum gross weight specified for the plane, and by his negligence. Plaintiff Smithson filed exceptions to Cessna’s allegations of Smithson’s contributory negligence coupled with a motion to strike the answer containing those defenses to a products liability suit. The trial court sustained the exceptions to each of the defenses and struck those parts of Cessna’s answer. At trial, Cessna was stripped of its defenses that Smithson was contributorily negligent.
*446Cessna offered evidence during trial to prove its defenses of misuse and contributory negligence, but the trial court refused the offers. After sustaining an adverse judgment, Cessna preserved its claimed errors in its motion for new trial, which asserted that the trial court erred in excluding evidence of pilot error on the part of Smithson.
Cessna urged in its brief to the court of appeals that the trial court erred by striking its counterclaim alleging contributory negligence, by striking its pleadings alleging contributory negligence, by excluding its evidence, and by refusing to permit Cessna to prove the percentage of Smithson’s own contributory negligence. Cessna cited the Texas decisions that would apportion Cessna’s fault and Smithson’s negligence: Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743 (Tex.1980) (Pope, J., concurring); General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977) (apportionment of damages based upon misuse); and Wenzel v. Rollins Motor Co., 598 S.W.2d 895 (Tex.Civ.App.—El Paso 1980, writ ref’d n.r.e.). Cessna argued that it was entitled to those defenses for the purpose of apportioning fault and damages as well as for its defense of indemnity. The court of appeals denied Cessna all of those defenses.
Cessna, having tried in the trial court and the court of appeals to assert its defenses concerning contributory negligence, had only one more place to go, the Supreme Court of Texas. It renewed all of its contentions in its application to the Supreme Court of Texas. The courts below understandably followed precedent and denied Cessna’s contentions, but when Cessna reached this court and urged that it should not be required to pay for its fault as well as Smithson’s fault too, it at last found a court that was willing to establish the fair system that Cessna had urged throughout in the two courts below.
Cessna wins! It does indeed achieve a correction and improvement of the law. The Supreme Court has now written an opinion upholding the principle that not only should a defendant pay for his share of the causing fault, but a plaintiff should bear his proportionate share of his own fault. Cessna must be pleased that the Texas Supreme Court would cite the same precedents and adopt the same reasoning that Cessna presented to both courts below, as well as to the Supreme Court.
Cessna has won the argument. The majority of this court, however, holds that Cessna still is liable for the same $1,200,-000 judgment that it would have borne if it had been wrong instead of right. Cessna loses even though it won. Future defendants can apportion their share of fault, but not Cessna, says the majority. This court has never before rendered such a discriminatory judgment as explained in the concurring and dissenting opinion in Duncan v. Cessna Aircraft Co., decided today. 665 S.W.2d 414 (Tex.1984).
We should treat defendant Cessna the same as we treated plaintiff Angelica Sanchez in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), which was decided less than three months prior to our original opinion in this case. I would reverse the judgment of the trial court and remand this cause so Cessna can obtain the fair trial it consistently sought; the very trial the majority says it was entitled to receive but did not get.
McGEE, BARROW and CAMPBELL, JJ., join in this dissenting opinion.