concurring and dissenting.
I withdraw the former Concurring and Dissenting Opinion delivered July 13, 1983, and substitute this one.
I concur in the court’s action in sustaining defendant Cessna’s contention that we should adopt comparative fault as a method for the trial of products liability and negligence cases. I respectfully dissent from that part of the court’s opinion that adopts Cessna’s contention but then denies Cessna those rights. The court sustains Cessna’s contentions but renders judgment for Duncan. The majority opinion does not fairly state this record.
James Parker and Benjamin Smithson died when a Cessna plane crashed in New Mexico. Cessna manufactured the plane, Air Plains West, Inc. owned it, Smithson was a pilot instructor employed by Air Plains West, and Parker was the one receiving instructions. Mrs. Parker later remarried, hence, she filed her suit using her married name, Duncan. Duncan also filed a separate suit in Federal Court against Air Plains West, Inc., the employer of Smithson, the instructor. Duncan settled with Air Plains West, Inc. for $90,000.00.
Duncan and Smithson instituted this suit against Cessna on August 3, 1978. Cessna answered in two ways. It filed a counterclaim against the estates of Smithson and Duncan, alleging that it was entitled to indemnity or contribution. It alleged that Smithson controlled the aircraft and was negligent (1) in failing to keep up the flight speed, (2) in reducing the speed below safe levels, (3) in conducting low altitude maneuvers in a dangerous manner, and (4) in failing properly to supervise Parker. It also alleged alternatively that if it was liable to Smithson, it was then entitled to indemnity or contribution against Parker’s estate since Parker was flying under Smithson’s supervision. It alleged that Parker while in control was negligent (1) in allowing the speed of the aircraft to fall below safe flight speed, (2) in reducing the speed at an altitude and time when it could not be done safely, (3) in conducting low altitude maneuvers in a dangerous manner, and (4) in failing to heed Smithson’s instructions. Defendant Cessna from the outset alleged and sought to prove negligence and causation on the part of Parker and Smithson and sought contribution or indemnity by reason of that negligence.
Plaintiffs Duncan and Smithson filed a motion to dismiss Cessna’s counterclaim. The basis for the motion to strike was that under existing law, negligence was not a defense to a suit for product defects. The trial court sustained the exceptions and dismissed Cessna’s counterclaim on January 18, 1980. From that time forward, negligence on the part of the two plaintiffs went out and stayed out of the case until this court’s opinion which states that proof of plaintiffs’ contributory negligence was a more correct method for trying such cases and will be the practice in the future except for this case.
Cessna also filed an answer, and along with other pleadings, made allegations of plaintiffs’ negligence similar to those stricken by the order dismissing the counterclaim. On January 29, Duncan and Smithson leveled special exceptions to the allegations about negligence on the part of Smithson. Plaintiffs stated in their pleadings the reason for their exception. It was that Cessna’s pleadings were “a direct contravention and violation of this court’s order striking all counterclaims of Cessna Aircraft Company as against Benjamin A. Smithson and/or James E. Parker.” Cessna filed its second amended original answer on March 25, 1980, tracking the allegations about Smithson’s and Parker’s negligence and again claimed its right to prove negligence and its right to contribution or indemnity because of Smithson’s negligence.
The majority mistakenly says that Cessna went to trial with a live pleading about Smithson’s negligence and that the pleading resurrected Cessna’s dismissed claims of negligence on the part of Parker and Smithson. The majority of this court says it agrees with Cessna but that Cessna waived its basis to complain because it did not prove Smithson’s or Parker’s negli*436gence by way of a bill of exception. The trial court had repeatedly sustained exceptions to Cessna’s pleadings of negligence. The reason for this court’s decision is that the trial court did not sign the order sustaining the exceptions until after trial. This was merely housekeeping. In the course of trial the court frequently affirmed its orders sustaining the exceptions that excluded Cessna’s defense of comparative fault.
Until this cause reached this court, neither the attorneys nor the trial and appellate judges suggested that Cessna had any live pleadings in this products case that would support proof by Cessna of Parker’s and Smithson’s contributory negligence. Plaintiff Duncan’s consistent position before the trial court and the consistent rulings by the court were that all evidence of negligence by Parker and Smithson were excluded because the trial court had already sustained exceptions to the pleadings. The court renewed its rulings during trial. To say that Cessna had a live pleading which required it to prove negligence is an unfair statement of the record.
The trial began on April 1, 1980. The court spent a major part of the previous day, March 31, making rulings to simplify the trial. The chief issue before the court was whether it should hold a separate trial to determine the effect of the release Duncan had given to Air Plains West in settlement of Duncan’s federal suit. If, as contended by Cessna, the law of New Mexico controlled, because that was where the accident occurred, a release of one tortfeasor was a release of all. On the other hand, if the law of Texas controlled, the unity of release rule having been rejected in Texas, the other tortfeasors would not be released. McMillen v. Klingensmith, 467 S.W.2d 198 (Tex.1971). Mr. Pat Maloney, the attorney for Duncan and Smithson, strongly insisted that negligence by Smithson should in no way be injected into the trial.
Mr. Maloney objected to any reference to plaintiffs’ negligence, because the court had already sustained plaintiffs’ special exception.
As you know, we would get into who was negligent, the pilot — It opens up an entire thing that we had gotten out of the lawsuit. That is when we were complaining about, Judge, the answer and the counterclaim for that reason, exclusively. [Emphasis added.]
The plaintiffs’ lawyer successfully made the point that the trial court had ruled on both Cessna’s counterclaim and Cessna’s answer. The trial court at that point sustained Maloney’s objection that the plaintiffs’ exceptions to Cessna’s allegations about negligence as well as the counterclaim asserting plaintiffs’ negligence had already been ruled on. The court effectively at that point again excluded all defensive pleadings of plaintiffs’ negligence.
In the course of trial, Cessna also offered a letter from an investigatory agency that suggested the operator of the crashed plane was at fault. Our point here is not whether the evidence was correctly admitted or excluded; the point is that Mr. Malo-ney, plaintiffs’ attorney, again objected and stated the best reasons we can find that the court had repeatedly already excluded all of Cessna’s pleadings about negligence of the plaintiffs:
The Court knows by reason of previous plea in limine and by reason of specific objections and by reason of striking the counterclaim and by reasons of striking the affirmative defenses of the defendant in this case relative to negligence, that it would be a direct violation of the theory and theme and spirit and tenor in which this lawsuit was tried; and that is on products liability, and not contributory negligence, and not negligence, and not with reference to any joint tortfeasor. [Emphasis added.]
The court again confirmed the earlier rulings and excluded the evidence.
Mr. Maloney, the attorney for plaintiffs, made the same objection a third time, and again the court agreed with him. Plaintiff Smithson claimed damages for the loss of earnings, because the decedent was des*437tined to become a highly paid commercial airline pilot. To meet that argument, Cessna offered proof that Smithson lacked skill as a pilot. Plaintiffs’ counsel, Mr. Malo-ney, objected on the grounds that the evidence would inject negligence into the purely products liability case. He said:
It is our belief, of course, and our absolute knowledge that the Court already has ruled in the plea in limine and the special exceptions that negligence, pilot error, is not in this lawsuit. There is absolutely no reason, therefore, where indirectly you can open this lawsuit to negligence as opposed to products liability-
* * 3jC ⅝ * %
Assume that this pilot was negligent and there was a crash. That would be offensive to every ruling you have made. ... Fault and negligence of the crash are not in issue in this case. [Emphasis added.]
The court again sustained Mr. Maloney’s objection.
Before and during trial, plaintiffs’ counsel, made objections which the court sustained upon the basis that the court had already dismissed the counterclaim, had sustained exceptions to all of Cessna’s pleadings about negligence, contribution and indemnity; and that “fault and negligence of the crash are not in issue in this case.” With Cessna vainly trying to prove comparative negligence; with the plaintiffs’ attorney successfully resisting every effort to show negligence by Parker and Smithson, with Cessna’s counterclaim to establish negligence dismissed and the plaintiffs’ special exceptions to Cessna’s pleadings sustained; we have a majority holding that Cessna could have presented evidence of plaintiffs’ contributory negligence.
Did Cessna need to develop evidence on a bill of exception after the court dismissed its counterclaim? Did it waive its complaint by failing to develop evidence by bill of exception after the trial court struck its pleadings? Rulings on pleadings have never required a statement of facts. Instead of needing to prove facts excluded on a bill of exception, the rule is that pleadings are taken as true. Houston Elec. Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946). In the past this court has remanded causes for trial in cases involving an erroneous dismissal of a cause, holding that the facts of the party’s pleadings, if proved, would entitle one to the relief sought. Glen Oaks Utils., Inc. v. City of Houston, 161 Tex. 417, 340 S.W.2d 783 (1960); Longoria v. Alamia, 149 Tex. 234, 230 S.W.2d 1022 (1950). There is neither a duty nor a right to present evidence on a pleading or cause that the court erroneously dismisses. We wrote in Minus v. Doyle, 141 Tex. 67, 170 S.W.2d 220, 223 (1943):
The further suggestion is made that Minus waived the matter by his failure to offer any testimony on his cross action. We cannot see how he could offer testimony on a pleading which the court had dismissed. Temporarily the doors had been closed to him on that matter. Certainly no waiver could arise from his failure to offer testimony on issues which the court had erroneously said were not before it.
The Majority Opinion Does Not Treat Defendants and Plaintiffs Equally.
In a far-ranging opinion, the majority has adopted Cessna’s position and changed the method for the trial of a products liability case. I agree with the opinion in its adoption of comparative fault. See the concurring opinion in Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 751 (Tex.1980); Wenzel v. Rawlings Motor Co., 598 S.W.2d 895 (Tex.Civ.App.—El Paso 1980, writ ref’d n.r.e.).
Defendant Cessna successfully convinces this court of the correctness of the decisions of other states that adopt comparative fault. The plaintiffs, Duncan and Smithson, resisted that idea at every stage of trial and appeal. This court now adopts the position urged by Cessna. This case was pleaded and tried exclusively as a products liability case, and the majority says for the first time in Texas that it *438should have been tried with a comparison of plaintiffs’ negligence and the defendants’ product liability fault. Somehow Cessna, the one who successfully made that contention has lost its case. It lost because it failed to do what it was prevented from doing. Cessna’s only mistake was that it was denied and could not use a trial method that never existed in Texas until 9:00 A.M. on Wednesday, July 13, 1983.
The majority opinion accords an unequal treatment to plaintiffs and defendants. The most graphic illustration of this is a comparison of how we applied changed law in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), decided just eighty days before our original decision in this case. Plaintiff Sanchez, represented on appeal by the same attorneys as the plaintiffs, Duncan and Smithson, in this case, urged that we should change a century old rule that limited recovery of damages for loss of society and mental anguish arising out of the Texas Wrongful Death Act. The court in Sanchez wrote, “This court has always endeavored to interpret the laws of Texas to avoid inequity.” To prove this court’s fairness in availing the plaintiff of his victory, this court cited a number of examples of this court’s evenhanded fairness. Parker v. Highland Park, Inc., 565 S.W.2d 512, 517 (Tex.1978); Taggart v. Taggart, 552 S.W.2d 422, 423 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976); Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971).
Sanchez, who had made the successful contention, won the fruits of her victory, in line with what has heretofore been our consistent rule in tort law. That rule was that a change of the law should apply “to all future cases as well as those still in the judicial process.” 651 S.W.2d at 254.
We remanded for another trial when we changed rules of practice in Farley v. M M Cattle Co., 529 S.W.2d 751 (Tex.1975) (submission of voluntary assumption of risk); L.M.B. Cory. v. Gurecky, 501 S.W.2d 300, 303 (Tex.1973) (submission of excuse for violation of statutory standards); and Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966) (expressly holding that a remand should follow a court’s change of the rules after the case is tried). A remand has previously been this court’s disposition when a case was tried on the wrong theory. Morrow v. Shotwell, 477 S.W.2d 538, 541 (Tex.1972) (citing eight precedents by this court); Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1958). A thorough discussion of all of these principles may be found in Calvert, “... In the Interest of Justice,” 4 St. Mary’s L.J. 291 (1972).
Rule 505 of the Texas Rules of Civil Procedure authorizes this court to remand “if it shall appear that the justice of the case demands another trial.” Under Rule 505, this court has heretofore remanded so a party may amend his pleadings, offer additional evidence, and retry the case on a different theory. Karl & Kelly Co. v. McLerran, 646 S.W.2d 174 (Tex.1983) (per curiam); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Houston Fire & Casualty Insurance Co. v. Nichols, 435 S.W.2d 140 (Tex.1968). The rule has often been the basis for remands by this court even in the absence of a point complaining about the court of appeals’ failure to remand. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1958); Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951); Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380 (1942); Kennedy v. American National Insurance Co., 130 Tex. 155, 107 S.W.2d 364 (1937); Taylor v. United States Fidelity & Guaranty Co., 283 S.W. 161 (Tex.Comm’n App.1926, holding approved).
Plaintiff Sanchez got the advantage of another trial when this court changed a practice rule. Although this court says defendant Cessna was right all along in this case and adopts for all future cases its contentions, Cessna loses. The rule announced by this case is a simple one to state. Under Sanchez, the plaintiff prevails if he wins; under Duncan, the plaintiff prevails if he loses. The defendant loses both ways.
*439There is no greater inequality than the unequal treatment by the same court of things that are equal.
I agree that comparative fault is the fair method to try these causes. I would remand this cause so Cessna can have the fair trial it was denied.
McGEE, BARROW and CAMPBELL, JJ., join in this concurring and dissenting opinion.