Quinius v. Estrada, 11705

• Decision Date: 22 October 1969
• Docket Number: No. 11705,11705
• Parties: Susan QUINIUS, Appellant, v. Manuel M. ESTRADA, Jr., et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 552

448 S.W.2d 552

Susan QUINIUS, Appellant, v. Manuel M. ESTRADA, Jr., et al., Appellees.

No. 11705.

Court of Civil Appeals of Texas.

Austin.

Oct. 22, 1969.

Rehearing Denied Nov. 19, 1969.

Thompson, Coe, Cousins, Irons & Porter, R . R. Cousins, Dallas, for appellant.

Rogan B. Giles, Clark, Thomas, Harris, Denius & Winters, John Coates, Robert C. McCreary, Mary Joe Carroll, Barry Bishop, Austin, for appellees.

HUGHES, Justice.

This suit arises out of the same incident involved in Polasek v. Quinius, 438 S.W.2d 828, Tex.Civ.App., Austin, writ ref. n.r.e. (1969). In that case Mary Sue Polasek recovered damages for injuries sustained from Susan Quinius as a proximate result of her negligence. There were three cars involved in the incident, which occurred June 21, 1966, in Austin, Texas, one operated by appellant which she drove south into Northland Drive, an east-west four lane main traffic artery, across the two westbound lanes of Northland and into its near eastbound lane striking the left side of the Polasek car causing it to swerve across the center line of Northland and collide headon with the car operated by Manuel M. Estrada, Jr., appellee, who was driving west on Northland.

In this suit, appellee sued both Susan Quinius and Mary Sue Polasek seeking property damages and damages for personal injuries allegedly resulting from their negligence. Trial to a jury resulted in findings that Susan Quinius was guilty of negligence which was a proximate cause of the collisions, and that Mary Sue Polasek was not guilty of any negligent act. Judgment against Susan Quinius only for the damages sustained by Appellee Estrada was rendered in accordance with the jury findings.

In her pleadings, appellant alleged that Mary Sue Polasek, driver of the first car struck, failed to wear a seat belt available to her and that, as a result of such failure, she lost control of her car with the result that the collision with the Estrada car occurred and that this failure was negligence and a proximate cause of the second collision and resultant injuries and damages. Appellees specially excepted to this pleading on the ground that '* * * Mary Sue Polasek had no duty as a matter of law to have a seat belt fastened or unfastened * * *'

These exceptions were sustained by the trial court he being of the opinion that Mary Sue Polasek had no duty, as a matter of law, to have a seat belt fastened. We agree with the trial court. ¹

A great deal has been written on this subject and we will not undertake an analysis of all the arguments made for and against the imposition of a duty to wear seat belts. It must be remembered that we are concerned only with the wearing of the seat belt as negligence, not with the obligation to wear seat belts in order to mitigate the extent of injuries. This latter question is not before us.

In Sonnier v. Ramsey, 424 S.W.2d 684, Tex.Civ.App., Houston (1st Dist.) writ ref. n.r.e. (1968) the jury found that the failure of plaintiff to wear seat belts was negligence which was a proximate cause of his injuries and that 5% Of his injuries was due to this failure. Judgment was rendered for defendant and was reversed and remanded on appeal. Regarding the seat belt findings, the Court stated:

'If there is a duty to use a seat belt (which decision is reserved for a future case), we believe the seat belt question should be considered in connection with damages rather than liability. We agree with a suggestion made by Messrs Jerry Walker and David Beck, members of the Houston Bar, in an article entitled 'Seat Belts and The Second Accident' in the Insurance Counsel Journal for July, 1967, at page 355, that the matter be regarded in mitigation of damages rather than contributory negligence.

The failure to use a seat belt may contribute to the cause of the injury, but almost never to the cause of the accident. This sounds in damages, not liability.

The analogy to the duty to minimize the consequences is not complete, because such duty arises after the accident, but we think the problem more closely related to damages than to liability.'

The validity of the Court's pronouncements regarding the seat belt findings was squarely presented to the Supreme Court in defendant's petition for writ of error by several assignments. We consider the action of the Supreme Court as approving the comments of the Court of Civil Appeals insofar as they indicate that wearing a seat belt had no relevance to the issue of liability.

There was no evidence in Sonnier that the failure to wear a seat belt in any way contributed to the collision there involved. In fact, we have not been cited to any case which has held that failure to wear a seat belt caused an accident or collision. There are many statistics involving motor vehicle accidents and some are cited to us but none is cited and apparently none exists showing the number of accidents, if any, caused by the failure to wear seat belts.

One of the latest cases on the subject is Romankewiz v. Black, 16 Mich.App. 119, 167 N.W.2d 606, Court of Appeals, Michigan (1969). This case discusses about fifteen cases which have considered the seat belt defense. We refer to that opinion wherein it is held that there was no duty on the part of the plaintiff to wear a seat belt, the Court saying, 'Unbuckled (seat belts) do not Cause accidents.'

Appellant cites Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967) as the leading case establishing the common law duty to wear available seat belts. The Court there said, 'The question, therefore, is not whether the guest's (a passenger) negligence (failure to wear an available seat belt) contributed to the cause of the accident but, rather, whether it contributed to the injuries.' Further discounting the authority of Bentzler in this case is the fact that Wisconsin recognizes the comparative negligence doctrine.

It is our opinion that Mary Sue Polasek was under no duty to Mr. Estrada to wear her seat belt and hence was not negligent as to him under the rule stated in Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201 (1959) which we quote:

'We may perhaps safely say that legal liability will not attach to an act or omission unless the alleged wrongdoer could have reasonably anticipated probable harm from his conduct. Foreseeability is undoubtedly a test of negligence, for certainly a prudent man would not do that which he could foresee would result in harm.'

'An injury is not actionable if it was not foreseen, or could not have been foreseen or reasonably anticipated, as a consequence of the act or omission.' 40 Tex.Jur.2d, p. 455. See Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962).

We hold, as a matter of law, that the alleged failure of Mary Sue Polasek to fasten her seat belt was not actionable negligence in that she owed no duty to appellant or Mr. Estrada to do so, the reason for this being, in our opinion, that she could not reasonably anticipate or foresee that her failure to fasten such belt would result in her failing to regain control of her car after it went out of control after being struck by a car negligently operated by Susan Quinius. In the first place, Mary Sue Polasek was under no duty to anticipate the negligent conduct of Susan Quinius in driving into her car. In the second place, the wearing of a seat belt has relevance only to the safety or protection of the person wearing it as is shown by the authorities generally and which we take notice of as a matter of general knowledge. The fact that it is alleged that failure to wear a seat belt accounted for the failure of Mary Sue Polasek to regain control of her car before colliding with the Estrada car three seconds later does not alter our opinion that such failure was not negligence because no reasonably prudent person could anticipate or foresee such result or one similar thereto.

The above discussion relates to appellant's first point which we overrule.

Appellant's second point is that the trial court erred in sustaining special exceptions to her pleading that failure of Mary Sue Polasek to wear her seat belt constituted in intervening cause of the collision with the Estrada car and his injuries.

From an examination of appellant's pleading, we fail to find any allegation that the failure of Mary Sue Polasek to wear her seat belt was a new and intervening cause of the collision with the Estrada car and his injuries. A Court could not err in sustaining exceptions to allegations not made. It seems, however, that the defense of a new and intervening cause need not be pleaded since it is not an affirmative defense. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952), Defensive Issues on New and Independent Cause, etc., 6 Baylor Law Review by Olan B. Lowrey, 6 Baylor L. Review 457 (1954).

Appellant did not offer any evidence to support this theory of new and independent cause and made no objections to the charge of the Court in this respect.

For all of the reasons stated, we overrule appellant's second point.

Points three, five and six are jointly briefed. These points are that the trial court erred to hold that the psychiatric injury of Mr . Estrada was not foreseeable to appellant under the prevailing circumstances and that any negligence on her part was not a proximate cause of his injury because of his admitted predisposition to such an injury; also, that the adverse findings of proximate cause of the Polasek-Estrada collision and resultant injuries to Estrada were against the greater weight and preponderance of the evidence.

Appellee Estrada pleaded that, 'As a direct and proximate result of the above described collision, Plaintiff has suffered a severe psychoneurotic conversion reaction.'

Two psychiatrists testified on behalf of Mr. Estrada at the trial, Dr. David Wade and Dr. Stuart S. Nemir, Jr. Appellant cites the following testimony of Dr. Wade, in support of these points:

'Q What percentage of the people that you treat...