author: GREEN, Chief Justice.

text:
    COUNTY OF CALHOUN et al., Appellants, v. Willett WILSON et al., Appellees. Willett WILSON et al., Appellants, v. COUNTY OF CALHOUN et al., Appellees.
    Nos. 347, 366.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 29, 1968.
    Rehearing Denied March 28, 1968.

      Willett Wilson, Houston; Cullen, Mal-lette, Maddin, Edwards & Williams, Harry F. Maddin, Victoria, for appellants-cross-appellees.
    William W. Day, Co. Atty., Port Lavaca, Guittard, Henderson, Jones & Lewis, Frank Guittard, Marion Lewis, Victoria, for appel-lees-cross-appellants.
   OPINION

GREEN, Chief Justice.

In the Fall of 1960, Calhoun County Surveyor Hodges made the following written report to his commissioners court:

“In regard to an area on the North shore of Chocolate Bay originally containing about 4 acres of land at the Bay shore terminus of a platted roadway, now known as Alcoa Drive, please be advised that the undersigned has made a careful examination of the Plat of the Port Lavaca Development Plat Records which bears the notation ‘Subdivided and Drawn by Hill, Kelly and Thayer, Architects, Engineers and Surveyors, Sept. 1893.’ I find that this Plat shows an area approximately 4 acres of land by scaling, on the North shore of Chocolate Bay at the Bay shore terminus of a platted roadway, now identified on most modern maps as Alcoa Drive. Said area is marked ‘RESERVED’ on the recorded Plat.
“Recent surveys show that erosion has claimed a large part of this area but there remains some one and one-half to two acres of land not covered by water of the original area ‘RESERVED’. This area is surrounded by lands owned by Willett Wilson Estate and the roadway leading to the ‘RESERVED’ area is blocked by a fence.
/s/ Charles W. Hodges”

At its meeting on October 10, 1960, the Calhoun County Commissioners Court entered the following order on its minutes:

“That the County Attorney notify Mr. Willett Wilson that he has thirty (30) days in which to remove the fence from the road right-of-way which is now blocking access to the park area; and,
“That if the obstruction is not removed within the specified time the Court will proceed to remove the said obstruction.”

Willett Wilson and his sister, Christine Wilson, hereinafter styled Wilson, or plaintiffs, filed this action against Calhoun County, Texas and the County Judge and County Commissioners thereof, hereinafter styled County or defendants, on November 4, 1960, to enjoin defendants from (1) opening a claimed dedicated roadway across their property, and (2) taking possession of an area shown on the maps of the original subdividers as a “Reservation” and claimed by the County to be a dedicated park. Plaintiffs contended in the trial court that (1) the roadway was never legally dedicated; (2) that if it was legally dedicated, it has been continuously enclosed with a fence by the adjoining landowners (plaintiffs) for over 20 years, and the County has no remedy to open same as a road under the provisions of Art. 6703a, Vernon’s Ann. Tex.Civ.Stats., unless and until it is established as a new road; and (3) that the so-called “reserved area” designated “Reservation” on the maps by the original subdivid-ers was not a dedicated tract, and having been in the possession of plaintiffs under fence for more than forty years, County had no right to possession or use of it.

It was and is the contention of County (1) that the roadway and reserved area were a part of the Port Lavaca Development Company subdivision of the Samuel Shupe and Maximo Sanches Leagues as shown by the plats of record in the Calhoun County records; that the so-called “reserved area” and roadway in dispute are shown upon said plats; that the lands in said subdivision, including the property claimed by plaintiffs, have been conveyed by reference to said subdivision and plats, and that as a result, the dedication was established and made irrevocable; (2) that even if said roadway and/or “reserved area” were not dedicated to public use by reason of said plats and conveyances, there was an implied dedication thereof to public use by the owners of such property; and (3) there having been a valid dedication of said roadway and “reserved area” to public use, possession or use thereof by plaintiffs would not serve to defeat the rights of the public therein.

We show herewith a diagram which includes the land and claimed roadway in litigation :

The above diagram represents a portion of Defendants’ Exhibit 8, introduced in evidence as a true copy of the plat of the Port Lavaca Development Company Subdivision of the Samuel Shupe and Maximo Sanches Leagues in Calhoun County, Texas as recorded in the deed records of the county. It contains the affidavit of the developers, dated Dec. 3, 1904, that Lots 1-33 inclusive are in the Sanches League, and Lots 34-68 inclusive are in the Shupe Survey; it states that “All roads represented on said Map except those marked ‘Closed’ are donated to the public.” The plat contains the following certificate :

“Filed for Record Dec 7th 1904 at 10 o’clock A M. And duly recorded in Book T, pages 2 & 3 of Deed Records of my Office this 20th day of Dec 1904
J W S Holman. Clerk.”

The wide space between Blocks 33, 32, 31, and 30 in the Sanches League, and Blocks 34, 35, 36, and 44 in the Shupe Survey does not in fact represent an open space of that relative width between the two leagues, or between those blocks of land. The map of. 1904 was larger than one page of the clerk’s record book, and had been copied on two pages of the book with pen and ink. The division line of the two leagues fell in the space between the two pages, and as reproduced on said record this caused the space to appear as it does on the Exhibit 8 in evidence. However, a roadway is indicated within this space. The 1893 subdivision plat shows more clearly the existence of a road on the division line of the two leagues, with the word “Road” written in this space to the north of the area shown above.

The trial was to a jury, which returned into court its findings as follows:

(1)that plaintiffs had not held peaceable and adverse possession of the area involved for a period of ten consecutive years beginning after January 1, 1923, and prior to January 1, 1953;

(2) that plaintiffs have had the area claimed as a roadway enclosed with a fence for a continuous period of twenty years or more prior to November 4, 1960;

(3) the alleged road shown on the subdivision maps in evidence is reasonably necessary to reach the Reservation area shown on said maps, or other lands adjacent to such road;

(4) the general public has made no use of the alleged roadway from January 1, 1923, to November 4, 1960;

(5) the alleged roadway in question has not been obstructed by a fence continuously from January 1, 1923 until November 4, 1960;

(6) unanswered, due to negative answer to No. (5);

(7) that the land between parallel lines indicated on the maps of the subdivision and proceeding northwesterly from the area marked as “Reservation” was dedicated to the public use as a road;

(8) that the area in dispute marked “Reservation” on the maps of the subdivision was dedicated to public use.

After verdict, the plaintiffs filed a motion for judgment non obstante veredicto, and County filed its motion for judgment on the verdict. The trial court entered its judgment sustaining plaintiffs’ motion in so far as it pertained to the “reserved” or “park” area, set aside the jury’s answer to special issue No. 8, and granted plaintiffs a permanent injunction against defendants as to such area. The court denied plaintiffs’ motion in all other respects, and granted County’s motion in part by refusing the injunc-tive relief as to the roadway in issue.

Each party has filed a separate appeal in this Court from that portion of the trial court’s judgment unfavorable to their respective contentions. The two appeals have been consolidated, and will be so disposed of.

APPEAL OF DEFÉNDANTS COUNTY OF CALHOUN, ET AL (NO. 347)

Defendant County’s first point of error is that the trial court erred in granting injunc-tive relief in so far as the “reserved area” is concerned in the absence of any proof that plaintiffs owned such reserved area.

The land referred to lies between the south line of Block 33 and the bay shore as shown on the plats of the Port Lavaca Development Company Subdivision in evidence. Plaintiffs owned no record title to this small tract. Although County makes the contention on this appeal that plaintiffs failed to establish title to the property on both sides of the disputed roadway in issue, shown as blocks 32, 33, 34, 35 and 36 on defendants’ exhibit 8, the diagram above being a portion thereof, it appears to us from a thorough reading of the statement of facts that the case was tried on the theory that plaintiffs owned title to such blocks (not including the area marked “Reservation”). This appears true not only from the direct and cross examination of plaintiffs’ witnesses wherein this land was constantly referred to as the Wilson property, but just as clear from the testimony of County Judge Hartzog and Commissioner Wedig and other defense witnesses.

The evidence supports the conclusion as a matter of law that the “reserved area” in litigation had been enclosed with lands of the plaintiffs adjoining such area continuously for over forty years; that the land was fenced on three sides and was bounded by the bay on the other side, and that such land, including the “reserved area” had been in plaintiffs’ actual possession and used by plaintiffs and their tenants for grazing purposes. Regardless of whether such possession was sufficiently open and adverse to create a limitation title under the ten-year statute (and the jury found that it was not — issue No. 1) we are of the opinion that it constituted such actual prior possession as would create property rights in plaintiffs against a naked trespasser with no rights of possession. Land v. Turner, Tex.Sup.Ct., 377 S.W.2d 181; Reiter v. Coastal States Gas Producing Co., Tex.Sup.Ct., 382 S.W.2d 243. It thus becomes necessary to determine whether County was acting as a naked trespasser without rights in its efforts to secure possession of the so-called “reserved area.”

County’s second, third and fourth points allege error in the action of the trial court in partially granting plaintiffs’ motion for judgment n.o.v. and in setting aside the jury’s finding that the reserve area had been dedicated to public use (issue 8) and in holding that there was not sufficient evidence to support the jury’s affirmative answer to such special issue.

We agree with plaintiffs’ contention concerning dedication to this limited extent, that the inclusion by the developers of the subdivision in the plats in 1893 and 1904 of the word “RESERVATION” on this area and the subsequent sale of blocks by reference to such pJats did not in and of itself raise any presumption as a matter of law of any dedication of such tract to public use. City of Brownsville v. West, Tex.Civ.App., 149 S.W.2d 1034; Hollan v. State, Tex.Civ.App., 308 S.W.2d 122, wr. ref., n. r. e.; Hunter Company v. Fain, Tex.Civ.App., 281 S.W.2d 750, wr. ref., n. r. e. It will be noted that the developers did not state for what purpose the land was reserved; the words “park reserve for this addition”, as in Shields v. Harris County, Tex.Civ.App., 248 S.W.2d 510, wr. ref., n. r. e., or “Terraced Park Area” as in Maisen v. Maxey, Tex.Civ.App., 233 S.W.2d 309, wr. ref., n. r. e., were not used.

The definition of “dedication” given by the trial court to the jury in connection with special issues Nos. 7 and 8 included the elements of an implied dedication. Common law dedications are subdivided into two classes, express and implied. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, and authorities there cited. The rules of law applicable to implied dedications are set forth in some detail in Dunn v. Deussen, Tex.Civ.App., 268 S.W.2d 266, wr. ref., n. r. e., cited with approval and quoted by the Supreme Court in O’Connor v. Gragg, supra. To establish a dedication of land for public use, it is essential that the owner should have intended to set it apart for the use of the public, but such intention need not be evidenced by a deed, and it is sufficient if it be shown by some clear and unequivocal act of declaration of the owner. Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957; Cockrell v. City of Dallas, Tex.Civ.App., 111 S.W. 977; Brown v. Kelley, Tex.Civ.App., 212 S.W.2d 834, cited with approval and quoted in Owens v. Hockett, supra.

As stated in O’Connor v. Gragg, supra,

“ * * * The evidence brings the case squarely within the well settled rule as announced in Dunn v. Deussen, supra, that a presumption of acquiescence is raised when the origin of the user by the public and the ownership of the land at that time are shrouded in obscurity, and no evidence exists to show the intention of the owner in allowing the use. See Tex.Jur. 14-B, 367, Section 26; Oswald v. Grenet, 22 Tex. 94; Harger v. Cason, Tex.Civ.App., 223 S.W.2d 244; Dunn v. Deussen, supra.

With reference to the legal principles applicable in passing upon a judgment non ob-stante veredicto we quote the following from Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547-550:

“To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict it must be determined that there is no evidence on which the jury could have made the findings relied upon. In acting upon such motion all testimony must be considered in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.”

We shall also be governed by the following statement of the Supreme Court in Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682, 683:

“Following the familiar rule when judgment is rendered non obstante veredicto our statement of the evidence will comprehend only that which supports the jury’s verdict.”

See, also, Owens v. Hockett, supra, 251 S.W.2d p. 958.

Five witnesses testified for defendants to show the public use of the tract in controversy from forty to fifty-five years ago. Judge Carey Leggett, 78 years of age at the time of trial and a resident of the area for 61 years, testified that when he was a boy and a young man he and others frequently hunted on this tract, and that it was a public place. Defendant Howard Hartzog, present county judge of Calhoun County and lifelong resident there for over 60 years, testified that as a boy scout he frequently trav-elled the road leading to the reservation and hunted and fished on the area; that this tract, known then as Flounder Point, had always been considered public property and a park; that a gun club used the property, fed people, and shot trap on the end of Flounder Point; that it was where boats were frequently docked; and that this was where the public had barbecues and picnics, and people came in wagons and buggies for gatherings. Leonard Fisher, former sheriff and ex-commissioner, gave testimony of his experiences with this tract over fifty years ago, and stated that this property was recognized then by the public as a park. Like testimony was given by other witnesses.

A number of deeds dated from 1904 and earlier to 1922 in the chain of title of the property claimed by plaintiffs were admitted in evidence. In the conveyances the grantors carefully excluded what in said deeds was referred to as “the Reservation” from the conveyance, and it does not appear that title to such four-acre block was ever transferred out of the original subdividers. A dedication may be shown by circumstance. Owens v. Hockett, supra. The fact that for over 60 years the record owners of this small tract have not sought to exercise rights of ownership may be considered as a circumstance along with the other facts in evidence of the intent to dedicate this property to public use. Also, the fact that the old marked road on the plats leads to this four-acre tract may shed some light on the question of dedication.

We are of the opinion, and so hold, that a fact issue of dedication of the “reserved area” to public use was raised by the evidence, and that the answer of the jury to special issue No. 8 was supported by sufficient factual evidence.

Said area having been dedicated to public use, it remains subject to such use unless abandoned. While plaintiffs allege that said area had been abandoned, they did not request any special issue on that matter. The party asserting abandonment must show (1) acts of relinquishment and (2) the intention to abandon and the failure of County to maintain a public area does not establish abandonment as a matter of law. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849; Maples v. Henderson County, Tex.Civ.App., 259 S.W.2d 264, wr. ref., n. r. e. Mere nonuser of an easement will not extinguish it. Adams v. Rowles, supra, 228 S.W.2d p. 852.

Once said “reserved area” was dedicated, then regardless of the type of possession and claim that the adjoining owners may have had, the public rights could not be defeated by any statute of limitations. Art. 5517, V.A.T.S.

Art. 6703a, V.A.T.S. is not applicable, since it is limited to roads.

As a consequence of what we have stated above, we hold that the trial court erred in granting the injunction against County with reference to the tract marked on the plats “Reservation”. The judgment of the court is reversed in so far as it grants such in-junctive relief to plaintiffs; and it is here rendered so that plaintiffs’ prayer for injunction against County as to this area is denied. Jackson v. Ewton, Tex.Sup.Ct., 411 S.W.2d 715.

In view of our above holding, County’s last two points of error become immaterial, and we shall forego discussion of them.

APPEAL OF PLAINTIFFS (NO. 366)

The trial court in its judgment expressly found that the area referred to in plaintiffs’ pleadings as a “purported road” and in defendants’ pleadings as a “public road” was dedicated to the public use, that there had been no abandonment of this public use, and that plaintiffs have not acquired by limitation or by the provisions of Article 6703a, V.A.T.S. any rights or title adverse to the public with respect to such area, and that defendants are entitled to possession of such area for public uses and purposes. The court further specifically set out the bounds of such road area as “A strip of land forty (40) feet in width extending from what is now known as the Alcoa Drive to the bay shore of Chocolate and Lavaca Bays, and extending twenty (20) feet on each side of the common boundary line of the Maximo Sanchez and Samuel Shupe original grants in Calhoun County, Texas.”

The court on the basis of the verdict and the above findings set aside the temporary injunction it had theretofore issued enjoining county from taking possession of said road area, and denied plaintiffs’ suit for in-junctive relief against county as to such road area. It is from this portion of the judgment that plaintiffs have appealed.

Plaintiffs by their first and second points assign as error the court’s finding that plaintiffs did not acquire by adverse possession or by limitation or by the provisions of Article 6703a, V.A.T.S., any rights or title adverse to the public with respect to the road area. In this connection plaintiffs do not assign by any point of error any question of factual or legal sufficiency of evidence to support the jury’s finding in answer to special issue No. 7 that the area indicated on the maps of the subdivision and proceeding northwesterly from the “Reservation” area had been dedicated to the public use as a road.

Article 6703a, adopted in 1955, reads as follows:

“Whenever the use of a county road has become so infrequent that the adjoining land owner or owners have enclosed said road with a fence and said road has been continuously under fence for a period of twenty (20) years or more, the public shall have no further easement or right to use said road unless and until said road is re-established in the same manner as required for the establishment of a new road; this Act shall not apply to roads to a Cemetery or Cemeteries; provided however, that this Act shall not apply to access roads reasonably necessary to reach adjoining land. Added Acts 1955, 54th Leg., p. 1625, ch. 525, § 1.”

The jury found (Issue 2, supra) that the plaintiffs have had the area claimed as a roadway enclosed with a fence for a continuous period of 20 years or more prior to the filing of this suit. However, the jury also answered (No. 8) that the “Reservation Area” was dedicated to public use, which finding we have upheld in the first section of this opinion, and (3) that the road here in dispute is reasonably necessary to reach the Reservation area shown on the map, or other lands adjacent to such road. The so-called Reservation area, discussed earlier in this opinion, is the only land adjoining the road in which the public is shown to have any interest or rights. Furthermore, plaintiffs do not claim or hold record title to this “Reservation” area; their onjy claim is by virtue of their prior possession, as heretofore discussed.

Hence, it is clear that the proviso at the end of the statute governs this situation, and that Article 6703a is no’t applicable.

As to plaintiffs’ contention of adverse possession, limitation, and in their third point of error abandonment, the same legal principles apply as we have heretofore discussed in the first section of this opinion. All of said contentions are overruled.

Plaintiffs’ fourth point of error reads:

“The Court erred in overruling Plaintiffs’ written objections to the Court’s Charge and Special Issues therein contained. (Germane to Ground No. Ill, No. IV and No. V, Amended Motion for New Trial.)
FIFTH POINT: The Court erred in rendering judgment based on the jury’s answer to Special Issue No. 7 because it was a submission of question of law.
“SPECIAL ISSUE NO. 7
“Do you find from a preponderance of the evidence that the land between parallel lines indicated on the maps recorded in Volume Z, Page 57, and Volume T, Pages 2 and 3, of the Deed Records of Calhoun County, Texas, and proceeding northwesterly from the area marked on such maps as ‘Reservation’, was dedicated to public use as a road ?
Answer ‘Yes’ or ‘No’.
We the jury answer Yes.
(Germane to Ground No. Ill, No. IV and No. V, Amended Motion for New Trial.)”

Assignment No. Ill in the amended'motion for new trial reads exactly as their fourth point. The fifth point is copied verbatim from their fourth assignment. The fifth ground of the amended motion complains of certain findings of the trial court.

Plaintiffs’ objections to the court’s charge were rather lengthy, and occupy five full pages of the transcript. Clearly, the fourth point and the assignments in the amended motion for new trial are insufficient to meet the requirements of Rules 321, 322, 374, and 418, Texas Rules of Civil Procedure, and need not be considered. Garza v. Alviar, Tex.Sup.Ct., 395 S.W.2d 821; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, 891; Isenhower v. Bell, Tex.Sup.Ct., 365 S.W.2d 354; Big Three Welding Equipment Company v. Roberts, Tex.Civ.App., 399 S.W.2d 912, 918, wr. ref. n. r. e.; Holzapfel v. Brueggman, Tex.Civ.App., 404 S.W.2d 916, 919, wr. ref. n. r. e.

These two points are argued together by plaintiffs, and their only contention of error in their statement and argument is that issue No. 7 wrongfully submits a question of law to the jury. Plaintiffs in their statement and argument do not consider or even mention the definition of the term “dedication” given in connection with issues 7 and 8, nor do they contend by any point of error that said definition was erroneous. The evidence raised an issue of fact as to whether or not the property in controversy had been dedicated to public use as a road. We hold that issue No. 7, when considered along with the definition of dedication included in the charge, submitted an issue of fact. The fourth point is not sufficiently definite to be considered, but in view of the joint statement and argument with fifth point, we overrule both.

In their third point, plaintiffs assign as error the portion of the judgment wherein the trial court defined the dedicated roadway as being forty feet in width, i.e., twenty feet on each side of the common boundary line of the Sanches and Shupe grants, and extending from what is now known as Alcoa Drive to the bay. They contend that there was no pleading or proof of the width or exact location of the road, or that the road if dedicated had been accepted by Calhoun County.

As to the charge that the designation of the roadway as made in the judgment was not authorized by the pleadings, defendants plead that the roadway in dispute was a part of the Port Lavaca Development Company Subdivision of the Samuel Shupe and Maxi-mo Sanches Leagues in Calhoun County, Texas, that the roadway is shown on said plats; that the conveyances through which plaintiffs claim title are based on said plats, as well as all conveyances of other land in the subdivision; that the roadway as shown on said plat was dedicated to public use, and that said roadway gave the public access to the reserved area, and to the bay shore.

Defendants relied upon the plats as well as oral testimony to establish dedication. The area claimed is the same as the roadway evidenced on the plats. There was considerable documentary evidence showing the location of the various tracts in this subdivision as platted. There was testimony by defendants’ witnesses that a roadway now known as Alcoa Drive, of which this disputed road would be an extension from the northwest corner of Block 32 to the bay and “reserved area,” was originally forty feet in width. A Highway Department map showing the widening of Alcoa Drive in 1962 was introduced. This map shows that the common boundary line of the Shupe and Sanches surveys is the center line of the road. Both plats in evidence show the common boundary line of the Shupe and Sanch-es grants to be the center line of the disputed roadway. The jury, in answer to special issue No. 7, found that the area shown on the recorded plats between the parallel lines was dedicated to the public use as a road. As heretofore stated, the plaintiffs do not by any point of error question the sufficiency of the evidence to support such jury finding. We therefore conclude that the trial court did not err in fixing the extent and boundaries of the dedicated roadway.

Plaintiffs assert that there being no acceptance by or order of the County Commissioners Court authorizing the claimed subdivision or dedication, the maps or plats on which defendants depend should not have been recorded, and are without any evidentiary value, relying on Art. 6626, V. A.T.S. As held in Trawalter v. Schaefer, 142 Tex. 521, 179 S.W.2d 765, the portion of Article 6626 requiring plats of subdivision of real property to be approved by the Commissioners Court before they should be filed and recorded was added in 1931, and before that date there was no such requirement. These plats relied on by defendant, being their exhibits 7 and 8, were prepared and filed, the first in 1893, and the second in 1904. In this instance the dedication made by the subdividers inured to the benefit of all owners of the subdivision, and there was no necessity for an acceptance, as the rights vested in the purchasers of the blocks, and through them to the public, irrevocably. Maisen v. Maxey, Tex.Civ.App., 233 S.W.2d 309, wr. ref. n. r. e.

We have carefully considered all of plaintiffs’ points of error, and find no reversible error as to any of them. The judgment of the trial court is reversed and rendered as to the portion appealed from by County-defendants, and it is affirmed as to that portion appealed from by Wilson-plaintiffs. All costs of the trial court and of the appeal are assessed against plaintiffs.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Lloyd H. SMITH et al., Appellants, v. Weaver MOORE et al., Appellees.
    No. 14997.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 29, 1968.
    Rehearing Denied March 28, 1968.

      Hutcheson, Taliaferro & Hutcheson, Thad T. Hutcheson, John D. Roady, Thomas N. Crowell, Houston, for appellants.
    Cleaves & Cleaves, Wilbur S. Cleaves, Houston, for appellees, Mrs. Sadie C. Blaf-fer and others.
    Williams, Lee & Lee, Jesse J. Lee, James W. Lee, Houston, for appellees, Weaver Moore and others.
    Butler, Binion, Rice, Cook & Knapp, Jack Binion, William C. Perry, Claude C. Roberts, Houston, for appellees, The Houston Post Co. and Mrs. Oveta Culp Hobby.
   PEDEN, Justice.

The plaintiffs sought a declaratory judgment holding that certain building and use restrictions embodied in a recorded instrument called the “Agreement Creating Sha-dyside,” and incorporated by reference in the original conveyances of lots in the subdivision, are of permanent or indefinite duration (at least until there is an abandonment or waiver of them or a substantial change of conditions so as to make them unenforceable). Alternatively, they asked that the owners of a majority of the lots be declared authorized to amend, alter or extend the duration of the restrictions. Some of the defendants sought a declaratory judgment holding that the restrictions expire on June 30, 1969. They also sought other relief, as will be set out.

Trial was held without a jury. From a judgment entered for defendants on the points which we have listed, plaintiffs filed their appeal.

We will refer to the parties by their trial court designations. Some of those named as parties defendant did not actively participate in the trial and do not appeal from the judgment; we will henceforth refer only to the active participants when we use the term “defendants”.

Shadyside is a highly exclusive residential subdivision. Montrose Boulevard, South Main Street and Hermann Park border it on the east; Bissonnet Street, the Museum of Fine Arts, the Warwick Hotel and the Mecom Fountain are just north of it, and Rice University adjoins it on the south. The residential areas west of Sha-dyside are separated from it by a 30-foot-wide strip of large plantings. Its interior streets and sidewalks are privately held in trust for the owners of its lots.

Shadyside was developed by Mr. J. S. Cullinan, a business and civic leader, who bought the land from Mr. George Her-mann’s estate in 1916, and donated part of it for the Art Museum and the Sunken Garden (site of the Mecom Fountain). He built his own imposing home in Shadyside. He conveyed almost all of the other lots to friends and to members of his family.

The agreement creating Shadyside was filed for record in the Harris County Clerk’s office on September 29, 1919. Since the decision in this case turns upon its interpretation, we will set it out here; the letters in the left margin have been added for easy reference:

Agreement Creating
SHADYSIDE
(A.) THIS TRUST AGREEMENT AND CONVEYANCE, made at Houston, Texas, as of date July 1, 1919, between J. S. Cullinan, a citizen and resident of Houston, Texas, (hereinafter called Grantor) party of the first part;
(B.) W. W. MOORE, HENRY STUDE and H. A. KIPP, all citizens and residents of Houston, Texas, (hereinafter called Trustees) parties of the second part, and
(C.) CERTAIN BENEFICIARIES, who are now or shall hereafter become parties hereto in the manner herein provided, (hereinafter called Lot Owners) parties of the third part.
(D.) WHEREAS, said Grantor is possessed and seized in fee simple of two certain tracts of land, hereafter to be known as SHADYSIDE, situated within corporate limits of the City of Houston, being hereinafter fully described, and which said Grantor has determined shall be subdivided into residence lots, roadways, etc., with characteristics as shown upon the map thereof, copy of which is hereto attached and made part hereof; and being desirous of making provisions for administration of the properties and of creating certain restrictions in regard to the lots therein;
(E.) NOW THEREFORE, in consideration of the premises and of one dollar in hand paid by said Trus tees, receipt of which is hereby acknowledged, and for the further purpose of creating a Trust as hereinafter defined, I, the said Grantor, J. S. Cullinan, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said Trustees above named, and to their successors as such, all as joint tenants and not as tenants in common, as long as this Trust shall endure, subject in all respects to the further terms of this instrument, all and singular the following property, to wit: Two tracts of land situated within the corporate limits of Houston, Harris County, Texas:
(F.) FIRST TRACT: Consisting of about thirty-six (36) acres of the Jos. Gamble Survey, fully described in a deed to said Grantor, recorded in Book 3S9, page 330, of Deed Records of said County;
(G.) SECOND TRACT: One and One-tenth (1.1) acres of the O. Smith Survey, being fully described in a deed to said Grantor, recorded in Book 429, page 485, of the Deed Records of said County; to which deed and the records thereof reference is hereby made for precise description; provided, however, that of said property there is expected from this conveyance and reserved to the Grantor, title to each and all of the twenty-four lots designated by letters upon said map from A to X, both inclusive, but in respect to such lots certain restrictions are provided and shall apply as hereinafter set forth. (There is also excepted from this conveyance the strip of litigated land which, under the terms of Grantors purchase, he became entitled to acquire when hi's grantors shall have established their claim to the same).
(H.) TO HAVE AND TO HOLD, all and singular the above described premises, together with all improvements and appurtenances thereto incident and belonging unto the said Trustees, their successors and assigns, as joint tenants and not as tenants in common, as aforesaid, and to their proper use and behoof so long as this Trust shall endure; all, however, to be so held in trust for the uses, intents, and purposes, and subject to the terms, restrictions, and conditions hereof as follows :
1. This Trust shall endure during the lifetime of the last survivor of the three Trustees named herein, and for twenty-one years thereafter; not, however, to exceed the period ending June 30, 1969.
2. The beneficiaries hereunder are those who now or may hereafter own one or more of the lots in Shadyside, such lots being twenty-four in number, each designated with a letter of the alphabet serially from A to X, both inclusive; and in all things pertaining to this Trust one vote shall be allowed to the owner thereof for each such lot, and in every instance a majority of the votes shall prevail. All rights as a beneficiary hereunder shall pass with title and as incident thereto without further acts of any parties.
3. The duties of Trustees shall be to hold title to and administer the properties vested in them, and to keep proper records and accounts of all things pertaining to the Trust.
4. The Trustees severally shall hold their positions as such until their respective successors shall be properly designated and qualified. Vacancies shall be created by death, resignation, or removal of residence from Harris County. Upon occurrence of any vacancy, a successor Trustee shall be named by the remaining Trustee or Trustees by instrument in writing duly acknowledged for record, and if expedient such shall be signed by the old Trustee, and must be signed by the successor as well as by the other or others, and such signature by the successor Trustee shall constitute qualification and thereupon he shall succeed to every right, interest and authority of his predecessor to the same effect as if named as one of the original Trustees.
5. The wishes of a majority of Lot Owners (counting one vote for each lot) expressed in writing, or otherwise, shall be binding upon the Trustees in the matter of naming successor Trustees and upon any question of policy which may arise in the administration of the Trust. If all positions of Trustees shall become vacant, the Lot Owners shall have authority in like manner in writing to name successors.
6. The Trustees shall act by majority, and may appoint officers and agents, and define and delegate the duties of such, and make provision for expenditure for the benefit of the Trust any moneys which may come into their hands in any manner.
7. By ownership of or succeeding to title to a lot, such owner shall thereby become a beneficiary and party herein, and be deemed thereby to have promised and shall become liable to pay to the Trustees any and all such assessments as they may from time to time levy upon the lots in raising funds for the purposes of the Trust, and all such shall be deemed part of the purchase money for such lots respectively, and the same shall stand as security therefor pro rata, and each lot and owner thereof to be thus liable for one twenty-fourth of the whole amount or amounts which shall from time to time be so levied.
8. Trustees shall have control and direction of all the roadways, sidewalks, esplanades, or other areas to which they hold title, and may direct and prescribe the character, construction, and maintenance of all improvements thereon, consisting of planting, paving, curbing, sidewalks, street lighting, or other kinds.
9. Upon each of the several residence lots is a central or interior area, separately colored upon the map, which shall be deemed the Building Space, and coincident with the outer lines and around such building space, and otherwise colored on said map, is a Planting Space; the dimensions of said Building Space and Planting Space being further shown in feet. All buildings and other overhead structures shall in every case be confined to such Building Space, and no such shall be erected on the Planting Space.
10. There shall be but one home erected o'n each lot, the construction of which shall be commenced within two years from the date of sale of such lot.
11. Where the owner of two or more lots desires to use them for a single residence site, the Trustees are authorized to eliminate the building lines adjacent and parallel to the present dividing lines between the combined lots.
12. Pole lines or overhead wires may be erected on a space five feet in width along the West line of the larger tract, but no such shall be permitted on any other portion of said premises; but in lieu of such, underground conduits for wires, and pipes for water, gas, etc., shall be provided and located on each lot in the space reserve therefor, as shown on the map of Shady-side, and the Trustees shall have authority to construct the same, or to grant easements and reasonable terms for all such, and provide for uses thereof. Lot owners shall in every case make provision for proper continuation of all such for use upon their own premises.
13. The Trustees shall not have power to bind or to obligate themselves or the present or future Lot Owners personally, and in every written contract into which they may enter this fact shall be appropriately recited, and such contract shall refer to the terms and limitations of this instrument in these respects and the other party or parties to such contract shall agree not to look to such Trustees, or either of them personally, nor to the Lot Owners, or either of them personally, but to the properties only, such as may be held by the Trustees for any enforcement of such contract and the consequences thereof legally or otherwise.
14. Any Trustee may be or become a Lot Owner and may have and exercise all privileges and benefits of such to the same extent in the same manner as any other Lot Owner and may cease to be such, all without in any manner affecting or impairing his position as Trustee.
15. The Trustees shall serve without personal compensation, but shall be entitled to charge against the properties any expense or liability of any kind which they may have legally incurred, and it is expressly agreed that in no event shall any Trustee be held liable for any act or for consequences of such, provided only he shall not have so acted in bad faith.
16. That the right and privilege to frequent, use, and enjoy the property herein conveyed shall be an easement attached to each and every of the said twenty-four plots of land, and passing as appurtenant thereto; and to be had, held, and enjoyed in the manner aforesaid by the Owners of the said lots, as well as the person or persons from time to time owning the same, and their respective families occupying the same, provided they shall make the annual payments before provided for and observe such regulations as aforesaid, but not otherwise.
17. No business house or houses, saloon, hospital, public boarding house, place of public entertainment, store, livery stable, or other place of business or public resort, shall ever be erected on any part of said land, nor shall any telegraph, telephone or electric light poles or overhead structures ever be erected on any part of said property except on a space five feet in width along the West line of the larger tract.
18. IT IS FURTHER PROVIDED, DECLARED AND AGREED that if Grantor, his heirs, executors, or assigns, hereafter owning any of the said twenty-four lots, shall infringe or attempt to infringe, or omit to perform any of the covenants, conditions, or restrictions herein contained relating to such lots or to any other premises herein described, or to the use and improvement of the same, it shall be lawful for the said Trustees for the time being in behalf and for the benefit of either themselves and the owners of the said lots, or for any or either of them, to prosecute any proceedings at law or in equity against the person or persons in-: fringing or attempting to infringe, or omitting to perform such covenants, conditions, or restrictions, and either to prevent him or them from doing so, or to recover damages or other dues for such infringements or omissions.
19. IT IS FURTHER EXPRESSLY PROVIDED that the title to all the property included in this Trust shall, at its expiration, however terminated, be vested in the City of Houston for the use of the public, unless it shall then be otherwise provided by the Trustees, acting under the direction and by authority of the owner or owners of a majority in number of all the said lots.
(I.) And the Trustees, and each for himself, do hereby accept the aforesaid conveyance and trust, and covenant to perform the same; provided, and it is understood, that they and their successors from time to time may employ as the expense of such Trust, such collector or accountant, or other agent or agents, as may be found necessary to attend to and perform the details of the said trusts and powers; and provided, further, that they and their successors in the said trusts shall each be responsible only for his own acts or willful defaults, if any, and not one for the other or others.
(J.) IN WITNESS WHEREOF, the said parties have hereto interchangeably set their hands and seals the day and year first above written.
Witnesses:
(Sgd) B. W. WARD
(Sgd) CECILIA FINNIGAN
(Sgd) I. S. CULLINAN
Grantor
(Sgd) W. W. MOORE
(Sgd) HENRY STUPE
(Sgd) H. A. KIPP
Trustees

Acknowledgments in proper form were attached.

Without question the contingencies which might have caused the termination of the trust before June 30, 1969, have not occurred.

Plaintiffs’ first point of error complains of the “error of the Court in finding and declaring as a matter of law that the Agreement Creating Shadyside and the related original deeds to lot owners provide for termination of the building and use restrictions on June 30, 1969, and in failing to find and declare that such restrictions are of perpetual or indefinite duration.”

The judgment of the trial court recites that the meaning, interpretation and construction of the Agreement Creating Shadyside relating to the duration of the building and use restrictions and to the authority and duties of the trustees can be and have been resolved and determined by consideration of the Agreement as a whole and without reference to extrinsic or parol evidence. Further, that the intent with respect to any such matter is manifested by. and from within the Agreement itself. From this it is clear that the trial judge found no ambiguity in the Agreement concerning the duration of the building and use restrictions or concerning the authority and duties of the trustees. We agree, and the basic position (defendants plead ambiguity in the alternative) of all the parties to this appeal is also in agreement as to this lack of ambiguity. Since the Agreement is not ambiguous, we do not apply the rule of strict construction of a deed against the grantor. Arnold v. Ashbel Smith Land Co., 307 S.W.2d 818 (Tex.Civ.App., 1957, writ ref., n. r. e.); Citizens National Bank in Abilene v. Texas & P. R. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941); Wald v. West MacGregor Protective Association, 322 S.W.2d 338 (Tex.Civ.App., 1960, writ ref., n. r. e.).

The Agreement Creating Shadyside is principally, but not entirely, a trust instrument; the cardinal principle to be observed in construing a trust instrument is to ascertain the settlor’s intent with the view of effectuating it.

It is stated in 57 Tex.Jur.2d, § 29, Trusts:

In construing an instrument purporting to create a trust the rules for the interpretation of deeds, wills and other written instruments are followed. Where the court is concerned with the construction of a written instrument, the intention must be determined from the language of the instrument and the circumstances surrounding its execution. In construing the trust the intention of the settlor at the time of its creation is controlling.

And we note in 13 Tex.Jur.2d, § 113, Contracts :

A contract must be read, considered, and construed as an entirety, so that all provisions of the agreement will be taken into consideration and construed together to ascertain the meaning and effect of the instrument. In other words, the entire instrument, taken by its four corners, must be read and considered to determine the true intention of the parties. Therefore, as a general rule it will not be proper to rely on a single clause or paragraph alone, when attempting to ascertain the meaning of the agreement. On the contrary, each clause or paragraph must be construed with reference to every other paragraph, so that the effect of one paragraph on the other paragraphs may be clearly determined. Furthermore, no presumption may be predicated on a particular provision if the presumption is at odds with the effect of the other provisions of the agreement. However, the intent of the parties concerning a particular matter may be determined from one paragraph only if it appears that that paragraph alone deals with the matter, and that the remaining provisions of the contract are concerned with completely different matters.
When applying the principles set forth above, the presumption that every provision in the agreement was placed therein for a particular purpose must always be kept in mind. The court has no right to nullify any terms of the agreement, on the contrary, where possible a construction should be placed on the agreement that will give effect to all of its provisions, so as to avoid the adoption of a construction that would render any provision meaningless. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951).

The Supreme Court stated in Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513, 86 A.L.R.2d 105 (1961), that it must seek the intention of the settlor of a trust as it existed at the time the trust was created. “Where as here the court is concerned with the construction of a written instrument and the right to reformation, recission or other equitable relief is not in issue, the intention of the parties must be determined from the language of the instrument and the circumstances surrounding its execution.”

The Agreement provides in paragraph 1. that the plan for maintenance of the areas conveyed to the trustees shall terminate not later than June 30, 1969, but we find no direct connection between the date of termination of the trust and the building and use restrictions. The only direct statement as to the duration of such restrictions is found in item 17, which states in part: “No business house or houses, * * * shall ever be erected on any part of said land, * * * ” This provision for unlimited duration of the restriction would not be controlling if Mr. Cullinan had elsewhere fixed a date of termination of the restrictions. In that event we would interpret item 17 as meaning that no business house should ever be erected while the restrictions were in effect.

But there is no express provision in the Agreement for a termination date of the restrictions. In the case of Morton v. Sayles, 304 S.W.2d 759 (Tex.Civ.App., 1957, writ ref., n. r. e.), it was held that restrictions whose duration was not expressed were covenants running with the land and were to run forever.

Defendants assert that the entire Agreement should be considered as a trust and thus all its provisions governed by the time limitations of the trust. A closely related problem is that of determining whether Mr. Cullinan’s intention in having this instrument prepared (with his attorney’s advice) was to set up his comprehensive plan for the development and enjoyment by the owners of the lots in Shadyside subdivision as a trust with all its provisions to terminate with the trust. Or did he cause trust provisions and restrictions to be mingled in contemplation that the trust would expire but the restrictions would not? It is clear that he understood that a trust could not endure forever. Did he intend in paragraph 17 to nullify the meaning of the words “no business house or houses shall ever * * * ” simply because he included such restrictions in an instrument largely concerned with trust provisions? We think he did not. He seems to have been articulate and could have used words such as “so long as this trust shall endure” if he had wanted to thus limit the duration of the restrictions.

The Agreement Creating Shadyside begins: “THIS TRUST AGREEMENT AND CONVEYANCE * * *” This sounds like Mr. Cullinan had in mind only a trust indenture, but the purpose clause (paragraph D) of the Agreement recites that the Grantor: 1) has determined that the property in question shall be subdivided in a certain described way, 2) is “desirous of making provisions for administration of the properties, 3) and of creating certain restrictions in regard to the lots therein.”

Attention is called to the recital in the granting clause (paragraphs E, F and G) that the conveyance of certain areas to the trustees is for “as long as this Trust shall endure”; also to the fact that there is excepted from the conveyance to the trustees and reserved to the grantor title to each of the twenty-four lots designated on an attached plat and in respect to said lots restrictions are to be provided.

The habendum clause (paragraph H) states that the land subject to the trust is to be held by the trustees “so long as this trust shall endure”; and recites “all, however, to be so held in trust for the uses, intents and purposes, and subject to the terms, restrictions, and conditions hereof as follows: * * * ” Defendants, appellees here, assert that the latter provision means that the terms, restrictions and conditions “hereof” are to be concurrent with the duration of the general plan or scheme (“so long as the trust shall endure”). We believe that paragraph H merely provides that the trustees are to hold the described premises (the lots were excluded) in trust subject to the nineteen provisions which are then listed and that they are to do so for so long as the trust shall endure. Paragraph H does not limit the term of the restrictions, but it makes the trust subject to them while it is in effect.

Defendants assert that the provision in paragraph 18 that it shall be lawful for the said “Trustees for the time being” to prosecute proceedings in support of the covenants, conditions or restrictions of the Agreement merely refers to those trustees who are'then in office and permits them to enforce the Agreement. We hold that this provision indicates that the settlor intended for the trustees to have access to the courts in their capacities as trustees while the trust was in effect to enforce the Agreement. A trustee who did not own a lot could not enforce restrictions inv the absence of such authorization. Wald v. West MacGregor Protective Association, supra.

No time limitation is expressed in paragraphs 9, 10, 11 and 12. The holding in Morton v. Sayles, supra, which we have quoted, is applicable here. We believe that the requirement in paragraph 10 that construction be begun within two years was intended to apply only to the original sales by the subdivider.

Most of the Agreement is concerned with the details of the trust, but building and use restrictions do not require lengthy provisions. We think that Mr. Cullinan intended to create a trust which would last for as long as the r law would permit, plus restrictions whose duration would not be limited by the rule against perpetuities.

We sustain plaintiffs’ first point.

Plaintiffs’ second point of error reads:

Error of the Court in failing to consider, in arriving at its construction of the Agreement Creating Shadyside, and related original deeds, parol or extrinsic evidence for the purpose of applying the language to the surrounding and existing circumstances and to the subject matter with which the Agreement dealt, in order to determine the intent of the parties to the Agreement on the matters in controversy. .

We have indicated in this opinion that we have taken into consideration evidence of the circumstances surrounding the execution of the Agreement and evidence concerning the property to which it applies. The admissibility of this type of evidence does not seem to be in doubt if the instrument in question is ambiguous on its face. The plaintiffs assert that although the instrument is not ambiguous such evidence is properly considered for the limited purpose of aiding the court in the construction of the Agreement.

Texas authorities seem not entirely consistent on this point. In Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579 (1938), no suggestion is made that the agreements were ambiguous, and it was held: “It is proper to consider parol testimony as to the circumstances surrounding the parties out of which the contracts grew, not to add to or vary their terms, but to apply the contracts to the subjects with which they deal for the purpose of ascertaining the real intention of the parties.” Note that Ryan v. Kent, 36 S.W.2d 1007 (Tex.Com.App., 1931, judg. adopted), is cited as authority for this point.

But in Anderson and Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217 (1940), the case of Ryan v. Kent is cited as authority for the statement that when an instrument is ambiguous the intention is to be ascertained not solely from the words of the instrument, hut from the language when read in the light of the circumstances surrounding the transaction. The opinion then states, however, that such rule plainly implies that when the instrument is not ambiguous, the intention of the parties is to be ascertained by the court as a matter of law from the language used in the writing and without aid from evidence as to the attending circumstances. Ryan v. Kent, supra, holds, however, that in ascertaining the parties’ intent (mineral lease) we may look to the surrounding circumstances when the contract was entered into, the situation of the parties, and of the subject matter of the instrument, and this regardless of whether the language used in said contract be ambiguous. The opinion explained that the effect of the evidence was not to vary the language employed, but merely to explain the sense in which the writer understood it.

Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781 (1956), cites Ryan v. Kent, supra, in admitting evidence as to the striking of certain clauses from a lease even though it was not ambiguous.

We have already quoted from Cutrer v. Cutrer, supra, on this point.

We have held in Pardo v. Southampton Civic Club, 239 S.W.2d 141 (Tex.Civ.App., 1951, writ ref.), and in Wald v. West MacGregor Protective Association, supra, that such parol evidence is admissible to show intent of the grantor in the construction of restrictions.

“On principle, every writing should be read in the light of conditions and events bearing on its origin, no matter how clear it seems in the abstract. Indeed it cannot be considered in a void, as if it had no factual context.” 2 McCormick and Ray, Texas Law of Evidence 536, § 1685 (2d ed. 1956).

In Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631 (Tex.Sup.1963), a case in which the contract in question was not found to be ambiguous, it was held that consideration may be given to the subject matter of the contract and the surrounding facts and circumstances, not for the purpose of varying or adding to the contract but in order to find out the intention with which words are used.

We sustain plaintiffs’ second point.

Plaintiffs’ third point is:

Error of the court in finding and holding that, if it was correct in its conclusion that the restrictions terminate on June 30, 1969, the Agreement Creating Shadyside And The Related Deeds to Lot Owners did not provide for amendment, alteration or extension of such restrictions by action of the owners of only a majority of lots in Shadyside.

Plaintiffs state that they raise this point only in the event their first point is overruled. Defendants’ second counterpoint asserts that the judgment of the trial court was correct in so holding. Defendants’ submission of this point is not conditioned on our ruling on plaintiffs’ first point. We are of the view that the judgment was correct on this point.

Defendants’ other two counterpoints are directed to the same holdings as plaintiffs’ points (in different order), so our rulings on plaintiffs’ points constitute an overruling of defendants’ first and third counterpoints.

Defendants’ Appeal

Certain defendants have filed their cross-appeal from the holdings in the trial court’s judgment: 1) that the use and building restrictions applicable to Shady-side would not now be unreasonable if the Agreement Creating Shadyside were to be legally construed to provide for restrictions of perpetual or indefinite duration, and 2) that such restrictions are enforceable in all respects until their termination on June 30, 1969.

Defendants assert that the declarations of which they complain are in the nature of advisory opinions and are beyond the proper scope of the judgment. We hold that the first declaration in question is a finding of fact and the second is a conclusion of law by the trial judge, who being mindful of the advantage in having sufficient findings so that this cause could be disposed of on appeal without a remand, incorporated them in the judgment.

Defendants also state that such declarations depend in part on assumptions which are either inconsistent with the major portions of the judgment or with the facts. We have carefully reviewed the judgment and the evidence, and we overrule both of defendants’ counterpoints. We conclude that there is sufficient evidence to support the trial court’s finding that the restrictions would not now be unreasonable if the Agreement were to be construed to provide for their perpetual duration. Sayles v. Morton, supra. However, we hold that the effect of the trial court’s declaration recited in defendants’ second point or error is that such restrictions are enforceable until June 30, 1969, in the absence of any waiver, abandonment or material change of conditions affecting Shadyside.

The judgment of the Trial Court with respect to the questions raised on this appeal by plaintiffs, Lloyd H. Smith et al, as to the duration of the restrictions and as to the considering of parol or extrinsic evidence is reversed and rendered; the judgment with respect to the questions raised by defendants, Weaver Moore et al, is affirmed.

O.n Motions for Rehearing

While we stated in our original opinion: “We think that Mr. Cullinan intended to create a trust which would last for as long as the law would permit, plus restrictions whose duration would not be limited by the rule against perpetuities”, it would be more accurate to state: We think that Mr. Cullinan intended to create a trust whose duration was within the limits prescribed by the rule against perpetuities and also restrictions whose duration would not be so limited.

The motions for rehearing are overruled.


author: MOORE, Justice.

text:
    Vernon HEDGE et ux., Appellants, v. George A. BRYAN, Jr., Appellee.
    No. 270.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 29, 1968.
    Rehearing Denied March 28, 1968.

      Richard W. Fairchild, Nacogdoches, for appellants.
    Ramey, Brelsford, Flock & Devereux, Richard Grainger, Tyler, for appellee.
   MOORE, Justice.

Plaintiffs, Vernon Hedge and wife, Martha Hedge, brought suit against defendant, George A. Bryan, Jr., to recover damages for personal injuries sustained by Martha Hedge on January 31, 1964, when the automobile driven by Bryan collided with the automobile driven by Mrs. Hedge while she was stopped at a street intersection in obedience to a traffic light. Plaintiffs alleged in their petition that Mrs. Hedge sustained personal injuries as a result of the collision which were proximately caused by numerous acts of negligence on the part of Bryan. Prior to trial, plaintiffs waived their claim for property damage and sought damages only for personal injuries sustained by Mrs. Hedge. Defendant Bryan denied generally the allegations of plaintiffs’ petition and invoked the doctrine of sudden emergency, and in the alternative, alleged that the collision was the result of an unavoidable accident.

Trial was before a jury. In response to the special issues, the jury found Bryan guilty of negligence in failing to keep a proper lookout, which was a proximate cause of the collision, but exonerated Bryan on all other acts of negligence. The jury further found that Bryan was not acting in an emergency and that the collision was not the result of an unavoidable accident. In response to Special Issue No. 11, inquiring as to whether or not Mrs. Hedge was injured as a result of the collision, the jury answered “We do not.” Immediately following that issue, the court submitted the issue of damages for personal injuries in Special Issue No. 12. In connection with the damage issue, however, the court, without objection, instructed the jury that they were to answer Special Issue No. 12 only in the event they had answered Special Issue No. 11 in the affirmative. Consequently, in view of their answer to Special Issue No. 11, the jury did not answer Special Issue No. 12. Based upon the verdict, the trial court rendered a take-nothing judgment against the plaintiffs, and after their amended motion for a new trial had been overruled, plaintiffs duly perfected this appeal. The parties will hereinafter be referred to as “appellants” and “appellee.”

By their first point of error, appellants say that the trial court erred in refusing to grant their motion for new trial because counsel for appellee judicially admitted Mrs. Hedge was injured by stating in his closing argument to the jury that she was injured and there was no way the jury could answer Special Issue No. 11 except by a “We do” answer.

In connection with this point, as well as other points subsequently to be discussed, it should be pointed out that even though the evidence shows without dispute that Mrs. Hedge had suffered a previous back injury, appellants did not plead aggravation of such injury nor did the court define the term injury or instruct the jury with reference to aggravation of previous injuries or infirmities. The question before the jury was simply whether or not Mrs. Hedge sustained an injury as a result of the collision.

The general rule is that in order for a statement to constitute a judicial admission, it must be (1) clear, deliberate and unequivocal and (2) it must be a statement of fact, rather than opinion. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App., 1951, writ ref.); Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415.

While the record shows that counsel for appellee did, at one point in his argument, tell the jury that the evidence was such that he felt the jury was required to make a “We do” answer to Special Issue No. 11, yet in other portions of his argument, the record shows that he vigorously denied that Mrs. Hedge sustained any injury. Under these circumstances, it appears that we are confronted here with a situation somewhat similar to the situation where a witness gives contradictory testimony. In that situation, the general rule is that such testimonial declarations of a party will not be given the effect of a judicial admission, if they merely contradict some other portions of his testimony. Stafford v. Wilkinson, 157 Tex. 483, 304 S.W.2d 364. The obvious reason is that such contradictory statements would not be sufficient to satisfy the requirement that the statement must be unequivocal. Consequently, we think the same rule must be applied here and since the attorney’s remarks were contradicted in other portions of his argument, the statements made with reference to Special Issue No. 11 cannot be said to be unequivocal. Moreover, it occurs to us that the statement and remarks of counsel with reference to Special Issue No. 11 were nothing more than an opinion based upon the evidence adduced by appellants and as such did not amount to a stipulation or a statement of fact. The point is overruled.

By their second point of error, appellants contend that the jury’s answer to Special Issue No. 11 is so contrary to the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. In passing on this point, we have been required to review and weigh all of the testimony in the record. Briefly, the evidence shows that at the time of the collision, appellant, Martha Hedge, was twenty-three years of age and was a student at Stephen F. Austin College in Nacogdoches, Texas. Immediately before the collision, she was alone in her Volkswagen automobile and had stopped in obedience to a traffic light on North Street facing in a southerly direction. Appellee, George A. Bryan, Jr., was proceeding in a northerly direction on said North Street and was in the process of crossing through the intersection where Starr Street intersected North Street at right angles. He testified that he was driving between 30 and 40 miles per hour. After he had passed under the light at the Starr Street intersection and was about half way into the intersection, he looked up and saw a car pulling into North Street in front of him from the east on Starr Street. He testified that he started to hit his brakes, but realized that if he did, he would hit the car, a Pontiac, on the driver’s door, and therefore he elected to maintain his speed and try to swerve to his left so as to go in front of the Pontiac. In so doing, the left front fender of the Pontiac hit the side of the Ford station wagon which he was driving and the station wagon in turn struck the Volkswagen occupied by Mrs. Hedge. The station wagon struck the Volkswagen in the area of the left front fender, bending the same and causing a blow-out to the left front tire and damaging the left front wheel. However, the Volkswagen apparently was not extensively damaged in view of the fact that Mr. Hedge was able to drive the same home under its own power. Mrs. Hedge testified that after the accident, she was weak and shaking and hurting all over. She admitted, however, that she told Bryan and others at the scene of the collision that she was not hurt insofar as she knew. She testified that when she got home, she found bruises and scratches on her arms and legs and that on the following morning she had pain in her neck, low back and legs. She admitted in her testimony that she had sustained an injury to her back as the result of a fall on a school playground in 1958 and had since suffered with a chronic neck and back discomfort. She admitted that prior to the date of the collision, she had been treated for her previous back injuries by three different chiropractors, Dr. Golden, Dr. Martin and Dr. Dudley. She also admitted that she had received treatment from an osteopathic doctor by the name of Dr. Smith. The record reveals that prior to the collision, Mrs. Hedge had visited Dr. Dudley’s office on 37 occasions between January, 1961, and January, 1964. Her last visit to Dr. Dudley was two days prior to the collision in question. On the day following the collision, she testified that she again visited Dr. Dudley’s office for treatment to her back and neck and was treated by him until sometime in 1965 when she moved to Palestine, Texas, where she was .treated by a chiropractic doctor by the name of Dr. Bourns. She further testified that in 1966 she visited Dr. L. A. Colquitt, an orthopedic surgeon in Longview, Texas, for examination and treatment. Also in 1966, at the request of the appellee, she was examined by Dr. P. M. DeCharles in Tyler, Texas. The record reveals that upon the trial appellants called Dr. Dudley and Dr. Bourns as witnesses in their behalf, while appellee called Drs. Colquitt and DeCharles. Both Dr. Dudley and Dr. Bourns testified that in their opinion Mrs. Hedge sustained an injury as a result of the collision, while Dr. Colquitt and Dr. DeCharles testified that they were unable to find any evidence of an injury.

In the landmark case of In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we have been instructed that in determining whether or not the verdict is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, we must consider and weigh all of the evidence in the record and set aside the verdict and remand the cause for a new trial if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. The evidence in support of the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict. See In re: King’s Estate, supra.

This we have attempted to do and as a result, we have arrived at the conclusion that the evidence is such that we cannot conscientiously say that the jury’s verdict with respect to the question of injury is against the overwhelming weight and preponderance of the evidence.

By the third point of error, appellants contend that the trial court erred in failing to grant a new trial because of jury misconduct. In this connection, appellants contend that the misconduct was brought about by the suggestion of the foreman to the jury that the jury resolve the deadlock upon the question of damages as inquired about in Special Issue No. 12, by changing their answer to Special Issue No. 11 from a “We do” answer to a “We do not” answer so as to obviate the necessity of answering Special Issue No. 12.

By agreement of the parties, the cause was tried before a jury composed of only 11 jurors. According to the testimony introduced on a motion for new trial, the jury had no difficulty in answering any of the issues until they arrived at Special Issue No. 11. On their first ballot on Special Issue No. 11, the jury voted 9 to 2 for a negative answer, finding that Mrs. Hedge was not injured as a result of the collision. Thereupon an argument ensued with jurors Fields and Posey taking the position that Mrs. Hedge was entitled to some amount of damages and since the damage issue was conditioned upon an affirmative finding of injury, the jury should find that she was injured so that they could award some amount of damages. After further deliberation, the other nine jurors finally agreed to an affirmative answer to Special Issue No. 11. The jury then began their deliberations upon the question of damages. Juror Fields insisted that appellants should be awarded damages in the amount of $25,000.00, while the other jurors were of the opinion that the damages, if any, should be of a much smaller amount. The jury became hopelessly deadlocked and as a result sent a note to the trial judge advising him that they were unable to arrive at a verdict. The court advised the jury to continue its deliberations. After further deliberation upon Special Issue No. 12, juror Fields made the statement that if Mrs. Hedge was not entitled to $25,-000.00 in damages, she was not injured at all. At this point, the foreman suggested that the jury return and reconsider Special Issue No. 11, reminding the jury that under the Court’s Charge that they would not be required to answer the damage issue unless they had found that Mrs. Hedge had sustained an injury. The record shows that the jury immediately returned to Special Issue No. 11 and after some discussion unanimously agreed to a “We do not” finding to Special Issue No. 11.

The general rule is that a new trial may be granted only for overt acts of misconduct and that the mental processes by which a jury reaches its verdict will not constitute sufficient grounds for a new trial. 41 Tex.Jur.2d, Sec. 32, pages 78-79.

As we view the record, the evidence fails to show any overt act of misconduct, either on the part of the foreman or on the part of any juror. By telling the jury that they did not have to answer Special Issue No. 12 if they answered Special Issue No. 11 “We do not”, the foreman told the jury nothing that was not apparent from the charge itself. The mere suggestion that the jury could, if they so desired, reconsider Special Issue No. 11, would not constitute an overt act of misconduct. The jury was authorized to reconsider and change its ver-diet and its right to do so cannot be questioned so long as the final verdict is supported by the evidence. Menefee v. Gulf, C. & S. F. Ry. Co. (Tex.Civ.App.), 181 S.W.2d 287.

Appellants argue, however, that the circumstantial evidence is sufficient to show that the verdict was a makeshift affair, invented by the jury for the purpose of avoiding further consideration of the case and shows that the jury merely agreed to the “We do not” answer as a means of disposing of the case. We think the contention is without merit.

In the first place, there is no testimony showing that the jury collectively agreed to change their answer to Special Issue No. 11 solely for the purpose of avoiding the necessity of answering Special Issue No. 12. An essential element of this form of conduct is an agreement among the jurors to achieve a pre-conceived result. The evidence fails to show any such agreement. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; W. W. Auto Parts, Inc. v. Hyak (Tex.Civ.App.), 346 S.W.2d 919. Secondly, the question of whether the jury answered Special Issue No. 11 in the negative solely for the purpose of avoiding Special Issue No. 12 or whether they did so because they felt duty-bound to do so under the evidence would involve an inquiry into the mental processes of the jury and would constitute no evidence of this conduct. While we recognize the rule that jury misconduct may be based upon circumstantial evidence, we think the circumstantial evidence is insufficient to show misconduct because it does not exclude the hypothesis that the jury may have changed their answer to Special Issue No. 11 because they felt duty-bound to do so under the evidence. At most, the circumstances raise only a question of fact.

In overruling appellants’ motion for new trial, the trial court impliedly held that either (1) the occurrence was not tantamount to misconduct or (2) it was reasonably doubtful that the verdict had been materially affected thereby. Such ruling has support in the evidence and is binding upon this court in the absence of a clear showing of abuse of discretion. Curfman v. State (Tex.Civ.App.), 240 S.W.2d 482; State v. Wair, 172 Tex. 69, 351 S.W.2d 878.

Appellee’s cross-point challenging the sufficiency of the evidence to sustain the jury’s finding that appellee failed to keep a proper lookout is overruled.

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Manuel SOSA, Appellee.
    No. 14644.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1968.
    Rehearing Denied March 6, 1968.

      Edward R. Finck, Jr., Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Rice, Whitehead & Seely, San Antonio, for appellee.
   KLINGEMAN, Justice.

This is a workman’s compensation case. Based upon jury findings, the trial court rendered judgment for plaintiff, Manuel Sosa, for total and permanent disability under Art. 8306, Vernon’s Ann.Civ.St. The parties will be herein referred to as designated in the trial coúrt.

The jury in answer to special issues submitted to them found, among other things, that plaintiff suffered an injury to his left hand on or about December 27, 1965, which resulted in six months total loss of use of the left hand, followed by fifty per cent permanent loss of use; that plaintiff did not sustain an injury to his left shoulder on that date but the injury and the effects thereof to his left hand extended to and affected plaintiff’s left shoulder, which caused or contributed to his incapacity to work; that such incapacity was total and permanent; that such total incapacity began on February 15, 1966, and that the incapacity to plaintiff’s left shoulder was not solely caused by his voluntary non-use of such shoulder.

Defendant, by its first and second points of error, asserts that there was no evidence and insufficient evidence to support the jury’s findings that the injury and the effects thereof to plaintiff’s left hand extended to and affected plaintiff’s left shoulder (Special Issue No. 31), and that the jury’s finding on such issue is against the overwhelming weight and preponderance of the evidence. By its fifth and sixth points of error, defendant asserts that the evidence showed as a matter of law that the disability to plaintiff’s left shoulder was solely caused by plaintiff’s voluntary non-use of his shoulder, and that the evidence to support the jury’s finding that it was not solely caused by such voluntary non-use was insufficient and against the overwhelming weight and preponderance of the evidence.

The plaintiff while working in the course of his employment on December 27, 1965, fell from a six-foot scaffold. He was immediately taken to the Santa Rosa Medical Center where he was first seen by Dr. Sullivan. Dr. Sullivan testified that at such time the plaintiff had a laceration on his forehead approximately 1 ½ inches deep, and that he had an injured left wrist. An X-ray examination disclosed a comminuted fracture of the distal radius of the left arm, and then Dr. Klecka, an orthopedic surgeon, was called into the case. Under Dr. Klec-ka’s supervision the fracture was treated in traction, with a pin through the thumb and a cast applied from the knuckles to above the elbow. This cast remained on plaintiff until about January 17, 1966, when such cast and traction were removed and a “short arm cast,” which extended from below the elbow to the back of the knuckles, was placed on plaintiff’s arm. This cast remained on plaintiff for an extended period of time. During the course of treatment, plaintiff complained of pain in his shoulder, and at one time was sent to Barnett Therapy Laboratories by Dr. Klecka for shoulder and arm exercises. He was also given eight ultrasonic treatments in Dr. Klecka’s office for his left shoulder. On April 27, 1967, he was re-admitted to Santa Rosa Medical Center, where he remained until May 7, 1967. During that period, Dr. Klecka manipulated plaintiff’s left shoulder and finger joints under general anesthetic. Dr. Klecka testified that he could find no objective evidence of traumatic injury to plaintiff’s left shoulder and that the stiffness of the shoulder was caused by lack of use. Dr. Klecka, however, testified that plaintiff had some disability in his left shoulder, and that from his examination he could not say that plaintiff had not been using his arm, and that he was of the opinion that plaintiff had been using his arm and exercising it.

Plaintiff was also treated by Dr. Albert Sanders, an orthopedic surgeon, who saw plaintiff on five occasions between October 10, 1966, and January 30, 1967. Dr. Sanders testified that plaintiff had developed adhe-sions in his shoulder joints and that such adhesions prevented plaintiff’s arm from being moved sideways more than 85°, when the movement in a normal person is 150°, and that there was other limitation of motion. Dr. Sanders further testified that the adhesions were caused from lack of use of such shoulder, that the cast on plaintiff’s arm caused plaintiff not to exercise his shoulder, and that the cast on his arm was necessary to treat the fracture of the wrist. Plaintiff testified of pain and disability in his shoulder, arm and hand, and that because of such disability he could no longer do his work and was unable to get a job.

The law is well settled that where an employee sustains a specific compensable injury, he is not limited to compensation allowed for that specific injury if such injury, or proper or necessary treatment therefor, causes other injuries which render the employee incapable of work. Zurich General Accident & Liability Ins. Co. v. Daffern, 81 F.2d 179, 5th Cir. 1936, cert. den., 298 U.S. 667, 56 S.Ct. 751, 80 L.Ed. 1391; McAdams v. Fidelity and Casualty Co. of New York, 406 S.W.2d 518, (Tex.Civ.App.—Houston 1966, writ ref’d n.r.e.); United Employers Casualty Co. v. Marr, 144 S.W.2d 973 (Tex.Civ.App.—Galveston 1940, writ dism’d jdgmt. cor.); 62 Tex.Jur.2d, Workmen’s Compensation, § 68; 58 Am.Jur., Workmen’s Compensation, § 279.

Defendant contends that under the evidence and the law any recovery of plaintiff should be limited to the injury to a specific member — plaintiff’s left hand. The case before us is distinguishable on its facts from Texas Employers’ Insurance Association v. Hartel, 289 S.W.2d 380 (Tex.Civ.App.—Amarillo 1956, writ dism’d), and Casualty Reciprocal Exchange v. Rodriguez, 415 S.W.2d 236 (Tex.Civ.App.—Amarillo 1967, no writ), relied upon by defendant, in that in our case there is medical testimony of a disabling injury (adhesions) to the affected area. — plaintiff’s left shoulder.

There is medical testimony in the record that in order to treat plaintiff’s injury to his wrist it was necessary to place plaintiff’s arm in a cast, that such cast caused plaintiff not to exercise his arm and restricted movement of the shoulder joint, and that as a result of such non-use plaintiff developed adhesions in his shoulder which resulted in disability. The jury findings as to the special issues complained of by defendant in its first, second, fifth and sixth points of error, are sufficiently supported by the evidence, and such points of error are overruled.

Defendant also complains as to the manner in which Special Issue No. 31 was submitted, and in particular to the use of the words “injury and the effects thereof,” in regard to the hand injury, asserting that there were no pleadings to support such submission, and that the issue as submitted was duplicitous, misleading and nebulous. Plaintiff by a trial amendment plead in part that “such injuries to his left hand extended to and affected his left shoulder and body generally and causing or contributing to cause his total and permanent incapacity to work.”

While there might have been a better way to submit such issue, we have concluded from an examination of the entire record that such issue substantially complies with the provisions of Rule 279, Texas Rules of Civil Procedure, and we find no reversible error of the trial court in overruling defendant’s objections to Special Issue No. 31, or in the submission of such issue. See Bailey v. American General Insurance Co., 154 Tex. 430, 279 S.W.2d 315 (1955); General Accident Fire & Life Assur. Corp. v. Murphy, 339 S.W.2d 392 (Tex.Civ.App.—Houston 1960, writ ref’d n.r.e.); Texas Employers Ins. Ass’n v. Trapp, 258 S.W.2d 112 (Tex.Civ.App.—Beaumont 1953, writ ref’d n.r.e.).

Defendant by its seventh and eighth points of error urges that the trial court erred in rendering a judgment for general injury because of a conflict between the jury’s answers to Special Issues Nos. 31 and 55, and in disregarding the jury’s answer to Special Issue No. 55. In answer to Special Issue No. 31, the jury found that the injury and the effects thereof to plaintiff’s left hand extended to and affected plaintiff’s left shoulder, and in response to Special Issue No. 55 found that the disabling injury, or disabling injuries, which plaintiff received on December 27, 1965, were confined to the left arm below the elbow.

“It is settled that any apparent conflict in a jury’s answer to Special Issues submitted to them must be reconciled, if this can reasonably be done in the light of the facts in the particular case, the pleadings, the evidence, the manner in which the issues were submitted, and in view of the other finding when considered as a whole.” Bituminous Fire & Marine Insurance Co. v. Jones, 398 S.W.2d 577, 581 (Tex.Civ.App.—Tyler 1966, writ ref’d n.r.e.); Walker v. Houston Electric Co., 155 S.W.2d 973 (Tex.Civ.App.—Galveston 1941, writ ref’d); State Nat. Bank of Houston v. Woodfin, 146 S.W.2d 284 (Tex.Civ.App.—Galveston 1940, writ ref’d). Applying these rules, we do not believe the jury’s answers to such special issues are in irreconcilable conflict. The jury found in answer to Special Issue No. 1, that the plaintiff did not sustain an injury to his shoulder on December 27, 1965, the date of the accident. They found that he did sustain an injury to his left hand on such date; that such injury and the effects thereof extended to and affected plaintiff’s left shoulder, and that such general injury commenced on February 15, 1966. The jury apparently considered Special Issue No. 55 as referring to the specific injury to the hand, received by plaintiff on December 27, 1965, and not to the disabling general injury which they found to have commenced approximately 11/2 months thereafter. There is no fatal conflict between these findings, and the court did not err in rendering judgment for a general injury. Defendant’s seventh and eighth points of error are overruled.

Defendant also contends that the trial court erred in refusing to submit two requested special issues on “use or attempted use,” to-wit: Requested Special Issue No. 5: “Do you find from a preponderance of the evidence that the incapacity, if any, of the Plaintiff, Manuel Sosa, is not caused solely by the use or attempted use of Sosa’s left arm below the elbow?” Requested Special Issue No. 6: “Do you find from a preponderance of the evidence that the incapacity, if any, of the Plaintiff, Manuel Sosa, is not caused solely by his use or attempted use of his left arm?”

The trial court submitted the following special issues with regard to incapacity and loss of use of these specific members:

“QUESTION NO. 50: Do you find, from a preponderance of the evidence, that the incapacity, if any, of Manuel Sosa was not solely caused by the loss of use, if any, to his left arm below the elbow ?

“Answer: ‘It was not solely caused by the loss of use,’ or

‘It was solely caused by the loss of use.’

“We, the Jury, answer: It was not solely caused by the loss of use.”

“QUESTION NO. 51: Do you find, from a preponderance of the evidence, that the incapacity, if any, of Manuel Sosa was not limited to his left arm below the elbow?

“Answer: ‘It was not,’ or ‘It was.’
“We, the Jury, answer: It was not.”

“QUESTION NO. 52: Do you find, from a preponderance of the evidence, that the incapacity, if any, of Manuel Sosa is not limited to his left arm ?

“Answer: ‘It is not’ or ‘It is.’
“We, the Jury, answer: It is not.”

“QUESTION NO. 53: Do you find, from a preponderance of the evidence, that the incapacity, if any, of Manuel Sosa is not solely caused by the loss of use, if any, to his left arm?

“Answer: ‘It is not,’ or ‘It is.’
“We, the Jury, answer: It is not.”

Plaintiff contends that there was no error of the trial court in refusing to submit Defendant’s Requested Issues Nos. 5 and 6; that the evidence, if any, was not sufficient to support the submission of such issues; that the requested issues were not submitted to the court in substantially correct wording in accordance with Rule 279, T.R.C.P., and that such requested issues were evidentiary only and not ultimate issues.

Defendant, in support of its contention, relies on the case of Coleman v. Hartford Accident & Indemnity Co., 297 S.W.2d 236 (Tex.Civ.App.—Fort Worth 1956, writ ref’d), wherein it was held that “it is the use by the claimant of his injured arm which results in adverse effects (i.e., pain) in other portions of his body, rather than the injury itself or any extension thereof. There is no impairment of his general ability to work or of his general health because of the injury, apart from his use or attempted use of the injured member.

“Under these conditions, we are of the opinion that the claimant must be confined in his recovery to the percentage of loss of use of his injured arm established in the verdict of the jury. Texas Employers’ Ins. Ass’n v. Brownlee, supra, [152 Tex. 247, 256 S.W.2d 76].”

Defendant also relies on Texas Employers’ Insurance Ass’n v. Espinosa, 367 S.W.2d 667 (Tex.Sup.1963). The Supreme Court in that case held that “There is no evidence which causally links Espinosa’s headaches and dizziness to a source other than an injury to the left eye and his attempts to use his left eye in its impaired condition.” And further held that “a specific partial incapacity cannot develop into a general incapacity under Article 8306, § 10 of the Workmen’s Compensation Act, when the disabling incapacity consists of pain and dizziness and results solely from using or attempting to use an eye or other member of the body for which specific compensation is provided by Article 8306, § 12.”

Defendant asserts that plaintiff’s own testimony establishes that the disability in the shoulder is caused when plaintiff uses or attempts to use his arm. We do not agree with this interpretation of plaintiff’s testimony. Plaintiff did testify that the pain in his shoulder got worse when he attempted to use his arm, but it appears from plaintiff’s entire testimony that he had pain in his shoulder without using his arm, and that it got worse when he attempted to raise his arm. In addition, there is medical testimony in this case of an actual injury (adhe-sions) to the affected area — plaintiff’s left shoulder, which was not present in the Coleman case or the Espinosa case. The Court in both of these cases stated that it was the use by the claimant of the injured member that caused the disabling incapacity.

From a consideration of the entire record and an examination of all the issues submitted, we find no reversible error of the trial court in not submitting Requested Special Issues Nos. 5 and 6.

We have considered all of defendant’s points of error and reply points, and all are overruled. The judgment is affirmed.