author: HUGHES, Associate Justice.

text:
    Bryan W. FORISTER, Jr., et al., Appellants, v. W. R. COLEMAN et al., Appellees.
    No. 11515.
    Court of Civil Appeals of Texas. Austin.
    June 21, 1967.
    Rehearing Denied Sept. 13, 1967.

      Leonard L. Franklin, J. Malcolm Robinson, Austin, for appellants.
    Holloway & Holloway, Sterling Holloway, James R. Sloan, Austin, for appellees.
   HUGHES, Associate Justice.

Dr. Bryan W. Forister, Jr., Ivan M. Stout and John E. Shelton, Jr., appellants, and others brought this suit against W. R. Coleman and Sterling Holloway, appel-lees, alleging that they and others own and are entitled to certain rights and interests in and pertaining to Lots 1 and 2, Block 2, Emmett Shelton Subdivision, Wilkenson-Sparks Survey No. 4, Travis County, Texas. These rights and interests are claimed under and through Emmett Shelton, the common source of title of all parties to this suit.

The rights and interests of appellants in this property are based upon the deeds of Emmett Shelton as well as representations made by him prior to the execution of certain of the deeds upon or under which appellants claim.

The trial court disposed of the major contentions made by appellants by granting appellees’ motion for summary judgment. Minor and subordinate matters were decided by the court without a jury.

We will state the case as reflected by the record in a manner most favorable to appellants insofar as the summary judgment against them is concerned.

The property in controversy is approximately 11/2 acres in size (160 feet wide by 420 feet long) located on Bee Creek in the City of Westlake Hills, a suburb to the west of Austin, Texas. Its border to the north is Bee Creek; to the west by the property of Arlyn Smith; to the east by the property of A. S. Hull; and, to the south by a public road, Westlake Drive.

It was originally a part of a 200 acre tract acquired by Emmett Shelton from the Minnie Stroter heirs in 1940.

In 1940, when Emmett Shelton began selling parts of the Stroter land previously acquired by him he made representations to purchasers as shown below:

“Our names are Lady Grace Snow Toole and Marion Toole; we are husband and wife, over 21 years of age and have never been convicted of a felony or a misdemeanor involving moral turpitude, and we each have personal knowledge of the following facts which are given in connection with the above law suit and in connection with the controversy over that tract of land lying between Westlake Drive and Bee Creek which is generally described as Lots 1 and 2, Block 2, Emmett Shelton Subdivision.
During the summer of 1940, we conducted a diligent search for property located in the Highland Lakes area not too far distant from Austin that would afford access to Lake Austin. We saw an ad advertising property located on West-lake Drive and which we think stated with park area access and boat dock frontage on Bee Creek of Lake Austin. A salesman, whose name we cannot remember but who worked for Henry Wendlandt or in association with Henry Wendlandt, was contacted and we were shown the property by him. We were not married at this time but were planning on being married and were married several months later, and we were both present and after being shown the upper lot or No. 9, Block 4, we were then driven into the park area which was Lots 1 and 2, Block 2, and shown this area and the stone wall erected along the shore of Bee Creek where boat dock spaces were provided for the lot owners.
The park had an' oval drive around the inside of the two lots with parking and picnic area provided between the oval drive. We were told by this salesman that the purchasers of the lots being sold out of the Wilkenson-Sparks Survey would be entitled to the use of this park area to drive from the lots above and park their cars while boating and that they also could use the area for pic-nicing. It was purely on the strength of this feature that Lot No. 9, consisting of 2.18 acres, was purchased by us in Miss Snow’s name. Since the deed itself to the above lot didn’t specify that the park area and boat dockage space was part of the deal, we requested a letter from Mr. Emmett Shelton, and Mr. Shelton did comply with the request and provided a letter dated September 20, 1940, stating that the park area and boat docks would be provided for use then and for use in the future by the lot purchasers. At the time of the sale of this property to Dr. and Mrs. Bryan W. Forister, Jr., we stipulated to Mr. Emmett Shelton, Jr., the real estate agent, and instructed him that the boat dock space and share in the park area composed of Lots 1 and 2, Block 2, granted to us were to be transferred to the Foristers as part of the sale of our Lot No. 9, Block 4, consisting of 2.18 acres of land.”

We quote the following from the letter referred to by Mrs. Toole from Emmett Shelton dated September 20, 1940:

“You will also have your choice of a ten foot space on the park which we have set aside out of the Lots Nos. 1 and 2, in Block No. 2, of this subdivision, and you will be given a deed to this along with the other purchasers in our addition when the balance of said lots have been sold. However, you may choose your space on the creek at any time you wish and make use of the park from now on.”

We quote from the affidavit of Rufus G. King:

“During the month of September, 1938, I purchased some mountain property located in the Wilkenson-Sparks Survey in Travis County, Texas, from Mr. Emmett Shelton. At the time of the purchase, Mr. Shelton told me that for all those who purchased off-the-lake property from him he was conveying to each of such persons 10 feet of land bordering the water’s edge of Bee Creek. These strips of land to cover only a one foot wide area of land bordering the water’s edge of Bee Creek, together with the use of the land under the waters of Bee Creek that lie directly north of each space. In addition, he stated that the parties would have the complete use of his lands that lie behind these one foot strips as a park.
Attached hereto is a Xerox copy of a letter, the original of which is in my possession, which I received from Emmett Shelton stating that he was building a rock wall along the 10 foot strips along the water’s edge and refers to this area as a park.
Also attached to this affidavit is a Xerox copy of a letter dated January 17, 1940, which I received from Emmett Shelton, the original of which is in my possession acknowledging the receipt of the money asked for in the first letter for improving the dock site on the ‘park reservation.’ At the time I purchased my property from Mr. Shelton, it was by understanding, from statements made to me by Mr. Shelton, that the tract of land located directly back of the waterfront strip, and between the property of A. S. Hull and Arlyn Smith, and extending to the present Westlake Drive, was to be used exclusively as a park and picnic area by the owners of the above mentioned 10 foot strips of land along Bee Creek.”

We quote from the letter referred to by Mr. King from Emmett Shelton dated January 11, 1940:

“We are starting in this week to build a stone and cedar dock around the park on which you have a ten foot front along the water’s edge. We have approximately 300 feet on this park which must be either fixed within the next two weeks or it will be impossible to have anything but a dirt landing later. We have sold only about five cites off of the lake front at this time and we have estimated that it will cost approximately $15.00 for each ten foot space to build a rock foundation and set large cedar posts into the same, which will stick above the water’s edge. I am writing each of the parties who have an interest in this park to find out if they wish to fix their ten foot front along this uniform pattern, as we intend to dress the balance up this way and add the cost to the price of the cites which we later sell.”

We quote from the affidavit of Ivan M. Stout:

“The property upon which I live is just west and approximately 500 to 600 feet from the property in controversy and is shown on the official map of the City of Westlake Hills bearing my name and bounded on the northeast by West-lake Drive; and on the south by Shelton Road.
This property was purchased in 1955 from Dr. C. M. Cleveland and Mrs. C. M. Cleveland. * * *
(d) Upon returning to the point from which the boundary inspection was started, Dr. Cleveland told us for the first time that there was a piece of lake property that was part of the transaction, and that he must also show it to us.
(e) We all three went down the hill a few hundred feet toward Austin and entered the property on foot Dr. Cleveland explained that this tract of land had been set aside for the use of some 15 property owners who had bought land from Emmett Shelton, but who did not otherwise get access to the lake. He stated that the property was about 150 feet wide between the wire fences and, in effect, ‘You can use this property to picnic on but you can’t build anything up here’ and further explained that access to the lake could be had across the entire property. He also explained that each of the 15 participants in the overall easement were to receive deeds to 10 foot wide tracts of lake frontage. It was stated that those deeds were to come from Mr. Shelton, but that he had ‘been slow’ in executing these deeds. * * *
Concerning the use of the property (in suit) by the owners, and for the purposes intended; there was never a doubt. We entered the property when we wished, parked where we wanted to or could find a spot not in use. If some one who was not a property owner came in. we explained that this is private property and asked them to leave. I have been over the entire tract except for the extreme northwest corner which was covered with boulders and brush. Most of this has now been pushed down toward Bee Creek. My sons made constant use of the property, taking friends there for boating and swimming. There was never a single instance where anybody challenged any of our rights. By word from Dr. Cleveland, by written document that speaks for itself and by more that 10 years’ practice we have enjoyed unrestricted passage over the entire tract of land between the Smith-Hull fences.”

We quote from the affidavit of Dr. C. M. Cleveland:

“Some time in the 1940’s, Mrs. Cleveland and I purchased from Mr. Emmett Shelton a lot with frontage on Little Bee Creek and on which we built a cabin. A little later we purchased a second lot from the same Mr. Emmett Shelton which had frontage on Westlake Drive but did not have any waterfront frontage on Little Bee Creek. Later we purchased a third lot adjacent to the second lot which we had purchased which also had no lake frontage. This lot had been sold by Mr. Shelton prior to our purchase.
In purchasing the lots 2 and 3 described above, Mr. Emmett Shelton stated to me personally and to my wife on several occasions that these lots, together with other lots originally owned by him and which had no lake frontage, would enjoy the following lake privileges:
(a) The area of ground bounded by lots owned by Mr. Arlyn Smith and Mr. Hull and by Little Bee Creek and by Westlake Drive had been set aside permanently for a park for people who had bought or would later buy from him and who had no access to the lake.
(b) Furthermore, to each of these lots would go a deed to a certain frontage on Little Bee Creek for the purpose of providing boat facilities to the corresponding property owners.
(c) The permanent park so set aside was to serve as an access area for the property owners to the certain boating facilities and was to be common to all persons who bought tracts from Mr. Emmett Shelton who had no water frontage.
Later on, Mrs. Cleveland and myself sold the lots 2 and 3 described above, which had no water frontage to Mr. Ivan Stout and we personally walked over the lots and then we personally took him down and showed him the area set aside for a park and also the area set aside for the boat dockage.
These representations made to me by Mr. Emmett Shelton added materially to the value of the lots which I purchased from him, and I relied upon these representations as being true and correct and consequently I represented these facts to Mr. Stout when he bought the property from me.”

We also quote from the affidavit of appellant Dr. Bryan W. Forister, Jr.:

“In the months of August and October of the year 1963, my wife and I purchased for the approximate sum of $19,000.00 two tracts of land, the first being 3.1 acres from Henry Wendlandt, Jr., and the second being 2.18 acres from Lady Grace Snow and Marion Toole.
These tracts of land are adjacent to one another and located in the Emmett Shelton Subdivision of the Wilkenson-Sparks Survey, fronting approximately 1,000 feet along the west and south side of Westlake Drive and across Westlake Drive from the property of A. S. Hull and Arlyn Smith and the Lots 1 and 2, Block 2, Emmett Shelton Subdivision, which is the subject of this controversy.
Prior to the time of our first purchase of the 3.1 acre tract from Mr. Henry Wendlandt, Jr., Mr. Wendlandt showed us the property and then took us to the waterfront property on Bee Creek and across the property in controversy and told us that this area between the two fences had been set aside by Emmett Shelton, the original subdivider of this property, for all the people in the subdivision whose property did not have waterfront privileges; and, that the same Emmett Shelton had given an easement across the property fence to fence and given an outright deed to a one foot strip of land along the water’s edge for the purpose of building boat docks. Mr. Wendlandt then showed me the boat house which he had built on his one foot strip and told me that this boat house, the property on which it was built and the area in back for parking and a recreational area was all included in the purchase price of the 3.1 acre tract.
At the time of purchase of this first piece of property from Mr. Wendlandt in August, 1963, I bought a boat, put it in the boat house on Bee Creek and my family and friends have used this waterfront property continuously since then for boating, fishing and recreation. The property in controversy, or Lots 1 and 2, at that time had a road entering from Westlake Drive approximately 20 feet in width running about 6 feet from the fence along the southeast most boundary to approximately 40 or 50 feet of the water’s edge and approximately 100 feet from the southeast boundary a turnaround area had been made and then further back on the lot approximately in the middle of the property there were other parking and drive areas which consumed approximately the southeast half of said area. In addition, there was a drive onto the area from Westlake Drive approximately two-thirds of the way up on the property and 66 to 70 feet in length. These measurements were made by me with a steel tape and although I realize they are not exact they are fairly accurate.
I first met the defendants, W. R. Coleman and Sterling Holloway, in July of 1963 when Mr. Wendlandt was showing me the waterfront property. Both Mr. Coleman and Mr. Holloway were down by the water and after being introduced by Mr. Wendlandt, Mr. Coleman said he and Mr. Holloway were planning to get all of the property owners together to form a Bee Creek Club and improve the property and build boat docks along the waterfront for everyone. Mr. Coleman stated that it was necessary for everyone to get together to build anything on the property. I said that this was perfectly agreeable to me and that I would do anything that I could to help and suggested them building part of their docks on the side of my boat house.
Thereafter and while still trying to decide whether or not to invest in our permanent home on this Wendlandt property, my wife and I became very good friends with W. R. Coleman and his wife. I discussed this problem many times with Mr. Coleman and I was concerned with the building restrictions and what might eventually become of Westlake Hills as a residential section. It was largely due to the encouragement and discussion with Mr. Coleman that my wife and I finally decided to build on the Wendlandt tract.
To further insure our privacy and an additional grant of land on the waterfront, I bought the adjoining 2.18 acre tract from Lady Grace and Marion Toole in November of 1963. Mr. Emmett Shelton, Jr., represented Mr. and Mrs. Toole as their real estate agent in this sale. He stated to me that the property behind the waterfront docks on Bee Creek was for the use of all those persons who owned waterfront property and that nothing would ever be built thereon.
Shortly after buying the Toole tract, Mr. Coleman asked me to sell the 10 foot strip of land that went with it on Bee Creek because his 10 foot strip was over on Mr. A. S. Hull’s property and he couldn’t build any boat docks on it. I explained to him that the land on the water’s edge was assignable only in connection with the main tract of land; however, that he didn’t need any assignment from me because he could go ahead and build a boat dock on it anyway.
Thereafter in late November, 1963, we began our house plans with Mr. Coleman as the designer. The construction was begun in March, 1964, and we moved into our new home in November, 1964. The home itself cost approximately $55,000.00 to construct. Consequently, the $55,000.00 and the $19,000.00 for the land represents an approximate $74,000.00 investment which I have across the road from the property in question.”

Similar affidavits are in the record from Mrs. Lois Gibson, Mrs. Virginia Leberman and Miss Frances Poole, all original purchasers from Emmett Shelton.

Also, there are in the record affidavits of similar import from Henry Wendlandt, Jr., John E. Shelton, Jr., and Miss Ann Holmes who were in privity of estate with Mr. Emmett Shelton.

On November 30, 1955, Emmett Shelton conveyed by general warranty deed fifteen tracts out of Lots 1 and 2, in controversy, to Emmett Shelton, Jr., Henry Wendlandt, Jr., Rufus King, Van M. Kennedy, Stuart MacCorkle, Lady Grace Snow, Ivan M. Stout, Mrs. Virginia Leberman, Frances Poole, Edna West, Temple Phinney, Sterling Holloway and Lois M. Gibson. These tracts were all one foot wide and ten feet long, except three tracts which were twenty feet long, and they lay lengthwise at the water’s edge of Bee Creek. We quote from this deed:

“This grant is specifically understood to cover only a one-foot strip of land bordering the water’s edge, together with the use of the land under the waters of Bee Creek that lies directly north of each space which may be used for the purpose of boat dockage. Each grantee in this deed is given the additional right of ingress and egress over the lands of grant- or that lie between the property of Arlyn Smith and A. S. Hull, to the above described spaces and/or tracts. Each grantee is given the right to use the walk-way immediately south of the grants herein made for purposes of access to the various tracts, provided that no obstructions are placed upon said walk-way that would prevent the free use of such walk-way by any and all of the grantees herein mentioned.
It is expressly understood and agreed by the grantees herein that these grants are made in connection with the purchase of other lands from the grantor, which other lands do not have frontage on the waters of Lake Austin. This grant is made for the purpose of permitting the owners of such other lands do have access to Lake Austin. The privileges herein granted shall pass from the grantees herein to the purchasers of such other grants of land whether mention is made in such conveyances or not; it being specifically understood by the grantees herein that the privileges mentioned herein are not personal to the grantees, nor are they assignable except in connection with the title to such other lands.
The intent of this conveyance is to make water front privileges available to the owners of land in the Sparks and Chambers Surveys, who have purchased such lands from the grantor.”

A one half interest in Lots 1 and 2, except the strips conveyed as above stated, were conveyed by Emmett Shelton to Bee Creek Club, Inc., a nonprofit corporation, in 1963, without consideration. In 1964, the club conveyed this one half interest to William Coleman, Trustee for himself and Sterling Holloway. In 1964, Mrs. Elba May Shelton, former wife of Emmett Shelton, conveyed to Sterling Holloway a one half interest in these lots subject to the rights of the strip owners for which she received $1,000.00. Mr. Emmett Shelton, about this time, was paid $1,000.00, presumably by appellees, for the one half interest previously conveyed by him to the club.

The trial court, as reflected by his judgment, concluded that appellees’ motion for a summary judgment should be sustained except fact issues as to whether the plat of the Holloway-Coleman Subdivision of Lots 1 and 2, filed of record, cast a cloud on the title of appellants under the 1955 Emmett Shelton deed and as to whether contemplated improvements by appellees upon these lots would interfere with the rights of ingress and egress held by appellants under such deed. These fact issues were submitted to the court for decision.

The trial court expressly held, “that no basis exists for varying, altering, or changing the express terms and legal effect” of the 1955 deed from Emmett Shelton to appellants or their predecessor in title. The trial court rendered judgment, the material portion of which, we quote:

“(2) That the Defendants Sterling Holloway and W. R. Coleman are hereby adjudged to be the owners in fee simple of the land in the Wilkenson-Sparks Survey, in Travis County, Texas, particularly described in a deed from Emmett Shelton, Sr., to Bee Creek Club, Inc., dated May 28, 1962, recorded in Volume 2607, Page 533, Travis County Deed Records, which land extends between its lateral boundary lines from West Lake Drive to within one foot of the waters of Bee Creek, an arm of Lake Austin, save, except, and subject to the easements across said land granted by the Shelton Deed of March 30, 1955, recorded in Volume 1564, Page 430, Travis County Deed Records;
(3) By the terms of said Deed of March 30, 1955, the Grantees therein, and their successors in title, including the Plaintiffs herein, acquired the following, and only the following rights, titles, and interests:
(a) Title to the respective one-foot strips of land along the water’s edge of Bee Creek, as located on March 30, 1955, extending one foot in depth from said water’s edge and along the water’s edge, in some instances ten feet in length, and in some instances twenty feet in length, as specified in said Deed;
(b) The right to use the waters of Bee Creek in front of said strips for boat dockage and recreational purposes;
(c) An easement for ingress and egress across and along the walkway along and immediately back of such individually owned strips, for access to the individual strips; and
(d) An easement for reasonable ingress and egress across the land of the Defendants described in Paragraph (2) above from Westlake Drive, for access to the walkway and by means thereof to their respective one-foot strips along the waterfront of Bee Creek.
(4) That a strip thirty (-SO') feet in width along the East property line of Defendants’ property running from the public road to the one-foot strips adjacent to the water’s edge is sufficient to provide the easement of ingress and egress referred to in Sub-Paragraph (d) above, and a walkway six (6') feet in width running therefrom in a Westerly direction immediately adjacent to the one-foot strips and on the South side thereof and running to the West Bound ary Line of Defendants’ property is sufficient to provide the walkway described in Sub-Paragraph (c), above.
(5) That no acts of the Defendants have abridged, denied, or infringed said rights of the owners of said strips, as above set forth; that the Plat of the Holloway-Coleman Subdivision filed by Defendants does not interfere with said rights nor cast any cloud thereon, but expressly recognizes such rights; and that the easement rights set out in Paragraph 4, above, are sufficient to provide adequate and reasonable means of ingress and egress to Plaintiffs, and other owners of waterfront strips for access to said waterfront strips; that in the exercise by Plaintiffs, and other owners of such strips, of the right of access thereto they are and shall be under a duty to exercise such rights in a manner that will be as little burdensome and interfere as little as is reasonably possible with the use by Defendants, as fee owners, of the land and property owned by them; and it is further expressly adjudged that the Plaintiffs have no rights to the use of any part of the lots shown on said Holloway-Coleman Subdivision Plat, or to interfere with the unrestricted use by Defendants of said lots, or with their access thereto, reasonable means of access to the waterfront strips being available to Plaintiffs outside the boundaries of said lots as shown on said Plat.”

Before considering appellants’ brief, we turn to a counterpoint made by appellees to the effect that appellants have no standing to maintain this suit.

This point, as to Dr. Forister and Mr. Stout is based upon the fact that neither of these gentlemen bought directly from Mr. Shelton. Emmett Shelton sold lots to Dr. Cleveland who in turn sold to Mr. Stout, who was also a grantee in the 1955 deed from Mr. Shelton. Emmett Shelton sold lots to Mr. and Mrs. Toole and to Mr. Henry Wendlandt who sold them to Dr. Forister.

John E. Shelton, Jr. is a grantee in the 1955 deed from Emmett Shelton, the construction of which is here involved.

Appellees cite to sustain their position: Gehl Brothers Manufacturing Co. v. Price’s Producers, Inc., 319 S.W.2d 955, Tex.Civ.App., El Paso, n.w.h.; Citizens Real Estate and Mortgage Co. Inc. v. Sharp, 246 S.W.2d 698, Tex.Civ.App., Texarkana, n.w.h., Hardin Lumber Co. v. Shepherd, 40 S.W.2d 215, Tex.Civ.App., Galveston, writ dismissed; Dallas Power and Light Company v. Carrington, 245 S.W. 1046, Tex.Civ.App., Dallas, writ dismissed; and Lakewood Heights Co. v. McCuistion, 226 S.W. 1109, Tex.Civ.App., Dallas, writ ref.

The first four cases cited are inapplicable since they are privity of contract cases.

The last case cited, Lakewood, held that an agreement between a vendor and vendee of land but collateral to the deed of conveyance whereby the vendor agreed to furnish electricity, gas, water, sewers, and street car service did not inure to the benefit of assigns of the vendee because such an agreement was not a covenant running with the land.

The last case points up the problem presented here, as it relates to the representations made by Emmett Shelton to purchasers of lots from him. If they were of such nature as to constitute covenants running with the land then they inurecto the benefit of subsequent owners of the land under the doctrine of privity in estate which is stated as follows in 72 C.J.S. Privity p. 961:

“Privies in estate strictly mean only those between whom there are certain rights and relations resulting from the estate held, and not from contract between them, and privity in estate arises only between mutual or successive holders of title to the same right or interest in the same property, and it denotes mutual or successive relationship as to rights, mutual or successive relation to the same right of property, identity of title to an estate; * * *

In a footnote to this quotation there appears the following summation of the decision in Bailey v. Stedronsky, 57 Ohio App. 265, 13 N.E.2d 588:

“When the term ‘privity’ is considered with respect to its relationship to estates in realty, it must be understood that it implies succession, that is, successive ownership or possession of the identical estate in the same property, and one who is in privity with another with respect to an estate stands in exactly the same position with respect thereto as did his predecessor in title; he takes the estate with all the burdens and benefits attending it.”

Appellants were in privity in estate with Emmett Shelton. John E. Shelton was also in privity of contract with Emmett Shelton.

We therefore, hold that appellants were entitled to maintain this suit.

Appellants’ first point of error, subdivided into nine specific points, is that material issues of fact were raised by the pleadings and evidence and the court erred in not so finding.

Appellants’ pleadings were full, in that they contain allegations of fraud, mutual mistake, estoppel in pais, dedication, and trust relations to establish their claimed rights in Lots 1 and 2. We do not analyze these pleadings because under the posture of the case it is facts, not pleadings, which are determinative. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233.

The affidavits made by purchasers of lots from Emmett Shelton, from some of which we have quoted, are factually sufficient to raise an issue of fact on the three essential elements of estoppel in pais, i. e., representations by Emmett Shelton, purchasers’ belief of such representations, and acts of reliance thereon.

Our concern is only with the legal sufficiency of the representations. Do the representations of Emmett Shelton, if established, constitute an easement appurtenant? We are of the opinion that they do.

We quote the definition of an easement appurtenant as found in 25 Am.Jur.2d, Easements and Licenses, Sec. 11, p. 425:

“An appurtenant easement is an incorporeal right which is attached to, and belongs with, some greater or superior right — something annexed to another thing more worthy and which passes as an incident to it. It inheres in the land, concerns the premises, and pertains to its enjoyment. It is incapable of existence separate and apart from the particular land to which it is annexed.
Two distinct tenements are involved in the case of an appurtenant easement— the dominant, to which the right belongs, and the servient, upon which the obligation rests. An easement to be appurtenant must bear some relation to the use of the dominant estate, and must agree in nature and quality with the thing to which it is claimed to be appurtenant. Moreover, such an easement can become legally attached to the dominant estate only if the same person has unity of title to both the easement and the dominant estate. It is not necessary, however, that the servient tenement be adjacent to the dominant tenement.”

The same authority, Sec. 12, defines an easement in gross as follows:

“Though it has been said that there is no such thing as an easement in gross, the courts generally recognize a distinction between those rights which are impressed on the land of one person in favor of another person and not in favor of another tract of land, and these rights are referred to as easements in gross. Thus, an easement in gross is a mere personal interest in or right to use the land of another. It is not supported by a dominant estate, but is attached to, and vested in, the person to whom it is granted. In fact, the principal distinction between an easement in gross and an easement, appurtenant is that in the first there is not, and in the second there is a dominant tenement to which it is attached.”

We also quote from Sec. 13 of the same text:

“Whether an easement in a given case is appurtenant or in gross depends mainly on the nature of the right and the intention of the parties creating it. If the easement is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant and not an easement in gross. Easements in gross are not favored by the courts, however, and an easement will never be presumed as personal when it may fairly be construed as appurtenant to some other estate. If doubt exists as to its real nature, an easement is presumed to be appurtenant, and not in gross.”

The question presented here has been recently discussed at length by our Supreme Court in Drye v. Eagle Rock Ranch, Inc., Tex., 364 S.W.2d 196. In that case oral representations had been made to prospective purchasers of homesites that they would have the right to use a 1000 acre ranch for pleasure and recreational purposes. The Court, in denying establishment of this easement by estoppel, made these statements:

“One other exception to the statutes requiring a writing is the doctrine of estoppel in pais. The owner of land, under some circumstances, may be estop-ped to deny the existence of an easement by making representations which have been acted upon by a purchaser to his detriment. * * *
The exact nature and extent of the doctrine of estoppel in pais have not been clearly defined. It has been applied in some definite categories of suits involving land. Outside of these particular groups, however, the authority for its application is rare and nebulous.
Most frequently the doctrine has been referred to in those cases arising out of dedication of a street, alley, or square. It is the dedication to the public which gives the rights in streets, parks, and similar areas the degree of certainty and permanency. But estoppel in pais is not dependent upon a dedication and may arise and exist independent of it. Harrison v. Boring, 44 Tex. 255, at 266 (1875); Wolf v. Brass, 72 Tex. 133, 12 S.W. 159 (1888) ; 3 Tiffany, Real Property (3rd ed.), 312 et seq., Easements, sec. 800. The areas of land involved in these cases, however, are generally well defined as are the servitudes sought to be imposed on them.
******
The easement sought by estoppel is an easement appurtenant. Yet the rights sought have many of the characteristics of an easement in gross; i. e., privileges over the ranch which could be and were enjoyed by persons other than lot owners; privileges which were personally enjoyable but not necessary for the use of the purchased lots. * * *
The main difficulties, however, with the lot owners’ case is the nature and extent of the ‘easements’ claimed, their indefiniteness and enforcement of the rights claimed to have been obtained. As indicated above, easements ‘for pleasure and recreation’ create grave problems even when expressly granted in writing. To say the least, they were not favored at common law. First, rights to go upon land to hike, camp out, study nature and the like were classed as licenses and not interests in land. Licenses to hunt and fish are common even today. This is not to say that such an ‘easement’ or interest in land could not be created. But the authorities for the imposition by the courts of an easement appurtenant to land for such purposes are meager.
The privileges sought here as an easement appurtenant to land by estoppel are indefinite. The ‘run of the ranch,’ 1000 acres of land, contains no description of rights. Rights ‘for pleasure and recreation’ over such an area is likewise indefinite. Some degree of definiteness in the scope or extent of an interest is essential to its recognition as a property interest. * * *
A by-product of the indefiniteness of easements for recreation and pleasure, not contained in a writing, is the problem of their enforcement. If the court is to decree the easements, it must fix their terms and be in a position to see that they are enforced. Doing this for all of the various forms of ‘recreation and pleasure’ over 1000 acres of land for years to come would be difficult indeed.
If the airstrip, golf course, and the like are to retain their usefulness, they must be kept in repair. This problem relates to one of the requirements for the implication of an easement: that nothing be required of the grantor to perpetuate the easement. * * *
The alternative to the land’s being kept in repair is that it simply be left vacant and unkept for the use of lot owners. There is a rather strong public policy in favor of land use rather than non-use. The policy is also in favor of the free alienation of property, particularly as the title to the property is reflected on the public records. Viewing the problem from the State as a whole, to impose indefinite servitudes for pleasure and recreation on so large an area would tend to fetter estates, retard building and improvements thereon, and hinder the use of the land.”

We also quote the following from the dissenting opinion of Justice Smith in Drye, supra:

“The position of Drye et al. is simply this: That when Janes made the agreement with the initial lot purchaser or purchasers that the use of the ranch would be common to all lot owners, then Drye et al. had the right to not only establish their several individual rights to the use of the ranch, but also to establish a right, as represented to them, that the use of the ranch would be common to all lot owners. I agree with Drye et al. The rights run to each lot owner.
* * * * ⅜ ⅜ Easements by estoppel and by dedication in the present case arise for pleasure and recreational purposes exactly in the same manner as easements by estoppel and by dedication for any other purpose, such as for streets (private or public), parks, or any other uses designated as being for the benefit of purchasers. See Wolf v. Brass, 72 Tex. 133, 12 S.W. 159. * * *
Equitable estoppel should certainly apply in the present case.
‘Equitable estoppel is the effect of the voluntary conduct of a party whereby he is precluded, both in law and equity, from asserting rights of property, contract or remedy against one who has in good faith relied upon his conduct, and by reason thereof has acquired some corresponding right of property or remedy.’ Simpkins on Equity, 2nd Ed. 1911, at p. 669. Simpkins went on to say that equitable estoppel ' * * * gives triumph to right and justice when nothing else known to our jurisprudence can secure those ends.’ ”

Justice Smith quoted in full the opinion in McCleary v. Lourie, 80 N.H. 389, 117 A. 730, Supreme Court of New Hampshire. We quote the following from that opinion:

“SNOW, J. There being no specific grant to the plaintiffs of an easement in the grove, nor express covenant with respect to' its use, the plaintiffs’ interests therein, if any, under the facts in this case, must be established by way of estoppel.
Mrs. Thayer, plaintiffs’ grantor, caused the Point to be surveyed and plotted pursuant to a purpose to develop White Birch Point as an exclusive summer colony. It is clear, from the character of such an enterprise and the location and situation of the property, as disclosed by the survey and plan, that the lake was regarded as an essential feature of the proposed development. It was the grantor’s apparent purpose to utilize this feature by means of the grove adjoining the beach, which connected the water front with the system of proposed roads. The advantages of the lake, beach, and grove were accordingly stressed in elaborate advertising matter and proclaimed to patrons as inducements to the purchase of lots. Prospective purchasers were shown the plan and given to understand that the grove and beach were to be kept open for their use. The master has found that these areas were convenient and beneficial to the purchasers, that the representations were made with the intention that they should be acted upon and that they operated as inducements to the several purchasers. Having thus induced the plaintiffs to purchase lots enhanced in value by rights in the grove and beach, the grantor and those claiming under her with knowledge are estopped to deny the existence of those rights. Walker v. [City of] Manchester, 58 N.H. 438, 441; Douglass v. Belknap Springs Land, 76 N.H. 254, 256, 81 A. 1086, 37 L.R.A.,N.S., 953.”

The obstacles which the Supreme Court in Drye encountered are held insurmountable to the establishment of easements appurtenant by estoppel are not present here. The area, one thousand acres in Drye, is only one and one half acres here, its shape being 160 feet by 420 feet. In Drye, the grantor was charged with the maintenance of improvements. Here there are no improvements to maintain and the grantor, Shelton is not obligated to construct any. In Drye, the privileges sought to be established as easements appurtenant, such as “the run of the ranch, nature study, picnic, hike, ride horseback, camp out, bird watch” were held to be indefinite. Here the easements sought to be established are of a more definite character. They are primarily for the purpose of making the dominant estates, in effect, water front lots. Just as in the New Hampshire case where the lake was regarded as an essential feature of the proposed development, so here water front on Bee Creek, an outlet to Lake Austin, was, according to the evidence before us, an essential feature of the development and sale by Emmett Shelton of his property.

This one and one half unimproved acre with a rough terrain was pointed out by Emmett Shelton to prospective purchasers. He called it a park. But by whatever name it may be called, it was a place set aside for the permanent use of purchasers from Mr. Shelton of property in his subdivision in order that they might have access to Bee Creek and enjoy its banks for park, recreational and other incidental uses. We consider such uses to be definite in character.

When it is considered that there are at least fourteen of these purchasers, and presumably fourteen families, having automobiles, boats, trailers and other paraphernalia, it cannot be said, as in Drye, that strong public policy in favor of land use would be violated.

But appellees say that appellants’ rights, if any, by reason of the representations of Emmett Shelton, were merged in the 1955 deed from Emmett Shelton, and under which they claim.

The trial court ruled that extraneous evidence was inadmissible to vary or alter the terms of the 1955 Shelton deed, the deed being unambiguous.

The rule of merger and the parol evidence rule are both subject to avoidance when the defenses of fraud and mistake are properly invoked. 13 Tex.Jur.2d, Contracts, Sec. 276, p. 509. See Distributors Investment Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, and Dallas Farm Machinery Company v. Reaves, 158 Tex. 1, 307 S.W.2d 233.

Fraud and mistake were, as stated above, fully alleged by appellants in their pleadings. Also, in our opinion, there is evidence in the record which would sustain findings of fraud and mistake in regard to the 1955 Shelton deed in the event such deed is subject to the construction which the trial court has placed upon it.

It is our opinion that the trial court has erroneously construed the 1955 Shelton deed. We have quoted the relevant portions of this deed infra.

The language of the conveyance is remarkably clear in granting the right of ingress and egress “over the lands of grantor that lie between the property” of his neighbors to the one foot strips which were conveyed in fee to the grantees.

This right of ingress and egress was not limited to a roadway 30 feet wide as the trial court has decreed. It was an unrestricted right to use the entire 160 feet by 420 feet for these purposes.

Knox v. Pioneer Natural Gas Company, 321 S.W.2d 596, Tex.Civ.App., El Paso, writ ref. n. r. e., quotes the following from Lone Star Gas Co. v. Childress, 187 S.W.2d 936, Tex.Civ.App., Waco, n. w. h.:

“ * * * ‘Since the deeds do not confine the defendant’s use to a strip of land thirty feet wide it is elementary that the court could not re-define the terms of the grant and restrict the use granted by the instruments * * * ’
absent fraud, accident or mistake.”

If we are wrong in this construction of the deed, then the construction put upon it by the parties to it by their conduct is admissible to evidence the intention of the parties to the deed and their understanding of its terms. Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566.

There is evidence in the record that the grantees have used this property without restriction for many years for access to the water, swimming, parking cars and for other purposes for which parks are generally used.

Also the record reflects that the grantor in this deed, Emmett Shelton, conveyed his interest in the property without receiving anything in return for it. This is consistent with the construction of the deed as leaving Mr. Shelton with only the naked legal title to the property.

Mr. Shelton is quoted as saying to Dr. Forister in 1965 that he gave Lots 1 and 2 to the Bee Creek Club to “all you owners as it was always intended to be” and that he had nothing further to do with it.

We are also of the opinion that the words “water front privileges” as used in the 1955 Shelton deed should be construed in the light of the circumstances surrounding the execution of such deed in order that the real intention of the parties to it may be ascertained. Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579. If there is any reasonable doubt as to what this term means, then a question of fact is presented for determination. Trinity Universal Insurance Co. v. Ponsford Brothers, 414 S.W.2d 16, Tex.Civ.App. El Paso (March 1967), Easements, Sec. 14, p. 133, Vol. 21, Tex.Jur.2d.

We overrule appellees’ contention that the rights which appellants seek to establish in the property in suit are precluded by the rule against perpetuities. We are dealing with vested interests. See 70 C.J.S. Perpetuities, § 10, p. 584.

Appellees also contend that they are bona fide purchasers as to any rights which appellants seek to establish in the property other than under the 1955 Shelton deed.

The three elements of a bona fide purchase are good faith, a valuable consideration, and absence of notice. 92 C.J.S. Vendor and Purchaser § 321.

We are of the opinion that these elements are not established as a matter of law.

In November 1964, before appellees acquired any interest in this property Mr. Holloway wrote Mrs. Elba May Shelton, former wife of Emmett Shelton, from which we quote:

“Bill Coleman, Emmett, Jr., and I, almost two years ago, formed a non-profit corporation, Bee Creek Club, Inc. It was our purpose to obtain title to this land, subject to the easements and rights of the fifteen people mentioned and to organize a club, giving each of them a right of membership. We had in mind that all of us could co-operate to improve the property and make the waterfront more usable to all of us. Shortly thereafter, in January, 1963, Emmett gave a deed to the property to this Club, without consideration. It was his attitude that he had no interest in the property except to make it usable for the people holding waterfront rights.
* ⅜ * * * *
I would not attempt to advise you what the . property is worth. Burdened with the rights of the waterfront owners and lacking any waterfront, the land is not worth even approximately what it would be without this handicap. Since the rights of all concerned are somewhat uncertain and ambiguous, anyone who bought the property might be buying controversy and litigation. If you want to sell it, rather than donate it, I would consider that in fairness Emmett, Sr., should be paid an equal amount. The situation should be clarified, however, one way or the other, as you nor anyone else will derive any substantial benefit from the property in the present condition of the title.”

We have quoted, supra, from the affidavit of Dr. Forister concerning a conversation with appellees in which Mr. Coleman stated that it was necessary to get all the property owners together in order to build anything on the property.

We will not search the record for other evidence to establish that a fact issue was presented negating appellees’ plea of bona fide purchase for the reason that the burden was on appellees to establish this plea by proof. Vendor and Purchaser, 59 Tex.Jur.2d, Sec. 810. We find no conclusive evidence in the record that appellees bought this property without notice of the claims of appellants and those similarly situated to easements appurtenant by estop-pel.

Appellees have a counterpoint to the effect that since appellants also moved for a summary judgment that the trial court could not find that material fact issues were present but must determine the rights of the parties in the land in suit as a matter of law. Appellees cite no authorities to support this strange theory. The contrary is held in Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85, and followed in Pleasant v. Johnson, 367 S.W.2d 173, Tex.Civ.App. Beaumont, writ ref. n. r. e. The counterpoint is overruled.

Summarizing, we hold (a) that issues of fact are presented as to the establishment of an easement appurtenant by estoppel for park and related purposes on the property in suit (b) that fact issues are or may be presented as to the meaning of the words “waterfront privileges” as used in the 1955 deed (c) that, as a matter of law, the 1955 deed gives to the grantees therein an unrestricted right to use all of the property in suit for ingress and egress to the waterfront.

We do not foreclose the trial of other issues, such as bona fide purchase, which may be raised by pleadings and evidence.

This brings us to the question of whether our judgment of reversal and remand should inure to the benefit of non-appealing plaintiffs in the court below. We believe that it should. In Hamilton and Co. v. Prescott, 73 Tex. 565, 11 S.W. 548, Justice Gaines, for the Court, held that “ * * * a judgment against two or more parties which is appealed from by one may be reversed as a whole, according to the manifest justice of the case * *

We believe that manifest justice requires the judgment entered by the trial court in this case be set aside in its entirety. See Appeal and Error — Civil, 4 Tex.Jur.2d Secs. 875-6, p. 462, Vol. 4, McDonald Texas Civil Practice, p. 1476.

The judgment of the trial court is reversed and this cause is remanded for trial in accordance with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: CHADICK, Chief Justice.

license: Public Domain

text:
    TEXAS SLING COMPANY et al., Appellants, v. Samuel EMANUEL et al., Appellees.
    No. 7808.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 15, 1967.
    Rehearing Denied Sept. 12, 1967.

      Howell E. Stone, Talbert, Giessel, Barnett & Stone, Jerry V. Walker, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellants.
    Walter Workman, Baker, Botts, Shepherd & Coates, Stanley Swenson, Houston, for appellees.
   CHADICK, Chief Justice.

In the summer of 1961, H. A. Lott, Inc., as general contractor, undertook construction of a school building in Houston, Texas. A large crane was needed in erecting the building. H. A. Lott, individually, owned a Koehring 605 crane and leased it to H. A. Lott, Inc. for use on the project. As erection of the structure progressed it became necessary to extend the crane’s reach, that is, lengthen the boom of the crane. H. A. Lott, as owner of the crane, contracted with American Powerstage Company to furnish a twenty foot boom extension, together with twenty foot extensions of the crane’s two pendant lines. American Powerstage Company contracted with Texas Sling Company, an organization specializing in splicing wire rope, to splice the twenty foot extensions into the existing pendant lines. The wire rope for the extension was supplied by American Powerstage Company, and the latter company installed the spliced boom pendant cables on the crane during the month of July, 1961, as the boom extension was added.

The Koehring 605 crane with the newly installed extensions was being used by H. A. Lott, Inc., to lift and pour concrete on the school job on August 31, 1961, when the crane fell. Several persons were injured and considerable property damage occurred. Samuel Emanuel, an employee of H. A. Lott, Inc., filed a personal injury action against Texas Sling Company, American Powerstage Company and H. A. Lott, individually. Travelers Insurance Company, workmen’s compensation carrier for H. A. Lott, Inc., intervened. H. A. Lott, Inc. entered suit against American Power-stage Company and Texas Sling Company for damages to property. These actions were consolidated and tried before a jury in a district court of Harris County. A judgment awarding recovery of $75,182.00 was rendered for plaintiff, Samuel Emanuel, against Texas Sling Company, but out of this sum the intervenor, Travelers Insurance Company, was awarded $5,837.00; the judgment also awarded plaintiff H. A. Lott, Inc. a joint and several recovery of $7,000.00 for property damage from Texas Sling Company and American Powerstage Company; additionally, the judgment discharged the liability of H. A. Lott, individually, with a take nothing award.

APPEAL OF TEXAS SLING COMPANY

The brief of this appellant has limited its appeal to the judgment recovered by Samuel Emanuel and Travelers Insurance Company. Relevant to this particular appeal, the record shows that about six weeks after the extension had been installed, on August 31, 1961, Samuel Emanuel, an employee of H. A. Lott, Inc., was performing his job of spreading concrete as it was emptied from a bucket hoisted to the second floor level by the crane. The bucket in use weighed approximately a thousand pounds and contained approximately four thousand pounds of concrete. When the loaded bucket was about six feet above the work deck a cable splice made by Texas Sling Company failed and the boom with its load crashed onto and through the decking. Samuel Emanuel was injured.

The first point of error briefed is as follows:

“I. The Court erred in entering judgment against Texas Sling Company insofar as said judgment was based upon answers to Special Issues Numbers 14 and IS because:
(a) There was no evidence of any defect that could have existed in the splice made by Texas Sling Company which would cause it to slip other than an inadequate number of tucks and this issue was found by the jury against plaintiff.
(b) There was no evidence of any defect that in fact existed in the splice made by Texas Sling Company other than that concerning an inadequate number of tucks and this issue was found by the jury against plaintiff.
(c) There was no evidence that there was a defect in the splice made by Texas Sling Company which an inspection would have disclosed.
(d) There was no evidence that the failure of Texas Sling Company to inspect the splice after it was made was the proximate cause of the accident causing Plaintiff’s injuries.
“The jury found in response to Special Issue No. 23 that Texas Sling Company ‘orally agreed’ with American Power Stage to furnish splices necessary to make suitable boom pendants; in response to Special Issue No. 24 that one of such splices was not suitable; in response to Special Issue No. 25 that such splice caused the boom pendant to be imminently dangerous, and in response to Special Issue No. 26, that the ‘act of Texas Sling Company in furnishing such splice’ was the proximate cause of the accident.”

Special Issues No. 14 and 15 referred to in the point, together with the jury’s verdict on them, are as follows:

“SPECIAL ISSUE NO. 14. Do you find from a preponderance of the evidence that before the boom pendants were furnished for use on the Koehring 605 Crane, the Texas Sling Company, acting by and through its agents and employees, failed to make such inspection of the splices of such pendants as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances ?
“Answer: ‘We do’.
If you have answered Special Issue No. 14 ‘We do’, and only in that event, then answer: '
“SPECIAL ISSUE NO. 15. Do you find from a preponderance of the evidence that such failure, if any, was a proximate cause of thé accident of August 31, 1961?
Answer: ‘We do.’ ”

The jury’s verdict upon still another issue has a bearing that must be noticed in the consideration of this point; such issue and jury’s answer follows:

“SPECIAL ISSUE NO. 12. Do you find from a preponderance of the evidence that Texas Sling Company, in making such splice, if you have so found, failed to use the number of tucks therein as would have been used therein by a splicer of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?
Answer: ‘We do not.’ ”

No inspection of the splice was made by Texas Sling Company, so the initial questions the point of error presents for decision are whether or not there is any evidence that a defect in the splice could have existed, or that a defect did in fact exist, or that there was a defect in the splice that an inspection would have disclosed. The evidence having a tendency to support the jury’s finding on these questions, in its most favorable aspect, is that the splice had shorter ends than other splices on the existing boom assembly, had fewer tucks than some splicers would place in a similar pendant line, the ends of strands in the splice were not brazed, the segment of extension cable spliced was of smaller diameter than that ordinarily used on a number 605 Koehring crane, and that a properly fabricated splice would break elsewhere before it would pull loose under tension

The evidence, although scanty and circumstantial in nature, has probative weight and supports a probability that the splice could and did have visible defects and failed because of one or a combination of them. The jury refused by its answer to Special Issue No. 12 to find that Texas Sling Company failed to use the number of tucks a splicer of ordinary prudence would have used in the exercise of ordinary care, but jury answer to this issue was not conclusive of the questions here considered. Such answer did not rule out a conclusion by the jury that the number of tucks actually in the splice, (though not constituting negligence standing alone), when considered with the proof of inadequacy in other respects could have and did combine with one or more of the inadequacies proven to create a visible defect that could and did cause the splice to slip; or that the inadequacies in the splice, other than the number of tucks, made it visibly defective and caused the failure and damage.

The questions here decided are not free of doubt. Counsel for Texas Sling Company in oral argument and in an admirable brief marshals the facts, circumstances and authorities in an array that is very persuasive. However, the point of error does not require this court to decide the sufficiency or great weight and preponderance of the evidence and the conclusions expressed seem to be in harmony with the authorities. The Supreme Court of Iowa in Lunde v. Cudahy Packing Company, 139 Iowa 701, 117 N.W. 1068 says:

“A cause being shown which might produce an accident, and it further appearing that an accident of that particular character did occur, it is a warrant-able inference, in the absence of showing of other cause, that the one known was the operative agency in bringing about such result.”

This language was quoted with approval in Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Com.App. op. adpt. 1919); see also Sam White Oldsmobile Co. v. Jones Apothecary Co., 337 S.W.2d 834 (Tex.Civ.App. Houston 1960, writ ref., n. r. e.); Davis Transport, Inc. v. Bolstad, 295 S.W.2d 941 (Tex.Civ.App., Galveston, 1956, writ ref’d); Texas Employers Ins. Ass’n v. Texas Compress Co., 284 S.W.2d 922 (Tex.Civ.App., Galveston, 1955, wr. ref’d, n. r. e.) Appellant Texas Sling Company’s first point of error is overruled.

APPEAL OF AMERICAN POWER-STAGE COMPANY

The parties stipulated that H. A. Lott’s was damaged $7,000.00 by the crane’s collapse. A joint and several judgment for that sum was entered for H. A. Lott, Inc., against Texas Sling Company an American Powerstage Company, but only American Powerstage Company prosecutes an appeal. No challenge is made that the facts found are unsupported by evidence. The appeal is concerned only with the effect of the jury’s response to Special Issues No. 20, No. 21 and No. 22; the issues and answers were as follows:

“SPECIAL ISSUE NO. 20. Do you find from a preponderance of the evidence that pursuant to such oral argument, John Goss, acting for and on behalf of American Powerstage Company, did furnish such twenty-foot boom section and twenty-foot boom pendant cable lines for use on the Koerhing 605 Crane ?
Answer ‘We do’.
“If you have answered Special Issue No. 20 ‘We do’, and only in that event, then answer:
“SPECIAL ISSUE NO. 21. Do you find from a preponderance of the evidence that one of the twenty-foot boom pendant cables was not suitable for its intended use on the Koehring 605 Crane ?
Answer ‘We do’.
“If you have answered Special Issue No. 20 ‘We do’, and only in that event, then answer:
“SPECIAL ISSUE NO. 22. Do you find from a preponderance of the evidence that such act of John Goss, acting for and on behalf of American Pow-erstage Company, was a proximate cause of the accident of August 31, 1961 ?
Answer ‘We do’.”

Because answering Special Issue No. 22 is conditioned upon a “We do” answer to Special Issue No. 20, American Powerstage construes the result of the two answers to be a finding by the jury that the act of furnishing the twenty-foot boom section and the twenty-foot pendant lines was a proximate cause of the accident in question. So construed, it is argued, there is an absence and failure by the jury to find that the unsuitability of one of the twenty-foot pendant cable lines- was a proximate cause of the accident. Appellant American Powerstage concedes that it can find no case in point to support its construction but undertakes to demonstrate that such construction of the charge is correct. The appellee H. A. Lott, Inc.’s brief appears to agree that there is no case in point, as it cites no decision of an appellate court in support of its view that the jury found the unsuitable pendant line was the proximate cause of H. A. Lott Inc.’s loss. A reasonable construction, in harmony with the judgment entered by the trial judge, would be (1) that the answer to Special Issue No. 20 established that American Powerstage did in fact furnish the twenty-foot boom section and both twenty-foot pendant lines, and (2) that the answer to Special Issue No. 21 established that one of the twenty-foot cables so furnished was not suitable for its intended use, and (3) that Special Issue No. 22. established that furnishing the boom section and pendant lines, one of which was not suitable for its intended use, was a proximate cause of the accident in question. Such construction embraces the full range of the facts established, and constitutes a verdict that furnishing a pendant line unsuitable for its intended use was a proximate cause of the accident. Appellant American Powerstage’s points of error presenting this problem are overruled.

All other points of error briefed by the appellants have been carefully considered and disposition of them does not require reversal of the judgment. Accordingly, the judgment is affirmed.

       The wire cable was composed of several strands. The end of the cable was turned back, and the ends of strands tucked among and around the strands of the cable’s body near the end of the cable, thereby forming a loop. A tuck in a splice results when an end strand is worked in and out of the strands of the body of the cable in a spiral pattern. The end of a cable strand that protruded from the body of the cable when the splice is completed is referred to in the trade as a “bitter” end, or so the testimony of one expert witness would indicate. Standard splicing procedure requires that the length of the protruding ends be equal to the diameter of the cable. For example, on a one inch diameter cable the strand’s ends would protrude one inch from the body of the cable. An experienced splicer testified that it was customary to braze the protruding ends, explaining that brazing welded the ends into the cable.


author: CADENA, Justice.

text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Appellant, v. Alton A. PARKER, Appellee.
    No. 14577.
    Court of Civil Appeals of Texas. San Antonio.
    July 31, 1967.
    Rehearing Denied Sept. 20, 1967.
    House, Mercer, House & Brock, San Antonio, for appellant.
    Lieck & Lieck, San Antonio, for appel-lee.
   CADENA, Justice.

This is a Workmen’s Compensation case in which Employers Mutual Liability Insurance Company of Wisconsin, defendant, appeals from a judgment rendered against it and in favor of plaintiff, Alton A. Parker, in conformity with a jury verdict to the effect that plaintiff was totally and permanently disabled due to cancer resulting from his exposure, during the course of his employment, to radiation from radioactive materials.

Defendant contends that the trial court erred in overruling its motion for judgment non obstante veredicto because there is no evidence that plaintiff’s cancer was the result of work-incurred radiation.

On May 22, 1961, plaintiff began to work for a private employer engaged in the performance of work under a contract with the United States of America at a governmental installation located about ten miles west of the City of San Antonio. A pre-employment physical examination and annual physical examinations prior to April 1965, revealed no evidence that plaintiff was suffering from cancer. In April, 1965, plaintiff noticed a swelling on the left side of his neck. He consulted a doctor, who referred him to Dr. James W. Nixon, Jr. On June 15, 1965, Dr. Nixon surgically removed the mass, which was diagnosed as a “metastatic carcinoma in the cervical lymph node.” Although a histological analysis of the malignant cells strongly suggested that the primary tumor was a semi-noma, or cancer of the testicle, no definite conclusion concerning the site of the primary tumor was reached. While several examinations of plaintiff’s testicles yielded no evidence of seminoma, the nature of the examinations was such that the possibility of a testicular tumor was not eliminated.

Under Section 20(h) of Article 8306, Vernon’s Ann.Civ.St. (1967), plaintiff is entitled to compensation if his disability resulted from a disease caused by exposure to x-rays or radioactive substances. The evidence in this case is clearly sufficient to establish that prior to May, 1962, when plaintiff began work at the governmental installation, he was not suffering from cancer; that from May, 1962, to April, 1965, plaintiff was exposed to artificial radiation in the course of his employment; and that by April, 1965, plaintiff had developed a cancer in the left cervical lymph node. However, mere proof that plaintiff was not suffering from cancer before exposure to radiation and that, after such exposure, he developed cancer is not sufficient, standing alone, to support a finding of causal connection between the radiation and the disease. The medical evidence in this case conforms to the well-known fact that cancer is a disease of esoteric etiology. Although, except to the legal mind, with its peculiar thought processes, it may seem anomalous to say that only experts may testify as to facts or matters concerning which they profess ignorance, it seems to be settled in Texas that the question of causal connection between a traumatic event, or series of events, and the subsequent development or aggravation of an existing tumor, is a “question of science determinable only from the testimony of expert medical professionals.” Insurance Co. of North America v. Myers, 411 S.W. 2d 710 (Tex.Sup.1967). However, Texas does not require that the expert testimony concerning causal relation be based on reasonable medical certainty. As Mr. Justice Steakley pointed out in Myers, causal con- ■ nection in such a fact situation must rest on reasonable medical probabilities.

The evidence in this case discloses that from May 22, 1961, until September, 1963, plaintiff worked as a material handler. His principal duty consisted of carrying materials, some of which were radioactive, from the warehouse or storage areas to locations where other employees, known as production operators, were engaged in the assembling and disassembling of weapons, including nuclear weapons. While the evidence was conflicting, as to whether the radioelements were always kept in shielded containers, the record discloses that, even if such containers were shielded, “there was a radiation field associated with the radioactive material that would actually come out through the protective” shield. Material handlers were not furnished any apparel or other devices designed to protect them against radiation, nor was any effort made (to determine the amount of radiation to which they were exposed.

In September, 1963, plaintiff's job classification was changed to that of production operator, and from that time until the neoplasm on the left side of his neck was discovered in April, 1965, he was engaged, at least from time to time, in the assembly and disassembly of nuclear weapons. Since production operators were subject to greater risk from radiation than were material handlers, they were required, when handling radioactive isotopes, to follow certain safety procedures, and were furnished protective apparel and radiation-measuring devices. The protective clothing generally consisted of leaded aprons and gloves. The standard measuring device was a film badge which was worn on the wrist or some other portion of the body, but always under the leaded glove or leaded apron. The badges, after they had been worn for. a week, were sent to a laboratory for a determination of the amount of exposure to radiation. Plaintiff was issued such a badge on four occasions, and an analysis of these badges revealed only two periods of exposure, one during the period of February 17-23, 1964, and the other during the period June 8-14, 1964. An analysis of the badges worn by plaintiff during these two periods indicated that he had been subjected to a total of 36 millirems of radiation. However, the evidence in this case amply supports the conclusion that plaintiff’s exposure to radiation was greatly in excess of 36 millirems, although it does not reveal the precise amount of exposure.

There was medical testimony to the effect that exposure to radiation can cause cancer, and that a person working around radiation “does have a higher than normal risk of developing malignant changes in his tissues.”

In answer to hypothetical questions concerning the probability that radiation caused plaintiff’s cancer, Dr. Sidney Schif-fer stated that he would not make a statement of probability either way. He merely admitted that radiation could have played a part, adding, “we just simply don’t know enough.” He further stated that, in his opinion, a diagnostician could not say whether plaintiff’s cancer was caused by radiation. He listed as factors which may cause a cell to become cancerous, viruses, chemical agents, aging, physical agents, hormone factors and radiation. Although he admitted that, theoretically, it was impossible to exclude any one or all of these factors in plaintiff’s case, since the cause of cancer is unknown, it was possible, from a practical standpoint, to exclude physical factors and chemical factors. However, he testified that it was not possible to exclude viruses or the hormone and radiation factors as possible causes of plaintiff’s tumor.

Dr. Vincent Collins testified that medical science has not proved any one cause for lymphoma, or cancer of the lymph nodes. He also stated that there was no way to determine what caused a particular cancer, and that a cancer arising on the basis of chance cannot be distinguished from a cancer caused by radiation.

Dr. Wright Langham, a member of the National Committee on Radiation Protection, and a former member of the International Commission on Radiation Protection, testified that both of those bodies had established 5 rems (5,000 millirems) as the maximum safe annual dosage of radiation. This is the amount of “whole body radiation” which has an “insignificant probability of doing the individual any demonstrable harm at any time during his natural life.” This amount refers to accumulated dosage over a period of a year. It is believed that a person may safely absorb as much as three rems in three months, but, in the event of such exposure over a three-month period, any further exposure during the following three months would not be considered safe. However, there is nothing in the testimony of this witness to indicate that exposure to a dosage in excess of the safe maximum annual dose would be likely to cause cancer.

Dr. George C. Maney, after stating that, in his opinion it has been established that radiation is an etiological factor in leukemia and cancer of the thyroid, said that it is possible that a person exposed to radioactive material over a long period of time would develop cancer. However, he said he was unable to answer a question concerning the amount of exposure which would be required over a period of time to develop a cancerous condition in a human being.

An examination of the expert testimony in this case reveals that no medical expert testified that radiation was the probable cause of plaintiff’s cancer. No witness testified in terms stronger than a “possibility.” No witness was willing to go beyond admitting that, under some circumstances, exposure to radiation “could” or “can” cause cancer. We are mindful of the fact that the disease in question is one concerning which medical knowledge is limited, and that the medical issue presented is one which hardly permits unqualified and unequivocal answers. We also agree with plaintiff that, as pointed out in the Myers decision, reasonable probability is determined by consideration of the substance of the medical testimony, and “does not turn on semantics or on the use by the witnesses of any particular term or phrase.” 411 S.W.2d at 710. However, we are convinced, after reviewing the entire testimony, that in this case an inference of causal connection can be no more than speculation and conjecture. In view of the fact that the opinions expressed by the medical experts were given without accurate information concerning all of the facts of the case, particularly the amount of radiation to which plaintiff had probably been exposed, it is not surprising that the opinions expressed were cautious and not stated with unhesitating conviction.

Plaintiff relies strongly on testimony to the effect that, assuming exposure to amounts of artificial radiation set forth in hypothetical questions, it was more probable that plaintiff’s cancer was due to artificial, rather than to natural or background radiation. However, a reading of this testimony in context reveals the fact that such opinions were based on the assumption that plaintiff’s tumor had, in fact, been caused by radiation of some kind.

As already pointed out, we do not have before us a case in which as in Atkinson v. United States Fidelity & Guaranty Co., 235 5.W.2d 509 (Tex.Civ.App., 1950, writ ref’d n. r. e.), possible factors in the development of cancer, other than exposure to radiation, have been eliminated as possible causes of plaintiff’s cancer. Under these circumstances, we are constrained to hold, m conformity with the recent decision by our Supreme Court in Myers, that testimony to the the effect that radiation “may have,” “could have” or “possibly” caused plaintiff’s tumor is, standing alone, no evidence of a causal connection between such exposure and the subsequent development of the cancer. See Note, 31 Tex.L.Rev. 446.

It may well be that, in view of the present state of medical knowledge on the subject, we are imposing upon plaintiff a Sisyphean task in requiring that he produce medical testimony showing that, in reasonable medical probability, his tumor was caused by radiation. However, we do not believe that the “reasonable medical probability” rule leaves us any alternative.

The judgment of the trial court is reversed and judgment is here rendered that plaintiff take nothing.

      . Metastasis is the transportation of loose clumps of tumor cells, or even single cells, by the blood or lymph stream from a primary or initial growth to a distant focus or organ, where a secondary growth may then take place. This secondary growth may far outstrip the primary tumor in size. Flaxman, Trauma and Cancer, in Medical Trial Technique Quarterly, 223, 229 (1958 Annual).

      . As a rule, the metastatic tumor reproduces the histological (cellular) structures of the primary tumor with considerable fidelity, so that an idea of the kind of primary growth can be formed by examining the secondary growth. Id.

      .Natural or background radiation is that which results from natural causes such as cosmic rays and naturally occurring radioactive elements in the earth, atmosphere, common building materials, and in the body which are unstable and break down with the emission of radiation. Most of the artificial radiation to which we are exposed results from fall out from weapon testing; occupational radiation hazards; and x-rays.

      . Several units of radiological measurement have been developed. The roentgen represents the amount of radiation producing one electrostatic unit in a cubic centimeter of dry air. Although this is an absolute unit of exposure, and not a unit of dose. The really significant factor is the amount of radiation absorbed in tissue. Therefore, another unit of measurement has been established, the rad, a a unit of Radiation Absorbed dose. But since no one measuring unit can cover the range of energies, kinds of radiation and the range of effects that medical science must think of, the rem has been developed as a “unit of convenience.” The record in this ease contains no definition of a rem, but, apparently, the rem is the rad multiplied by an index of relative biological effect. A millirem is one one-thousandth of a rem.

      . There is evidence in the record which supports the conclusion that, since the badge was always worn beneath protective clothing, it measured only Vis of the total amount of millirems to which the surface of the badge was, in fact, subjected. This would mean that unprotected areas of the body, such as the neck, would be subjected to fifteen times as many millirems as would the protected badge. Therefore, on the two occasions discussed in the opinion, it can be concluded that the exposed portions of plaintiff’s body were, in fact, subjected to 540, rather than 36, millirems of radiation. In addition, the evidence shows that on one occasion, while plaintiff was in an area in which an “incident” occurred in connection with the testing of a machine described as an “iridium source,” the protected badge worn by a worker in the area showed that he had been subjected to 6½ rems (6,500 millirems) of radiation. There is nothing in the record, however, showing the proximity of plaintiff to the location of the “incident” or the number of rems to which he was, in fact, subjected. The evidence further showed that, during the more than two years that plaintiff worked as a materials handler, he was exposed to radiation which “leaked” even from shielded containers. Since material handlers were issued no measuring devices, it is impossible to tell the amount of radiation to which plaintiff was subject during this period.

      . The only positive opinions stated by any expert witnesses were to the effect that, assuming that plaintiff was subjected, over a four-year period, to only 36 mil-lirems of radiation, the tumor in question was not caused by radiation.


author: MOORE, Justice.

text:
    SKELLY OIL COMPANY, Appellant, v. MEDICAL & SURGICAL CLINIC, Appellee.
    No. 288.
    Court of Civil Appeals of Texas. Tyler.
    July 13, 1967.
    Rehearing Denied Sept. 21, 1967.

      Ramey, Brelsford, Flock & Devereux, Tracy Crawford and Michael A. Hatchell, Tyler, for appellant.
    Marcus Vascocu, Longview, for appellee.
   MOORE, Justice.

Plaintiff, Medical & Surgical Clinic, a medical partnership, brought this suit against defendants, Skelly Oil Company and Willard Rumfield, Jr., to recover various medical and surgical fees for services rendered Rumfield, a customer of Skelly, who was injured as a result of an explosion occurring at the gasoline loading docks on Skelly’s premises.

As grounds for a cause of action, plaintiff alleged that immediately after the explosion, defendant Skelly, acting through its servants, agents and employees, called the Medical & Surgical Clinic and requested Dr. George Tate and Dr. Edwin Buckner to go to the Good Shepherd Hospital in Longview, Texas, and treat and care for Rumfield; that as a result of such request, Dr. Buckner and other doctors were dispatched from the Clinic and thereafter treated Rumfield for a period of approximately two months; that the usual and customary charges for such services amounted to the sum of $820.00; and although demand had been made for payment, the defendants and each of them refused to pay the same or any part thereof. Plaintiff prayed for recovery of the debt, together with a reasonable attorney’s fee. Defendant, Skelly Oil Company, denied liability generally and specially denied that the company either expressly or impliedly agreed to assume liability for Rumfield’s treatment. Defendant Rumfield failed to answer and judgment by default was rendered against him.

Trial was before the jury and in response to the special issues submitted by the court, the jury found (1) that the defendant, Skelly Oil Company, through its office manager, John A. Pate, requested Dr. E. E. Buckner and/or Dr. George Tate to treat and care for Rumfield, and (2) that the Medical & Surgical Clinic performed medical services for Rumfield at the special instance and request of Skelly. It was agreed and stipulated that the services rendered on behalf of Rumfield by Medical & Surgical Clinic were necessary and reasonable and that the value of the services amounted to the sum of $820.00 and that the sum of $300.00 would represent a reasonable attorney’s fee.

Based upon the verdict and stipulations, the trial court rendered judgment for the plaintiff in the amount of the debt and for attorney’s fee. Defendant, Skelly Oil Company, after its motion for new trial was overruled, duly perfected this appeal.

By its first point of error, Skelly asserts that as a matter of law, the judgment must be reversed and rendered in its favor because there is no evidence that Skelly expressly or impliedly agreed to pay for the medical services rendered Rumfield. In this connection Skelly argues that even though it be conceded that there was evidence of probative force to sustain the finding that Skelly requested medical services for Rumfield, the relationship between Skelly and Rumfield was not such as would impose a legal obligation upon Skelly to furnish medical care, and therefore a mere request to furnish medical care would not raise the issue of an implied promise on the part of Skelly to pay for the services. Consequently, Skelly asserts that since there was no evidence of a promise to pay for the service and the law implies no obligation to pay for medical service requested for a stranger, the court erred in refusing to grant its motion for instructed verdict and in refusing its motion for judgment notwithstanding the verdict.

These points will require a brief statement of the evidence. When viewed in a light most favorable to the plaintiff, the record reveals that Willard Rumfield was employed by a company known as Power-Pak. He had gone upon Skelly’s premises for the purpose of purchasing gasoline for his employer and during the process of loading the same on the truck, there was an explosion and fire which seriously injured him. There is no evidence as to what caused the explosion. Immediately thereafter, an ambulance was dispatched to the Skelly plant and Rumfield was carried to the hospital. Shortly thereafter, the receptionist at the Medical & Surgical Clinic received a telephone call from a person whom she identified as John Pate, defendant’s office manager, who, according to her testimony, advised her that there had been an explosion at the Skelly plant. He then asked: “Can you take care of a patient for us?” According to her testimony, Pate also specifically requested the services of Dr. Buckner and Dr. Tate. She testified that she relayed the message to Dr. Buckner, who immediately left his office and proceeded to the hospital and commenced treating Rumfield. John Pate denied making such a call. Other employees testified that they did not call the Clinic on the occasion in question.

The evidence further shows that for many years prior to the time of explosion, Skelly had used the Medical & Surgical Clinic to treat its employees and to make pre-employment physical examinations for those seeking employment with defendant. Dr. Buckner testified that at one time there existed a written contract between Skelly and the Clinic, but that he was unable to locate the same at the time of trial. The evidence shows that the usual custom was for the office manager of Skelly to call the Clinic prior to sending a patient and make arrangements. After the services had been requested, the Clinic would bill Skelly for its services, and same would be paid by Skelly.

The evidence further shows that immediately after Rumfield had been confined in the hospital, Mr. Pate and Mr. Miller, the plant manager, visited the hospital to check on Rumfield’s condition and while there they saw Dr. Buckner and other doctors from the Clinic treating Rumfield. Pate and Miller also visited the hospital on subsequent occasions to check on Rumfield’s condition and contacted the doctors with reference to his progress. At no time during the visits to the hospital was there any conversation between the doctors and the employees of Skelly as to who was responsible for the medical bills until a few days prior to Rumfield’s discharge, at which time Mr. Miller saw Dr. Buckner at the hospital and advised him that Skelly would not be responsible for the bill. Dr. Buckner testified that this was the first time he had an indication that Skelly was denying responsibility for the medical services. He further testified the Clinic continued to look to both Skelly and Rumfield for payment and when both refused, the Clinic filed this suit.-

Although there are no Texas cases on the point, the authorities generally support the broad proposition that a mere request by a person to a physician or surgeon to render services to another to whom the person making the request bears no relationship as would ordinarily impose a legal obligation to furnish medical care will not raise an implied promise on the part of the one requesting the services to pay the physician or surgeon. Public policy favors the encouragement of those who will summon aid for the unfortunate sick who cannot act for themselves. 41 Am.Jur. 257, Sec. 144; 125 A.L.R. 1431.

On the other hand, in 70 C.J.S. Physicians and Surgeons § 70, at page 1030, we find the rule stated thusly:

“ * * * Where the physician is aware that one requesting his services for a third person is acting solely as a messenger for the latter, he cannot recover against the messenger; but, where there is nothing to indicate to the physician that the person calling him is acting as a messenger, and the circumstances raise a reasonable inference that such person intends to pay, the physician may recover, * *

According to defendant’s interpretation of the evidence, the facts show a mere request for medical aid and nothing more; Based upon this premise, Skelly takes the position that even though it be conceded that it requested the services, such finding, standing alone, would not be sufficient to establish a cause of action upon an implied contract and there being no evidence of an express contract, the trial court should have directed a verdict in its favor. As we view the record, the evidence presents something more than a mere request. In our view, the facts and circumstances were such that the plaintiff could have been led to believe, and to charge Skelly with knowledge that the plaintiff did believe, that Skelly was undertaking to pay for the services rendered. When viewed in a light most favorable to the plaintiff, we think there is at least some evidence of probative force tending to prove a condition of affairs from which the triers of the fact, if they should see fit to draw the inference, might with reason conclude that Skelly intended the plaintiff to understand, and the plaintiff did understand, that Skelly intended to assume the responsibility for the payment of the services. Morrell v. Lawrence, 203 Mo. 363, 101 S.W. 571. In view of the previous relationship between Skelly and the Clinic, and the evidence showing Skelly requested the Clinic to take care of a patient for “us,” we think there was sufficient evidence to create a fact issue for the jury upon whether or not the facts and circumstances showed an implied contract. Ghio v. Schaper Bros. Mercantile Co., 180 Mo.App. 686, 163 S.W. 551; Valentine v. Morgan, 207 Iowa 232, 222 N.W. 412; Andrew v. Brecker, 229 Wis. 526, 282 N.W. 609. We therefore overrule defendant's first and second points of error.

In the third and fourth points, defendant contends that the court erred in submitting Special Issues Nos. 1 and 2 and in basing judgment for the plaintiff thereon, because such issues are only evidentiary issues and not controlling issues, and therefore the findings thereon will not support a judgment in favor of the plaintiff. Defendant does not challenge the jury’s verdict finding that the employees of the defendant requested the service, but under these points contends first that even though it be conceded that a request was made, plaintiff waived its fight to a recovery by failing to request additional findings upon the question of whether or not the facts and circumstances showed an implied contract. For this reason defendant asserts that the judgment should either be reversed and rendered in its favor or remanded for another trial.

As we interpret the provisions of Rule 279, Texas Rules of Civil Procedure, it provides that if a ground of recovery or of defense is wholly ignored or neglected, and no issue is submitted or requested thereon, it will be held to have been waived and no recovery or defense can be based thereon. If, however, the grounds of recovery or defense consists of more than one element— that is, requires more than one issue to submit them — and the court submits some of the elements and omits others and there is no objection to the failure to submit the same, the parties will be placed in the position of having agreed to waive a jury trial on the unsubmitted elements and to have submitted them to the court for his determination. See Comments to Rule 279, Vernon’s Ann.Tex.Rules, page 8.

We think it obvious from the pleadings and the evidence that the ultimate issue or theory of recovery was whether or not there was an implied contract. The ultimate issue of whether or not there was an implied contract consists of several component elements, to-wit: (1) whether Skelly requested the services; (2) whether or not the employees of Skelly had real or apparent authority to request the medical services for Rumfield; and (3) whether or not the request, when considered in the light of all the surrounding circumstances, was such as to cause the plaintiff to reasonably believe that Skelly intended to pay for the services, thereby establishing an implied contract. Neither of the foregoing elements, going to make up the ultimate issue, constitutes an independent ground of recovery. Each is but a component part of the ultimate issue and as such was complimentary in nature. Since one of the elements of plaintiff’s theory of recovery was submitted, we have concluded that plaintiff did not waive its right of recovery in failing to request additional elements of the ultimate issue.

Secondly, defendant contends that the verdict, finding only that defendant requested the service, will not support the judgment. In this connection, defendant argues that because of its objection to the court’s charge, the trial court was not authorized to make findings on omitted issues and therefore, since no issues were submitted to the jury upon the question of implied contract, the judgment cannot be sustained upon presumed findings, and as a result the judgment must be reversed and remanded. We sustain this contention. The record shows that defendant properly objected to the charge on the ground that it failed to submit any issue upon the question of whether or not the defendant impliedly agreed to pay for the medical services. It is only in instances where there are no objections to the charge that all issues not requested or submitted are deemed to have been found in such a manner as to support the judgment. Rule 279, supra. In view of the objections pointing out the omission of some issues necessary to the plaintiff’s ground of recovery, the judgment cannot be preserved upon the theory of presumed findings. Defendant did not waive a jury trial upon the omitted issues and therefore the trial court was not authorized to supply the finding that an implied contract existed and enter judgment thereon. George S. May Company v. Stephens Lumber Company, (Tex.Civ.App.) 301 S.W.2d 294. Without such presumed findings, the verdict will not support the judgment and therefore it cannot stand.

In view of the ruling hereinabove made, it will not be necessary to discuss the remaining points asserting that the court erred in failing to submit the question of whether the employees of Skelly had real or apparent authority to bind the company for medical services for Rumfield.

For the reasons stated, the judgment is reversed and the cause remanded for another trial.