On Motion for Rehearing
Appellees urge, for the first time, that the submission of the strict tort liability cause of action to the jury was tantamount to a submission of the case on implied warranty, and, therefore, it was not error for the trial court to direct a verdict on implied warranty and “send the case to the jury solely on strict liability in tort.” We do not agree with this argument.
In our original opinion, we expressed no opinion as to the propriety of submitting the case upon strict tort liability. Appellees made no objection to this submission and, consequently, did not raise this question by cross-point since the jury answered all issues on this cause of action favorably to appellees.
Appellants plead and proved (by the applicable standards as expressed in our opinion) a cause of action based upon implied warranty. They were entitled to a submission of this cause of action to the jury. Appellees now argue that, even though such a cause of action existed, appellants could only submit to the jury either the cause of action on implied warranty or strict tort liability, but not both. We do not find it necessary to express an opinion on this question because this question is not before us. According to their argument, appellees now say, in effect, that appellants had the choice of submitting either cause of action to the jury but could not submit both. Assuming, arguendo, and without deciding the soundness of this argument, it is obvious that such a choice was not given appellants. At the time of submitting any requested *390issues by appellants and at any time prior to the submission of the court’s charge to the jury, appellants were not given a choice as to which cause of action they chose to submit. They had been deprived of the right to make a choice — the choice was made by the trial court in granting the instructed verdict on the implied warranty cause of action. Based upon the trial court’s action, appellants were left with only the cause of action of strict liability.
Even though the question of dual submission is not before us, we are not persuaded by the argument that the two causes of action are one and the same. See Signal Oil and Gas Company v. Universal Oil Products, 572 S.W.2d 320 (Tex.1978); Mid Continent Aircraft Corporation v. Curry County Spraying Service, Inc., 572 S.W.2d 308 (Tex.1978). In each cause of action, i. e., implied warranty and strict tort liability, the elements of proof are different, the burden of proof on some elements is different, and in some cases the measure of damages may be different.
The motions for rehearing filed by appellants and both appellees are overruled.