ON MOTIONS FOR REHEARING
It is not necessary to decide if Special Issue No. 21 was an ultimate and controlling issue in this case, as insisted by Respondent and supporting amici. The parties consented to its submission as such. Respondent Street offered evidence to establish that the operations performed on his gums were of comparative severity to the sinus operation which was among the 198 operations listed in the policy. Accordingly, Issue 21 inquired of the jury as follows:
“Do you find from a preponderance of the evidence that objectively determined, on the basis of comparative severity, the operations, if any you have so found, performed by Dr. Treadwell as a dentist upon the mouth of plaintiff were not of comparative severity with, ‘Sinus Cutting into other than puncwtre, muffle’, as listed in the policy in question?”
As stated in our previous opinion, Respondent Street did not object to the issue and without doubt would have insisted on judgment in his favor had the issue been answered favorably to' him. But the point is that he tried his case, at least in part, upon the theory represented by Issue 21, and he was not entitled to a new trial upon the later claim that the issue was immaterial and not controlling. Cf. Allen v. American National Insurance Company, Tex., 380 S.W.2d 604.
The Motions for Rehearing of both Petitioner and Respondent are overruled.