author: RENFRO, Justice.

text:
    SKILLERN & SONS, INC., et al., Appellants, v. Marie STEWART, Appellee.
    No. 16528.
    Court of Civil Appeals of Texas. Fort Worth.
    May 15, 1964.
    Rehearing Denied June 12, 1964.

      Strasburger, Price, Kelton, Miller & Martin, and Hobert Price, Dallas, for appellant Skillern & Sons, Inc.
    Daugherty, Bruner, Kelsoe & Lastelick, and Jerry Lastelick, Dallas, for appellant Hopper & Hawkins, Inc.
    Harris & Ball, and Chester G. Ball, Arlington, for appellee.
   RENFRO, Justice.

Suit was brought by Marie Stewart, a widow, for damages for false imprisonment and assault against Skillern & Sons, Inc., and Hopper & Hawkins, Inc.

It was alleged that Skillerns was a drug store and that Hopper & Hawkins were engaged in security and investigative work; that Bill Strickland was acting as agent in the course of his employment with Skillerns, and Bill Koch and G. I. Miller were acting as agent in the scope and course of their employment with Hopper & Hawkins, and the latter were acting within the course and scope of agency with Skillerns.

The jury found: (1) Plaintiff was falsely imprisoned on Jan. 16, 1962, by Billy Strickland, District Manager of Skillerns; (2) plaintiff was falsely imprisoned by Bill Koch, employee of Hopper & Hawkins; (3) Bill Koch committed an assault on plaintiff; (4) plaintiff sustained damages by reason of the acts found in issues 1, 2 and 3; (5) plaintiff was damaged $10,000 by reason of above; (6 and 7) damages found by reason of lost salary, etc.; (8, R and 10) Strickland was not actuated by malice; (11, 12 and 13) Koch was actuated by malice, and plaintiff entitled to $10,000 exemplary damages against Hopper & Hawkins.

Judgment was entered for plaintiff against the defendants jointly and severally for the sum of $10,000 actual damages, and against Hopper & Hawkins severally for the sum of $10,000 exemplary damages.

Appellant Hopper & Hawkins in points 2, 3, 4 and S contend there is no evidence and insufficient evidence to support the jury’s answer to issues 2 and 3. Skil-lerns in points 2, 3, 4 and 5 makes the same contention and includes issue No. 1.

As to the “no evidence” contention, we consider the evidence in the light most favorable to the jury’s answers.

Plaintiff worked for Skillerns from October 16, 1953, until January 16, 1962. In January of 1962 she was employed in the cosmetic department. She was bonded at all times. The manager of the store was George McDonald and Bill Strickland was supervisor. McDonald was district manager of a chain of stores. Plaintiff never took anything, money or merchandise, from Skillerns, and was never accused of doing so until January 16, 1962. On January 4, McDonald told plaintiff she had to go to a meeting with him. They went to offices of Hopper & Hawkins where she was questioned. On January 16, McDonald said to her, “* * * We are going back to Dallas.” She and McDonald went back to Hopper & Hawkins. She was taken to a small room. Strickland took her by the arm and led her to another room. Two strange men started throwing “accusations and everything” at her. They proved to be Koch and Miller. They introduced themselves as special investigators. Both asked her questions but Koch did “most of the talking, yes, and most of the beating on the desk and telling me that I had stolen.” She told them she had not stolen anything. They insisted she write a confession to stealing merchandise and money. They accused her of stealing numerous items, and said, “ ‘We have the goods on you. We know you stole a coffee pot. We know you’ve been stealing money. All we want you to do is tell us what else you have stolen.’ ” She again denied all accusations. She explained a system whereby Skillerns gave employees a line of merchandise as a reward for going to school. They were allowed to trade such merchandise in for other merchandise. Koch said, “That is stealing.” Koch told her she could not leave until she wrote a statement that she had stolen money and merchandise. She refused. Koch picked up a pencil and tried to force her to sign a statement. He (Koch) asked her: “He asked me would I like to have my picture in the paper, or have a room down by Candy Barr. And every once in a while he would pick up the phone, like he was going to call the District Attorney and take me right in if I didn’t sign that paper. And over and over. If it wasn’t him, it was this black-headed fellow he had in there with him.”

She did not sign. She did leave the room. She went to a phone to call her son, then went back in the lobby to wait for McDonald. As she and McDonald were leaving, Strickland ran out and ordered them back. McDonald took her arm, turned her around, and went back to Hopper & Hawkins. Strickland took her to a room where Koch and Miller were waiting. Koch told her to sign a confession or she was going to the penitentiary, she had no other choice. There was a round table in the room. Plaintiff was placed in the center of it. She tried to get up but could not, “he was always there and wouldn’t let me.” She was told she would either sign or she would never get out of there, they were going to send her to the penitentiary. She finally signed a statement which she had not written. Koch dictated said statement to Miller. “Q. What transpired at that time about signing this instrument? A. I begged them to let me see a lawyer and talk to a lawyer before I signed the paper; that none of this was true; that I hadn’t done any of these things, stolen any money or any merchandise, and I should see a lawyer before I signed a paper. And they kept telling me, ‘It’s only a letter to Mr. Skil-lern.’ ” Not one of the statements was true. Finally after denying the statement repeatedly, she was allowed to leave. Because of the treatment she had received she was so scared and worn down she finally signed the statement.

'■ Before she signed the statement Koch .would put his hands on her shoulders when she tried to rise from the chair.

Strickland fired her at that time.

She collapsed when she reached home, and has “been a complete nervous wreck from that day until this.” She could not eat — could riot sleep — had nightmares. She felt in a condition of shock. Extreme nervousness still comes over her. She has continuously been taking medicine since the incident. She gets real sick at the stomach and has “wretched” pain in the stomach.

The store manager, McDonald, was fired some time after January because of a question over his integrity or honesty.

Plaintiff went to a doctor on January 20. The doctor testified she was suffering from “globus hystericus, a choking sensation, a form of hysteria from extreme tension, that causes the neck muscles to clamp- against the trachea and they have a sensation as if somebody is choking them. It is self-induced by tension of the neck muscles. We see it quite frequently in highly emotional states.” He diagnosed her as a severe anxiety reaction which he felt was on the verge of a complete nervous breakdown. He felt that her condition was due to the trouble about the accusations. He prescribed medication and saw her on a weekly basis for four months, and has seen her monthly since that time. He testified it would be a year or two from the time of trial before she recovered. He did not think she was able to go to work but he encouraged her to try.

Strickland watched the interrogation of January 4 through a one-way mirror, but on the 16th he did not watch through a mirror, but did hear over a speaker system what was being said.

The secretary and controller of Skillerns tells Hopper & Hawkins what stores to check. He never received an unfavorable report on plaintiff prior to January 16. He signed plaintiff’s confession as a witness, though he did not see her sign it.

Before the store went'back to “normal”, the manager, the assistant manager, the cigar clerk and several others had been fired.

Chamblis, .of Hopper & Hawkins, gave plaintiff a polygraph test. He discussed the result of the test with Koch and Strickland.

Koch testified Hopper is President of Hopper & Hawkins. On first interrogation that afternoon, Koch took the lead in questioning plaintiff. She readily admitted she was guilty of taking some merchandise and money. She was not nervous or upset. He talked in a normal tone of voice, and so did plaintiff. Within IS or 20 minutes plaintiff started a letter to Mr. Skillern. She stopped writing and said, “If I continue, or if I finish this letter I’ll lose my job.” Whereupon she walked out of the room. He did not try to stop her. He made “no threats, no promises or nothing.”

About five o’clock plaintiff was called back to the office. Present were Koch, Miller and probably Mr. Hopper. Plaintiff sat at the desk near an open door. Plaintiff was asked if she desired to explain further to Mr. Skillern. She answered that she just did not feel like writing anything. But, in response to Koch’s question, answered it would be agreeable to her for Koch to dictate her admissions to Miller. The statement is in Miller’s handwriting. “The long statement was completed, signed, witnessed and everything in approximately 15 minutes, maybe 20 minutes.” On this occasion “no threats”, no promises, nothing were made by Koch or anyone else. His only physical contact with plaintiff was a handshake after she signed the statement. During the interval between the first and second interrogation Koch talked to Hopper and Hawkins about plaintiff’s case.

The above evidence supports the findings of the jury on the issues in question, and from a study of the entire record we are not willing to hold that such findings are against the great preponderance of the evidence.

In point No. 1 Hopper & Hawkins argue the court erred in not instructing the jury that the nature of the false imprisonment should he calculated to detain the person and from which she cannot by ordinary means relieve herself.

The court instructed the jury: “By the term 'false imprisonment’ as used in the issues hereinafter submitted is meant the wilful detention by another without legal justification, against his consent; whether such detention be effected by violence, or by threats or by any other means, which restrains a person from moving from one place to another.”

The court’s definition of false imprisonment was taken from Fort Worth Well Machinery & Supply Co. v. Waggoman, Tex.Civ.App., 52 S.W.2d 306. In that case the court of civil appeals reversed the judgment of the trial court because of jury misconduct. The Supreme Court, Waggoman v. Fort Worth Well Machinery & Supply Co., 124 Tex. 325, 76 S.W.2d 1005, reversed the court of civil appeals and affirmed the trial court’s judgment, thus approving the instruction given by the trial court and approved by the court of civil appeals. Substantially the same definition was given and approved in Newton v. Rhoads Brothers, Tex.Com.App., 24 S.W.2d 378; A. Harris & Co. v. Caldwell, Tex.Civ.App., 276 S.W. 298.

In view of all the evidence, we think the instruction was sufficient.

Appellants contend the exemplary damage issues should have been submitted jointly as to both defendants, not separately as given. The evidence was such that the jury could find that one defendant acted with malice while the other did not. It was not error to submit the issues so that if one was not actuated by malice the other would still be liable for exemplary damages, depending upon the jury findings.

Both appellants contend the actual damages found by the jury were excessive. We have set out in some detail the testimony of plaintiff and her doctor as to the effects on plaintiff.

Since the amount of damages to be awarded a plaintiff in an action involving false imprisonment is peculiarly within the discretion of the jury, unless the damages allowed are so excessive as to create a strong suspicion of improper motives influencing the jury, it will not be set aside on that account. 25 Tex.Jur.2d p. 287.

The verdict, under the record, was not so excessive as to create a strong suspicion of improper motives.

Hopper & Hawkins say there was no evidence and insufficient evidence to support the answer to issue No. 11 and the finding was against the great weight and preponderance of the evidence.

According to the general rule, if a defendant in wrongfully detaining another acts recklessly, or wilfully and maliciously, and with a design to oppress and injure the plaintiff, the plaintiff is entitled to recover exemplary damages. 25 Tex.Jur.2d p. 288. See also cases cited under text.

If the testimony of plaintiff was true concerning the treatment accorded her on the occasion of the second interrogation on January 16, then the jury verdict is supported, for the conduct of Koch, particularly, would subject Hopper & Hawkins to exemplary damages under the above rule. The jury did believe plaintiff. There was evidence of probative force to support the findings to issues Nos. 11, 12 and 13, and we cannot say, in view of the record as a whole, that the findings are against the overwhelming weight and preponderance of the evidence.

In other points Hopper & Hawkins contend the findings on exemplary damages were without evidence, were against the great weight and preponderance of the evidence and were excessive. The jury found exemplary damages against Hopper & Hawkins in the amount of $10,-000. We again refer to the evidence set out in the first part of the opinion. There was evidence to support the jury’s finding of malice and that plaintiff was entitled to exemplary damages. The findings were not against the great preponderance of the evidence. Neither was the amount of $10,000 excessive. The amount of exemplary damages, depending on the particular case, should ordinarily be reasonably apportioned to the actual damages sustained. In the instant case the amount of exemplary damages was the same as the actual damages found by the jury.

The question of the measure of exemplary damages comes under the general rule that, where the law furnishes no legal measure of damages and they are unliquidated, the amount to be awarded rests largely in the discretion of the jury; and unless the award is so large as to indicate that it is a result of passion, prejudice or corruption, or that the evidence has been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal. Tynberg v. Cohen, 76 Tex. 409, 13 S.W. 315; Home Furniture Co. v. Hawkins, Tex.Civ.App., 84 S.W.2d 830; 17 Tex.Jur.2d 255, § 186.

Under the circumstances of this case we do not believe that the jury followed the dictates of passion rather than reason in making their finding.

By points 13 and 14 Hopper & Hawkins say the court erred in submitting issue 11 without requiring the jury to find that Hopper & Hawkins directed, authorized or ratified the action of Koch and in failing to require the jury to find that Koch was acting within the course and scope of his authority when and if he was actuated by malice toward plaintiff.

The court’s judgment recites: “And it further, prior to the submission of issues to the jury, having been stipulated by the parties in the presence of the court and it having been announced to the Court by attorneys for both Defendants that there was no fact question of agency involved and that Bill Strickland in all things and at all times in question was acting as a duly authorized agent of Skillern & Sons, Inc. and that Bill Koch was at all times and in all things acting as a duly authorized agent of Hopper & Hawkins, Inc., and that Hopper & Hawkins, Inc. was agent of Skillern & Sons, Inc.”

Because of the stipulation issues on course and scope and ratification were not necessary.

In points 19 and 20 both appellants contend it was reversible error for plaintiff’s counsel to argue to the jury that at no time did either defendant call the police, the District Attorney, or somebody and “turn them in”, that they did not call the police because they are “not going to get in trouble with the police”, and in arguing that Skillerns never turned the matter over to the bonding company.

Evidence that plaintiff was “bonded” and that no claim was made to the bonding company was in the record. Counsel’s comments thereon were therefore based on the record and were fair deductions to be drawn from the evidence. Such argument was not error.

The argument concerning the police was perhaps improper, but, considering the argument in the light of the entire record, it was not such error as was calculated to cause and probably did cause the rendition of an improper verdict. Rule 434, Texas Rules Civ.Procedure.

Skillerns presents a number of points of error based on objections to the charge and the refusal of the court to give certain requested special issues. The trial court fairly and fully submitted the controlling issues and gave the correct instructions where instructions were required.

Skillerns says the charge erroneously allowed the jury to award damages to the reputation of plaintiff; that there was no evidence of damage to her reputation. We fail to find mention of reputation in the charge.

Skillerns contends it was error for the court to refuse the defendants the right to elicit from Chamblis the result of a polygraph test taken by plaintiff on January 4.

In Central Mutual Ins. Co. v. D. & B., Inc., Tex.Civ.App., 340 S.W.2d 525, the Waco Court, speaking through Justice Wilson, said: “We find no jurisdiction at this time which admits evidence of results of lie detector tests in civil cases over objection; they are uniformly excluded. * * * we feel obliged to follow the uniform rule.”

We find no reason in this case to depart from the uniform rule.

Skillerns has presented 25 points. Hopper & Hawkins have presented 20 points. A number of the points raised by the parties are directed to the same matter. We have considered all points briefed by both appellants and they are each and all overruled.

Judgment affirmed.

      . Candy Barr, a fairly well publicized individual, was at that time an inmate of the State penitentiary.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    LEATHERWOOD DRILLING COMPANY, Appellant, v. TXL OIL CORPORATION, Appellee.
    No. 16331.
    Court of Civil Appeals of Texas. Dallas.
    April 17, 1964.
    Rehearing Denied May 15, 1964.

      • Johnson, Guthrie, White & Stanfield and Robert M. Greenberg, Dallas, for appellant.
    'Bailey & Williams, James A. Williams, Dallas, for appellee.
   DIXON, Chief Justice.

Leatherwood Drilling Company, hereinafter referred to as' Leatherwood,' sued TXL Oil Corporation, hereinafter referred to as TXL, for the sum of $52,620 for damage to a drilling rig resulting "from an oil well fire. The petition recited that Firemen’s Fund Insurance Company had paid to Leatherwood the sum of $52,620 as insurance covering Leatherwood’s loss, that the insurance company was the real party in interest and had been authorized in writing to bring suit in the name of Leather-wood.

A jury returned a verdict in which special issues were answered in favor of defendant TXL, appellee in this appeal, either as to negligence or proximate cause. The jury found that the fire was the result of an unavoidable accident.

Leatherwood, pursuant to contract with TXL had drilled an oil well for TXL on a lease owned by TXL in Reeves County, Texas. On December 1, 1958 the drilling had reached the contract depth of about 2700 feet. The actual drilling activities then ceased and cementing and perforating operations were performed by service companies brought in by TXL. The casing at the bottom of the well was perforated to enable the oil to seep from the rock or sand into the casing.

Then B J Well Service was brought in by TXL to acidize and sand fracture the well. These are processes whose purpose is to break down, or loosen the earthen formation at the bottom of the well so that the oil may more freely escape to the perforated casing.

Ralph Skinner and two other men, employees of B J Well Service, arrived at the site in mid-afternoon of December 1, 1958. However, delays occurred with the result that they could not start their acidiz-ing operation until 8:50 o’clock that evening. They put 500 gallons of acid down the hole, then subjected the acid to 3000 pounds of pressure. Skinner testified that the pressure thereafter went down to 1400 pounds, indicating that the acid was breaking down the formation at the bottom of the well. However, when he tried to build the pressure up to 1600 pounds He observed that a leak had developed in the assembly of pipes and valves at the head of the casing. This assembly is known in the oil business as a “Christmas tree.” Upon making this discovery Skinner notified Carl Cheatwood, superintendent in charge for TXL. It was ascertained that the packing around an firing seal, part of the “Christmas tree,” was defective. Cheatwood ordered the acidizing operation to be discontinued until the leak could be remedied. Efforts to do so were unsuccessful.

McEvoy Company, manufacturer of “Christmas trees,” was then asked for help, and sent its representative, W. A. McPherson. McPherson was unable to stop the leak and determined that new packing was necessary. The new packing had to be shipped or flown from Houston, Texas, so another delay resulted. The acidizing process had been discontinued at about 9:30 o’clock the evening of December 1, 1958 and was not resumed until three or four days later after the new packing had been installed.

Meantime the electric lights were left burning, the valves on the “Christmas tree” were left open and the motors were left running. No flow line was attached to the “Christmas tree” to enable the leaking oil to be carried off a distance from the casing head.

About 5:00 o’clock A.M. on December 2, 1958 an explosion was heard and the fire broke out. The flames were coming from beneath the floor of the rig. This floor was about nine feet from the ground. The “Christmas tree” and the casing head were at ground level beneath the floor. In about two hours the flames were extinguished, but the drilling rig had been damaged to the amount of $52,620.

Leatherwood and Firemen’s Fund Insurance Company sued TXL, alleging among other things that Cheatwood, TXL’s superintendent, had been negligent in ordering the lights to be left on, the motors to be left running, the valves to be left open, and in failing to attach a flow line to take the leaking oil away from the casing head. In answering thirty issues the jury found either that each of the acts inquired about was not negligence, or if negligence, said negligence was not a proximate cause of the fire.

OPINION

Appellant’s first six points on appeal complain of the court’s refusal to submit six requested special issues for determination by the jury. If there was any evidence of probative value to support an affirmative answer to these issues it was the court’s duty to submit them. Except as to immaterial issues the court may refuse to submit requested issues only when there is no evidence to support an affirmative answer. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Wood v. American Security Life Ins. Co., Tex.Civ.App., 304 S.W.2d 559, 565 (authorities cited in concurring opinion) ; and article by Chief Justice Robert W. Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Tex.Law Review, 361, 362.

Appellant has not pointed out any specific evidence in the record which would support the submission of the issues. Appellee insists that the reason appellant has failed to pinpoint any such evidence is that there is none. There are 709 pages of testimony in the record plus numerous documentary exhibits. Our Supreme Court has said that it is not our duty to make an independent search through a voluminous statement of facts to find evidence pertinent to an issue raised by a party. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197; Rule 418, Texas Rules of Civil Procedure.

Nevertheless, we have read the entire statement of facts and have concluded that it was not error for the court to refuse appellant’s requested issues.

The first two requested issues would have inquired of the jury whether (1) the failure of Cheatwood, TXL’s superintendent, to inspect the equipment and the rig in question to determine if all safety precautions had been taken to prevent fire was negligence; and (2) whether such negligence was a proximate cause of the fire. We think that the undisputed evidence shows that Cheatwood did inspect the properties before the fire. But if we should be in error in that conclusion we must still hold that the first issue should not have been submitted, for by its wording it presumes that Cheatwood failed to inspect the properties before the fire, a fact question which should have been submitted in a separate issue.

But there is still another cogent reason why the two issues should not have been submitted. It is undisputed that Cheatwood knew of the conditions present prior to the fire. He was on the scene when the leak developed around the packing in the “Christmas tree.” It was he who supervised the first attempt to mend the leak and who sent for McPherson, the factory’s representative. When it was ascertained that a new packing would be necessary, it was Cheatwood who ordered the acidizing operation to cease, and it was Cheatwood who ordered the lights to be left burning, the motor to be kept running, the valves to be left open and who directed that no flow line be attached. In short, Cheatwood was well informed as to every condition around the well. He knew all that he could have determined by an inspection. Therefore if appellant should be correct in saying Cheat-wood failed to inspect, such failure could not be negligence, certainly could not be a proximate cause of the fire. Kenny v. El Paso Electric Co., Tex.Civ.App., 371 S.W.2d 777. Appellant’s first two points are overruled.

In its third and fourth points appellant complains of the court’s refusal to submit issues inquiring (3) whether the failure of Cheatwood to require the rig floor to he ■cleaned after notice that oil and gas had accumulated thereon, was negligence, and (4) whether such negligence was a proximate cause of the fire. The evidence shows that oil dripped onto the rig floor from the tubing that was withdrawn from the hole pending the stopping of the leak. But we find no evidence that said oil drippings caused the fire. The flame was spurting from the casing head located several feet -underneath the rig floor. The oil on the floor may have added somewhat to the intensity of the blaze after the floor caught ■on fire from below, but that is not evidence that the oil drippings on the floor caused the fire. Appellant’s third and fourth points .are overruled.

In its fifth and sixth points appellant complains of the court’s failure to ■submit issues inquiring (5) whether the failure of Cheatwood to cause the motors to he turned off was negligence and (6) whether such negligence was a proximate cause of the fire. Again we find no evidence to ■support the submission of the issues. There is evidence that sparks could have come from the motors and could have caused the fire. But this is nothing more than speculation. There was also evidence that the fire could have been caused by a lighted match carelessly dropped, or a burning cigarette thrown to the ground. Evidence that a happening is possible cannot be accepted as evidence that it did happen. Negligence and proximate cause cannot be established by mere conjecture or guess. Texas City Terminal Co. v. McLemore, Tex.Civ.App., 225 S.W.2d 1007; Missouri-Pacific R. Co. v. Waugh, Tex.Civ.App., 74 S.W.2d 554, 556. Neither negligence nor proximate cause will be presumed. They must be proved. McCormick and Ray, “Texas Law of Evidence,” Sec. 106, Vol. 1, p. 143. Appellant’s fifth and sixth points are overruled.

In its seventh point appellant says that it was error for the court to submit issue No. 30, to which the jury answered that the fire was the result of an unavoidable accident. Appellee plead unavoidable accident as a defense.

It is now well settled that an issue of unavoidable accident must find some support in the evidence to authorize its submission. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407; Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790. Ordinarily the issue should not be submitted in a case involving a two-party accident where there is no evidence in the record that something other than acts of the two parties, such as a condition, caused the accident. Strauss v. LaMark, Tex., 366 S.W.2d 555; Harrison v. King, Tex.Civ.App., 296 S.W.2d 344; McCarthy Oil & Gas Corp. v. Cunningham, Tex.Civ.App., 255 S.W.2d 368; Coca-Cola Bottling Co. v. Krueger, Tex.Civ.App., 239 S.W.2d 669; Good v. Born, Tex.Civ.App., 197 S.W.2d 589; Collins v. Smith, supra; St. Louis & S. W. Ry. Co. of Texas v. Lowry, Tex.Civ.App., 119 S.W.2d 130; Dallas Ry. & Terminal Co. v. Darden (Comm.App.), 38 S.W.2d 777.

But if there is evidence that some extraneous condition caused the accident which condition is not attributable to the parties to the accident, the issue of unavoidable accident should be submitted. Luvual v. Henke & Pillot, Tex.Civ.App., 366 S.W.2d 831; Blasberg v. Cockerell, Tex.Civ.App., 254 S.W.2d 1012; Fleming’s Fraternal Undertaking Co. v. Quarrels, Tex.Civ.App., 116 S.W.2d 1160; Orange & N. W. Ry. Co. v. Harris, 127 Tex. 13, 89 S.W.2d 973; Greer v. Thaman (Comm.App.), 55 S.W.2d 519; Texas & Pacific Ry. v. Edwards (Comm.App.), 36 S.W.2d 477.

It is our opinion that the evidence in this case raised the question of unavoidable accident. It is undisputed that an explosion took place at about 5:00 o’clock in the morning. The fire followed. There was evidence that a “blowout” occurred, in other words, the pressure in the well built up to the point where it burst its bounds though the valves and the casing were open. Also there was evidence that the packing in the “Christmas tree” was defective. Neither of the litigants had manufactured the “Christmas tree” or its packing or had caused the defect in the packing so far as the evidence shows.

In any event, we cannot say that it could have made any difference in the outcome of the lawsuit if the court had sustained appellant’s objections and had refused to submit the issue on unavoidable accident. As we have stated, the jury answered the other issues either that a particular act inquired about was not negligence, or that the negligence, if found, was not a proximate cause of the fire. Such being the situation appellant was not entitled to recover even if there had been no finding of unavoidable accident. Appellant’s seventh point is overruled.

Appellant’s eighth and last point charges that the court erred in commenting on what appellee had established in cross examination of appellant’s witness Ralph Skinner, because said comment prejudiced the jury’s mind and took from them their function as fact finders.

Skinner was the representative of B J Well Service. He was in charge of the three-man crew which attempted to acidize the oil well. He testified that Carl Cheat-wood, TXL’s superintendent, was in charge of operations at the well. He testified that if the man in charge, Cheatwood, told him to go ahead with a dangerous operation, though he, Skinner, considered conditions dangerous, he would do what he was told to do. However, he then testified that he would talk to the man in charge in an effort to persuade him to stop the operation.

We quote from the testimony:

“Question (By Mr. Williams): Mr. Skinner, suppose or assume the situation I gave you, where there is a dangerous condition that you know of existing that has to do with your operation that you are carrying out, and you know it is dangerous to yourself, your men and your equipment, would you just ask the owner’s man, ‘Do you want me to go ahead ? ’ or would you tell him that you thought it was dangerous ?
* * * * * *
“Answer: You would advise him that you thought it was dangerous.
“Question (By Mr. Williams) You would sit down and talk it over, wouldn’t you, or stand there and talk it over?
“Answer: You would shut your pump down and talk to him about it.
“Question: All right, sir. You would try to persuade him to let you do it the safe way, wouldn’t you?
“Answer: Sometimes you can’t do that.
“Question: Well, you would try to, wouldn’t you, Mr. Skinner?
“Answer: I would give my opinion.
“Question: All right, and you would make it very evident to him that that was your opinion, wouldn’t you?
"MR. GREENBERG: Your Honor, I object, it is repetitious, he just answered the question.
"THE COURT: Yes, I think you have established that, haven’t you? Haven’t you gone far enough with this line of questioning ?
"MR. WILLIAMS: If we have established it in the Court’s mind, we are satisfied.
“THE COURT: I am not commenting on the evidence, I am just saying— that is for the jury now to establish— to pass upon the facts.
“MR. JOHNSON: We would like a bill, Your Honor, on the comment on the evidence; we would like a full bill on that, if the Court please.
“THE COURT: All right.
“MR. JOHNSON: Invading the province of the jury, and we object to Mr. Williams’ statement about what he has established in Your Honor’s mind.
“THE COURT: No, I will have to sustain the objection to that and told him the jury passes on that, don’t you see.
MR. JOHNSON: And ask Your Honor to instruct the jury to disregard the inflammatory remarks.
"THE COURT: I think they al- ■ ready understand that when I told them they pass upon the facts, I don’t — ”. (Emphasis ours.)

It is evident that the court was in error in his remarks. They were a comment on the weight of the evidence. Even when asked to instruct the jury to disregard the remarks the court did not do so, hut instead stated that he thought the jury understood when he told them they pass upon the facts.

Though it was error we are convinced it was harmless error and should not result in a reversal of the judgment. The witness had stated several times that if he were faced with a dangerous condition he would talk to the man in charge about it. The questions and answers had become repetitious and the last question was objected to on that ground. Instead of simply sustaining the objection, the court said, “Yes, I think you have established that, haven’t you? Haven’t you gone far enough with this line of questioning?” Apparently the court merely meant to say that the question was repetitious, therefore the obj ection ought to be sustained.

Be that as it may, we believe that the testimony at this point was not crucial, and we cannot say that the court’s remarks, though error, were reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 434, T.R.C.P. Appellant’s eighth point is overruled.

None of appellant’s points on appeal presents reversible error. The judgment is affirmed.

Affirmed.


author: HUGHES, Justice.

text:
    James O. GERST, Savings and Loan Commissioner of Texas, et al., Appellants, v. L. D. CAIN et al., Appellees.
    No. 11214.
    Court of Civil Appeals of Texas. Austin.
    May 20, 1964
    Rehearing Denied June 10, 1964

      Black & Stayton, Waggoner Carr, Atty. Gen., Joe R. Long, Asst. Atty. Gen., Austin, for appellants.
    Sneed & Vine, Houghton Brownlee, Jr., Austin, Hutcheson, Taliaferro & Hutche-son, A. B. Mahon, C. R. Gregg, Houston, for appellees.
   HUGHES, Justice.

L. D. Cain and others, appellees, filed an application with R. A. Benson, at the time, Savings and Loan Association Commissioner of Texas, for the issuance of a charter for, and for permission to open and operate in downtown Houston, a savings and loan association under the name of Metropolitan Savings Association. The proposed location is in the Memorial Professional Building at the corner of Lamar and Louisiana Streets. In the downtown or central business district of Houston there are seven loan and savings associations, eight if Gibraltar Savings Association is considered as being so located. The Commissioner denied the application and an appeal was taken by appellees (Metropolitan) to the Court below.

Surety Savings and Loan Association, Home Savings and Loan Association, Houston First Federal Savings and Loan Association and Ben Franklin Savings Association, with downtown locations, and Gibraltar Savings Association intervened and aligned themselves with the Commissioner.

Surety Savings and Loan Association is. located within two and one half blocks of the location proposed for Metropolitan.

San Jacinto Savings Association, Guaranty Federal Savings and Loan Association and Farm and Home Savings Association, located in downtown Houston and some nearer to Metropolitan than some of inter-veners did not protest the application of Metropolitan and did not intervene in this; suit.

The Trial Court, sitting nonjury, found that the order of the Commissioner denying the application of Metropolitan was arbitrary and without substantial evidence tO' support it and judgment, in the nature of mandamus, was entered directing the Commissioner to issue a charter to Metropolitan-pursuant to its application.

It was stipulated that all of the requirements for the issuance of a charter had' been met by Metropolitan except (1) The “public convenience and advantage will be-promoted” by granting the charter (2) the-population of the area where the association is to be located affords “reasonable promise of adequate support” for the association, and (3) the granting of the charter “will not unduly injure” any other existing association in the area.

Appellants present four points under which they make a single statement and argument. We will treat them together. These points are (1) that the Commissioner’s finding that the public convenience and advantage will not he promoted by granting Metropolitan’s application since there are presently seventeen savings and loan associations in the neighborhood and surrounding country and the incorporation of Metropolitan would “result in an excessive number of savings and loan associations operating there and increased competition among such associations would be unduly injurious to all such associations” is supported by substantial evidence, (2) the Commissioner’s finding that the “population of the neighborhood of the place where the proposed association is to he located and the population of the surrounding country does not afford a reasonable promise of adequate support for the proposed association taking into consideration that the neighborhood and surrounding country is presently being served by seventeen savings and loan associations, each operating in said neighborhood,” is supported by substantial evidence, (3) the Commissioner’s action in denying the application of Metropolitan is supported by substantial evidence “reflecting the difficulty encountered by existing savings and loan associations in lending at satisfactory rates the hugh amounts of savings available for loans, a difficulty which would be increased by allowing Metropolitan to compete for such loans,” and (4) that the action of the Commissioner is supported by substantial evidence showing that “competition from Metropolitan would injure Surety, a new association in downtown Houston, by making it more difficult for Surety to increase its volume of savings to a satisfactory level.”

While appellant’s point two is to the effect that the population of the area to be served by Metropolitan is insufficient to afford a reasonable promise of adequate support for Metropolitan we, after reading appellant’s briefs, are of the opinion that appellants concede that the population of Houston, its growth and economic condition, present and prospective, would justify the issuance of a charter to Metropolitan. We quote from appellant’s brief:

“In what might be called a ‘chamber of commerce’ brief, appellees attempt to overwhelm the Court with statistical data proving the strength and growth of the Houston economy, the growth of Houston’s population in the past and as anticipated for the future, the vitality of the central business district, the growth of the total assets of Houston associations, and the financial soundness of such associations, all as of July 18, 1963. We use the descriptive phrase ‘chamber of commerce’ not by way of criticism, but by way of compliment. In all frankness, we admit that if the burden of befitting Houston and its economy rested upon us, we might be in difficulty.
“But, we respectfully submit, this litigation is not to he determined upon the basis of the statistical data just mentioned. The controlling issue is whether on July 18, 1963, conditions in the savings and loan industry were such as to justify, in the public interest, the issuance of a charter for an eighth (a ninth if Gibraltar be included) association in the central business district of Houston. To be more precise: Should this Court find that conditions were such that the public interest required the Commissioner to issue the charter when his exercise of discretion to the contrary is tested by application of the substantial evidence rule? Appellants say that the Commissioner’s action is supported, not only by substantial evidence, but by the great weight of the evidence reflecting the imbalance between available mortgage money, on the one hand, and the demand for such funds, on the other hand.”

In view of the position taken by appellants, we will not recite nor discuss the mass of evidence produced by appellees bearing on the population, growth or economic status of Houston, except to say that it appears to be phenomenal. See Chimney Rock Nat. Bk. of Houston v. State Banking Board, 376 S.W.2d 595, Austin Civ.App., no writ history.

It is the contention of appellants that there is substantial evidence to the effect that there is a tremendous amount of money available in Houston for making mortgage loans and such a scarcity of such loans in the market that the competition for them is so great now among the lending institutions that existing savings and loan associations and the public interest will suffer injury if such condition persists and that such injury will be augmented by the grant of a charter to Metropolitan.

Interwoven in this contention is the predicament in which savings and loan associations find themselves when the spread between what they pay for the use of savings (called dividends) and what the mortgage loan market will pay the association for the use of the same money is too small for the association to operate at a profit. This spread is referred to in the record as the “squeeze.”

Before proceeding to a consideration of these contentions of appellants, we note that there is no evidence that the existing associations are not now adequate to serve all those who:wish to save money. Also, there is no evidence that ample money is not available for loan purposes by the existing associations.

The record in this case is extremely long. The statement of facts contains over eight hundred pages and there are many exhibits. In view of this, we are copying the brief summation of the evidence, including some deductions therefrom, upon which appellants rely to sustain the above points.

“In December, 1961, the Houston banks increased their rate on time deposits from three per cent to four per cent. At that time savings and loan associations were paying four per cent on savings and the increase in the rate of interest paid by the banks on time deposits forced the associations to raise their rate to four and one-half per cent. There has always been a spread between bank rates and savings and loan association rates. At one time the banks paid one per cent on time deposits and the associations paid three per cent on their savings. This spread between the rates has rapidly decreased.
“When one association increased its rate to four and one-half per cent to meet bank competition, competitive factors forced all other associations to follow suit. The interest rate paid savers is not set by reference to the profits realized by an association but by competition. Any association that doesn’t meet the competition will be forced to liquidate.
“Increasing the interest rate paid on savings from four per cent to four and one-half per cent was not in any way justified by the mortgage loan demand, which remained unchanged.
“The increase in the interest rate paid by the associations on savings, coupled with no increase in the interest rate paid by borrowers of mortgage money, placed the associations in a ‘squeeze,’ in that the spread between what the associations paid for money, on the one hand, and what the associations received for the use of their money, on the other hand, was so small as to allow little opportunity to make a profit.
“The experience of Ben Franklin is illustrative. During the first nine months of 1962 it paid four and one-half per cent on savings deposited with it. This resulted in funds flooding in, while at the same time opportunities for making mortgage loans rapidly vanished. At a board of directors meeting it was determined that the association would be forced either to reduce the interest rate paid on savings or to change its loan policy and make riskier loans. Liquidity was then past twenty per cent, or about twice what it should have been, and would go to twenty-five per cent if nothing were done, at which time the association would operate at a loss. Total savings had soared from $22,000,000.00 to $29,500,000.00 in nine months and would go to at least $31,-000,000.00 if nothing were done. The board of directors decided to reduce the interest rate paid on savings from four and one-half per cent to four per cent.
“In September, 1962, Ben Franklin advertised a reduction in the rate paid on savings and the reasons therefor. Southwestern Savings & Loan Association and University Savings & Loan Association followed but the other associations maintained the four and one-half per cent rate. As a result of the reduction in its interest rate, savings on deposit with Ben Franklin dropped twelve per cent from nearly $30,000,-000.00 to less than $26,500,000.00. If the four per cent rate had been maintained during January, 1963, the association would have lost twenty-five per cent of its deposits in four months. Had the rate been maintained at four per cent, the association for all practical purposes would have been liquidaL ed. These considerations forced the-association to return to the four and one-half per cent rate.
“From January 1, 1962, to date there has been no increase in the mortgage loan rate in Houston; in fact, there has been a slight decrease. Ben Franklin’s average rate on mortgage loans is about 6.05 per cent, but after January 1, 1962, some mortgage loans were made by others at a 5.75 per cent rate and even 5^4 per cent loans began to appear.
“An association with good volume needs a i}4 per cent spread between the interest rate it pays for its money and the interest rate it obtains for its rrion-. ey to break even. It needs another one, per cent for reserves and earnings. This means that an association must realize 5)4 per cent on its money to break even and must realize 6)4 per cent on its money to operate profitably.
“A new concern needs a spread of between I1/2 and 2 per cent to break even.
“Since January 1, 1962, there has been more than an adequate supply of funds for mortgage loans in the Houston area. By reason of competition for such loans Ben Franklin has been forced to increase its loan limit from eighty per cent to ninety per cent. There are more sub-standard loans in the Houston area than any other place in the United States, except Southern California.
“If Metropolitan should be allowed to-engage in business it would increase the competition for mortgage loans. Whatever part of the mortgage loan market it should obtain would decrease the mortgage loans available to the existing associations. It is through this competition for loans that allowing Metropolitan to engage in business would injure the existing associations.
“With the exception'of Surety, the existing associations do not fear the additional competition for savings that would be .supplied by Metropolitan if it should engage in business. What these associations fear is increased competition for mortgage loans. Detailed testimony concerning the keen competition for mortgage loans and the injury that would be caused existing associations if Metropolitan should be allowed to engage in business and compete for such loans was given by Mr. E. Michael Lallinger, President of Gibraltar; by Mr. W. E. Dyche, Jr., Vice President and General Counsel of Houston First; and by Mr. T. Keith Schier, General Manager and a director of Home.
“Mr. Dyche testified how Houston First had borrowed money to purchase a block of GI foreclosed resales because the association was not able to invest profitably the savings that were coming in. This money was borrowed by Houston First against anticipated savings to keep the association from making unsound loans because of the volume of money on hand. Mr. Dyche further testified that the reserves of Houston First had declined and that it had made some unsound loans. He also testified that Houston First has been hurt by competition from Surety, the association last opened in downtown Houston.”

Mrs. Mary A. Grigsby testifying about the purchase by Houston First of the GI foreclosed resales stated that in 1962 the savings of Houston First increased by $19,-302,590.67, whereas it was able to lend, excluding the GI purchase, only $14,719,893.05.

We continue copying from appellants’ brief:

“Surety is in a somewhat different position. It opened April 2, 1962, and by July, 1963, had about $5,000,000.00 in savings and about $5,000,000.00 in mortgage loans. A downtown operation is a high cost operation and a new association in the downtown area must get its savings in fast in order that it may reach the break even point. Surety is 2.5 blocks from the proposed location and it fears, not only the competition of Metropolitan for mortgage loans, but the competition of Metropolitan for savings. It is Surety’s opinion that it should be allowed to ‘get off the ground’ with its operation before another downtown association is allowed to operate * * *
“In a statement of policy made to the Commissioner, Metropolitan stated ‘that at this time there is a temporary earnings “squeeze” between prevailing mortgage and dividend rates.’ While the squeeze is referred to as ‘temporary,’ the Commissioner may well have entertained the opinion that it may be of some duration. Moreover, W. H. Rouse, who would be a director and manager of Metropolitan if it should commence operation, agreed with the following statement of Joseph T. Mc-Murray, Chairman of the Federal Home Loan Bank Board:
“ ‘ “Some institutions (savings and loan institutions) not all, have pursued risks in their lending further than might be considered advisable. Continuing along these paths will inevitably lead to difficulty for a sufficient number of institutions so that the entire industry might be embarrassed if not weakened.” ’
“Mr. Rouse’s attitude is fairly summarized by the following question and answer:
“ ‘Q. So in July of 1963 an application was made to put a new association within a couple of blocks of the newest association in downtown Houston, and the applicants themselves for that new association were expressing concern for the picture in the industry as a whole, had characterized the times as of July, 1963, as “hard times” and had admitted and made a point of stating that there was no shortage of mortgage loan funds to the public in the city of Houston. Isn’t that true?
“ ‘A. That’s right.’ ”

Appellees offered a mass of evidence regarding the condition of the savings and loan association in Harris County. It shows, beyond question, that the condition of these associations is sound and that they are growing and prospering as the community as a whole grows and prospers. We will recite some of this evidence. We again adopt the device of quoting appel-lees’ summary of the evidence, including some of their deductions therefrom, as contained in their brief:

“Facts relating to the character of the economy of Harris County have been recited earlier in this Brief — the testimony of experts in the field of traffic and transportation and the economics of the city and county area pointing to an expanding and dynamic economy reflected in increases in trade, building, and population. The growth of Houston and Harris County association. have followed as a natural result of this expansion (PX-19). Mr. Roland Howard, testifying from PX-19, which he prepared, traces the growth of Harris County associations from 1957 through 1962, and testified independently to growth trends through June 30, 1963. Plaintiffs’ exhibit reflects growth in assets for four categories of associations: 1) All associations located in Harris County; 2) Associations located in the central business district of Houston during the respective dates; 3) Associations inside Houston’s City Limits but outside of the central business district and 4) Associations located outside the Houston City Limits. Mr. Howard stated that the figures representing the asset picture for each of the categories were taken from the annual reports of associations to the Savings and Loan Commissioner. All categories show marked growth in the period, and reflect growth in 1962 accelerating a significantly beyond the rate evidenced in earlier years. For the sake of brevity, appellees confine themselves to growth figures for the first category only. Total accumulated assets for all associations in Harris County in 1957 are represented as slightly over 150 million dollars; this figure rose to just under two hundred million dollars in 1958, and to roughly two hundred forty million dollars in 1959, one association having been added in Category 3. In 1960, two additional associations having been added, one each to Categories 3 and 4, assets for all associations rose to slightly over $300,000.000; and in 1961, one association having been added, in Category 3, the total asset figure climbed to slightly less than $375,000,-000. Three new charters were granted at the close of 1961 — two in Category 3 and one in Category 2 — and the total asset figure jumped to five hundred twenty-five million dollars. Mr. Howard pointed out that Category 1 does not include two branch associations located in Houston whose home offices are out of Harris County; however, he emphasized that these associations have enjoyed growth similar to that achieved by the other associations.
“Mr. Howard further testified that for the six month period ending between June 25 and June 30, there was an increase in the total assets of Harris County associations to $591,-590,000, representing a climb in total asset value for the first six months of 1963 of approximately $70,000,000 and that the total increase in savings for all Harris County associations during this period rose from $327 million to over $433 million, a percentage of increase of over 30 percent.
“With reference to the individual associations located in Harris County, Mr. Howard testified that he studied reports by the Savings and Loan Commissioner to the Governor of the State of Texas for the years 1961 and 1962, as well as other documents, and utilized the figures reflected thereby for the preparation of Plaintiff’s Exhibit #20. Concerning himself specifically with the Intervenors herein, Mr. Howard stated that Surety, which was not in operation during 1961, had savings at the end of 1962 of Three Million Six Hundred Forty-Eight Thousand Dollars. The savings of Gibraltar grew during the year 1962 from $113,500,000 plus to over $144,200,000 plus. In the same period of time Houston First Federal Savings grew from $62,290,000 plus to over $81,000,00. Benjamin Franklin Savings and Loan grew from $21,-900,000 to over $26,600,000. Home Savings and Loan showed an increase in savings from December 31, 1961 to December 31, 1962 of over Three Million — from $10,500,000 to $13,770,000.
“After remarking that in a normal and healthy operating association, 'your mortgages are very closely tied to your savings to the point where they may be within anywhere of 98 or 95 percent of the total savings’, Mr. Howard testified, with reference to Plaintiff’s Exhibit #22 (which was prepared under Mr. Howard’s supervision and control) that total mortgage loans of the associations of Harris County were a 'trifle’ behind savings in 1958, that both climbed in 'almost parallel courses’ for the next three years, and that in 1962, a period of sharp rise in both savings and mortgage loans, ‘the mortgage loans are actually either equal to, and then surpass the total savings.’ He pointed out that the period from December 1 to June 30 of 1963 showed an increase in both mortgage loans and savings, with loans as of June 30, 1963, slightly below the savings.
“With the aid of Plaintiff’s Exhibits #23 and #24, which were also prepared by him or under his supervision and control, Mr. Howard testified that Intervenors achieved a substantial increase in millions of dollars over the five year period from 1958 to 1962 in both savings and mortgage loans, and that the rate of increase, or ‘trend,’ was the same or similar for savings and for loans. Gibraltar showed an increase in savings between 1961 and 1962 of 27 percent, and an increase in mortgage loans for the same period of 28 percent. Houston First Federal showed an increase of 31 percent in savings and an increase of 35 percent in mortgage loans. Benjamin Frank-
lin showed an increase of 21 percent in savings and an increase of 32 percent in mortgage loans. Home showed an increase of 32 percent in savings and 37 percent in mortgage loans. Surety, the remaining intervenor, opened in April of 1962, and its increase, of course, would appear as 100 percent.
“Asked if, in his opinion, the Inter-venors were having trouble getting mortgage loans, Mr. Howard answered, ‘It takes diligent work, but they are securing them and they have shown certainly their ability to work at them.’
“Mr. Howard testified that no association in Houston or Harris County had ever failed to meet, or surpass, the federal and state reserve requirements. He also indicated that, while total reserves for associations throughout the State of Texas for the period from 1957 through 1962 suffered a net loss, the Houston association, for the same period, experienced a gain. On the matter of reserves, Mr. Howard agreed that ‘The more rapid the rate of expansion and growth, generally speaking, the more likely will there be some drop in reserves, or difficulty in maintaining those reserves at the last year’s level.’ Mr. Howard testified further that management may on its own initiative slow down the rate of growth and increase in savings and that this might be accomplished by dropping the dividend rate, reduction of advertising for savings or the admission of new associations to handle part of the growth.
“Further indication of the Interve-nors’ financial soundness and their invulnerability to any possible ‘injury’ from competition offered by Metropolitan is found in the deposition testimony of executive officers of each of the protesting Intervenors.
“a) Condition of Home Savings
“Mr. T. Keith Schier, General Manager and Member of the Board of Directors of Home Savings, testified that the total assets of his association, when it began operation in 1953, were $337,000, and in July 1963 were $18,-600,000; that loans in June of 1963 were approximately $16 million and the total savings at that time were $16,300,000. Mr. Schier admitted that he considered his association to be in a healthy condition financially, and that his association purchased property for a new building site in August of 1962 at a cost of more than half a million dollars, contemplating a building that would ‘run into the millions.’ Asked if the purchase of the property and construction of such a building would be a step that an association would take if it was not in a 'good, strong, healthy financial condition,’ Mr. Schier answered, ‘Definitely not.’
“b) Condition of Houston First Federal
“Mr. W. E. Dyche, Jr., officer and director of Houston First Federal, testified that he considered his association to be in ‘strong financial condition;’ that the association recently had completed a new office building at a cost, exclusive of land, of between 4 and 5 million dollars and that he, as a member of the Executive Committee, voted for the building because he felt that the association was strong enough to handle it. Mr. Dyche further testified that savings in Houston First Federal increased between June 1961 and December, 1962 from $58 million to $80 million, and to $94 million in June of 1963; that mortgage loans increased to $75 million in December of 1962 and to $91 million on June 25, 1963.
“c) Condition of Gibraltar
“Mr. E. Michael Lallinger, President of Gibraltar Savings Association, testified that his company was in good healthy condition and that T recall no years in which we had financial difficulty.’ Mr. Lallinger testified further that his association is the second largest in the state and approximately the 57th largest in the nation — ‘probably in the top 3 per cent;’ that Gibraltar had assets of approximately $199 million as of July, 1963; that his association has achieved a constant and steady growth in total assets, savings, and mortgage loans. Questioned closely on the matter of whether or not the granting to Metropolitan of the charter would, in his opinion, hurt Gibraltar, Mr. Lallinger admitted:
‘In what degree of a hurt, is what I would like to know? To say it is going to wreck Gibraltar — is it going to put us out of business or is it going to make us in unsound financial condition? No * * * Even if you are granted a charter we will have to find a way to live with it but it’s not going to go and make us of an unsound financial condition.’
“Asked further if he would be afraid of competition from the proposed association, Mr. Lallinger answered, ‘No.’ On the matter of reserves, Mr. Lal-linger stated that the reserve picture is a strong factor in the health of an association; that the reserves of Gibraltar were 7 percent in July, 1963, and have ‘tended to slightly increase’ during the past two or three years. Finally, stating that he was familiar with the many new buildings erected in that area of the city which is the proposed site for Metropolitan, Mr. Lallinger agreed that the additional buildings ‘would produce something of a new special trade area here that was not here before.’
“d) Condition of Benjamin Franklin
“Mr. William G. Richards, Executive Vice-President and Managing Officer of Benjamin Franklin, testified to a steady annual growth in volume of savings accounts since the opening of his association, and an upward trend in mortgage loan growth. Mr. Richards stated that total loans in June of 1963 were approximately $26 million and savings accounts at that time were around $30 million; that growth achieved in 1962 was slightly more than 20 per cent in spite of the fact that the association lost approximately 12 per cent of total savings as the result of the 14 per cent decrease in the dividend rate for the last quarter of that year. Admitting that a reduction in reserves ‘almost inevitably follows’ the type of growth achieved by Benjamin Franklin, Mr. Richards nevertheless stated that Benjamin Franklin had always met their reserve requirements and that he knew of no association in Houston which had fallen below the regulatory reserve limits. Benjamin Franklin, too, according to Mr. Richards, has made plans for a new building at a cost of ‘more than a million because we have got that much in the land.’ Asked if he feels his company is in a strong and healthy condition, Mr. Richards replied, ‘I don’t want to trade it for anyone else’s association.’
“e) Condition of Surety
“Appellants’ brief reflects the substantial volume of mortgage loans and savings ($5,000,000.00 of each) held by Surety on July 30, 1963, after commencing operations on April 2, 1962. Surety, by January 1, 1963, had gathered $3,500,000.00 in savings; six months later, this figure had jumped to $5,-000,000.00. According to Mr. J. Keith Lewis, Executive Vice President of Surety, total mortgage loans on June 30, 1963, were ‘about the same’ as savings, representing a ‘healthy ratio from a savings and loan point of view.’ He testified that savings were eagerly sought by Surety through aggressive advertising and offering of premiums, so that money would be available to ‘put out.’ Surety has admitted that it considered its rate of growth satisfactory, and that the rate of increase of savings and loans exceeded the projected budget figures of the association. Mr. Lewis, while expressing some concern for the ‘reserve ratio’ and profitability picture of Surety, admitted that Surety had never made marginal or substandard loans, that Surety has at all times been able to cover its dividend obligations and reserve requirements from profits and surplus, and that ‘it is axiomatic that an association will be expected to draw on its surplus during its formative or early years.’
“Mr. Howard expressed his judgment on the specific question of ‘undue injury’ when asked if he had an opinion as to whether the granting of a charter to Metropolitan would work an undue hardship on competitor associations :
“ ‘No. I do have an opinion, and my opinion would be no, that there would be no undue hardship worked on existing associations for these reasons : One, we know that our population has been practically bursting. We stand in our metropolitan area now at about a million, three. This comment, I believe, was given in testimony earlier. The economy of Houston is supported most luckily by many types of industry, not just one. We are not a one industry town any longer, if we ever were. We have cattle, oil, electronics to a certain extent, light manufacturing, and many others. Insurance is certainly one of them. The additional reason would be that Houston geographically is spreading out. We are encompassing, or we have encompassed, I think, a total of 350 square miles. And in this area you will find many new additions going up or established in recent years, and you find many freeways serving the bedroom areas, as I call them, to the downtown area. People live in the suburbs and they work downtown, at least the majority, and they, the public, want to be served and have to be served, and I would say that to be one of the qualifications, and I know for a fact that not only could we locate an association downtown at the proposed site for Metropolitan, but I would imagine there would be two or three other sites that might be given serious consideration too, for additional savings and loan industry in the Houston area.’
“Mr. Howard was asked if he, as one familiar with the savings and loan industry in Houston, would be afraid of the addition of a few more associations as to undue injury on existing associations, and he answered, T would not be afraid, no.’ Question: ‘And that results from a combination of a strong, healthy, flexible economy of the neighborhood kind with a proven record of a steady constant growth. Is that correct ?’ Answer of Mr. Howard: ‘Yes, we had steady, constant growth and on every item that would generally be concerned in our economy.’ And further, from Mr. Howard: ‘My opinion would be that if a charter is granted to Metropolitan Association, the other associations would not be harmed due to this very good considerable growth in savings as reflected by these figures.’
“Finally, Mr. Howard, after testifying to the fact that Harris County associations have captured only about half of the national average of savings and loan participation, per cent-wise, in the non-farm mortgage loan market and that, while Harris County in the year 1962 enjoyed only 18 or 19 per cent, Travis County in 1962 had achieved 33 or 34 per cent, Bexar County, 31 per cent, and Dallas County, 25 per cent, stated that:
“ ‘It is my definite opinion that Harris County could capture more, substantially more of this market, not by each association that is existing working sixteen hours a day instead of eight, but by additional associations in the area to serve the convenience and advantage of the public in making contact and working with the prospective home buyer and home builders in Harris County.’
“Mr. Howard urged that while he was with Southwestern Savings it was his experience that ‘when the base is broadened, the industry, if I may use this term, grows, benefits, and in Harris County that was definitely my experience when I saw the growth in numbers and total mortgages and total assets of the other associations, and I think that is what is needed today in Harris County.’
“Mr. Howard repeated that public relations was one of his particular assignments with Southwestern and that, while the emphasis of present Houston associations is ‘definitely on savings’ more advertising emphasis should be put on seeking loans. Finally, as a suggestion for the savings and loan industry to get a larger share of the Harris County loan market, Mr. Howard said:
“ ‘Harris County is a very aggressive market, but I don’t doubt that there are others in the area, but I might concentrate on Harris County. Even though we have this aggressive market, I thing the savings and loans can obtain more mortgages if they can broaden the base, if they could increase in number to the point where it would be a judicious number, there wouldn’t be an oversupply of them, but to a point where they can serve the convenience and advantage to the public in this item, or this field.’
“Dr. Yeager likewise emphasized that growing Houston was producing $200,000,000 in additional area savings each year, and the relative portion of the annual increase in available savings required for a beginning association^ (like Metropolitan) is ‘Peanuts.’ Questioned as to whether ‘undue injury’ to the savings and loan industry would result from entry of a new association under these conditions, he answered that it ‘would help the industry,’ being ‘one more voice telling the savings and loan story in the Houston market’ and do more for the industry and the ‘savings habit’ than spending more money on and through existing associations.’ ”

We are convinced that none of the findings made by the Commissioner, express or implied, to sustain his rejection of the application of Metropolitan is reasonably supported by substantial evidence and that the judgment of the Trial Court should be affirmed.

With respect to the “squeeze” discussed by appellants, this is a matter over which the intervening associations as well as other associations have complete control and over which the Commissioner has no control. The record demonstrates that the amount of dividends (interest) paid by the associations for savings is a means by which an association can increase or decrease the amount of savings received and the profit realized in making loans. It is infrequent in the business world that a merchant is able to control the price which it pays for a commodity as well as the price for which it is sold. This is a most enviable position which these associations enjoy.

There is, of course, the matter of competition and its effect upon existing associations. This question, in a similar situation, was before our Court in Chimney Rock, supra, where Associate Justice Phillips commented as follows:

“Evidence presented by appellants as to the harm a new bank would cause those nearby banks already in existence showed no greater harm than any newly competing business will naturally inflict upon its neighbors in a similar enterprise. This evidence did not show any possible harm of such a nature as to endanger existence of the nearby banks. On the contrary, the evidence shows that the banks now in existence are in a healthy financial condition and are expanding. This evidence adds up to the fact that there will be nothing more than greater competition in the area. That this could have a beneficial effect of bringing new capital into the area for further expansion and for greater diversity in competitive banking facilities. These are positive factors to he considered in attempting to define necessity under the statute.”

We believe that those well spoken words were sound there and we believe that they are applicable here. In Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, the Court said, “It is undoubtedly the purpose of Article 881a-2 to protect against the evils of excessively zealous competition through control of the number of building and loan associations in a specified area.”

We find no evidence, or at least no substantial evidence, that the competition among existing associations in Harris County for savings and loans is overzealous, unfair or ruinous, nor do we find any substantial evidence which would reasonably support a finding that the entrance of Metropolitan in the field would produce such competition.

The Courts and every agency of the State are duty bound to avoid the creation, establishment or protection of monopolies which are contrary to the genius of a free government and which should never be allowed. Art. 1, Sec. 26, Texas Constitution, Vernon’s Ann.St.

We believe that the judgment of the Trial Court is in keeping with this Constitutional mandate and that it correctly held that there was no substantial evidence reasonably supporting the action of the Commissioner in denying Metropolitan a charter. We, therefore, affirm its judgment.

Affirmed.

      . Mr. Benson is deceased; James O. Gerst was appointed to succeed him and lias been substituted herein in his stead.

      . This case arose and is being determined under these same statutes as it arose prior to the effective date of present Art. 852a, Vernon's Ann.Tox.Civ.St., Acts 1963, 58th Log., p. 269, effective January 1, 1964.


author: PPIILLIPS, Justice. HUGHES, Justice

text:
    SIMMONS MOTOR COMPANY et al., Appellants, v. Robert A. MOSLEY, Appellee.
    No. 11196.
    Court of Civil Appeals of Texas. Austin.
    May 20, 1964.
    Rehearing Denied June 10, 1964.

      Gay & Meyers, Austin, for appellants.
    Brown, Sparks & Erwin, Will G. Barber, Austin, for appellee.
   PPIILLIPS, Justice.

Robert A. Mosley, the plaintiff below and appellee in this Court, brought suit against the Simmons Motor Company, et al., defendants below and appellants in this Court, in behalf of his wife who was injured as hereinafter described.

On April 23, 1961, the Mosleys were driving to church in their new 1961 Valiant which had been purchased and delivered to the Mosleys by the Simmons Motor Company on March 8, 1961. Suddenly the hood of the car raised up, crashed against the windshield blinding Mr. Mosley’s view. As he applied his brakes to stop the car his wife placed her right hand against the dashboard and thrust her left arm out to keep their three year old son, who was on the front seat between them, from falling against the car. Although she succeeded in saving her son from injury, her twisting and straining motion ruptured a disc in her spine, which subsequently necessitated a laminectomy operation. Mrs. Mosley went through a period of intense pain prior to the operation, and, following an operation in which the ruptured disc was removed, she has experienced a slight withering of her arm accompanied by a slight weakness thereto. In addition, her arm is subject to occasional periods of muscle spasm and pain which according to medical testimony may persist throughout her life. There is no controversy in this suit as to Mrs. Mosley’s damages.

In his petition, Mosley alleged that the bottom and top parts of the “safety catch” of the Valiant did not interlock. The hood of this car raised from the front, being hinged at the rear near the front windshield. The hood latch assembly at the front of the hood consisted of two parts: (1) a plunger-type hood lock, the function of which, when engaged, was to hold the hood in a locked position; and (2) a “safety catch” the function of which, when interlocking, was to keep the hood from coming up more than one half inch after the hood lock had been disengaged. The top part of the “safety catch” is a circular “eye-shaped” piece of metal while the bottom part is a piece of metal shaped like a hook. When these two parts are interlocking the hood cannot come up any higher than one half inch until the release lever on the front grill is pulled forward.

One theory of negligence alleged by Mosley was that at the time the Motor Company delivered the Valiant to him on March 8, the bottom part of the “safety catch” on its hood latch assembly was not interlocking with the top part thereof; that such company negligently failed to discover and correct this condition before March 8; and that such failures were each proximate causes of the occurrence in question on April 23. Another theory of negligence pleaded herein by Mosley was that, even after an adjustment by the Motor Company to the Valiant’s hood latch on April 3, (at which time Mosley had brought the car back to the Motor Company for a check-up complaining that the hood latch assembly was not working properly) the bottom part of the “safety catch” was not interlocking with the top part thereof; that the Motor Company negligently failed to discover and correct this condition on April 3; and that such failures were each a proximate cause of the occurrence in question on April 23, with the consequential damages described.

Twenty special issues were submitted to the jury that found, in summary, that when the car was delivered to Mosley on March 8, the bottom part of the safety catch of its hood latch assembly was not interlocking with the top part of the safety catch so as to hold the hood down; that the Motor Company failed to discover such condition in said safety catch before March 8; that such failure was negligence; that such failure was the proximate cause of the occurrence in question; that the Motor Company failed to correct the condition of the safety catch before March 8 and that such was negligence and the proximate cause of the accident. That on April 3, defendant Motor Company made an adjustment in the hood latch assembly on the Mosley’s Valiant. That after the adjustment in the hood latch assembly was made, the bottom part of the safety catch was not interlocking with the top part of the safety catch so as to hold the hood down; that the Motor Company failed to discover this condition in the safety catch on April 3; that such failure was negligence and a proximate cause of the accident; that the Motor Company failed to correct the condition of the safety catch on April 3; that such failure was negligence and the proximate cause of the accident; that the accident in question was not the result of an unavoidable accident. The jury found the damages to be $9,147.95.

The Trial Court entered a judgment in favor of Mosley on the jury’s verdict.

We affirm the judgment of the Trial Court.

The appellant Motor Company is before this Court urging that the Trial Court erred in submitting special issues inquiring about the condition of the hood latch assembly on March 8, 1961 and on April 3, 1961 since the occurrence upon which the suit was based happened on April 23, 1961; that the issues submitted were evidentiary issues and not ultimate issues, the ultimate issue being the condition of the hood latch assembly on April 23, 1961 the date of the accident. Appellants also raise a point of error as to the argument to the jury made by Mosley’s counsel.

Mosley contends that the safety latch, described above, never engaged properly and presented a witness who testified that the procedure the Motor Company followed in attempting to adjust the safety catch constituted negligence. There was also testimony that the bottom part of the safety catch or hook part had originally been painted white, the same color of the car; that little or none of the paint had been rubbed off or scarred after the accident; that this tended to show that the hook had not been engaging with the “eye” counterpart; that similar model cars with less age and use whose hood safety catches were working properly had the hook part of the safety catches that showed scarred paint and areas where the paint was removed due to friction.

The Motor Company presented a mechanic as a witness who testified that after the accident, the hook part of the safety catch had been completely straightened out. That this tended to show that the safety catch was working at the time of the accident on April 23 and that some unusual force had caused the hood to be torn loose from this mooring. This evidence was presented by a mechanic who allegedly repaired the safety latch after the accident in question.

There was evidence that gusts of wind were prevalent on the day of the accident.

Thus there was a direct conflict in the testimony as to whether the safety latch was working on April 23.

The appellant Motor Company maintains that while the evidence presented by Mosley as to the condition of the safety latch on both March 8 and April 3 would be evidence and have a bearing on the possible condition of the latch on April 23, the ultimate fact was the condition of the safety catch on- April 23 and that an issue as to the condition of the latch on April 23 should have been submitted. That the Trial Court’s failure to submit this issue deprived the Motor Company of having the jury pass on what they contend is the ultimate fact issue presented in the lawsuit. That Mosley should have presented such issue as part of his case. That issue was joined not on the questions of defective condition on March 8 or April 3 but on the question of defective condition on April 23, and it is that ultimate issue that should have been answered by the jury.

Rule 279, Texas Rules of Civil Procedure, states that where a case is submitted on special issues, the court shall submit the controlling issues made by the written pleadings and the evidence. The rule further provides that a party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part. Matthews v. General Accident Fire & Life Assurance Corp., 161 Tex. 622, 343 S.W.2d 251.

Simmons’ answer consists of certain special exceptions to Mosley’s petition not pertinent here, a general denial and the defense of unavoidable accident.

In order for Mosley to have been charged with the burden of submitting the issue Simmons complains was omitted, the issue would have to be the controlling or an ultimate issue of the case (as Simmons contends) or, an inferential-rebuttal issue as described by Professor Hodges in his treatise on Special Issue Submission in Texas. The latter theory would fail here as such matter in addition to proof must have been plead. See Hodges, cited above, Sec. 32, p. 90 and the cases there cited. Also see Rice v. Thompson, Tex.Civ.App., 239 S.W.2d 137, error ref., n. r. e. Nor is the issue in question the ultimate issue required in the case but is defensive in nature and was neither plead by Simmons nor offered in the proper form as required by the above-mentioned rule.

In Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, the court stated that an ultimate fact is one essential to the right of action or matter of defense and that the court is under the duty of submitting only ultimate or controlling issues. A controlling or ultimate issue is one that when answered favorably to the theory in which it is presented will support a judgment. The converse of this rule is stated in Aetna Casualty & Surety Co. v. Isensee, Tex.Civ.App., 211 S.W.2d 613, writ ref., n. r. e.

Mosley has presented a prima facie case in that the defendant acted, that the act was negligence, that the negligence was the proximate cause of Mosley’s damage, and that Mosley was damaged. These are the requirements for a cause of action in damages as set out in the Pepper case cited above.

The only occasions that Simmons had any contact with the car was on the dates alleged in Mosley’s petition, viz. March 8 and April 3, that on each of the dates Simmons was negligent in failing to find and correct the defect, that such was the proximate cause of the accident and the damages caused. These allegations standing alone when found by the jury favorable to Mosley and supported by proper pleading and proof will support a judgment.

The Supreme Court has held that subsidiary facts included within the ultimate issue of proximate cause need not be submitted separately in a negligence case. Pickens v. Harrison, 151 Tex. 562, 252 S.W.2d 575.

While Simmons produced testimony that the hook of the hood latch had been straightened out after the accident thus raising an inference that the hood latch was working on that day, he had neither plead this fact nor submitted an issue inquiring of such in substantially correct wording. Simmons did ask for submission of the following issue:

“Do you find from a preponderance of the evidence that on April 23, 1961, the hood latch assembly on said 1961 Valiant was not working properly?
“Answer this special issue ‘Yes’ or ‘No.’ ”

Plowevcr, this issue is too broad under the doctrine of Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99. This requested issue does not specify the defect alleged, that is, which of the several mechanisms of the hood latch assembly failed to work.

We will not detail the cases cited by appellant to the effect that a jury’s findings on evidentiary issues will not support a judgment and that a court must submit to the jury only controlling issues. As stated above this premise is correct however, the fact situations in these cases are not similar to those of the case at bar, consequently they add nothing here.

We hold that Simmons waived the abovementioned defense under Rule 279.

Appellant Motor Company assigns error to the following argument made by Mosley’s attorney in his opening speech to the jury:

“ * * * What is a fair compensation for that horrible pain, that horrible experience? I am just trying to pick a fair and reasonable figure. $5000.00 seems to me such a figure. $19,600 — I think in our pleading we asked for $20,000.00. These are not exact figures, but on a reasonable basis $20,000.00 should be the answer to No. 20, or to put it another way, what is a reasonable figure? How about this ? What would a reasonable person say — get to the point where they would say, T would rather have the money and have gone through this. I would do it for the money.’ Now, if you can find that figure, then just below that figure, the top figure that they would rather have gone through the suffering that they have and have the money, how many reasonable people would be in this condition for $20,000.00 ?”

Appellant immediately objected to this argument as being improper and moved that the court instruct the jury to disregard it. The court overruled the motion, and appellant excepted to this ruling.

Appellant also cites as improper argument by Mosley’s counsel that it would be reasonable to compensate Mrs. Mosley one dollar for every day of her life expectancy for the pain and suffering that she would have to go through, which, according to counsel’s calculations, was $14,600.

Cases cited by appellant as examples of improper argument are of two types. One, where the arguments were designed to cause the jury to follow an erroneous theory in calculating the damages, “I don’t think a man * * * would sell his leg for a hundred thousand dollars,” Texas & N. O. R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264; or, “I value my life too dearly, I wouldn’t sell my life for any amount of money, and I don’t believe there is a single gentlemen on this jury would sell your life for any amount of money,” Foster v. Langston, Tex.Civ.App., 170 S.W.2d 250. The other type of case cited is where the arguments were prejudicial and inflammatory, Airline Motor Coaches v. Bennett, 144 Tex. 36, 187 S.W.2d 982; Traders & General Insurance Company v. White, Tex.Civ.App., 320 S.W.2d 702, writ ref. n. r. e.

As stated by the court in A. B. C. Storage & Moving Company v. Herron, Tex.Civ.App., 138 S.W.2d 211, writ dism., where the following argument was allowed: " * * * there is not a person within the hearing of my voice in this courtroom that would undergo what that boy underwent out there the last hour and a half of his life for $20,000.00, or $50,000.00. * * * there is not a man within the hearing of my voice that would undergo that physical pain and agony and torture of mind for anything like $20,000.00, and you know it.”

“We are unable to say that the argument complained of was an appeal to passion and prejudice rather than reason. Counsel was arguing the point what sum of money would compensate for the pain and suffering which the deceased underwent on the occasion in question. As stated in Texas & N. O. Ry. Co. v. New, Tex.Civ.App., 95 S.W.2d 170, 176, writ of error dismissed, the court said: ‘In transmuting pain and suffering into dollars and cents, the problem of the jury is to construct an equation composed of relatively imponderable elements. The law awards compensatory damages in money for wrongfully inflicted pain and suffering; but it furnishes no yardstick or scale by which to measure or weigh such pain and suffering pecu-niarily. The only standard supplied is that the damages shall be compensatory; that is, commensurate with the injury. To “compensate” is to pay the value of. To estimate the value or compensatory measure in money one must be able to visualize the intensity and duration of the pain and suffering, and then endeavor to place a fair value thereon.’
“If a lawyer could not make such a comment as is here complained of, he would in effect be limited to a bare recital of the evidence which the jury had heard bearing on the issue, and to reading the issue to the jury. Jurors do not expect such judicial restraint of an advocate, and are not so easily moved by advocacy as appellant seems to believe. The argument, so it seems to us, did not, under the authorities approved by the Supreme Court, exceed bounds of legitimate advocacy.”

Also see Karotkin Furniture Co. v. Decker, 50 S.W.2d 795, Tex.Comm.Appeals.

With respect to the “dollar a day” argument for future pain complained of, instead of awarding the $14,600 asked, the jury awarded $7,300.

In reading Mosley’s attorney’s argument to the jury in its entirety, counsel on numerous occasions, argued for reasonable compensation for the pain his client had gone through and would go through. The verdict rendered was not excessive under the facts of the case and even if the arguments complained of could ,be said to be objectionable they did not cause the rendition of an improper judgment in the case. Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596.

The judgment of the Trial Court is affirmed.

Affirmed.

HUGHES, Justice

(concurring).

Although it is my opinion that the Trial Court failed to submit a controlling issue as required by Rule 279, T.R.C.P., no reversible error is reflected.

A controlling or ultimate issue “involves a proper legal analysis of the controversy.” Luling Oil and Gas Co. v. Edwards, 32 S.W.2d 921, Austin Civil Appeals, writ dism., Dreeben v. Sidor, 254 S.W.2d 908, Amarillo Civil Appeals, writ ref., n. r. e. See also Texas Employers Ins. Ass’n v. Reed, 150 S.W.2d 858, writ dism., C. J., Amarillo Court of Civil Appeals.

Appellees pleaded in this case that, “At and before the time and occasion in question” defendants were “negligent in failing to discover and eliminate such defect in such safety catch.” They also alleged that, “This defect in such hood safety catch continued to exist until the date of the accident in question.”

No issue was submitted to the jury inquiring whether or not the safety catch was defective at the time of the accident. This was a “plaintiff issue.” Appellees, who were plaintiffs did not request a submission of this issue, nor did appellants object to the charge on this ground. Appellants did request an issue inquiring about the defective condition of the safety catch at the time of the accident but they did not complain about the failure to submit this issue in their motion for new trial.

These observations lead to these conclusions : (1) Appellees waived their right to have a controlling issue submitted (2) Appellants waived their right to complain about the failure of the Trial Court to submit this issue.

It is my opinion that the findings made by the jury are sufficient to support the judgment. I, therefore, concur in the af-firmance of this case.