(concurring).
I concur in reversing and remanding this case, but I do so reluctantly.
Appellant brought suit on a hospitalization indemnity policy. At the conclusion of the evidence the trial court instructed a verdict in favor of appellee, who was defendant in the trial court.
The policy hound appellee to indemnify appellant for hospital and medical expenses resulting from (a) accidental bodily injury; and (b) “sickness the cause of which originates while this policy is in force and more than fifteen days after the date hereof, * * The policy then lists the various types of hospital expenses for which appellant was indemnified “if the insured or any member of the Family Group shall be necessarily confined within a recognized hospital * * (Emphasis ours.)
This is the third trial of the case.
In our original opinion we held, and I think correctly, that there was no evidence showing any causal connection between the operation and appellant’s trouble, considered as a “sickness” under the terms of the policy. The operation and the hospital expense were not necessary as a result of sickness. Therefore appellant was not entitled to recover under the theory of “sickness,” the cause of which originated more than fifteen days after the date of the policy.
We reversed the case on the theory that there was some evidence of probative force . that appellant’s trouble was the result of an accidental bodily injury.
Part of the evidence on that feature of the case was that offered by appellant, a vocational nurse, who testified that while lifting a patient she strained herself, causing soreness and pain in the lower part of the abdomen. About a month later upon her doctor’s advice she went to a hospital, where an operation was performed. Appellant testified that she was operated on for a hernia but that she left the matter of what was the matter with her up to her doctor. It is the hospital expense and the doctor’s bill which are the subject of this controversy.
The other part of the evidence on the accidental injury theory was offered by appellant’s doctor. Appellant was a heavy person. She had recently reduced from a weight of 230 pounds to a weight of 203 pounds. The doctor was not satisfied as to whether as a result of the strain she might have had a rupture through a previous incisional scar. So he arranged for her to go to the hospital for the operation.
On direct examination the doctor testified that the operation disclosed a small hernia, which he repaired. But on cross-examination, upon being confronted with his own written report made out by him immediately following the operation, he frankly admitted that he was mistaken about having found a hernia and having repaired it. He testified that there was no hernia. He found the abdominal muscles strong. He did find some adhesions, dating back to an old operation performed fourteen years earlier, but no evidence of any strain. He removed some of the ad-hesions and also removed some of the fatty tissues that were present. The operation also disclosed the presence of gall stones, but he did not remove them as he had not expected to find gall stones and had not obtained appellant’s permission to operate for that purpose. There had been no symptoms of gall stones. The doctor *565also frankly admitted that the operation was not necessary.
In my opinion there is some evidence in the record of probative force that appellant strained herself while lifting a patient and that the strain caused a hernia, which necessitated an operation. The doctor’s evidence was conflicting on the question. The rule is that conflicts in the testimony of a witness must he resolved by the jury. Ford v. Panhandle & S. F. Ry. Co., 151 Tex. 538, 252 S.W.2d 561, at page 563.
Under the circumstances it was error for the trial court to instruct the verdict in favor of appellee.
Yet I am frank to say that in my opinion a finding in favor of appellant by the jury, based on record evidence now before us, would have been contrary to the overwhelming weight of the evidence, and it would have been the court’s duty to set aside the jury’s verdict and grant appellee a new trial. The doctor’s testimony as a whole, despite the conflict in his testimony, is quite convincing that there was no hernia. And appellant’s own testimony as to what the operation disclosed, if it is admissible at all, is of very little probative value. The overwhelming weight of the evidence is that neither she nor her doctor knew the cause of her trouble. Her statement that she had no further trouble after the operation, is not proof of causal connection, as was held by Judge Norvell, now on our Supreme Court, but then on the San Antonio Court of Civil Appeals, in National Bankers Life Ins. Co. v. Ezerneck, 278 S.W.2d 892.
The student of jurisprudence may well ask: If it was error to instruct the jury in favor of appellee in this case, then by what logic or reason can it be said that, if the case had been submitted to the jury and a verdict favorable to appellant had been returned, it would have been the duty of the court to grant a new trial ?
The reason for this rule, if there is any reason involved in it at all, lies in the distinction which has grown up in our law between “no evidence” and “insufficient evidence.” Trial courts may direct verdicts and appellate courts may reverse and render judgments only when there is “no evidence” to support a jury submission. If there is some evidence of probative value, the trial court must submit the case to the jury, but in the event the trial court believes the evidence is “insufficient” to support the jury verdict (that is, the verdict is contrary to the overwhelming weight of the evidence), then the court must set aside the jury verdict and grant a new trial. If the court fails to set aside such verdict, but grants a judgment based on it, the Court of Civil Appeals should reverse and remand the case, but it may not reverse and render.
Limitations of space forbid any further discussion of this peculiarity in our law. The matter is discussed at length in the following cases: Missouri Pacific Ry. Co. v. Somers, 78 Tex. 439, 14 S.W. 779; Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, 37 S.W. 319; Id., 91 Tex. 406, 44 S.W. 69; Stevens v. Masterson’s Heirs, 90 Tex. 417, 39 S.W. 292; Houston & T. C. R. Co. v. Strycharski, 92 Tex. 1, 37 S.W. 415; King v. King, 150 Tex. 662, 244 S.W.2d 660. It is also the subject of an article by Judge Garwood of our Supreme Court in 30 Tex. Law Review 803, for October, 1952.
I concur in overruling the motion for rehearing.