(concurring).
While I concur in the result reached in this case, I do so somewhat reluctantly because I cannot easily reconcile the cases upon the subject, nor do I subscribe to all of the reasoning of the cases cited in support of the conclusion of the majority.
In this case, the jurors were instructed that they were the exclusive judges of the credibility of the witnesses and of the weight to be given to their testimony. Literally hundreds of Texas cases support the statement. West, Texas Digest, Trial. And, the burden was upon plaintiff to prove that he sustained an injury, this fact having been put in issue by defendant’s general denial. Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958).
The testimony in this case as to damages came from interested witnesses and through expert opinion of the physician who testified. The jury was free to reject any or all of the theories of the expert witness concerning pain and suffering on account of the claimed injuries. If the opinions expressed by experts do not comport with the jurors’ ideas of sound logic, they have a right to say so. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64 (1945); Simmonds v. St. Louis, B. & M. Ry. Co, 127 Tex. 23, 91 S.W.2d 332 (1936); Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup.1968); Hulsey v. Drake, 457 S.W.2d 453 (Tex.Civ.App., Austin, 1970, error ref. n. r. e.).
Ordinarily, the testimony of an interested witness does no more than raise an issue of fact for determination by the jury.
Justice Walker, in Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458, 467 (Tex.Sup.1969), stated the rule in this manner:
“The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact. This rule is not without exception, however, and conclusive effect may be given to the testimony of an interested witness provided the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same. There is an added reason for recognizing the exception when the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so. On the other hand the basis for recognizing an exception is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue.”
Perhaps, Justice Walker, in this quotation, has given us the key to use in reconciling the two lines of cases which confront us when we come to apply the law to the facts of this case as well as the reported cases which will be discussed.
As pointed out by Justice Stephenson, there are at least two cases wherein a denial of damages after a finding of liability was affirmed upon appeal. Hulsey v. Drake, supra (457 S.W.2d 453, 460), and Royal v. Cameron, 382 S.W.2d 335, 337 (Tex.Civ.App., Tyler, 1964, error ref. n. r. e.). Both were cases involving cervical sprain or the so-called “whiplash” syndrome. In each case the plaintiff testified to pain of a subjective nature and the medical evidence offered in support thereof was, at least, equivocal in nature. It could well be said of each case: The defendant did not have the means and opportunity of proving that the plaintiff did not have pain and could not readily contradict such testimony.
Here objective, not subjective, complaints were involved. Whether the minor plaintiff sustained a cut on his knee could have readily been disputed by defendant by the simple expedient of tendering the hospital records and the treating doctor who, incidentally, was not tendered by plaintiffs. The testimony of the plaintiff is clear, direct and positive that he did in fact sustain cuts upon his knee requiring stitches and “there are no circumstances tending to discredit or impeach the same”; and, defend*221ant, with “the means and opportunity of disproving the testimony, if it were not true, . . . failed to do so.” Gevinson, supra.
On the other hand, there are many cases cited by Justice Stephenson which hold that once an injury has been shown and liability fixed, a jury’s answer of “none” to the damage issue will not be permitted to stand. The leading case is that of Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954), where the injuries to the minor “were unquestionably very serious.”
Under all of the evidence in this case, the plaintiff was involved in a collision between a pickup truck and a motorbike. Defendant knew plaintiff and saw him jumping around on one leg following the collision. The fact that plaintiff was taken to the hospital in an ambulance and his right knee sutured with eight to ten stitches leaves no doubt as to the fact that plaintiff was injured. The jury could have concluded that the injury was not serious and that plaintiff had no permanent disability in spite of the doctor’s testimony. However, the fact is inescapable that he did have some injuries visible to a layman, objective in nature, and of a type ordinarily accompanied by pain. Liability having been fixed by other issues in the charge, and “[t]he undisputed facts disclosed that [s]he did suffer damages,” the jury’s answer was without support in the evidence and must be disregarded. Lowery v. Berry, supra (269 S.W.2d at 797).
By using the rationale of Gevinson, supra, I am able to reconcile the two lines of cases and, in so doing, arrive at the following rule which seems to me to be compatible with the law on the subject:
If the plaintiff has objective symptoms of injury, i. e., a cut or laceration of his body as in this instance, and there is readily available testimony which the defendant could offer to refute such fact, plaintiff’s evidence cannot be disregarded by the jury when the defendant fails to refute it.
On the other hand, if plaintiff’s complaints are subjective in nature, i. e., headaches, which the defendant may not readily dispute, then the negative answer of the jury to the damage issue will not be disturbed when it rests upon the testimony of plaintiff alone.
If these rules which I have postulated state correctly the sense of the holding in this case, Í concur in the reversal of the judgment and remand of the cause. If, on the other hand, the holding is that plaintiff’s subjective complaints, even when supported by medical opinion, are sufficient to deprive a jury of the right to pass upon plaintiff’s credibility, I disagree with such holding.