¶1*300On Appellee’s Motion for Rehearing
¶2As showing permanent injury supporting the jury’s assessment of damages, the plaintiff refers to testimony of Dr. Markewich concerning the consequences of scar tissue in plaintiff’s lung. First, however, we quote testimony which explains this. Dr. Marke-wich testified: “Q. At the present time, is it true or not that Mr. Lilley, in your opinion, based on your knowledge and experience, is totally disabled ? A. As of the last examination, yes. That was the 10th of November, 1954.
“Q. And you say that with this condition —let me back-track just a minute. Assuming, doctor, that the operation Mr. Lilley underwent in 1952 was successful or-was a good operation, that he recovered from that operation and went back to doing his duties as a carpenter and Constable; assuming that he did recover and then had this accident where scar tissue was torn loose again, is it your opinion, do I understand your opinion to be that straining work is likely to tear it again? A. Yes; that is a possibility. You might get a collapse of the lung, and it might be sufficient to tear into the good area of the lung.
'“Q. Then I understand your opinion to be that it might make the lung collapse and might be sufficient to tear into the good part of the lung? A. That is a possibility, and it should be under observation.
“Q. Doctor, when you operate and that scar tissue forms, is that for good? A. Sure; that is permanent.
“Q. That is permanent? A. Yes, sir; and when it is torn, it heals with more scar tissue which is also permanent.”
¶3Dr. Markewich then gave the testimony which plaintiff cites as showing permanent injury supporting the assessment of damages. This was:
“Q. —Assuming a man had surgery where the lower lobe of the-right lung was removed; that that operation healed up; that it" was a successful operation; that after a period of time the man was able to go to work; assuming that at some later date he was involved in an accident where he received a blow over the same area causing a tearing of scar tissue which was already present causing blood to be spit up; assuming those facts to be true, let me ask you first of all — and I believe it has been established — is scar tissue a permanent thing; assuming that it be true, I will ask you if you have an opinion as to whether or not the tearing of that scar tissue weakens a person to such an extent that he is going to be troubled with doing work and straining for the balance of his life; do you have an opinion about that? (Proceedings omitted) A. Yes; I have an opinion.
“Q. What is your opinion as to its causing him trouble permanently so far as strenuous work is concerned? A. The additional aggravation of injury on top of the operation has disabled this man, and in all probability, the old tissue and the new tissue being formed in that area will bother him the rest of his life, but it is rather difficult to say. There is a good probability that it will continue, but that will depend on further observation.”
¶4The statement italicized is the basis of the plaintiff’s contention; and the opinion expressed therein is indefinite as to the seriousness of injury for it is really only this, that a certain condition probably will “bother” the plaintiff. This condition seems to be the formation and existence of scar tissue in the plaintiff’s lung, or at least it can be so construed. However, the opinion expressed does tend to prove that this condition will be permanent.
¶5Before giving any of the testimony quoted, Dr. Markewich very plainly said that he did not know how long the lesion would continue which, he thought, had occurred in the healed area of, or scar tissue, left by the operation of July, 1952, on plaintiff’s right lung. He testified:
“Q. What about this chest condition that you found, the tearing of that scar tissue? Is that a permanent thing? Is that something that is going to bother-Mr. Lilley and be a source of trouble the rest of his life? A. That is a condition that I can’t say how *301long it will last. Even an X-ray will not show you that. It is all soft tissue, so we just don’t know.
“Q. What would he your advice to Mr. Lilley, taking into consideration the prior operation that he had when a part of his lung was removed, taking into consideration also your diagnosis of tearing loose part of the scar tissue, what would he your advice to Mr. Lilley about getting out and working, straining and so on? A. At the present time, I would advise him to be under the constant supervision of a physician. I would advise him to see a physician or the physician who operated originally every two or three weeks. I would advise him not to attempt to do any heavy work or straining which can aggravate the condition or affect the good lung area. He should check back with his doctor at frequent intervals. How long he should do this depends on the progress of the case. At this time, he is under the supervision of myself.”
¶6Now it is the lesion in the old scar tissue, or healed area, of the operation of July, 1952, which was the disabling element in suit, not the presence of unbroken scar tissue, and it is this condition of which the doctor had just said he can not predict the duration. If we say that this opinion is in conflict with that which we first quoted, namely, about the continued effect of scar tissue, then it must be said that there is nothing in the evidence by which the jury could decide that one opinion was right and the other was wrong, and we would have to apply the rule stated in Easton v. Dudley, 78 Tex. 236 at page 240, 14 S.W. 583 at page 584. For the circumstances in evidence are not enough and the only other physician who testified, Dr. Seybold, had not found any evidence of disability which would support the assessment of damages. He said: “Q. Would it be a fair summary to say that your examination of the man was negative all the way around with reference to any disability he might have? A. Yes; so far as the physicial examination was concerned, I could find no evidence of any disability.”
¶7However, we think that the two opinions are not necessarily in conflict, that the one last quoted concerns the existing lesion in plaintiff’s lung, which was the principal disabling element found by Dr. Markewich, and the one first quoted concerns the formation and effect of scar tissue when this lesion had healed, or at least can be so construed — and if it is not it will simply conflict with the opinion last quoted. Construing these opinions in this way it is the one first quoted, that about scar tissue, which will “bother” the plaintiff. We construe the latter opinion as meaning that the presence of scar tissue from the operation of July, 1952, and from the healing of the lesion in this old scar tissue will subject the plaintiff, to some necessity of avoiding conduct which would produce another lesion and, to this extent, entail a limitation on plaintiff’s conduct.
¶8How serious would such a consequence be? It is to be remembered that the plaintiff had a certain amount of scar tissue from the operation of July, 1952, in which Dr. Seybold had he removed the lower right lobe of the plaintiff’s lung and would seem to be as apt to tear this .scar tissue as any other, and yet the plaintiff, according to his testimony, was in good'health at the time of the collision in suit and was gainfully and fully employed, both as a carpenter and as a constable. This operation was plainly a very serious one and there is simply no reason apparent to us in the evidence now before us — and that, of course, is the test 'of plaintiff’s claim' — why any lesion in the healed area of this operation caused by the collision should take a substantially longer time to heal or should produce a permanent limitation upon plaintiff’s conduct materially greater than an operation in which the bottom part of the plaintiff’s right lung was cut off. These considerations are material because the question made is one of fact. Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993.
¶9The expression of opinion by Dr. Marke-wich first quoted, that about the scar tissue, does tend to show a consequence of plaintiff’s injury which is permanent and to this extent our original opinion is amended. However, as we construe this, nothing was shown .which would j.ustify the assessment *302made or would justify an award of $10,000 and so we overrule the plaintiff’s motion for rehearing. Since plaintiff has declined to make the remittitur suggested, the judgment of the trial court is reversed and the cause is remanded. T.R. 440: Freeman & Freeman Oil Co. v. Lyman, Tex.Civ.App., 121 S.W.2d 644 at page 648.