author: RUARK, Presiding Judge.

text:
    Orien GREENWOOD, Plaintiff-Appellant, v. Jack Anthony VANARSDALL, Defendant-Respondent.
    No. 8023.
    Springfield Court of Appeals. Missouri.
    April 3, 1962.

      J. W. Grossenheider, Lebanon, for plaintiff-appellant.
    Baker, Brandom, Saeger & McElligott, Lawrence W. Saeger, Edmond J. McElli-gott, Kansas City, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal from an order granting a new trial after plaintiff’s verdict.

Plaintiff’s cause of action was based upon the proposition that the defendant drove at a high and dangerous rate of speed at night, down a hill, and around a curve, thereby causing the defendant's car to go over and into the ditch at the side of the road; that people congregated at such location; that this created a hazardous situation; that later the car in which plaintiff was riding came along; that the driver of plaintiff’s car, in order to avoid striking people gathered on the road, ran it off the road and into a culvert, thereby causing plaintiff’s injuries.

The incident occurred on Missouri State Highway 32 in Laclede County about seven miles from Lebanon. The road was 21 feet wide, paved with blacktop. The pavement was dry. Approaching the scene from the east, some distance, perhaps a quarter-mile east, “You come over a hillcrest and then the road straightens out. For that matter, it’s straight at that point and had been for some time. It goes down to somewhat of a dip, then over another little hill-crest down this dip where the accident occurred, and down a curve to the left at the same time.” We are unable to say from the record how steep or gradual the slope is coming off “another little hillcrest,” nor how wide, sweeping, or abrupt the curve.

At any rate, about midnight defendant, in his car, with passengers (the number we do not know), came from the east over the hillcrest, down this dip and curve, went off the road and turned upside down in the ditch on the north side. There is no evidence as to what, if any, damage was suffered by defendant’s car. There was no apparent injury to the defendant or his passengers. However, his car left two skid marks commencing somewhere up the road to the east, apparently near the crest of the rise. One mark was a short one, but the other one, presumably from one of the left tires, continued down the right edge of the blacktop for a distance of 123 yards to a point where (presumably) the car ran into an abutment of a culvert and turned over in the ditch. The state highway trooper said he talked to defendant afterwards and that there was an odor of alcohol on his breath but that he observed no “impairment” in the defendant. This we believe completes what the record shows of defendant’s participation in the incident.

Now to plaintiff’s participation: In the late afternoon he went uptown, in Lebanon, in search of his companion of the night before, located him at a tavern, and, after spending some time (unknown) there, went “riding around” in plaintiff’s car. Eventually plaintiff and the companion stopped at a tavern on Highway 32, where they got some gas and drank the proverbial two bottles of beer. Then they proceeded on west toward the scene of the accident, the companion driving, plaintiff dozing beside him in the front seat. At about 1:00 a. m., or approximately 55 minutes after defendant’s accident, they came over the crest of the hill at a speed which was 70 mph or 50-55 mph, depending upon which of plaintiff’s witnesses is to be considered most favorable. At that time the state trooper’s car, with a revolving red turret light, was parked on to the west of defendant’s car in a driveway. Also parked somewhere near, “down quite a ways,” but not on the pavement, were two or three other cars. The state trooper and four or five other men, perhaps more, were “kinda stringing up the road” east of the defendant’s upended car. The state trooper was checking the skid marks left by defendant’s car. He and at least one other man had a flashlight. They saw the lights of plaintiff’s car come over the far rise, go down out of sight in the dip, then come over the last one. Those with flashlights waved them and then, without ceremony, scrambled across the ditch. Plaintiff’s companion driver says that when he came over the crest of the hill he first saw the patrol car “dome light” (at 300-320 yards), then when his lights shone down he saw three persons “right in the middle of my lane” and not over 75 feet away. “I seen these three boys in the road and I hit my brakes and cut her to the left — hit my brakes hard — it went into a skid with me.” He did this because, “Well, I’d had to hit them [the boys] before I coulda got stopped.” In his skid, plaintiff swerved to the right off the edge of the pavement, then to the left side, and finally over an embankment, where he struck a culvert with considerable force and went into the ditch. The skid marks of plaintiff’s car on the highway extended 110 yards. In such collision, plaintiff’s car was sufficiently demolished that he “junked it out, salvaged it,” and plaintiff received serious injuries.

On such testimony the jury returned a verdict for plaintiff in the amount of $5425. Thereafter defendant filed a motion for judgment notwithstanding verdict and, in the alternative, a motion for new trial. The trial court overruled the motion for judgment but sustained the motion for new trial on two grounds, (a) the evidence was insufficient to support plaintiff’s main instruction, which submitted the fact that defendant drove at a high and dangerous rate of speed, and (b) the evidence was insufficient to support submissions as to defendant’s negligence having been the proximate cause of plaintiff’s injuries. The plaintiff has appealed; the defendant has not.

We find no record which shows that respondent pleaded or attempted to plead contributory negligence.

Was there sufficient evidence to make a submissible case on the question of whether defendant negligently drove at a high and dangerous rate of speed? Our conclusion is in the negative.

Excessive speed depends upon the circumstances existing at the time and place of the incident. Steele v. Goosen, Mo., 329 S.W.2d 703, 711; Chenoweth v. McBurney, 359 Mo. 890, 224 S.W.2d 114, 118. It is frequently stated that skid marks alone and in and of themselves are not usually proof of negligence, (although one may envision a situation where skid marks alone would be mute testimony to a very high rate of speed) ; for, it is said, the mere skidding of an automobile is as consistent with care as with negligence. Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 876; Neely v. Freeze, 240 Mo.App. 1001, 225 S.W.2d 144, 154. Negligence is never to be presumed (Helton v. Huckeba, 365 Mo. 93, 276 S.W.2d 78, 82; White v. Barkovitz, Mo.App., 254 S.W.2d 291, 294), but all cases hold that excessive speed may be proved by circumstances, and the skidding, when combined with surrounding circumstances, may be sufficient to justify the inference of a high and dangerous rate of speed. Russell v. Kotsch, Mo., 336 S.W. 2d 405, 409; Hausherr v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 433, 437; Lyon v. Southard, Mo., 323 S.W.2d 785, 787; Bear v. Devore, Mo.App., 176 S.W.2d 862, 864, 177 S.W.2d 674, 676; Evans v. Colombo, Mo.App., 311 S.W.2d 141, 144; Mo., 319 S.W.2d 549, 551.

Appellant points to the length of defendant’s skid marks, in combination with the lay of the road, that is, the crest of the slope and the curve below it. As to the length of one skid mark we have definite evidence (123 yards). But it is worthy of note that, although one skid mark (apparently just after the defendant came over the crest) was short, the other (the long one) continued down the right edge of the pavement to the place where defendant’s car was found. What inference is to be drawn from that? Did defendant attempt to apply the brakes as he started down the curving slope? If he did, was it because he was driving too fast? Or was it because, driving at a normal speed, he was confronted with the curving slope and desired simply to reduce his speed? Or did he have a deflated tire or a blowout? And was he trying to reduce his speed gradually? Or was it because of some traffic condition— another car? Or what? Did the brake on one wheel lock and the others run freely? Or was some other mechanical failure responsible? Which of these is so probable that it reasonably excludes all others ? What would one skid mark, going downhill on a curve, point to and establish with reasonable certainty as the speed at the beginning point? “You pay your money and take your choice,” and everyone is entitled to his own guess; but we cannot permit a man to be guessed into liability.

In order that negligence may be inferred from the circumstances, the evidence must be such as to exclude guesswork, speculation, and conjecture. Brawley v. Esterly, Mo., 267 S.W.2d 655, 659; Berry v. Harmon, Mo., 323 S.W.2d 691, 695; Ruby v. Clark, 357 Mo. 318, 208 S.W.2d 251, 254. And to remove the case from the realm of speculation the circumstances must be such that the party having the burden of proof has facts which give more than an equal basis for one of two or more inconsistent conclusions. Bowers v. Columbia Terminals Co., Mo.App., 213 S.W.2d 663, 670; Riley v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 666, 670; Helton v. Huckeba, supra, 276 S.W.2d 78, 82. The conclusion reached must be the one which is “more reasonable and probable” (Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95, 100), “reasonably follow[s]” (Foster v. Sacco, Mo.App., 343 S.W.2d 171, 173), and “reasonably eliminate[s]” the probability of any other source or cause. Miller v. Sabinske, Mo.App., 322 S.W.2d 941, 946.

Plaintiff makes some comparison between his car, which skidded 110 yards down the same grade, and defendant’s car, which skidded 123 yards. The plaintiff’s car was a 1953 Olds “in perfect condition.” There is no evidence of the age or condition of defendant’s car. Plaintiff was going either 50-55 mph (according to the driver) or 70 mph (according to the trooper). Plaintiff’s car did not end its skid by virtue of its own braking power. It ended it by striking a culvert with such force as to practically demolish the car and inflict serious injuries on the plaintiff. There is no evidence of damage to defendant’s car except that it was overturned in the ditch. Apparently none of the occupants was injured. It would require too much space to discuss all the cases cited by the appellant. We do not disagree with them; we think the facts distinguish them.

The second proposition is, assuming the defendant was driving at a high and dangerous rate of speed, was this the proximate cause of plaintiff’s injury ?

Appellant says so, but we are unable to follow his chain of circumstances to the ultimate end. We will not essay any definition of “proximate cause,” “remote cause,” or “efficient intervening cause.” There are many. Some of them state the rule in different language and with different emphasis. No one definition can become completely all-encompassing without becoming so involved as to destroy its usefulness. It is to be observed, however, that throughout all of the definitions run the requirements of “natural and probable result,” “unbroken chain of circumstances,” “continuous sequence,” and “continuous whole,” and that the words “foreseeability” and sometimes “comparative influence on the result” dodge in and out, depending upon whether they are handy tools for expressing the view of the court in respect to a particular state of facts.

In almost all questions of submissi-bility (which is usually a question of degree) the courts must of necessity first prejudge the facts to the extent that we determine whether the factual array is sufficient to be presented to the jury, just as a chef must sniff and taste the dish to see if it is proper to serve to the guest. In so doing we necessarily pay attention to definitions and the circumscriptions made by the law; and if we are unable to conform and fit all of them together and to the facts at hand, and if all else fails, we can always fall back on what we hope is common sense.

When plaintiff received his injuries, whatever the defendant did or failed to do was done and finished. Fifty-five minutes had passed since the defendant’s car had gone into the ditch. The dust had long settled and the reverberations had long since ceased. That particular chain of circumstances had ended. Defendant’s car was not blocking the road or shoulder. So far as the evidence shows, neither defendant nor any of his passengers was present. There was no emergency at hand and no rescue operation in effect. The persons who were present on the road were nowise directly concerned with the first occurrence. Their presence was not even a part of the res gestos of the act of defendant in his driving, and their presence on the road in front of the plaintiff was a remote and intervening occurrence which in turn immediately precipitated the action of the plaintiff’s driver in going off the road.

If we understand, appellant’s contention, it is (as the patrolman testified) that curious persons are liable to congregate at any wreck; and, although he denies the need of foreseeability, appellant charges defendant with the responsibility for any injuries which may result as a consequence of such gathering of people. In other words, if we follow the reasoning, and we are not sure we do, the defendant is to be held liable on some sort of theory which might be designated as negligently creating an attractive nuisance for adults. Thus plaintiff carries the sequence and the causation on and on until the defendant, in letting his car overturn in the ditch, becomes a modern Phaethon, who, in letting his (father’s) sun-chariot run off the track, became responsible for all the following happenings on the earth, including the Ethiopians’ turning black and the tear-born poplar trees along the River Eridanus.

We suppose that, given sufficient information, imagination, and stratospheric reasoning, by omitting any attention to the boundaries which the courts and treatises attempt to set by using the words “proximate,” “natural and probable consequence,” "unbroken chain of circumstances,” "efficient intervening cause,” and “remote,” the wrongs which any of us may do can be traced in the ultimate causal connection with injury to a great many others, even those yet unborn; but the law, although a great moral force in itself, does not permit the recovery of damages except for those injuries which have an immediate affinity with actions which produce the wrong.

Appellant refers us to no case, foreign or domestic, which has a factual situation like the case at hand. Two Missouri cases are cited, viz., McGhee v. Jones, Mo., 336 5.W.2d 722, and La Plant v. E. I. Du Pont De Nemours & Co., Mo.App., 346 S.W.2d 231. The La Plant case (l. c. 244) simply contains a well-documented statement of causal connection not in conflict with anything we have said. We find no comfort to the appellant in the language of the McGhee case.

The action of the court in sustaining the motion for new trial was not erroneous and should be affirmed. We think that what we have said indicates that the court would have been justified in sustaining defendant’s motion for judgment; but defendant has not appealed, and we are not disposed to voluntarily and of our own motion convict of error by reversing that holding. The cause is remanded with directions to proceed in a manner not inconsistent with this opinion. It is so ordered.

McDOWELL and STONE, JJ., concur.

      . We take those facts most favorable to the plaintiff plus those admitted by him.

      . Defendant did not testify. The evidence showed him to be a soldier but did not show where he was stationed at the time of trial.

      . Story v. People’s Motorbus Co. of St. Louis, 327 Mo. 719, 37 S.W.2d 898, 900; Quadlander v. Kansas City Public Service Co., 240 Mo.App. 1134, 224 S.W.2d 396, 399; Bear v. Devore, Mo.App., 176 S.W.2d 862, 864, 177 S.W.2d 674, 676; see Rodefeld v. St. Louis Public Service Co., Mo., 275 S.W.2d 256, 258; Gooch v. Avsco, Incorporated, Mo., 337 S.W.2d 245, 249.

      . See 38 Am.Jur., Negligence, § 50, p. 695, et seq.; 65 O.J.S. Negligence § 103, p. 645, et seq.; Restatement of the Law of Torts, 1948 Supp., §§ 430 through 442; Duke v. Missouri Pacific Railroad Co., Mo., 303 S.W.2d 613, 617; Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820, 824; Thebeau v. Thebeau, Mo., 324 S.W.2d 674, 678; Seeley v. Hutchison, Mo., 315 S.W.2d 821, 826; Floyd v. St. Louis Public Service Co., Mo., 280 S.W.2d 74, 78.

      . Although the driver of plaintiff’s car referred to the “boys” on the road in front of him, there is no evidence of any children’s being present at this 1:00 a. m. occurrence.

      . A factual situation somewhat similar (but not as “far out”) is found in Kukacka v. Rock, 154 Or. 542, 61 P.2d 297, 1 N.C.C.A.,N.S., 191. In that case it was held that the intervening incidents, not the original negligence, were the proximate cause.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    STATE of Missouri, on the Relation of ASSOCIATED TRANSPORTS, INC., Appellant, v. Tyre BURTON, E. L. McClintock, D. D. McDonald, William Barton, and Frank Iuen, Members of and Comprising the Public Service Commission of the State of Missouri, Respondents.
    No. 23530.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      James W. Wrape, Memphis, Tenn., Charles H. Howard, Jefferson City, Wilbur F. Daniels, Fayette, for appellant.
    Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Jefferson City, for respondents.
   CROSS, Judge.

This appeal is from a judgment of the Circuit Court of Cole County, Missouri, in certiorari proceedings, affirming an order of respondent Public Service Commission of Missouri granting additional authority to applicant Speedway Transports, Inc., a common carrier, under its existing certificate of convenience and necessity. The additional authority afforded by the order permits Speedway to transport automobiles and trucks, by the driveaway and truckaway method, between the Chrysler Corporation Assembly Plant in Valley Park, Missouri, and all points in Missouri.

Two hearings were had before the Commission. At the second hearing the Chrysler Corporation and the Chamber of Commerce of metropolitan St. Louis intervened in support of Speedway’s application and introduced evidence on Speedway’s behalf. Appellant Associated Transports, Inc., a competing motor carrier, appeared at both hearings as a protestant in opposition to Speedway’s application. This cause, as it affects direct financial interests, is essentially a contest between Speedway and Associated. The prize contended for is the business afforded by Chrysler in intrastate transportation of automobiles manufactured at its Valley Park Assembly Plant.

The relative positions occupied by Speedway and Associated in this controversy are unique. Speedway, as an applicant for authority, has transported the entire production of Chrysler destined to points in Missouri from Valley Park ever since the plant was established (with the exception of certain deliveries within metropolitan St. Louis). Associated, as a protestant, has never transported Chrysler products from Valley Park, although it has certificate authority extending to all points intrastate. It is admitted by Associated that it has not hauled anything for Chrysler Corporation since 1938.

Chrysler formerly operated an assembly plant in Evansville, Indiana. In September, 1959, after closing the Evansville plant, Chrysler constructed an assembly plant near Valley Park, approximately nine miles southwest of the city limits of St. Louis, but located within the commercial zone of St. Louis. The Valley Park assembly plant is devoted .to manufacture of Plymouth, Dart and Valiant automobiles. Those products are shipped to various points in Missouri and other states by the driveaway and truckaway method.

When the Valley Park plant began production, (and at the time of the two hearings), Speedway was authorized to transport automobiles and trucks, both in interstate and intrastate commerce. It had previously hauled interstate for Chrysler. Speedway’s authority included the right to operate intrastate between St. Lotiis and all points in Missouri. In September, 1959, relying upon the sufficiency of its authority, and at Chrysler’s solicitation, Speedway began to transport all Valley Park production for intrastate delivery. Speedway continued that service until the Commission issued its citation order on November 19, 1959, stating that Speedway’s certificate authority did not include the commercial zone of St. Louis and requiring Speedway to show cause why it has rendered unauthorized service from that area. Speedway complied with the order and ceased hauling directly from Valley Park.

On December 22, 1959, Speedway filed its application with the Commission requesting, in the alternative, either (1) that the Commission interpret its existing certificate authority as including the right to transport intrastate from Valley Park, or (2) that the Commission issue a certificate of convenience and necessity granting such authority.

Thereafter, Chrysler engaged Cassens Transport Company to deliver the shipments from Valley Park to a terminal in St. Louis. Speedway picked up the cargoes at the terminal and completed the transportation from St. Louis to the designated points in Missouri. At the time of the hearings all of Chrysler’s shipments moving intrastate had been so handled since Speedway ceased hauling directly from Valley Park. (Subsequently, in a separate proceeding, the Commission determined that the described two-stage method of moving Valley Park production intrastate was unauthorized.)

Speedway owns and leases a total of 188 tractors and 192 trailers, all in good, serviceable condition. This equipment is shown to be suitable for the transportation of motor vehicles as proposed in the application. The evidence shows that Speedway is financially able to obtain necessary additional equipment and render efficient service to the public under the authority applied for. Speedway maintains terminal facilities immediately adjacent to the Valley Park plant. Speedway’s drivers are especially trained and familiar with the methods of tying down, transporting and delivering Chrysler vehicles to the various dealers in Missouri. Speedway has transported all of Valley Park production destined intrastate, to the ■satisfaction of Chrysler.

Chrysler Corporation’s director of traffic was a witness on behalf of Chrysler to support the application of Speedway. He testified that approximately 4,000 to 5,000 people are employed at the Valley Park plant, which has a capacity of 960 vehicles per day. The motor industry is highly competitive. It is essential that when automobiles are produced they must be shipped for fast delivery to the customers. Speedway’s service has been very satisfactory to Chrysler. They have good equipment. Chrysler definitely needs the service of Speedway. Chrysler is entitled to a competitive situation. A choice of carriers helps in the peaks and valleys of manufacturing and gives the manufacturer protection in case of work stoppage by one carrier. Chrysler is entitled to a choice of carriers — as it has in all its other plants. Chrysler has never used Associated’s service although Associated has solicited the Valley Park business. The witness for Chrysler stated, “If I had gone and used them (Associated) I would have been locked in with them. I would have never had a chance to get another carrier”.

The Chamber of Commerce of metropolitan St. Louis was represented by its commissioner of transportation. The commissioner testified in support of Speedway’s application to the following effect: Each of the “Big Three” automobile producers has a plant located in the St. Louis area. The competitive situation among these producers is well known. Chrysler is at a distinct and crippling disadvantage transportation wise because it must rely on only one automobile transporter for its intrastate needs when each of its competitors has at least two carriers upon which to rely. The building of the Chrysler plant at Valley Park has had material effect on the economic life of the community. It has created 4100 new jobs in the St. Louis area, with an estimated annual payroll of $24,000,000.00. It has generated an additional 3,000 jobs of all kinds, increased bank deposits by $11,000,000.00 and retail sales by more than $14,000,000.00 annually. In a situation where a manufacturer is limited to one carrier, any “breakdown” of transportation service, whether from labor trouble or any other reason, would halt the entire plant operation and cause a complete layoff of employees and result in general economic loss. Chrysler Corporation has only one specific carrier authorized to serve intrastate — Associated. Mercury Division of Ford has two such carriers and Chevrolet has three.

S. J. Cento, President of Associated, testified on its behalf essentially as follows:

Associated holds intrastate authority issued in 1936 which permitted it to operate in the trade territory contiguous to St. Louis and from this territory to all points in Missouri. Later, on Associated’s application, the Commission held that Associated’s authority included the area within 19 miles of St. Louis. Associated owns and leases a total of 356 tractors and 456 trailers. Some of its equipment has been leased from Speedway. This equipment is suitable and adequate for transportation of the Chrysler products made at Valley Park. Associated has solicited this traffic from Chrysler but has never been given any of the business. Associated is primarily a hauler for Ford. The “majority” of its business is transporting Ford products. Associated also hauls some Chevrolet products. Associated owns no tractors manufactured by Chrysler. It has no terminal at Valley Park, but maintains one at Hazelwood, 20 miles from Valley Park. Automobile manufacturers, including Chrysler, desire and re’quest that equipment of their own manufacture be used in transporting their products. Associated owns no trucks manufactured by Chrysler, but uses Ford equipment exclusively. The witness didn’t know whether Ford would allow Associated to transport Ford products using other than Ford tractors. He stated, “I don’t know; I haven’t tried it”. He also stated that if Associated is favored with Valley Park traffic, it would buy Dodge trucks and would build a terminal near the Valley Park plant. The authorization of Speedway to serve the Valley Park plant would not entitle it to serve the Ford plant. Such authority in Speedway would not deprive Associated of any Ford traffic. Speedway’s right to serve the Valley Park plant would not affect the present service rendered by Associated in any way. It would, however, “deny the additional revenue to be derived from operating at * * * the Chrysler plant”. The granting of the application will not lessen Associated’s revenue “one iota”. The witness admitted that at one time Associated only had authority to operate from St. Louis. He stated, “If I recall at the time our authority was only from St. Louis, and the fact that the plant was located in the county, we voluntarily went before the Commission to make sure that our authority was correct, and this was the decision of the Commission”. The witness admitted that Speedway is doing “the same way” in this case, “to clarify that he does have that (authority) and if in the alternative he doesn’t, to grant him a certificate of convenience and necessity”. There are peaks and valleys in the transportation of automobiles. Associated’s drivers and employees are unionized. In case of strike, and no other carrier was available, Chrysler “might be out of transportation for a matter of hours or so, I don’t know; it is hard to say. Depends on the circumstances”. Associated’s net operating revenue for the first nine months of 1960 was $732,740.00 — without any Chrysler business.

United Transports, Incorporated, holds limited certificate authority to transport automobiles from the Chrysler plant at Valley Park only to Kansas City, Missouri. United appeared at the first hearing by its president who testified on its behalf. United has hauled for Chrysler previously. It owns extensive equipment and would like to have Chrysler business at Valley Park.

In its report and order, the Commission made appropriate findings of fact and expressed conclusions, set out as follows :

“From the evidence here, it is obvious that Chrysler Corporation has had a transportation problem in the movement of its automobiles from Valley Park into the State. The necessity here cannot be questioned hut the method heretofore employed and the fact that the principal certificated protestant has not been used poses a situation which requires some explanation.
“Chrysler contends that after supporting four applications before this Commission which were denied, an arrangement with Cassens-Speedway was resorted to on advice of counsel and it lias declined to appear in support of further applications until this time. Having, as a matter of policy or precedent, a choice of competitive carriers •at its other plants, it hesitates to become bound with any particular transport company lest it be precluded from the choice and convenience of another when and if needed. Furthermore, being one of the ‘Big Three’ in the industry, it maintains the attitude that it should be entitled to at least the same transportation potential as its competitors in the area.
“The Associated Transports, Inc., has been transporting competitive automobiles since 1938 and this operation now produces the major part of its revenue. This cannot be affected by the traffic originating at the Valley Park Plant hut there arises here an opportunity to place it in a competitive position there which could possibly and under circumstances result in new business so far not available to it. At the production rate of this plant, the keen competition in the automotive industry and the automobile plant growth in this area, it appears appropriate to create rather than deny reasonable competition among carriers of vehicles, both for the convenience and necessity of the manufacturers and the public.
******
“We see no detrimental effect the grant of this application will have on the other protesting carrier. In entertaining these views, we restrict our findings to the Chrysler Corporation Plant at Valley Park.
“We find, therefore, that the public convenience and necessity will be promoted and that there is public need for the creation of the service proposed as hereinafter set out, that the applicant is qualified properly to perform the service proposed and to conform to the requirements, rules and regulations of the Commission”.

The Commission’s order granted Speedway specific authority to operate as a motor carrier, to all points intrastate, from the Chrysler Plant at Valley Park. Otherwise, Speedway’s application was denied.

The respondent Commission urges that this appeal should be dismissed because (1) Associated’s brief does not conform with Civil Rule 83.05, V.A.M.R. in that the contained statement of facts is not a “fair and concise statement of the facts without argument” ; (2) Associated’s brief does not comply with the cited civil rule in that the points and authorities set out therein consist of pure abstract statements of law; and (3) Associated has not filed the appeal cost bond required by Section 386.540 V.A.M.S. Although we find some merit in the Commission’s request for dismissal of the appeal, we decline to take such action and elect to determine the cause on its merits.

The order of the Commission in this case is prima facie lawful and reasonable. Section 386.270 V.A.M.S.; State ex rel. Egan v. Public Service Comm., Mo.App., 319 S.W.2d 917. In seeking to set aside the determination made by the Commission, Associated has assumed the burden laid upon it by statute to show by clear and satisfactory evidence that the order complained of is unreasonable or unlawful. Section 386.430 V.A.M.S.; State ex rel. Dairyland Transport Corp. v. Public Service Comm., Mo.App., 350 S.W.2d 825; State ex rel. Transport Delivery v. Burton, Mo.App., 317 S.W.2d 661.

The issues raised on this appeal are not triable de novo by this court. The only question for our determination, relative to the merits of the case, or that the trial court could have determined, is whether or not the Commission’s order is reasonable and lawful and supported by competent and substantial evidence. Section 386.510 V.A. M.S.; State ex rel. Hotel Continental v. Burton, Mo.Sup., 334 S.W.2d 75; State ex rel. Transport Delivery Co. v. Burton, Mo.App., 317 S.W.2d 661. As a reviewing court, we may not substitute our judgment on the evidence for that of the Commission. “Upon appeal to this court on a matter of this character we do not determine the question presented as though we were the Commission. We only determine whether or not the order made by the Commission is reasonable and lawful, in light of the facts and circumstances properly in evidence before it”. State ex rel. Shepherd et al. v. Public Service Commission, Mo.App., 142 S.W.2d 346; State ex rel. Dairyland Transport Corporation v. Public Service Commission, Mo.App., 350 S.W.2d 825.

The Commission is empowered by Section 390.051 V.A.M.S. to issue certificates of convenience and necessity authorizing common carriers to operate on the highways of Missouri. Section 390.051 provides, in part, as follows:

“4. If the commission shall find from the evidence that public convenience and necessity will be promoted, or that there is public need for the creation of the service proposed, or any part thereof, and that the applicant is qualified properly to perform the service proposed and to conform to the provisions of sections 390.011 to 390.176 and the requirements, rules and regulations of the commission established thereunder, a certificate therefor shall be issued.
“5. In determining whether a certificate should be issued the commission shall give reasonable consideration to the transportation service being furnished by any common carrier by rail or motor vehicle and the effect which the proposed transportation service may have upon such carriers; provided, that the issuance of a certificate of convenience and necessity to one carrier shall not prohibit the granting of such certificate to another carrier over the same route if in the opinion of the commission the public convenience and necessity will be promoted by so doing”.

The Commission specifically found (1) that the public convenience and necessity will be promoted and that there is public need for the proposed service; (2) that the applicant is qualified properly to perform the service proposed; (3) and to conform to the requirements, rules and regulations of the Commission; (4) that the granting of the application would have no detrimental effect on the protesting carrier (Associated) ; and (5) that it is appropriate to create rather than deny reasonable competition among carriers of vehicles. Those findings, in our opinion, are fully supported by competent and substantial evidence. They satisfy the conditions prescribed by the statute and justify the issuance of the order.

The real issue in this case is whether the Commission has discretion to permit a competitive motor carrier service when it finds that such service will better serve the public need and convenience than will a monopoly. The answer to this question is found in the decisions of Missouri courts. In State ex rel. City of Sikeston v. Public Service Commission, 336 Mo. 985, 82 S.W.2d 105, the Supreme Court said: “The question of whether regulated monopoly or regulated competition will best serve the public convenience and necessity in a particular area at any time is for the commission to decide, subject to the qualification that the commission must not act arbitrarily or unreasonably, which matter is reserved to be passed upon by the courts”. And, in State ex rel. Scofield v. Public Service Commission, 240 Mo.App. 603, 211 S.W.2d 547, this court defined the public policy of this state to be “one of regulated competition for the benefit of the public and not one of regulated monopoly, in so far as common carriers using the highways are concerned”. Since the Commission, in the exercise of its lawful and reasonable discretion, has decided that regulated competition will best serve the public convenience and necessity affected in this case, it is not within our province to disturb that decision.

Associated first contends that the Commission erred in granting the application “upon the basis of improper construction and application of the opinion of the court in State ex rel. Transport Delivery Co. v. Burton et al., Mo.App., 317 S.W.2d 661”. That case was cited by the Commission in its report and order. Associated argues that the cited case is not in point because the facts therein are not comparable to those shown in this case. We consider the contention to be without merit. In our opinion the facts found by the Commission to exist in Transport Delivery, and on which the Commission based its grant of authority, are essentially analogous to the findings made by the Commission in the present case. The factual findings in Transport Delivery were: “(a) transportation of petroleum products is a specialized field requiring prompt and exact service, (b) that it is preferable for shippers to have a choice of carriers, (c) that more reliable and dependable service can be had if more than one transporter is authorized, (d) that appellant will not lose business it heretofore has had and, (e) that public convenience and necessity will be promoted by granting the authority requested”. The very essence of the Transport Delivery opinion is the principle that the Commission is vested with discretionary authority to certificate more than one carrier in a particular area of service.

Associated’s second point is (1) that Speedway did not establish that public convenience and necessity required the additional transportation, and (2) that the Commission failed to give consideration to the service offered by Associated. This point is also without merit. The “necessity” in this case is the need for a choice of carriers- — convincingly shown by the evidence. We are not justified in finding that the Commission failed in its statutory duty to reasonably consider the transportation service offered by Associated, in view of the Commission’s specific conclusion: “We see no detrimental effect the grant of this application will have on the other protesting carrier”.

Associated’s final point is that “The departure by respondent from its long and continued interpretation of Section 390.051, supra, is unlawful and an abuse of discretion”. This identical assignment was made by the protestant in State ex rel. Transport Delivery Co. v. Burton, supra. In ruling the assignment against the protestant there, we said: “First. Each case must turn on its own particular facts. Second. In situations which might be described as kindred, the Commission has sometimes granted and sometimes refused to authorize an additional carrier and the courts have in many such instances refused to rule either result to be illegal as amounting to an improper exercise of the Commission’s expert judgment and discretion in the field of transportation. Third. The ultimate question on review is, was competent and substantial evidence offered which justifies the result reached?” We rule the present point in accordance with our previous decision.

We conclude that the order of the Commission granting the additional authority to Speedway is reasonable and lawful and that the judgment of the circuit court affirming that order should be affirmed. It is so ordered.

All concur.


author: McDowell, judge. RUARK, Presiding Judge.

text:
    Bessie BURKS, Plaintiff-Appellant, v. Fon Edward WILSON, Jr., Defendant-Respondent.
    No. 7966.
    Springfield Court of Appeals. Missouri.
    April 2, 1962.

      Karl Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for appellant.
    Rex Titus, Richart, Titus & Martin, Joplin, for respondent.
   McDowell, judge.

This appeal is by plaintiff from an adverse judgment in her action for damages resulting from an automobile collision.

Plaintiff’s petition is in two counts. In the first count she seeks damages for personal injuries in the sum of $10,000.00 and, in the second count, for $200.00 damages to her car. As grounds for recovery she relies upon both primary and humanitarian negligence.

Defendant filed answer and counterclaim. The answer is a general denial of the allegations in plaintiff’s petition. In the counterclaim he seeks to recover damages in the sum of $25,000.00, alleging both primary and humanitarian negligence on the part of plaintiff as basis for recovery.

The cause was tried by jury resulting in a verdict and judgment for defendant and against plaintiff on plaintiff’s petition and for plaintiff and against defendant on defendant’s counterclaim. From this judgment plaintiff perfected her appeal.

The facts produced in evidence show that the collision between plaintiff’s 1953 Chevrolet automobile and defendant’s Austin-Healey Sprite occurred about 1:00 P.M., October 30, 1959, at the intersection of Seventh and Illinois streets in Joplin, Missouri, both drivers were alone in their respective cars.

Seventh street is 60 feet wide, runs east and west, divided into four lanes for moving traffic with a parking lane on each side and is one of the busiest streets in Joplin. Illinois street (also referred to as Murphy Boulevard) is a black top street, 40 feet wide and runs north and south.

Located at the southeast corner of the intersection, running north and south along the east side of Illinois street is a retaining wall. The north end of this wall is 23 feet south of the south curb line of Seventh street and approximately six inches high at the north end and gets higher as it proceeds south. At the time of the accident a used car lot was located east of the retaining wall and south of the sidewalk running along the south side of Seventh street. Between the south curb line of Seventh street and the sidewalk was a grass parkway. The testimony was that this used car lot had cars parked along the east side of Illinois street south of the intersection and along the south side of Seventh street.

At a point 25 feet south of the south curb line of Seventh street a driver of an automobile on Illinois street has an unobstructed view to the east along Seventh street eight or nine blocks.

The intersection, at the time of the accident, was controlled by an electric traffic signal suspended over the center, which was in operation. The complete light cycle was 49 seconds. It was red for north-south traffic on Illinois street for 27 seconds, green for 20 seconds, and on amber for 2 seconds, which overlapped with the green. The cycle was just the reverse for east-west traffic on Seventh street.

Plaintiff testified that at the time of the collision it was real cloudy, gray, but the pavement was dry. The investigating officer testified that he arrived at the scene some eight minutes after the accident and the pavement was wet.

Plaintiff was westbound on Seventh street, driving in the inside lane, immediately north of the center line and defendant was northbound on Illinois street with his left wheels east of the center line of that street.

It was plaintiff’s testimony that as she approached the intersection there was a car immediately ahead of her; that she was driving at a speed of about 30 miles an hour and slowed down as she neared the intersection; that she observed the traffic light was green on Seventh street and also observed defendant’s automobile approaching the intersection from the south. She stated: “Yes, I did; some distance, but I don’t know just how far down the street”. She testified that defendant’s car was coming up the street when she first saw it. She gave this evidence:

“Q. Now then, as you neared or reached the intersection, did you look at the light any more? A. Yes, I did. The car just ahead of me went through and so I looked at the south again to see if that car had stopped, and I looked to the north, and there wasn’t anything that way, and then I looked at the light, and it was still green, and so I proceeded across”.

Her testimony was that just before she entered the intersection she thought defendant’s car had stopped and she entered at a speed of 20 to 25 miles per hour, or possibly 25 to 30 miles per hour; that the rear of her car was about at the center of the intersection when the left rear end was struck by the front of defendant’s automobile; that at a speed of 25 miles per hour, under the existing conditions, she could have stopped her car in possibly three car lengths after she got her foot on the brake. Her car was 16 feet long. She stated that the front end of her car was west of the center of Seventh street.

On cross examination plaintiff testified that when she first looked at the light she was possibly half a block east from the intersection and the last time she looked was just before she entered.

In her deposition she testified that she didn’t remember whether she had looked at the traffic light at any time before she was two car lengths east of the east edge of the intersection; that the first time she looked at the light she was about a car length back of the other car which was right at the east edge of the intersection.

Defendant’s evidence was that he approached the intersection of Illinois and Seventh streets at a speed of about 30 miles per hour; that he reduced his speed to 20 to 25 miles per hour as he entered the intersection and was driving about 20 miles per hour at the time of impact; that the traffic light was green on Illinois street when he was 300 to 350 feet south of the intersection; that he last looked at the light when he was 50 to 60 feet south of the intersection and it was still green; that he did not look at it as he entered the intersection; that after the impact he again looked at the light and observed it changing from green to amber and then to red; that as he neared the intersection he looked to the west and to the north and observed no cars coming; that he did see some motion of cars to the east but didn’t think anything about it, and made no effort to determine the location or speed of the vehicles coming from the east; that he proceeded to go through the intersection when a car loomed up in front of him and the impact followed immediately; that at no time did he apply his brakes; that while he attempted to swerve to the left the left wheels of his car were approximately the same distance east of the center line of Illinois street at time of impact as they were when he entered the intersection; that following the accident plaintiff first told officer Riley she didn’t know the condition of the light as she entered the intersection, then refuted this statement after learning defendant had signed a complaint against her and stated that the light was green in her favor; that following the accident he talked with a lawyer at the scene who suggested that he, for his protection, should sign a complaint against plaintiff, and this was done to get in the first lick. The complaint was later dismissed.

The evidence was undisputed that the impact occurred in the northeast quadrant of the intersection at a point 35 to 40 feet north of the south curb line of Seventh street and from 17' 3" to 20’ west of the east curb of Illinois street; that the front of defendant’s car struck the left rear of plaintiff’s automobile and that the damage extended to a point about 4 to 5 feet from the rear end of plaintiff’s automobile. There was evidence that defendant’s Austin-Healey was equipped with four-wheel hydraulic brakes in good condition; that it is easier to manipulate and turn than larger automobiles and that this is one of the advantages of a small car, the ability to make sharp turns; that defendant had had actual experience in making sharp turns; that as he approached and entered the intersection he knew the only danger from traffic at the intersection was from the east; that he had normal reactions; that his car was in good operating condition, good brakes, and could be stopped faster than the ordinary passenger car.

There was expert testimony based on tests performed at the intersection in question that an Austin-Healey Sprite, after reaching a pre-determined point, at a speed of 25 miles per hour, could be swerved 8 feet to the right in a forward distance of W 8" and 12 feet to the right in a forward distance of 20 feet and that at a speed of 25 miles per hour, after reaching a predetermined point, could be stopped at a distance of 12' 2" to 14' 7" after applying the brakes.

Plaintiff, by instruction No. 3, submitted primary negligence of defendant in driving into the intersection against a red traffic light. Defendant countered with instruction No. 10 submitting contributory negligence of plaintiff in failing to maintain a careful lookout for defendant’s car and other vehicles and for violation of the traffic light at said intersection, and instruction No. 11 submitting contributory negligence of plaintiff in failing to stop for a red traffic light.

Plaintiff, by instruction No. 2, submitted defendant’s humanitarian negligence in failing to stop, slow or turn to the right after defendant saw, or in the exercise of the highest degree of care, should have seen plaintiff in a position of imminent peril.

Defendant countered with instruction No. 12, which hypothesized a finding that plaintiff drove through the traffic light when the light was red or stop for traffic on Seventh street and that after plaintiff’s car came into a position of imminent peril it was so close that defendant could not avoid the collision.

Plaintiff presents but one issue for reversal on this appeal and that is that defendant’s instruction No. 12 was preju-dicially erroneous.

It is defendant’s contention that plaintiff failed to make a case for the jury on humanitarian negligence and the court should not have submitted that question to the jury-

In our opinion we will designate appellant as plaintiff and respondent as defendant, the position occupied in the lower court.

Plaintiff’s only contention on appeal is that defendant’s instruction No. 12 was prejudicially erroneous because:

(1) It injects contributory negligence of plaintiff into a humanitarian case and is so drawn that the jury would probably understand that if plaintiff ran the red traffic light and thus contributed to her injury she could not recover.

(2) Because the instruction is so drawn as to limit the zone of peril to the time plaintiff entered the intersection when the jury could have found plaintiff entered a position of imminent peril prior to the time she entered the intersection.

(3) That the instruction seeks to avoid the burden of a sole cause instruction by combining language indicating the negligence of plaintiff caused the accident with converse language that defendant could not avoid the accident after plaintiff came into imminent peril.

Instruction No. 12 reads:

“With reference to the charge of negligence against the defendant, Mr. Wilson, as submitted to you in Instruction Number 2, the Court instructs the the jury as follows:
“By the phrase ‘position of imminent peril’, as used in that instruction, is not meant a place wherein there is just a mere, bare possibility of an injury occurring. It means a place and position wherein there is certain or impending danger.
“Now, with reference to the charge submitted to you in Instruction Number 2, you are instructed that Mr. Wilson was under no duty whatsoever to stop his car, slacken its speed, or swerve it aside until after he saw, or could have seen, that the car driven by Mrs. Burke was actually in a position and place of certain danger or imminent peril of colliding with his car, and even then Mr. Wilson was required only to use the means and appliances then and there at hand to avoid the collision.
“Therefore, you are instructed that if you find from the evidence that Mrs. Burks drove her automobile through the stop light, if you find the light was red or stop for traffic on Seventh Street at that time, and that after Mrs. Burks’ car could first be seen by Mr. Wilson in a position of imminent peril of collision with his car it was then so close that Mr. Wilson, in the exercise of the highest degree of care and with safety to himself and others, could not have avoided the collision, then and in that event the plaintiff is not entitled to recover against Mr. Wilson under Instruction Number 2.
“In other words, you are instructed that before Mr. Wilson can be found guilty of negligence under Instruction Number 2, you must find by the greater weight of all the credible evidence that he had a reasonable opportunity to avoid the collision both after Mrs. Burks’ car came into a position of imminent peril and after Mr. Wilson saw or could have seen it in that position, and unless you so find, then you are instructed that this collision was not due to any negligence on the part of Mr. Wilson submitted in Instruction Number 2, and your finding on the issue submitted in Instruction Number 2, be in favor of the defendant, Mr. Wilson.”

We will proceed to examine the suggested reasons why the instruction is erroneous. The first attack is to that part which reads: “ * * ⅜ y0U are instructed that if you find from the evidence that Mrs. Burks drove her automobile through the stop light, if you find the light was red or stop for traffic on Seventh Street at that time, * * *

It is apparent to us that this objection is well taken. The instruction containing this clause is erroneous because it injects into a humanitarian case the contributory negligence of plaintiff. We think the jury would probably understand that if plaintiff’s failure to yield the right of way was a contributing cause to her injury she could not recover. Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566, 570 [3]; Sheerin v. St. Louis Public Service Co., Mo.Sup., 300 S.W.2d 483, 487 [6]. The humanitarian doctrine seizes upon a fact situation as it exists at the time the defendant knew or should have known that plaintiff was in imminent peril. Whatever had transpired from the standpoint of either plaintiff or defendant, prior to that time, could not effect the rights of the parties thereafter. Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 81 [1], [2-3], In this case it was stated:

“ * * * ‘It is prejudicial error, in an instruction submitting humanitarian negligence, to inject therein primary negligence of the defendant or contributory negligence of the plaintiff; to require consideration of any antecedent negligence of either plaintiff or defendant which existed prior to the time that the humanitarian doctrine properly commenced to operate; or to predicate recovery upon any different facts than those which actually existed at the time the peril arose and was discovered, or, if there was a duty to keep a lookout, when it was discoverable by the exercise of the required degree of care.’'”

The presence or absence of contributory negligence is immaterial to the applicability of the doctrine. Price v. Nicholson, Mo.Sup., 340 S.W.2d 1, 9 [3]; Sheerin v. St. Louis Public Service Co., Mo.Sup., 300 S.W.2d 483.

The portion of the instruction dealing with the plaintiff’s duty in stopping at the stop light had no place in this humanitarian case. Klecka v. Gropp, Mo.Sup., 278 S.W.2d 790, 795 [3]; Dwinell v. Thompson, Mo.Sup., 243 S.W.2d 988, 991 [5].

The instruction is so clearly erroneous for the reasons assigned under plaintiff’s first contention that we deem it unnecessary to consider the second and third grounds for reversal. Since the case must be re-tried the court can remedy any other defects contained therein.

In defendant’s brief he does not attempt to sustain the correctness of instruction No. 12 but contends that under the evidence the trial court should not have submitted to the jury the issue of humanitarian negligence.

The primary issue involved on this appeal is whether or not plaintiff made a submiss i-ble case on the ground of humanitarian negligence.

In instruction No. 2 plaintiff submitted her case on the theory that defendant saw or by the exercise of the highest degree of care on his part could have seen plaintiff in a position of imminent peril in time thereafter to have stopped his automobile or slackened or slowed the speed thereof or turned the same to his right and by so doing could have avoided the collision.

Our review of the submissibility of plaintiff’s case on this theory requires that we review the evidence in the light most favorable to plaintiff, give plaintiff the benefit of all reasonable inferences arising therefrom and disregard defendant’s evidence unless it aids plaintiff’s case. Kirks v. Waller, Mo.Sup., 341 S.W.2d 860, 863 [2, 3] ; Daniels v. Smith, Mo.Sup., 323 S.W.2d 705, 706 [2]; De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 633 [3, 4]. Favorable consideration of the evidence rule calls for a consideration of all the facts shown by plaintiff, not merely part of them isolated from the rest. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, 727 [1]; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135. And it does not require courts to supply missing evidence, or disregard the dictates of common reason and accept as true that which obviously, under all the record, is not true, or to give plaintiff the benefit of any other than reasonable inferences. Kirks v. Waller, supra, 341 S.W.2d page 863 [2, 3] (and see authorities cited therein).

The peril as a basic fact of the humanitarian doctrine “must be imminent, that is certain, immediate and impending; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient to create imminent peril”. Kirks v. Waller, supra, 341 S.W.2d pages 863, 864 [4]; Welch v. McNeely, Mo.Sup., 269 S.W. 2d 871, 876; Batson v. Ormsbee, Mo.App., 304 S.W.2d 680, 683.

Plaintiff must remove her case from the field of speculation, conjecture or surmise. Hartlage v. Halloran, Mo.App., 331 S.W.2d 197 [1].

The humanitarian rule seizes upon a factual situation as it exists at the time the defendant knew or should have known that plaintiff was in a position of imminent peril. Carney v. Stuart, Mo.Sup., 331 S.W.2d 558, 562 [4-6]. It is well settled that no duty on a defendant to act arises until plaintiff is actually in a position of imminent peril, and that when plaintiff is in a position of imminent peril is a question for the jury under all the evidence. Price v. Nicholson, Mo.Sup., 340 S.W.2d 1, 10 [6]; Harrington v. Thompson, Mo.Sup., 243 S.W. 2d 519. There must be substantial evidence from which the jury may make this determination.

The decisive questions presented here are when did plaintiff come into a position of imminent peril and what could defendant have done thereafter ? The zone of imminent peril is always widened beyond the immediate path of a moving vehicle by the obliviousness of a person approaching its path. Crews v. Kansas City Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, 57 [2], This zone commences and the duty of a driver of a moving motor vehicle begins when he saw, or could have seen by the exercise of the highest degree of care, that the person approaching the path of his vehicle was oblivious to the dangers and was intent on continuing across his path. Homan v. Missouri Pacific R. Co., 334 Mo. 61, 64 S.W.2d 617. It is his duty to act on reasonable appearances of obliviousness and at a time when action would be effective. Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W. 368. However, the zone of imminent peril is much narrower when the approaching person is not oblivious or shows no reasonable appearances of obliviousness. Under such circumstances, “the duty of such operator to act does not commence until such person is actually in its path or so close to it that it is apparent (at the rate of speed and manner he is moving) that he will not stop before reaching it”. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, 53. “In the absence of obliviousness, the position or danger zone of imminent peril of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop short of it”. Lotta v. Kansas City Public Service Co., 342 Mo. 743, 117 S.W.2d 296, 300; Yeaman v. Storms, 358 Mo. 774, 217 S.W. 495. Thus the greater the speed of the approaching vehicle, the wider the zone of imminent peril. Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W.2d 540, 547 [10-14]; Banks v. Koogler, Mo.Sup., 291 S.W.2d 883, 889 [15-19]; Homfeld v. Wilcoxon, Mo.Sup., 304 S.W.2d 806; Findley v. Asher, Mo.Sup., 334 S.W.2d 70, 72 [2-4],

In the instant case we find from plaintiff’s evidence that she was not oblivious to the defendant’s approaching car. She testified that as she approached the intersection she looked to the south and saw defendant’s car coming and that, as she was at or entering the intersection, she again looked to the south to see where his car was; that she thought it had stopped. Under such circumstances the duty of the defendant did not commence until plaintiff was actually in his path or so close to it that it was apparent “at the rate of speed and manner in which plaintiff’s car was moving” that she would not stop before reaching it. Smithers v. Barker, Mo.Sup., supra. The path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop short of it. This rule was stated in the late case of Findley v. Asher, Mo.Sup., 334 S.W.2d 70, 72, wherein Judge Hyde, speaking for the court, stated that under the humanitarian rule defendant’s duty “did not commence until he saw or by the exercise of the highest degree of care could have seen that deceased was oblivious of his approach and intended to proceed across his path or that oblivious or not she was unable to stop short of his path”. Frandeka v. St. Louis Public Service Co., Mo.Sup., 234 S.W.2d 540, 547. (See cases cited).

In the instant case the evidence was undisputed that the impact occurred in the northeast quadrant of the intersection 35 or 40 feet north of the south curb line of Seventh street and from 17' 3" to 20 feet west of the east curb line of Illinois street. The right front of defendant’s car struck the left rear of plaintiff’s automobile and the damage extended to a point from 4 to 5 feet from the rear end of plaintiff’s automobile.

Defendant testified that as he approached the intersection the left wheels of his car were east of the center line of Illinois street; that he attempted, just prior to the collision, to turn to the left but that at the time of collision his left wheels were still east of the center line of Seventh street. Plaintiff testified that her car was 16 feet long and she could have stopped at the speed at which she was traveling when she entered the intersection in three car lengths or 48 feet so the jury could have found that plaintiff was in a position of imminent peril when her car reached a point 48 feet east of the path of defendant’s moving vehicle.

The evidence shows that when defendant’s car reached a point 25 feet south of the south curb line of Seventh street, he had an open and clear view of cars approaching the intersection on Seventh street from the east for many blocks. Plaintiff’s evidence was that the right front of defendant’s car struck the rear end of her car and that the damage extended to a point 4 or 5 feet from the rear of her car so the jury could have reasonably found from the evidence that at the time of the collision the front of plaintiff’s car had cleared the path of defendant’s car some 11 feet at the time of impact. If the impact occurred approximately 17 feet west of the east curb line of Illinois street then the front of plaintiff’s car was 31 feet east of the intersection when her car entered a position of imminent peril. When the front of plaintiff’s car was 48 feet east of the path of defendant’s car plaintiff was in fact 59 feet east of the point because it was the last 4 or 5 feet of plaintiff’s car that was struck, 11 feet having cleared defendant’s path. Thus, at 25 miles per hour, under plaintiff’s testimony, her car was traveling 36.67 feet per second which would require 1.6 seconds to travel 59 feet to point of impact.

Defendant testified that his average speed at the intersection was 22.5 miles per hour or 33 feet per second so the jury could have found that defendant was 52.8 feet from point of collision at the time plaintiff entered the zone of imminent peril. Plaintiff offered evidence that defendant could stop his car in 14.53 feet after he got his foot on the brake. The defendant’s normal reaction time is three-fourths of a second which the courts judicially note. Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, 788. From his testimony he was traveling 22.5 miles per hour and in three-fourths of a second reaction time he would travel 24.75 feet so, from the evidence, defendant could have stopped his car after he discovered plaintiff in a position of imminent peril in 39.33 feet and thereby have avoided the collision.

The jury could have further found from the evidence that defendant could have turned his car to the right a distance of 8 feet within 14.67 feet of forward movement or 12 feet to the right in a distance of 20 feet of forward movement. The evidence related to swerving does not take into consideration reaction time so, adding reaction time to 14.67 feet, defendant could have turned to the right 8 feet in forward movement of 39.42 feet. Of course, from the evidence had he swerved to the right 5 feet, the accident would not have happened. We are of the opinion that from the evidence the jury could have found that a slight slackening of speed would have averted the collision.

Defendant in his brief states that in order for him to have swerved 8 feet to the right he would have had to start the movement a minimum of 39.406 feet south of point of impact or to swerve 20 feet to the right he would have had to start the movement 44.74 feet south of impact. It is defendant’s contention that under either of the findings he would have had to be right at the south edge of the intersection of Seventh street or 10 feet south of the intersection, depending on whether you take 35 or 40 feet north of the south edge of the intersection as point of impact.

Under either of defendant’s contentions we think that from the evidence the jury could have found that defendant, using the highest degree of care, could have discovered plaintiff’s position of imminent peril in time to have stopped, turned to the right, or checked his speed and avoided the accident.

Defendant’s testimony is that his car was in the east lane of traffic on Illinois street and remained in the east lane until after the collision. His evidence, unquestionably,- shows that as he approached and entered the intersection, he was not using the highest degree of care to ascertain if there was approaching traffic on Seventh street. His evidence does not aid his case. He admits that the only danger of traffic -was from his right, yet, he did not see plaintiff’s car but only got a glimpse of moving traffic on Seventh street. We find that the evidence offered makes a submissible case under the humanitarian doctrine and was one for the jury.

We think it unnecessary to pass on the third alleged error in defendant’s brief. If there be error in this contention it can be corrected on a re-trial.

Judgment reversed and remanded.

RUARK, P. J., concurs in separate opinion.

STONE, J., concurs.

RUARK, Presiding Judge.

I concur, because it appears, from evidence most favorable to plaintiff, that this was an “almost escaping” situation where any very slight action on the part of defendant would have enabled the plaintiff to pass beyond peril. But I am uncomfortable about expressions in the opinion which deal with fixed and positive stopping and turning distances and thus figure back. The briefs of the parties show that they go into careful calculations reaching into fractions of a second. When we deal with the humanitarian doctrine, involving the commencement of a zone of peril, which must be certain, and we (necessarily) fix the beginning point by estimates of speed and distance, then work by figuring back (again on “average speed” and an “average” of reaction time) to liability based on fractions of seconds, it seems to me to be inconsistent.


author: GREENHILL, Justice. SMITH, Justice

text:
    RAILROAD COMMISSION of Texas et al., Petitioner, v. C. Murel WILLIAMS, Respondent.
    No. A-7961.
    Supreme Court of Texas.
    Oct. 18, 1961.
    Concurring Opinion April 11, 1962.

      Will Wilson, Atty. Gen., Houghton Brownlee, Jr., Charles D. Cabiniss, Ben Harrison, Linward Shivers, Asst. Attys. Gen., for Railroad Commission of Texas, petitioner.
    Verne Maxwell, Dallas, Powell, Rauhut, McGinnis, Reavley & Lochridge and Frank Douglass, Austin, with above firm, for American Petrofina Co. of Texas, petitioner.
    Henry Betts, Black & Stay ton, Thomas Black of the firm, Austin, for Southern Natural Gas Co., petitioner.
    McKay & Avery, Wallace H. Scott, Jr., Austin, Wilson & Spivey, Tyler, for Reynolds Oil Co., petitioner.
    Clark, Mathews, Thomas, Harris & Den-ius and James H. Keahey, Austin, with above firm, for C. Murel Williams, respondent.
   GREENHILL, Justice.

Murel Williams here seeks a permit to drill a gas well on a 1.65-acre tract. The spacing pattern fixed by the Texas Railroad Commission for the drilling of gas wells in this field in Shelby County, Texas, is one well to each 640 acres. Williams seeks the permit to drill on the 1.65-acre tract in order to prevent confiscation of property under an exception to Rule 37 (the spacing rule) of the Railroad Commission. He did not allege or prove that the well was necessary to prevent waste. The application was denied by the Commission. Upon appeal to the district court, the action of the Commission was reversed and an order entered that the permit be granted to prevent confiscation. In that action, the Southern Natural Gas Co., Reynolds Oil Company, and the American Petrofina Co. of Texas intervened and aligned themselves with the Commission in opposition to the granting of the permit. The action of the trial court in granting the permit was affirmed by the Austin Court of Civil Appeals. 336 S.W. 2d 800. We here reverse the judgments of the courts below and uphold the order of the Railroad Commission on the ground that there is substantial evidence that the permit was not necessary to prevent confiscation.

The basic facts are without dispute and are repeated here substantially as they appear in the opinion of the Court of Civil Appeals’ opinion below:

The 1.65-acre tract in question is the east 1.65 acres of a 3.3-acre tract acquired by H. P. and Ruby Williams, Murel’s parents, on November 23, 1917. In the same deed to Williams and his wife was a conveyance of the adjoining 37.5 acres. On January 12, 1920, H. P. and his wife acquired the adjoining 5-acre tract. These three tracts combine to form a parallelogram.

On July 10, 1920, H. P. and his wife conveyed one-half the minerals beneath the 3.3-acre tract to Smith Price. That ownership has remained with Price and his widow.

On December 14, 1935, H. P. and his wife executed a 10-year mineral lease on the 5- and 37.5-acre tracts to J. T. Perryman who assigned it to Pure Oil Company.

On January 7, 1936, H. P. and his wife and Smith Price executed a 10-year mineral lease on the 3.3-acre tract to Ed C. Smith. That lease was ultimately assigned to Pure Oil Company.

This Joaquin gas field was opened in 1936. Pure assigned its leases mentioned above to Southern Production, Inc., on September 13, 1940.

On May 15, 1942, Smith Price executed a pooling agreement with Southern Production Company covering his one-half mineral interest in the 3.3-acre tract.

On May 21, 1942, Southern Production put of record in Shelby County an instrument styled “unit designation” by which it combined and unitized as an operating unit for gas the leases covering the 3.3-, 5-, and 37.5-acre tracts. As stated above, Smith Price had executed a pooling agreement covering his interest, but H. P. and his wife did not authorize the inclusion of their interests in the three Williams tracts in the unit.

On July 1, 1942, Southern Production completed a well known as the Addie T. ‘Stephens No. 1 on acreage which was included in the unit purportedly containing the three Williams tracts. This well produced until 1957. Smith Price participated in the production from the Addie T. Stephens No. 1 during its producing life, but the royalties accruing to H. P. and his wife were held in a suspense account and have never been claimed by them. The three Williams tracts were held under lease by the payment of delay rentals which H. P. and his wife continued to receive until the leases expired.

In December, 1945, and January, 1946, respectively, the leases covering the Williams tracts referred to above expired.

On March 13, 1946, Southern Production executed a release of the leases as to the 5- and 37.5-acre tracts, and on November 20, 1957, Sinclair Oil and Gas Company, as-signee of Southern Production, released the lease on the 3.3-acre tract.

On September 18, 1952, H. P. and his wife gave Murel a general power of attorney to manage their affairs. Under this authority, Murel testified that he “pretty much” managed their affairs thereafter.

On May 1, 1953, Murel, on behalf of H. P. and his wife and through his general power of attorney, executed an oil and gas' lease as to the 5- and 37.5-acre tracts to Natural Gas Distributing Company. This lease expressly excluded the 3.3-acre tract. On the same day, H. P. and his wife executed a pooling agreement with Natural Gas covering the 5- and 37.5-acre tracts. This lease was pooled into the H. P. Williams Unit. The H. P. Williams No. 1 well was drilled on the 37.5-acre tract in 1953, and it still produces. The Williams Unit is a noncontiguous unit authorized under the field rules then applicable; i. e., to get together enough acreage to qualify for a 640-acre drilling unit, the parties were allowed to put into the unit scattered leases in various locations in the field.

Murel Williams was instrumental in procuring for Natural Gas various tracts which went to make up the H. P. Williams Unit, and for such work he was given a ⅛⅛ overriding royalty on the production from all the unit. American Petrofina of Texas is the successor to Natural Gas on the leases in this unit.

On January 16, 1958, H. P. and his wife conveyed by warranty deed their rights in all the surface and in an undivided one-half of the minerals of the 3.3-acre tract to Murel, their son. On December 1, 1958, a consent decree was entered in the District Court of Shelby County partitioning the tract between Murel and the widow of Smith Price. Each received equal tracts containing 1.65 acres. Mrs. Price received the west 1.65-acre tract and Murel the east 1.65-acre tract. Neither of the tracts was of sufficient size to be developed for oil or gas in accordance with the rules of the Railroad Commission.

On March 1, 1958, Mrs. Price leased her I.65-acre tract to S. R. Bright, who assigned to Reynolds Oil Company on October 10, 1958. On May 29,1958, Reynolds applied to the Commission for a permit to drill on its J. L. Grayson Unit, stating that such unit included 3.73 acres under lease from [Mrs.] Smith Price. Reynolds’ application was granted, and production was obtained on lands other than the 1.65-acre tract leased by Mrs. Smith Price.

On December 26, 1958, Murel filed with the Commission his application for a well, thus instituting this case.

No attempt has been made by those with an interest in the west 1.65 acres to secure a permit, and their rights, if any, are not involved here.

According to the opinion of the Court of Civil Appeals below and the briefs filed on behalf of Murel, the following is his position: Murel concedes that the partition of the 3.3-acre tract into two 1.65-acre tracts was a voluntary subdivision in violation of the spacing rules of the Commission, and, of itself, does not entitle him to a well on his east 1.65 acres. His position is, however, that the 3.3 acres was constituted a separate tract for oil and gas development purposes on July 10, 1920, when H. P. and his wife, Murel’s father and mother, conveyed an undivided one-half of the minerals under the tract to Smith Price. He contends that at that time the common ownership and control of the 5-, 37.5-, and 3.3-acre tracts previously existing in H. P. and his wife was disrupted and was never reunited. He argues that, because the 3.3-acre tract was thereby made a separate tract for oil and gas development purposes, the tract had a right to at least one well as a matter of law from July 10, 1920, to December 1, 1958, when the tract was partitioned. He then employs the so-called Century Doctrine, Railroad Commission of Texas v. Magnolia Petroleum Co., 1937, 130 Tex. 484, 109 S.W.2d 967, to reconstitute the 3.3-acre tract from the two 1.65-acre tracts and claims the alleged right of the 3.3-acre tract to one well for his 1.65-acre tract.

We assume, without deciding, that the 3.3-acre tract owned by H. P. and his wife did become a separate tract for oil and gas development purposes on July 10, 1920, when they conveyed an undivided one-half mineral interest to Smith Price, and that it remained a separate tract until December 1, 1958. What, then, were the oil and gas development' rights existing in the tract and the owners of the tract prior to the conveyance of the undivided one-half mineral interest to Murel and the subsequent partition in 1958, and what rights does Murel now have?

If H. P. and his wife had desired to develop separately the 3.3-acre tract prior to conveyance to their son, Murel, they would have had to apply to- the Railroad Commission for an exception to Rule 37 on the ground of waste or confiscation. The Court of Civil Appeals and Murel assume that they would have been entitled to a first well on it as a matter of law. We conclude that they would not have been entitled to a well as a matter of law because there is substantial evidence to support a finding by the Commission that at least after production on the adjoining 37.5-acre H. P. Williams tract (beginning in 1953 and continuing to date), H. P. Williams could not have proved that the gas under the 3.3-acre tract was being confiscated; i. e., he could not have proved that without a well on his 3.3-acre tract, he could not recover his fair share of the gas from the 3.3 acres. Since production units are of approximately 640 acres, one well is presumed to drain that amount of acreage. As will be pointed out below, it is undisputed that the H. P. Williams well on his 37.5-acre tract is capable of producing (draining) gas from under the adjoining 3.3-acre tract and that it actually did so. We further conclude, therefore, that the courts below were in error in holding that, as a matter of lawj Murel was entitled to a well. Our reasons follow:

The analysis of Murel and the Court of Civil Appeals depends in part on treating the right to a well as a vested right in the land itself. Some cases have language to this effect; but the holdings in them did not turn on the precise point now before us.

The right to a well on a tract of land, however, is not a vested right in the land itself, but is a right of the owners of the land. Railroad Commission of Texas v. Magnolia Petroleum Co., 1937, 130 Tex. 484, 109 S.W.2d 967. If it were a vested right in the land, then the right of a small tract could not be destroyed by merger with a larger tract. The right of a small tract can, of course, be so destroyed. Railroad Commission of Texas v. Wood, Tex.Civ.App.1936, 95 S.W.2d 1328 (error refused) .

The cases may have spoken of rights in land because it is easier to express the right to a well as one belonging to the tract rather than mentioning the owners of the tract each time. But whether the right belongs to the tract or to the owner is important when considering rights to well permits as exceptions to Rule 37, because the particular facts and circumstances of each landowner’s case may or may not justify granting him a permit. It is our conclusion that a landowner must prove that he needs a well to prevent confiscation or waste.

The argument of Murel and the Court of Civil Appeals is further grounded on the proposition that the 3.3-acre tract was entitled to a first well as a matter of law. Again, there is language in some cases that the owner of a tract of land, which is too small to meet the spacing rules but which is not a voluntary subdivision in violation of those rules, is entitled to a first well on the tract as a matter of law. But, as stated above, the holdings in these cases did not turn on the question decided herein. The reasoning of those cases as to why every landowner of an involuntary subdivision is entitled to at least a first well as a matter of law is given in Stanolind Oil & Gas Co. v. Railroad Commission, Tex.Civ.App. 1936, 96 S.W.2d 664 (no writ history) which is perhaps the first case stating this rule:

“Total deprivation of the landowner’s vested right to a fair share of the recoverable oil in place under his land is not a proper remedy under our present conservation laws and rules promulgated thereunder.” Stanolind Oil & Gas Co. v. Railroad Commission, 96 S.W.2d 664, at page 665.

It thus appears that the courts were perhaps compelled to the conclusion in these cases that the only way to protect the small tract owner was to give him at least one well as a matter of law. We have concluded, however, that such a small tract owner is not necessarily entitled to a first well as a matter of law. He is entitled to the exception, under Rule 37, if it is necessary to prevent waste or to prevent confiscation of property. As this Court said in Gulf Land Co. v. Atlantic Refining Co., 1939, 134 Tex. 59, 131 S.W.2d 73, on page 80:

“In order to accomplish orderly drilling, the Commission has simply promulgated a rule fixing minimum spacing distances at which wells may be drilled without application, notice, or hearing. Any one desiring to drill a well at a lesser distance must secure a special permit, after notice and hearing. Such applicant assumes the burden of proof that such well is necessary to prevent waste, or to prevent the confiscation of property.”

The basic right of every landowner, including small tract owners, is to a fair chance to recover the oil and gas in and under his land, or their equivalents in kind. Gulf Land Co. v. Atlantic Refining Co., cited just above. This means that the owners and lessees of some small tracts are entitled to a well on their tracts as a matter of law because there is no other way to give them a fair chance to recover the oil and gas under their land. Stanolind Oil & Gas Co. v. Railroad Commission, cited just above. But they must first prove confiscation or waste.

The rule of fair chance or fair share is the reason for the “confiscation” exception to Rule 37 whereby an owner or lessee can get a well permit for a small tract. Brown v. Humble Oil & Refining Co., 1935, 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393; Railroad Commission of Texas v. Gulf Production Co., 1939, 134 Tex. 122, 132 S.W.2d 254. In fact, it has been held that the proper test of confiscation under Rule 37 is whether an owner, with the wells which already exist, has been accorded a fair and equal opportunity with other producers of surrounding tracts within the drainage area to recover his fair share of the oil in place beneath his tract. If he has, no confiscation results. Gulf Oil Corporation v. Smith, Tex.Civ.App.1940, 145 S.W.2d 280 (error refused).

Murel expressly denied a theory of waste in seeking a permit for his 1.65 acres, and has based his claim on confiscation. We think that there is substantial evidence in the record to support a Railroad Commission finding of no confiscation. The Railroad Commission has developed a gas well spacing pattern of one well for each 640 acres in the Joaquin field, and has determined that “development on such 640-acre pattern will provide for adequate drainage of the gas reserves.” The 3.3-acre tract is within the Williams’ 45.8-acre area which is drained by the H. P. Williams No. 1 well. That well is located on the Williams 37.5 acres immediately adjoining the 3.3 acres. Murel’s own expert witness, Ashford, testified:

“Q. And, of course, the H. P. Williams No. 1, which is only about 1000 or 1200 feet from that area, has been draining it, hasn’t it? A. Yes, sir.
“Q. Probably draining it more than any other well you know of; isn’t that right, Mr. Ashford? A. Well, it is as close as any other.
“Q. It is as close or closer; is that right? A. Yes, sir.”

Petitioners’ expert witness, Tucker, testified that “there would be absolutely no question that a well as close as the Williams well is to the subject 3.3-acre area would drain that area.” Through the H. P. Williams No. 1 well close by on their adjoining land, H. P. and his wife have been draining their own 3.3-acre tract. There seems little doubt, therefore, that the H. P. Williams No. 1 well provided H. P. and his wife with a reasonable opportunity to produce their fair share of the oil and gas under the 3.3-acre tract.

As stated above, Murel employs the so-called Century Doctrine, Railroad Commission of Texas v. Magnolia Petroleum Co., 1937, 130 Tex. 484, 109 S.W.2d 967, to reconstitute the two 1.65-acre tracts into the 3.3-acre tract and claims the alleged right of the owners of the 3.3-acre tract to a well for his 1.65-acre tract. But the basic condition of this doctrine is that a well is needed “to protect the vested rights of the owners of such larger tract [the reconstructed tract] to recover their fair share of the oil thereunder in place.” Humble Oil & Ref. Co. v. Lasseter, Tex.Civ.App.1938, 120 S.W.2d 541, 542 (error dismissed). In this case none was needed to protect the owners, H. P. and his wife, because they were already draining the tract with their well on the adjoining tract.

If they, as cotenants with Smith Price of the 3.3-acre tract, had applied for a well permit for the tract prior to the conveyance to Murel and after the H. P. Williams No. 1 well had begun to drain the 3.3-acre tract, there would have been substantial evidence to support the denial by the Commission of the application. Murel, their grantee of the undivided one-half mineral interest, could have no better rights to a well permit. To hold otherwise would mean that a grantor of a mineral interest could create valuable oil development rights in his grantee which he himself did not have. This rule is a necessary corollary to the voluntary subdivision rule. That rule prohibits the creation of a right to a well permit on each small tract subdivided from a large one when the owner of the larger tract did not have such right. Humble Oil & Refining Co. v. Railroad Commission, Tex.Civ.App.1934, 68 S.W.2d 622, affirmed sub nom Brown v. Humble Oil & Refining Co., 1935, 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107.

The opinion of the Court of Civil Appeals below dealt largely with the opinion in Ryan Consolidated Petroleum Corp. v. Pickens, 1955, 155 Tex. 221, 285 S.W.2d 201. We do not here reach the problem raised in the Ryan case, and that opinion has no application to the decision which we have reached.

The judgments of the courts below are reversed, and judgment is here rendered for the Railroad Commission and the other petitioners.

SMITH, J., concurs in the result.

GRIFFIN, J., not sitting.

SMITH, Justice

(concurring).

I concur in the result but do not agree with many of the reasons assigned by the Court as to why the action of the Commissioners in denying Murel Williams a permit was being upheld. In my opinion, the action of the Commissioners in denying the permit was supported by substantial evidence. The evidence is simply this: Williams and Smith Price were the owners of the 3.3 acres involved here. Smith Price executed a pooling agreement covering his undivided ½ interest. This 3.3 acres went into the unit. A permit was granted to this unit. Williams deliberately left his ½ interest out of both units which had been created. It is my opinion that the 3.3 acres was only entitled to one well and that when the permit was granted, locating the well on one of the tracts with which Price had unitized, the location was just as though the well was actually located on the 3.3-acre tract owned by Williams and Price. Under such circumstances, Williams was not entitled to another well on the 3.3 acres or his one half of that tract. The reasons assigned by Mr. Justice GREENHILL for holding against Williams are, in the main, contrary to the well-settled rules of property announced by this Court in numerous decisions. In view of other cases pending in this Court, I deem it proper to write my views at this time rather than to merely note a concurrence.

      . The well on the Williams tract is virtually surrounded on all sides by another producing unit, the Reynolds unit. Petitioners, therefore, argue that the well on the Williams tract (composing in all some 45.8 acres) is actually draining a large area outside the Williams tract,— and that therefore Williams et al. are receiving more than their fair share of the gas.

      . E. g., Railroad Commission of Texas v. Humble Oil & Refining Co., 1952, 151 Tex. 51, 245 S.W.2d 488; Dailey v. Railroad Commission, Tex.Civ.App.1939, 133 S.W.2d 219 (error refused); Stanolind Oil & Gas Co. v. Railroad Commission, Tex.Civ.App.1936, 96 S.W.2d 664 (no writ history).

      . See Charlie J. Meyers, “ ‘Common Ownership and Control’ in Spacing Cases,’’ 31 Tex.Law Rev. 18, at 22:
      “The error springs from the assumption that every tract has a vested right to one well, and that transfers in ownership of the tract cannot destroy that vested right. The mistake in this reasoning is, of course, that it is not the tract, as a parcel of land, that is entitled to a well; it is the owner who has the right.”

      . E. g., Railroad Commission of Texas v. Humble Oil & Refining Co., 1952, 151 Tex. 51, 245 S.W.2d 488; Dailey v. Railroad Commission, Tex.Civ.App.1939, 133 S.W.2d 219 (error refused); Stanolind Oil & Gas Co. v. Railroad Commission, Tex.Civ.App.1936, 96 S.W.2d 664 (no writ history).

      . See the discussion by Robert E. Hard-wicke, “Oil-Well Spacing Regulations and Protection of Property Rights in Texas,” 31 Tex.Law Rev. 99. Hardwicke reasons that if the rule (each tract is entitled to a first well as a matter of law) means that the commission may not ignore its own rules, and that tracts subdivided before Rule 37 or the discovery of oil or gas shall be entitled to a well to prevent waste or confiscation, then the rule is sound. If it means that each tract is entitled to a well regardless of the development in the area by the applicant and others, then the rule is not sound.