dissenting:
It is not denied that the two courts below have correctly applied the state law governing the right to recover royalties on the particular type of gas lease here in question. By that law, in order to recover further royalty payments in excess of the 3 cents per 1,000 cubic feet of gas, which petitioners have already received, they must sustain the burden of showing that during the relevant period, the market price or value of the gas at the wellhead exceeded 3 cents. By Louisiana law also and upon principles of proof which it is also not denied that the courts below correctly applied, the “pipe line” price of gas, without qualifications and supplementary proof wholly lacking in this case, is not evidence of market price or value at the wellhead. Consequently, on the motion for summary judgment, the single issue was whether petitioners had any evidence by which they could sustain the burden resting on them of showing that during the relevant period, there was a market price or value of gas in excess of 3 cents at the wellhead.
True, Rule 56 (c) of the Rules of Civil Procedure excludes from the summary judgment procedure any issue as to the “amount of damages,” where there is an admitted right of recovery but the amount of damages is in dispute. But the Rule does not exclude from that procedure the issue of damage vel non when that is decisive of the right to recover. This is made plain by subdivision (d) of Rule 56, which provides for a partial summary judgment and declares that the order shall specify the “facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in *630controversy.” Obviously, if it appears that there is no evidence of damage, the “amount of damages” is not in controversy and the court is not precluded from giving summary judgment for the defendant.
On the single issue here presented, whether petitioners’ right to recover can be established by a showing of market price or value of the gas at the wellhead, in excess of 3 cents, respondent’s affidavits and documentary evidence and a stipulation of facts show that all such sales of gas during the relevant period were at 3 cents or less. The affidavits also showed by opinion evidence of qualified experts, the disinterestedness of some of whom is not, on the present record, open to challenge, that the market price and value of the gas at the wellhead did not exceed 3 cents. To meet the prima facie case thus made out by respondent’s papers, petitioners tendered only proof of pipe-line prices, each of which the state or federal courts had held in earlier cases to be no evidence of market price or value of the gas at the wellhead. See Sartor v. United Gas Co., 186 La. 555, 559-569,1 and cases cited.
It is irrelevant to any issue now presented that as to a later period, as the field more nearly approached exhaustion, a jury had returned a verdict sustained by the court below, by which it was found that the average market price or value at the wellhead was in excess of. 3 cents. Since this was the average for a three year period, it does not indicate any sudden advance in price, and is without probative force to show a market price or value in excess of 3 cents during the earlier period here in issue for which *631petitioners have tendered no probative evidence of a higher price.
Nor is it sufficient to raise a genuine issue here that it appears with respect to 3%% of the approximately 900 leases in the gas field, that settlements were made for royalties of 4 cents. Respondent’s motion papers show, without contradiction, that these settlements “in almost every case” were compromises of disputes as to whether the lease in question had been properly developed, whether the lessor was entitled to a further royalty on gasoline recovered from the gas, or whether the lessee or lessor should bear the burden of a local severance tax. Such compromises of issues not present here furnish no indication of the market price or value at the wellhead, which alone is the issue decisive of this case.
Further, in the circumstances of this case, it is unduly restrictive of the summary judgment procedure to say Ptiat respondent’s motion for summary judgment must be denied because it is supported in part by affidavits of interested expert witnesses who are not subject to cross-examination by the plaintiffs. Such an interpretation of the rule can hardly be invoked in behalf of petitioners here, who tender no probative evidence to challenge either the proof of actual sales at wellhead at 3 cents or less or the testimony of the experts, and who have not sought to avail themselves of the privilege afforded by Rule 56 (e) and (f) to take the experts’ depositions or to offer the cross-examination of these witnesses at the former trials of this action. The summary judgment procedure serves too useful a function in terminating groundless litigation to warrant its limitation in a way which Rule 56 does not admit and on grounds so insubstantial.
On this state of the record both courts below have held that the issue whether petitioners have any proof tending to support the burden which rests on them to show *632market price or value at the wellhead in excess of 3 cents, must be resolved against them. I think that the courts’ conclusion is correct; that they properly applied the summary judgment procedure, and that the judgment should be affirmed.
Mr. Justice Reed joins in this dissent.This suit, brought by the present petitioners, turned on precisely the issue here litigated—the market price of gas at the wellhead in the Richland field. The Louisiana Supreme Court said that the defendant lessee in that case “proved conclusively that the market price in these fields does not exceed 3 cents per thousand cubic feet.” 186 La. 555, 569.