(dissenting). In my opinion the action of the trial court should be sustained as to Hernreich. I just can’t imagine how appellant can ever possibly prove what the Federal Communications Commission would have done. From any angle you look at it, the majority is entering a field of speculation, and we have often said that speculation is no sound basis for a jury verdict. Consequently, as I see it, this court should assume its responsibility to prevent unnecessary litigation with all its attending expense. We have said many times, also, that courts will not do a vain and useless thing, yet I believe the majority is doing just that in this case.
Not only is it incumbent on appellant to prove (in a new trial) that the Federal Communications Commission would have approved the assignment, but it must prove also that the approval would have been given before April 1, 1956. Here is where the majority find themselves in a dilemma. On the above date the Federal Communications Commission either had all the information it desired, or it did not have. In the first eventuality it could have approved the transfer if it had wanted to do so (but it did not). In the latter eventuality it would be ridiculous to predict what the Federal Communications Commission would have done because there is no way of knowing what information it might have received later.
It is significant to note the exact wording in appellant’s complaint. The first clause in paragraph XI reads: “The Federal Communications Commission would have finally (emphasis mine) approved the assignment . . .” As already pointed out, this allegation is not sufficient to state a cause of action.