author: HUGHES, Justice.

text:
    UNIVERSITY OF TEXAS, Appellant, v. Beverly Patrick GAINES et al., Appellees.
    No. 10989.
    Court of Civil Appeals of Texas. Austin.
    July 18, 1962.
    Rehearing Denied Aug. 20, 1962.

      Will Wilson, Atty. Gen., Ben M. Harrison, Milton Richardson, Asst. Attys. Gen., Austin, for appellant.
    F. L. Kuykendall, Charles G. Trenck-mann, Austin, for appellees.
   HUGHES, Justice.

Beverly Patrick Gaines, John R. Gaines, Jr., Clair Gaines and Thomas Buffington Gaines, grandchildren of John Quincy Gaines and wife Hattie E. Gaines, brought this suit to establish their rights and to recover certain described property claimed under the will of John Quincy Gaines who died in Travis County January 6, 1956. His will, duly probated, was executed August 28, 1953. The Austin National Bank was sued in its fiduciary capacity only as independent executor and trustee under the will of Hattie E. Gaines who died in Travis County February 20, 1958. Her will, duly probated, was dated March 22, 1957. The University of Texas intervened claiming certain rights in the properties sued for as beneficiary under the will of Hattie E. Gaines.

All of the property in controversy was, at the death of John Quincy Gaines, the community property of John Quincy and Hattie E. Gaines. It was stipulated that such property was on hand and subject to the judgment sought.

Essentially, this suit requires the construction of the will of John Quincy Gaines. We quote the pertinent provisions of his will:

“II. I give, devise and bequeath to my beloved wife, Hattie E. Gaines, al) of my property, real, personal or mixed, wheresoever the same may be situated, and whether the same be my separate property or my interest in the community property of myself and my wife, Hattie E. Gaines. My wife shall have full title to all of my property with right to sell, mortgage, or otherwise dispose of all or any part thereof.
“III. In case my wife, Hattie E. Gaines, predeceases me, or if my wife executes an instrument requesting the Austin National Bank of Austin, Texas, to manage and control said property, thereby relinquishing her right to do so, or if my said wife survives me, but for any reason she is unable at my death or later becomes unable to attend to the business of managing and controling the property herein given, devised, and bequeathed to her, I direct and give, devise and bequeath all of my estate then in existence unto my trustee, hereinafter named, first, for the benefit of my wife during her life, and upon her death, for the benefit of my son, John R. Gaines, and upon his death, for the benefit of my grandchildren, hereinafter named, to have and to hold the same upon the trust hereinafter set forth. I hereby authorize and empower my trustee to sell, collect, compromise, convert into money, or to do all or any other act, the same as if it were the property of said trustee, as to all or any part of my property, and to invest and re-invest the proceeds in other property, real, or personal, and to make such sales, collections, and execute deeds, transfers, releases, mortgages, and any other such instruments as are in the opinion of my trustee necessary to make and to execute. I empower my trustee, and it is hereby authorized and empowered to sell for cash or on credit, at public or private sale, all or any portion of the property of which I shall die possessed, and which may be in existence at the time that said trust comes into effect, and to lease and manage on such terms and for such time as it shall believe to the best interest of said trust fund.
“IV. In case my said wife, Hattie E. Gaines, predeceases me, or after the death of my beloved wife, I direct my trustee to hold the trust fund, as well as any and all other property of my estate then in existence, for the use and benefit of my son, John R. Gaines, for and during the natural life of my said son, and then at the death of my said son, my trustee shall hold said trust fund, as well as all property of my estate then in existence for the use and benefit of my grandchildren, John R. Gaines, Jr., Beverly Patrick Gaines, Clair Gaines, and Thomas Buffington Gaines, until the youngest of said grandchildren, being Thomas Buffing-ton Gaines, shall have reached thirty-five years of age, and at that time, my said trustee shall turn over to said grandchildren, in equal shares, share and share alike, all of said trust fund and property then in existence which is any part of my estate. In case any of my said grandchildren shall die before reaching thirty-five years of age, such grandchild’s portion shall vest in and be transferred to such person or persons and in such proportions as such grandchild shall by will appoint; or if such grandchild shall die intestate, then the same shall vest in and be transferred to such grandchild’s heirs at law according to the statutes of descent and distribution of the State of Texas, but said share of said grandchild shall be held in trust by my said trustee for the benefit of such beneficiaries until the death of all of said grandchildren, or until the youngest of said surviving grandchildren shall reach thirty-five years of age, whichever occurs first; whereupon the entire principal and undistributed income of said trust shall be delivered to and become the absolute property of those entitled thereto.
“V. I further direct and provide that during the lifetime of my son, John R. Gaines, that said trustee shall pay to my said son the monthly net income from said property and trust, after withholding proper amounts for repairs, taxes, insurance, and any and all other expense including expense of administering this trust, and that no portion of the principal shall be distributed to my said son. If said trust should come into existence during the lifetime of my wife, I direct and empower said trustee to not only distribute each month the net income from said trust for the use and benefit of my said wife, but also, if, in the discretion of said trustee, it is necessary in order to properly care for my said wife and for her to live at a standard commensurate with her station in life, for all or any portion of the principal of said trust and of my estate shall and may be used for the support and maintenance of my said wife.
* * * * * *
“VIII. If any beneficiary under this will shall contest the validity or object to the probate of this will, or attempt to vacate the same or to alter or change any of the provisions hereof, such person or persons shall thereby be deprived of all beneficial interest hereunder and such person or persons shall be excluded from taking any part of said trust, including the income or property included therein and the same shall be divided equally among the other persons enumerated herein.”

On June 19, 1956, Hattie E. Gaines executed and acknowledged an instrument in favor of the Austin National Bank by which she conveyed certain real property belonging to the community estate of herself and John Quincy Gaines to the Bank in trust for herself and, upon her death, directing payment of certain sums to persons not parties to this suit. The Bank accepted, in writing, the trust imposed upon it.

We need not quote extensively from this trust agreement, only enough to demonstrate that it was drawn and executed in conformity to the conditions set out in the will of John Quincy Gaines pertaining to such an instrument.

“1. The said Trustee is hereby given full, complete and uncontrolled right, power and authority to sell, exchange, mortgage, invest or reinvest any of the property hereinabove described and which is hereby being conveyed to the Trustee, as well as any additional property which the Grantor herein may later convey to the Trustee and make a part of this trust. In this connection, it is stated that it is contemplated that it may be necessary in the discretion of the Trustee to sell all or any part of said property, and use principal as well as income, increase or profit therefrom for the support and maintenance of the Grantor, Hattie E. Gaines, and such authority is hereby expressly given to the Trustee. It is further contemplated that said property may be rented or mortgaged, and said Trustee is expressly given authority to rent the same or to place liens and mortgages against all or any part thereof and to use the proceeds therefrom for the support and maintenance of the Grantor, Hattie E. Gaines.
⅝ ⅜ ⅝ ⅝ ⅝ ‡
“3. All property in this trust, including the principal, income, or increase therefrom, shall be administered by the Trustee during the lifetime of the Grantor, Hattie E. Gaines, for the support and maintenance of the said Hattie E. Gaines, and the Trustee shall expend from said income and corpus of said trust estate such sums and amounts as in its sole discretion shall be necessary or desirable for the maintenance and support of Hattie E. Gaines, including but not limited to all necessary medical care and hospitalization, if any, it being the intention of the Grantor that her reasonable needs and comforts shall be provided for during her lifetime so long as any portions of said trust estate exists. * * *
“4. In addition to the power and authority concerning the property, business, and financial matters hereinabove given and granted unto the said Trustee, said Trustee is further hereby-given full power and authority over the person of the Grantor, Hattie E. Gaines, so that said Trustee will be the Guardian of the person of Hattie E. Gaines, as well as the Trustee of the Estate of the said Hattie E. Gaines.
******
“9. This trust may be revoked only by written revocation executed personally by the Grantor, Hattie E. Gaines, and delivered to the Austin National Bank, Trustee, and filed in the County Clerk’s Office of Travis County, Texas. It is agreed though that any revocation of the trust shall not be effective until six months after the written revocation notice has been given. The fact that this trust is revocable shall not in any way diminish the rights and powers given to the Trustee, but all actions of the Trustee which occur up to the actual date of termination of said trust shall be binding upon the Grantor herein, the same as if the said trust was irrevocable.”

Upon the same day that Hattie E. Gaines executed the above trust agreement, June 19, 1956, she was admitted to Seton Hospital in Austin where she remained as a patient until discharged, August 22, 1956.

The Trial Court rendered judgment for appellees in the course of which it found “that under the provisions of the will of John Quincy Gaines, deceased, a trust estate came into existence as to the property that had not been disposed of by Hattie E. Gaines on June 19, 1956, on which date she executed an inter vivos trust requesting the Austin National Bank of Austin, Texas, to manage and control said property thereby relinquishing her right to do so. Also, the Court finds that the trust estate came into existence covering the property that had not been disposed of at the time of the death of Hattie E. Gaines on February 20, 1958, as provided for under Paragraph IV of the will of John Quincy Gaines. The Court further finds that the properties and assets hereinafter awarded plaintiffs had not been disposed of either at the time of the inter vivos trust as aforesaid or at the time of death of Hattie E. Gaines.” We affirm this judgment.

Appellant argues that the will of John Quincy Gaines, properly construed, contemplates the occurrence of the conditions stated in paragraph III of his will before his death in order to become effective. These conditions, or events, referred to in paragraph III of the will are (1) death of Hattie E. Gaines (2) execution by Hattie E. Gaines of an instrument requesting the Austin National Bank to manage and control the community estate (3) the incapacity of Hattie E. Gaines.

We quote appellant’s argument for this construction of the will:

“That this should be and is the proper construction to place on Paragraph III is evidenced further by the fact that after setting forth the above mentioned contingencies, John Quincy Gaines then directs, gives, and devises and bequeaths ‘all of my estate then in existence unto my trustee, hereinafter named.’ John Quincy Gaines would have no estate in existence to bequeath to anyone after he had made an absolute devise of all of his property to his wife as he did in Paragraph II of his will, then died subsequent to the execution of the will and one of the events or contingencies mentioned above occurred after an interval of time had elapsed between his death and the occurrence of the event or contingency.”

We dispose of these contentions upon general, but applicable, principles of law. A will is not a will, and no rights are conferred by it until the death of its maker. The death of John Quincy Gaines was essential to the vesting of any rights under his will in Hattie E. Gaines. During the lifetime of Mr. Gaines, the management and control of the community estate was in his hands. A request by Mrs. Gaines to the Austin National Bank to manage and control the community estate of Mr. and Mrs. Gaines before his death would have been premature and futile.

The will of Mr. Gaines very plainly provided for the disposition of his estate in the event his wife predeceased him. Only in the event she survived her husband, did Mrs. Gaines or her described inability have any control or effect upon the course of descent of the property received under the will of her husband. We conclude discussion of this phase of appellant’s argument by noting that there is no evidence that Mrs. Gaines was aware of the contents of her husband’s will before his death. It would be a strange holding to impute to Mr. Gaines an intention to bind his wife as to the nature of her rights under the will by her voluntary action made without knowledge of resulting consequences.

Appellant cites and strongly relies upon the following statement of law taken from Gilliam v. Mahon, 231 S.W. 712, Tex.Comm. of App.:

“ ‘Where the first clause of a will in clear, unambiguous language gives and bequeaths to one devisee all the property real and personal of which the testator dies possessed, such estate so given cannot be disturbed, cut down, or diminished by a subsequent clause, which is uncertain and ambiguous in its meaning.’ ”

We do not consider this rule applicable because, in our opinion, the remaining portions of the will inconsistent with the outright bequest and devise made in paragraph II of the will are not uncertain or ambiguous in meaning.

Appellant points to this language in paragraph III of the will as being ambiguous “ * * * In case my wife, Hattie E. Gaines * * * is unable at my death or later becomes unable to attend to the business of managing and controlling the property herein given, devised, and bequeathed to her * * * ” in which event such property is to be held in trust for her, her son, and the grandchildren, appellant saying “there would then be no John Quincy Gaines’ estate in existence to bequeath or devise * * * The subject of any proposed trust would be uncertain or non-existent.”

This argument begs the question. Of course, if paragraph II is to be read and the reader is to stop, then appellant would be correct. We prefer to be guided by the time-honored and sound rule of construction that a will should be construed by considering all its provisions in order to reach a correct determination of the testator’s intentions. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412.

Appellant also contends that an ambiguity in the will is created by paragraph IV of the will, appellant saying:

“Paragraph IV of the John Quincy Gaines’ will certainly does not place a limitation over or condition upon any property Hattie E. Gaines received under Paragraph II of the John Quincy Gaines’ will that she had not disposed of at the time of her death. The testator by this paragraph authorized a trustee to hold a trust fund which was to be already in existence at the time of Hattie E. Gaines’ death should she svic-ceed John Quincy Gaines.
“A reading of Paragraph IV demonstrates that this paragraph was not intended to be effective unless the testamentary trust had been in existence. It says at the death of Hattie E. Gaines T direct my trustee to hold the trust fund as well as any and all other property of my estate then in existence for the use and benefit’ of the persons there named. The words ‘trust fund’ do not include realty. They refer to personalty or, more specifically, money or deposits. The trustee was directed to hold the trust fund as well as all other property of the estate then in existence. There could be no trust fund unless the trust existed. Clearly, Paragraph IV was not intended to limit the fee simple grant set forth in Paragraph II.”

It is our opinion that paragraph IV of the will merely repeated but made more specific the terms of the trust which might be brought into existence under the provisions of paragraph III of the will. This paragraph provides that the testator’s estate in existence upon creation of the trust should be held “for the benefit of my grandchildren, hereinafter named, to have and to hold the same upon the trust hereinafter set forth.” Paragraph IV names the grandchildren and specifies in detail how and when the trust property shall be held, managed and distributed.

In our opinion, paragraph IV clarifies, rather than confuses the meaning of the will and the intent of the testator.

It is our purpose, and only our purpose, in reading this will from cover to cover to ascertain and carry into effect the intention of John Quincy Gaines. We believe that Mr. Gaines clearly expressed solicitude and love for and a desire to protect and benefit his wife, his son and his grandchildren, and in that order. Great leeway was given his wife in keeping or relinquishing the property received by her under his will. We must assume that she exercised an intelligent and understanding choice when she chose to appoint the Austin National Bank as trustee in conformity with the will of her husband and that she well knew the ultimate effect of her choosing.

Appellant makes the additional point that assuming that the Court has properly construed the will as herein indicated, Hattie E. Gaines did not relinquish to the Austin National Bank her right to control and manage the estate of her husband in conformity with the provisions of his will because the trust instrument executed by her reserved the right of revocation.

This contention is fully answered by the fact that no revocation was made or attempted to be made by Mrs. Gaines. She relinquished actual control of her husband’s estate to the Austin National Bank from the date of such relinquishing instrument until her death. This was total and complete relinquishment.

Believing that the Trial Court correctly construed the will of John Quincy Gaines and entered a proper judgment based on such construction, we affirm its judgment.

Affirmed.

      . It was stipulated that John R. Gaines had contested the will of his father and had, thereby, and by the filing of a disclaimer herein, forfeited his interest under such will.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    Lewis H. LINDSEY v. Sim GAMBLE et al.
    No. 7166.
    Court of Civil Appeals of Texas. Amarillo.
    June 25, 1962.
    Rehearing Denied Sept. 4, 1962.

      R. D. Oswalt, Vernon, for appellant.

      Storey, Sheridan & Hightower, Vernon, for appellees.
   DENTON, Chief Justice.

This is an appeal from a judgment of the district court of Foard County refusing to admit to probate an instrument offered as the will of Lizzie Lindsey. On November 22, 1955 C. C. Lindsey and wife, Lizzie Lindsey executed a joint and reciprocal will bequeathing to the survivor their entire estate, and appointing the survivor independent executor or executrix, as the case may be. The will also contained a contingent clause, a major portion of which reads as follows:

“3. In the event that our' deaths should occur simultaneously, or approximately so, or in the same common accident or calamity, or under circumstances causing a reasonable doubt as to which of us survived the other, then and in that event we will and direct that all of our just debts, including funeral expense, be paid by our executor hereinafter named and appointed, as soon as may conveniently be done after our deaths without the unnecces-ea~y sacrifice of any properties of our estate, and after the payment of our just debts and funeral expenses, we will, give, devise and bequeath unto Lewis H. Lindsey, to whom-we refer as our foster son, all of the balance and residue of our estate, real, personal and mixed, wheresoever situated and howsoever acquired, to have and to hold the same in fee simple title.”

C. C. Lindsey died on January 11, 1961. The will was admitted to probate by the said Lizzie Lindsey who qualified as independent executrix. On March 24, 1961 Mrs. Lindsey died in a hospital where she had been taken "a few days” prior to her death. The same joint will which had been previously admitted to probate as the last will of C. C. Lindsey was filed as the last will of Lizzie Lindsey on April 12, 1961. The county court denied the will to probate when it was offered as the will of Mrs. Lindsey, and upon appeal the district court granted the contestants’, appellees’ herein, motion for summary judgment. It is undisputed the appellees are the surviving legal heirs of Lizzie Lindsey.

Although the basic question to be decided is whether or not any of the contingent events set out in Paragraph 3 of the will occurred so as to make the instrument the will of Lizzie Lindsey, appellant’s first point of error deals with a procedural matter. The appellant contends the trial court’s judgment is null and void because it was not entered when the court was in regular session. Article 199, Section 46, Vernon’s Ann.Civ.St. established the 46th District Court which includes Wilbarger, Hardeman and Foard Counties. This statute provides for three regular two-week terms in Foard County. The hearing on appellees’ motion for summary judgment was heard on July 31, 1961 and the judgment was entered August 14, 1961. Although this hearing was not held within one of the regular two-week terms provided for Foard County in Art. 199-46, Article 1919 V.A.C.S. was amended in 1955 and became effective January 1, 1956. As amended, this article provides “ * * * Notwithstanding the provisions of any law, the terms of all district courts in the State, civil and criminal, shall be continuous and shall begin on the day now or hereafter fixed by law and shall continue until the day fixed by law for the beginning of the next succeeding term.” The clear, unambiguous language of this statute leaves no room for doubt as to its meaning. The district court of Foard County, along with all other district courts in the State, now has continuous terms. The trial court’s action was therefore proper. Appellant’s first point of error is accordingly overruled.

Appellant’s remaining five points of error in effect complain of the trial court’s action in granting appellees’ motion for summary judgment, and refusing to admit the instrument to probate as the last will of Lizzie Lindsey. Appellant was the contingent beneficiary. The devise to appellant was conditioned upon the happening of any one of the four events mentioned in Paragraph 3 of the will. In our opinion the happening of only one of these events can be questioned. The deaths of C. C. and Lizzie Lindsey did not occur simultaneously. Their deaths took place 72 days apart. Our Supreme Court, in White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, held two deaths 71 minutes apart were not simultaneous. Neither can it be said the deaths of C. C. and Lizzie Lindsey were caused in a common accident or calamity or under circumstances causing reasonable doubt as to which survived the other.

The contingency — approximately so — is the only one which requires our serious consideration. No Texas case has been cited and we have found none which has construed the meaning of this contingency as used in a will. However, an identical conditional clause was interpreted by the Supreme Court of Illinois in American Trust & Safe Deposit Co. v. Eckhardt, 331 Ill. 261, 162 N.E. 843. There the court held the word “approximate” is in its nature indefinite and meant “nearly,” “about,” and “close to.” In that case the husband and wife died some 36 hours apart. There the court concluded their deaths occurred at approximately the same time within the meaning of the will. After defining the term “approximately” the court used the following language: “Whether the difference of a day and a half is to be considered near to or remote from the occurrence of an event must be determined from the circumstances attending the event. The terms are relative. The meaning of the word must be considered in connection with the object of the provision.” We agree with the reasoning and conclusion reached by the court in the Eckhardt case, but we are convinced that under the facts and circumstances of this case the deaths of C. C. and Lizzie Lindsey cannot be said to have occurred at approximately the same time within the meaning of the will. See also In re Searl’s Estate, 29 Wash.2d 230, 186 P.2d 913, 173 A.L.R. 1247. We therefore conclude that in as much as none of the conditional events occurred,>Lewis H. Lindsey cannot be the recipient of the Lindsey estate under Paragraph 3 of the joint will under consideration.

Appellant also complains of the trial court’s refusal to admit into ■ evidence an instrument purporting to be a statement of Lizzie Lindsey. Her oral ■ statement was reduced to writing at her request by Rev. Joe A. Walker. Although the statement was undated, Rev. Walker’s affidavit stated it was written on January 23, 1961 which was subsequent to the death of C. C. Lindsey. The statement read as follows:

“Lewis will you do what you prom-issed me that you would do. Please give E. M. Gamble my part of the George Gamble Estate; Sidney Mac-key $500.00; Willie Giles $500.00; James J. Y. Lindsey $500.00; Thalia Methodist Parsonage $500.00; Thalia Cemetary $250.00 (only $10 per year.) ; Waco Methodist Home — $200.00 in memorial of Carrel & Lizzie Lindsey; A beautiful monument (double), if I have not already bought one, for Carrel & myself.
(Signed) Mrs. C. C. LINDSEY”

Appellant concedes the statement in itself is not a testamentary instrument; but contends it is evidence of her intention as to the meaning of her joint will, and that it is her recognition of the joint will as her last will and testament. We are unable to agree with this contention. The statement simply directs or requests Lewis, whom it is presumed to be Lewis H. Lindsey, the appellant, to make certain dispositions of her estate. The instrument itself makes no bequests. Although a cardinal rule of construction of wills is that the intent of the testator will control, this intent must be ascertained, if possible, from the meaning of the words in the will itself. Hunt v. White, 24 Tex. 643; Jackson v. Templin (Com.App.), 66 S.W.2d 666, 92 A.L.R. 873. Even though Mrs. Lindsey may have been under the impression the contingent clause of the joint will would become effective on her death, we must interpret the instrument from the language she and her husband actually used in the will. Its language is clear and unambiguous. It is apparent Mrs. Lindsey had an opportunity to execute a will after her husband’s death. We are therefore of the opinion the statement offered was immaterial and would serve no purpose in this case.

In view of our holding the contingent clause of the will did not become effective,, it necessarily follows that Lizzie Lindsey' made no disposition of her estate, and that she died intestate. There being no material! fact issues to be determined, the trial court' did not err in granting appellees’ motion for summary judgment. The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    Robert Lee RAMEY, Jr., et al., Appellants, v. COMBINED AMERICAN INSURANCE COMPANY, Appellee.
    No. 13996.
    Court of Civil Appeals of Texas. San Antonio.
    July 25, 1962.

      John Peace, San Antonio, for appellants.
    Clemens, Knight, Weiss & Spencer, F. N. Welmaker, San Antonio, Arrington, Healy & Wilson, Chicago, Ill., for appel-lee.
   BARROW, Justice.

This is an appeal from a temporary injunction granted plaintiff, Combined American Insurance Company, pending a trial on the merits in a suit brought against Robert Lee Ramey, Jr., Harold L. Hooper, Clarence Vogel, Richard F. Wadzeck and Richard A. Reese, to enforce negative covenants in their contracts of employment with plaintiff. Ramey, Wadzeck and Reese had been employed as salesmen; Hooper, as district manager; and Vogel, as sales manager, and all had signed contracts of employmet which contained negative covenants. All had left the employ of plaintiff in December, 1961, and commenced selling the same type of insurance for another company. Following a hearing before the 37th District Court of Bexar County, an order was entered which provided that each of the defendants, during the pendency of this suit, not to exceed two years from the date of termination of each of their contracts, respectively, with the plaintiff, “shall not nor shall they aid, or abet others to do so, in any of the following things:

“(a) Sell or attempt to sell any form of accident or health insurance to any policyholder of Combined American Insurance Company in any sales territory in which said defendant has heretofore worked for Combined American Insurance Company or in any sales territory over which said defendant heretofore had supervision for Combined American Insurance Company.
“(b) Induce or attempt to induce any policyholder of Combined American Insurance Company in any sales territory in which said defendant has heretofore worked for Combined American Insurance Company, or in any sales territory over which said defendant heretofore had supervision for Combined American Insurance Company, to cancel, lapse •or fail to renew his policy with Combined American Insurance Company.
(c) Induce or attempt to induce any of Combined American Insurance Company’s district managers, sales managers, salesmen or employees to terminate their relation with Combined American Insurance Company or to sell accident or health insurance for any other company.”

Appellants assert that the trial court erred in granting the temporary injunction, because (1) the appellee failed to show a definite territory which was reasonable and necessary for protection of its business; (2) appellee failed to show that the restraint is reasonably necessary in order to protect it from undue advantage by appellants; (3) the order does not comply with Rule 683, Texas Rules of Civil Procedure, as no definite area is designated; and (4) the negative covenant in the contracts is too unconscionable to entitle ap-pellee to equitable relief.

We are guided by a well-established rule in the character of appellate review required in passing upon the granting of a temporary injunction as distinguished from a permanent injunction. To warrant the issuance of a writ of temporary injunction, the plaintiff must show only a probable right and probable injury. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; Cargill v. Buie, Tex.Civ.App., 343 S.W.2d 746; 31 Tex.Jur.2d § 224. The judgment of the trial court should not be overturned pending a trial on the merits unless the record discloses a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460; Mosimann v. Employers Casualty Company, Tex.Civ.App., 354 S.W.2d 171.

The rule in Texas is that an agreement on the part of an employee not to compete with his employer after termination of the employment is in restraint of trade and will not be enforced unless the terms are reasonable. Where the public interest is not directly involved, the test for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer. Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950.

Each of the appellants executed a contract while going through a training program. Each contained a covenant providing essentially as follows: that in consideration of the company’s hiring the salesman, sales or district manager, as the case might be, and training him, said employee covenanted that upon terminating his employment he would not, for a period of two years, (1) sell accident or health insurance to any of the Company’s policyholders in the Sales Territory; (2) induce, or attempt to induce, any of the Company’s policyholders in the Sales Territory, to cancel, lapse or fail to renew their policies with the Company; or (3) induce, or attempt to induce, any of the Company’s employees to terminate their relationship with the Company, or to sell insurance for any other company. The employee also agreed that he would not aid or abet others to do any of the above acts. The Sales Territory of the three salesmen was defined in their contract as the State of Texas, but they were to work only in such parts thereof as would be mutually agreed upon, from time to time, by the salesman and his district or sales manager. The Sales Territory of Hooper and Vogel was shown by a list of cities attached to the contract of each.

The sales technique used by appellee and taught appellants was a “cold canvas” approach. That is, several salesmen would enter a city, work up and down a street calling on various business houses. They would sell a pre-signed policy at a very low rate, which expired in six months. Just prior to the expiration date, the insured would again be contacted and solicited for a more expensive renewal policy. There was evidence that the employees on leaving appellee’s employ, commenced selling the same type policy, and called on policyholders of appellee in cities they had previously worked for appellee. They solicited appellee’s insured shortly before Ills policy was to expire. There was evidence that unless enjoined they would further violate the negative covenants agreed upon in their employment contract.

In determining the reasonableness of the agreement sought to be enforced, the period of time during which the restraint is to last and the territory that is included, are important facts. The restrictive covenant must bear some relation to the activities of the employee. However, it is further well established that even if the covenant is too broad, a court of equity may enforce the contract by granting an injunction restraining the defendant from competing for a time and within an area that are reasonable under the circumstances. Weatherford Oil Tool C. v. Campbell, supra; Lewis v. Krueger, Hutchinson and Overton Clinic, 153 Tex. 363, 269 S.W.2d 798; Spinks v. Riebold, Tex.Civ.App., 310 S.W.2d 668.

There is no complaint made as to the period of the restraint in the contract (two years). However, appellants assert that the area enjoined is not reeasonably necessary to protect appellee’s business and good will, and to protect it from any undue advantage by appellants. Appellants further assert that the “sales territory worked or supervised by each appellant” is not set forth and therefore the injunction is not definite as required by Rule 683, T.R.C.P. The evidence reflects that the three salesmen worked in only limited areas of the State of Texas. It would not be necessary or reasonable to protect appellee over the entire State. It would be oppressive to appellants and of no real benefit to appellee. In view of the contractual definition of “Sales Territory” as being the State of Texas, we can not say that the trial court meant to limit the area to the cities actually worked by the salesmen. To be reasonable, it must be so limited. The trial court heard the evidence and, based on same, should limit the area of the injunction to the specific city or area actually worked by each salesman.

This injunction, in section (a), restrained the salesmen from selling or attempting to sell a policy of accident or health insurance to any policyholder in his sales territory. The evidence is that under the technique used by appellee and taught appellants, a salesman might personally contact only a very few persons in a city. For example, one of appellants had personally sold, and presumably knew, nine policyholders of ap-pellee in a city of over 600,000 population, and in which there were many other policyholders. Appellee refused to furnish a list of the policyholders. It is thus seen that the salesman, in trying to properly pursue his livelihood, would violate the injunction anytime he made contact with a prospect who turned out to be a policyholder of ap-pellee. This would mean that the only way said salesman could safely operate, under the present injunction, would be in some area other than one he had previously worked, no matter how slightly. This would be unreasonable under the type of technique used by appellee and appellants. The covenant did not seek to prevent former salesmen from engaging in the insurance business, but to protect appellee’s business by prohibiting solicitation of its policyholders. To require appellants in this case to abandon the area completely would be an unreasonable enforcement of said covenant. It would be oppressive to the salesmen as contrasted to the little benefit to appellee.

We believe that the appellee is entitled to have the salesmen enjoined from soliciting any policyholder of appellee whom said salesmen had solicited while working under this contract. As to the other policyholders of appellee, in the cities or areas previously worked by a salesman, the salesman should be enjoined from “selling” a policy of insurance. Thus when it developed in the course of solicitation that the prospect was a policyholder of ap-pellee, the salesman should abandon that prospect and avoid violating the injunction.

The contracts signed by Hooper and Vo-gel were, respectively, a district and a sales manager’s contract. Each set forth a list of the cities that comprised their “sales territory” and over which they exercised supervision. As such supervisor, they had very little personal contact with the policyholders in said district. They did have access to valuable information belonging to appellee — the names of such policyholders in their districts, and the dates of expiration of their policies. There is evidence to support the implied finding of the trial court that there was a reasonable necessity to protect this information rightfully belonging to appellee. Said injunction should also be restricted to the cities and areas actually supervised or worked by said appellants.

We cannot say that the contract on its face, or from the limited record before us on the hearing for temporary injunction, is too unconscionable to entitle appel-lee to any equitable relief. Weatherford Oil Tool Co. v. Campbell, supra; Mosimann v. Employers Casualty Company, supra. This opinion is not to be construed as passing on the merits of the case. Its sole function is to examine the action of the trial court in granting the temporary injunction. Anderson v. Tall Timbers Corporation, Tex., 347 S.W.2d 592.

We, therefore, reverse the order of the trial court granting the temporary injunction and remand this cause for entry of judgment awarding writ of temporary injunction, pending trial on the merits, or for the remaining period of the parties' contract of restrictive covenant, limited to such cities or areas which the evidence may have shown that each of appellants actually worked or supervised. Insofar as the three salesmen, Robert Lee Ramey, Jr., Richard F. Wadzeck and Richard A. Reese, are concerned, the injunction should restrain them from knowingly soliciting any policyholder of appellee previously solicited by them while under this contract, or from selling to any policyholder of appel-lee.


text:
    TRAVIS-WILLIAMSON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 1, Appellant, v. The STATE of Texas et al., Appellees.
    No. 10994.
    Court of Civil Appeals of Texas. Austin.
    July 18, 1962.
    Rehearing Denied Aug. 20, 1962.
    David L. Tisinger, Austin, for appellant.
    Will Wilson, Atty. Gen., H. Grady Chandler, Asst. Atty. Gen., Austin, for appellees.
   HUGHES, Justice.

This suit was brought by the State of Texas and the Texas Highway Commission against the Travis-Williamson County Water Control and Improvement District No. 1 to require the District to remove from the right of way of U. S. Highway 183 at its own expense, certain water pipelines which the District had, with permission of the State, buried in such right of way. Pending trial of this suit an agreement was entered into between the parties reciting that certain contemplated improvements to U. S. Highway 183 by the State Highway Commission required the removal of certain of the water pipelines laid as above indicated, that the District did not “believe that it is required, at its own expense, to remove, encase, or relocate said lines as directed” by the State Highway Department and that it was without funds to comply with such directions. It was therefore agreed that:

“1. The District does not at this time have funds or money to pay for the cost of the removal or relocation of said pipelines as same are needed to be removed or relocated and it cannot determine when it will have such funds.
“2. The pipelines aforesaid may be removed by the Highway Department to another location on the new right of way of Highway 183, which location is to be determined by the State Plighway Department.
“3. The State Highway Department will proceed to call for bids for the removal and relocation of said pipelines as aforesaid, which bids are to be called for and contract awarded by the Highway Commission in the manner now required by law and the Highway Commission to enter into contracts for construction of highways. Such contract shall be separate from the contract for the relocation, construction, and reconstruction of said Highway 183, and may be let, and work begun thereon, at any time after the execution of this contract.
“4. If the courts, on final determination of said cause aforesaid, hold that the District is under obligation and required to remove and relocate said pipelines as aforesaid at its own expense, then and in such event the District agrees to reimburse the State and the State Highway Department for the amount said department is required to expend under said contract for removing and relocating said pipelines, and further agrees that the amount paid by the Highway Department under its contract for such removal and relocation shall be a debt of the District due and owing to the State and the State Highway Department and is to be a liquidated amount for which the District is to be liable to the State and the State Highway Department. In the event the courts hold on final determination of said cause that the District is not required to remove said pipelines at its own expense, then the District shall not be liable for said costs.”

This agreement was complied with by the State. The water pipelines of the District located on U. S. Highway 183, the removal of which had been directed, were removed, as agreed, the cost of such removal to the State being $40,269.91, which it has paid.

The judgment below was for the State for $40,269.91 with interest thereon from April 17, 1961, at 6% per annum, and awarding a writ of mandamus against the directors of the District to assess and collect taxes to satisfy such judgment by the payment of three equal annual installments.

There are no disputed facts. It was stipulated that the following allegation in the State’s original petition is factually true:

“That on portions of said U. S. Highway 183 from the North city limits of the City of Austin, Travis County, Texas, to 0.3 miles Northwest of the line between Travis and Williamson counties, the District made application dated January 30, 1956, to the Commission through the District Engineer of District 14 of the Department to install water pipelines within the lines of the right of way of said U. S. Highway 183 and other roads in Travis and Williamson counties. That approval was given said District to locate said pipelines thereon by Permit No. 14-56-24 dated January 30, 1956, in accordance with the conditions and provisions contained therein, one of which provided: 'and it is further understood that the State Highway Department may require the owner at its own expense to relocate this line, subject to provisions of governing laws, by giving thirty days written notice.’ That thereafter said District did install said lines in the right of way of said U. S. Highway 183 and other roads in Travis and Williamson counties.”

The first point made by the District is that the effect of the judgment rendered is to permit one public authority to exercise the power of eminent domain against another public authority, and without compensation.

Its second point is that the judgment is erroneous because the District had statutory authority to lay its water lines on the right of way of U. S. Highway 183.

The District’s sixth point of error is that the judgment is erroneous because some of the removed water lines may have been placed on new rights of way acquired by the State after the original placement of the Water District’s lines.

These three points are jointly brief and will be considered together.

The statutory authority cited by the District is Art. 7585, V.A.C.S. which we quote:

“All persons, associations of persons, corporations, and water improvement or irrigation districts shall have the right to run along or across all roads and highways necessary in the construction of their work, and shall at all such crossings construct and maintain necessary bridges, culverts, or siphons, and shall not impair the uses of such road or highways; provided, that if any public road or highway or public bridge shall be upon the ground necessary for the dam site, reservoir, or lake, it shall be the duty of the commissioners’ court to change said road and to remove such bridge that the same may not interfere with the construction of the proposed dam, reservoir, or lake; provided, further, that the expense of making such change shall be paid by the person, association of persons, corporation, water improvement or irrigation district desiring to construct such dam, lake or reservoir.”

The State suggests that this statute applies only to irrigation ditches and not to water pipelines. We do not pursue this suggestion for the reason that even though applicability of the statute be conceded it does not furnish authority for exempting the District from the cost of removing its water lines from the right of way when such removal is properly required.

It is to be noted that this statute regulates the use of the roads and highways by water districts by providing that such use “shall not impair the uses of such roads or highways.” It would seem to follow that if such use does impair the use of the highway that the District would have to remedy the situation.

More important, however, it is to be noted that this statute does not mention the removal of any improvements placed on the highway by Water Districts or, of course, the liability for the cost of such removal.

The effect of this statute is to grant Water Districts permission to use the right of way of a highway necessary in the construction of its work. This statute goes no further, and, in our opinion, is not decisive of the present problem.

The State relies, in part, upon Art. 1433, V.A.C.S. This statute reads, in part:

“Any water corporation * * * is further authorized to lay its pipes, mains and conductors and other fixtures for conducting water through, under, along, across and over all public roads, streets and waters lying and situated outside the territorial limits of any such city, town, or village in such manner as not to incommode the public in the use of such roads, streets and waters. Any such corporation shall notify the State Highway Commission, or the Commissioners Court having jurisdiction, as the case may be, when it proposes to build lines along the right of way of any State Highway, or county road, outside the limits of an incorporated city or town, whereupon the Highway Commission, or the Commissioners Court may, if it so desires, designate the place along the right of way where such lines shall be constructed. The public agency having jurisdiction or control of a highway or county road, that is, the Highway Commission or the Commissioners Court, as the case may be, may require any such corporation, at its own expense, to relocate its lines on a State Highway or county road outside the limits of an incorporated city or town, so as to permit the widening or changing of traffic lanes, by giving thirty (30) days written notice to such corporation and specifying the line or lines to be moved, and indicating the place on the new right of way where such line or lines may be placed.”

It is our opinion that appellant is a “water corporation” within the purview of this statute. The Act creating appellant provides that it is a "conservation and reclamation district” created pursuant to Art. 16, Sec. 59 of the Texas Constitution, Vernon’s Ann.St., and that it is “a governmental agency, a body politic and corporate, and a municipal corporation.” It is also provided that the District should have and exercise all the rights, powers, privileges and duties conferred and imposed by the General Laws of Texas, present and future, applicable to water control and improvement districts created under the above cited constitutional provision.

It is clear to us that appellant is a corporation whose rights and duties appertain solely to water, and hence is a water corporation.

This conclusion is confirmed by the conduct of appellant in complying with the statute in the installation of its water lines on the highway right of way.

We direct attention also to Art. 1433a, V.A.C.S., which applies to incorporated cities and towns in the same manner as Art. 1433 applies to water corporations. It would be strange legislative policy which would exempt water districts such as appellant, a municipal corporation, from liabilities imposed on other municipal corporations such as incorporated cities and towns. We are confident that the Legislature did not so discriminate.

In further corroboration of our construction of Art. 1433 and proof of consistent legislative policy is recently enacted H.B. 45, Ch. 28, p. 73, Acts 57th Leg., 3rd Called Sess., 1962, Vernon’s Ann.Civ.St. art. 1581f, which provides that counties may lend to water control and improvement districts the cost of relocating water lines required by the construction or improvement of farm-to-market roads. This statute assumes the liability of the water districts for the cost of relocating water lines placed on the farm-to-market road right of way.

While we have no doubt of the existence of statutory liability of the District for the cost of relocating its water lines under the facts of this case, the liability would be the same if there was no such statute. We quote from State of Texas v. City of Austin, 160 Tex. 348, 331 S.W.2d 737:

“In the absence of assumption by the state of part of the expense, it is clear that respondents could be required to remove at their own expense any installations owned by them and located in public rights of way whenever such relocation is made necessary by highway improvements. See City of San Antonio v. Bexar Metropolitan Water District, Tex.Civ.App., 309 S.W.2d 491 (wr. ref.); City of San Antonio v. San Antonio St. R. Co., 15 Tex.Civ.App. 1, 39 S.W. 136 (wr. ref.); State of Tennessee v. United States, 6 Cir., 256 F.2d 244. As pointed out in the Bexar Metropolitan Water District case, the main purposes of roads and streets are for travel and transportation. While public utilities may use the same for laying their lines, such use is subject to reasonable regulation by either the state, the county or the city, as the case may be. The utility may always be required, in the valid exercise of the police power by proper governmental authority, to remove or adjust its installations to meet the needs of the public for travel and transportation.”

The District has not pointed to any fact which suggests that the State has assumed all or any part of the expense of relocating its water lines as legally required by the State Highway Commission, nor are we cognizant of any such fact.

We believe that appellant is precluded by its agreement, above, from urging its sixth point which, as we understand it, is that the District is being asked to pay for removing its water lines from new rights of ways purchased by the State where it crosses old county roads and on which the water lines of the District were then laid. In addition to that portion of the agreement between the parties previously copied, we quote:

“WHEREAS, it is agreed by and between the State and the District that in order to reconstruct and widen said Highway 183 according to proper highway construction, it is necessary and proper that the pipelines of the District be removed and relocated as proposed by the State Highway Commission and as demanded of the. District and said counties as aforesaid and as set out in plaintiffs’ original petition in said cause aforesaid.”

The State had pleaded that the Commissioners Court of Travis County had reached conclusions respecting the county roads under its jurisdiction similar to those made by the State Highway Commission regarding the improvement of State Highway 183, and that the county had made demands upon the District, similar to those made by the State, for the removal and relocation of its water lines.

We also copy from a filed stipulation of the parties:

“In order that United States Highway No. 183 in Travis and Williamson Counties, Texas, may be reconstructed as set out in Plaintiffs’ Original Petition, and according to proper highway construction, it is necessary that the pipelines of defendant of a total distance of approximately one mile be removed and relocated at other places on the new right of way of said highway so that said lines will not be under the traveled portion of said highway except at places where said lines are to cross under said highway and not run parallel with said highway.”

We’ also call attention to an undenied finding by the Trial Court contained in its judgment that the District had “made an oral stipulation in Court agreeing with plaintiff that the only issue in the suit is whether the defendant is required by law at its own expense to remove the pipelines involved in said suit.”

We overrule the three points under discussion.

Appellant’s third, fourth and fifth points of error, jointly briefed, are that the Court erred in granting and issuing a writ of mandamus directed to the officials of the District commanding them to collect taxes to satisfy the money judgment rendered against the District.

Art. XVI, Sec. 59(c) authorizes water districts to levy and collect taxes “ * * * for the maintenance of such districts and improvements * *

The judgment here does not direct the District to “levy” the required taxes but only to assess and collect such taxes. The State requests and the District does not object to the amendment of the judgment so as to insert the word “levy” in the appropriate places. We grant this request, and so amend the judgment.

It is our opinion that the debt represented by the judgment herein was incurred for the maintenance of the District and its improvements. Neither the District nor the improvements (water lines) would have functional value unless they were kept in condition to transport and distribute water. Anything reasonably necessary to accomplish this would, in our opinion, be considered within the constitutional meaning of “maintenance.” Since the State had the authority to require the District to remove its water lines from the right of way, it had the right of self help in the event the District refused. If this right had been exercised, the District and its water lines would have ceased operation. Fortunately, common sense and prudence was exercised by the District and the State resulting in the agreement made by the parties. The making of such agreement did not alter the basic facts.

£5] In Chapter 3A, Water Control and Improvement District, Art 7880-136, V.A. C.S., provides that, “In the event that any court within the State shall render any judgment of debt against any district such court may order the directors of such district to levy, assess and collect taxes or assessments to provide for the payment thereof.”

It is our opinion that this statute specifically authorized the Trial Court to award the writ of mandamus shown by its judgment.

We overrule these points, and finding no error, we affirm the judgment of the Trial Court amended as above indicated.

Judgment amended, and as amended, affirmed.

      . Created by Legislative Act, 54th Leg., Reg.Sess. ch. 401, p. 1067 (1955). Art. 8280-178, Vernon’s Ann.Civ.St.


text:
    PIONEER NATURAL GAS COMPANY v. K & M PAVING COMPANY.
    No. 7153.
    Court of Civil Appeals of Texas. Amarillo.
    May 28, 1962.
    Rehearing Denied Sept. 4, 1962.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    Key, Carr, Carr & Clark, Lubbock, for appellee.
   DENTON, Chief Justice.

K & M Paving Company brought this suit against Pioneer Natural Gas Company for the loss of an earth moving machine which resulted from an explosion and fire. While in the process of excavating on a highway construction project in Lubbock County, the machine struck a gas transmission line belonging to the defendant below. The gas line was cut and the explosion and fire followed. The case was tried before a jury. Based on the jury verdict, judgment was entered for the plaintiff in the amount of $12,500.00. Pioneer’s motion for an instructed verdict and its motion for judgment non obstante veredicto were overruled. The gas company has duly perfected this appeal and brings forward nine points of error.

K & M Paving Company was the recipient of a contract from the State Highway Department to construct 3.9 miles of a four-lane highway beginning within the city limits of Lubbock and extending in a southwesterly direction to a point along the “Brownfield Highway” beyond the city limits. On May 14, 1959 an employee of the paving company was excavating with a Euclid scraper along the right-of-way at an intersection of the highway designated as U. S. Highway 62 and Frankfort Avenue, when the scraper came in contact with the gas transmission line. The gas line was cut or broken and the resulting explosion and fire destroyed the scraper. The operator of the scraper immediately abandoned it upon discovering the line had been broken, and no claim for personal injuries is involved.

It is undisputed that Pioneer laid the gas line in question in 1956 in accordance with Article 1436b, Vernon’s Ann.Civ.St. and that Pioneer had filed with the State Highway Department a plat showing the location of the line as it paralleled the existing highway in the right-of-way itself. It is also undisputed that Pioneer had received two written notices with attached preliminary right-of-way maps for the project to be constructed. These notices and plats were received more than 30 days before construction began as required by Art. 1436b. Mr. Kirchoff, Pioneer’s division engineer for distribution, also had actual knowledge of the general nature of the construction as a result of his being present on the project from time to time. Prior to the incident under consideration, Mr. Kirchoff had been called to the project to locate a gas line approximately one mile east of the place where the line was subsequently broken. No other lines were pointed out by Mr. Kirchoff, but testimony is in conflict as to whether or not inquiries concerning the location of other lines were made at that time by the paving company’s foreman. All seemed to agree that the location of the gas lines farther up the right-of-way were not specifically pointed out by any of Pioneer’s employees. K & M’s employees, including its foreman, were aware that the gas line was in the general vicinity because of the presence of gas meters and a “regulator” visible off of but near the right-of-way being excavated. Article 1436b makes no requirement as to the depth gas transmission lines in rights-of-way must be laid, and there is a dispute concerning the depth the instant line was actually laid at the place it was struck. Various witnesses estimated its depth from two to three feet.

Appellee’s cause of action is predicated on various acts of negligence in the manner of laying and the failure to mark the gas line. Its allegation that the manner in which the line was laid constituted a public nuisance under Art. 784 of the Penal Code was abandoned in the trial of the case. By way of defenses Pioneer pleaded it breached no duty to the plaintiff; that plaintiff was a trespasser with respect to the gas line; that as the line was lawfully located prior to the commencement of the construction project it held a superior right to that of the plaintiff; and alternatively, that the occurrence in question was the result of an unavoidable accident.

In response to special issues submitted, the jury found that Pioneer: failed to lay the pipe at a proper depth; failed to in-case the line with a protecting conductor pipe; failed to notify K & M Paving of the location of the line; failed to properly mark the line in question; and failed through its engineer to disclose the location of the line at the time he located another line approximately one mile east of the line in question. The jury found each of these acts or omissions to be negligence and a proximate cause of the damage to ap-pellee’s scraper. The jury further found that neither K & M Paving nor any of its employees were negligent in any respect; that K & M Paving did not assume the risk incidental to the construction project; that the situation as it existed was not open and obvious; and that the occurrence was not the result of an unavoidable accident. Based on these jury answers the trial court duly entered judgment for the plaintiff below.

By points of error One and Three appellant takes the position that the trial court erred in failing to grant its motion for a directed verdict and its motion for judgment non obstante veredicto on the ground it breached no duty owed to K & M Paving; and that there was no evidence to establish acts or omissions of appellant which were the proximate cause of the alleged damages. These points will be discussed together as they deal with a question of law concerning the duty owed by pioneer to K & M Paving Company. In determining the duty owed by one party to another, the relationship of the parties is important. From the record it is clear both Pioneer and K & M Paving were lawfully using and occupying the premises within the designated right-of-way. Pioneer had properly complied with Art. 1436b in laying its lines in the area, and K & M Paving was operating under a construction contract with the Texas Highway Department.

Pioneer urges that it owed no duty to K & M Paving or its employees as a matter of law because it could not be reasonably foreseen that the gas line in question would be broken and thereby resulting in the damage sustained by the paving company. Appellant relies principally on Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, to support this contention. In our opinion the facts in that case are not analogous to the facts in the instant case. In that case the plaintiff was injured while working on the roof of a building under construction, when a long-handled mop he was working with came in contact with a high voltage electrical line belonging to the defendant. The electrical lines were-properly located in compliance with the ordinance of the City of Houston and Art. 1436a, V.A.C.S. The court there noted the defendant had no actual knowledge of the probable danger to the plaintiff, and that there were no facts in the record upon which to base constructive notice to the defendant. The court recognized that the electric company owes a duty of ordinary care where the lines are improperly installed or maintained. The Houston City Ordinance prescribed the minimum clearance of eight feet for buildings and other structures and the lines were open and obvious. In the instant case no depth for the gas lines are prescribed, and Pioneer had both written and actual notice of the construction project. The gas line was buried and obviously not visible. It seems clear that the very nature and location of K & M Paving’s work being performed, coupled with Pioneer’s knowledge of the details of the paving work, distinguishes this case from the Brooks case cited above. A clear distinction exists between a visible electrical line and a buried gas line when considering foreseeability of someone making contact with them.

At the point the gas line was broken, it was laid in a zig-zag pattern. The line generally followed a straight line in a southwest-northeast direction to the intersections involved. It then veered some 40 feet due north, thence 63 feet in an easterly direction where the line connected with the visible “regulator.” The exact location of the line at this particular place was thus deceiving to observers in that it would be assumed the line from the “regulator” would proceed directly north to connect with the gas meters in that direction. If the line had in fact proceeded north from the “regulator” it is apparent contact with the line would not have been made in this area. Under these facts and circumstances, it can not be said that Pioneer owed no duty to K & M Paving as a matter of law. Rather, we think a question of fact was presented as to the foreseeability of probable danger to K & M Paving and its employees. Various elements of this question were submitted to the jury, and the jury answers were contrary to the position taken by Pioneer.

Appellant also urges in its point of error No. Two that it owed no duty to appellee for the reason K & M Paving was trespasser as to Pioneer’s property rights. It has been held that a trespass to personalty may be committed by acts of destruction or injury to personal property. Mountain States T. & T. Co. v. Vowell Construction Co., 161 Tex. 432, 341 S.W.2d 148. However, in the instant case we think the facts are such that K & M Paving can not be said to be a trespasser. It was lawfully performing under a contract; Pioneer was put on notice of the work being performed, and was supplied with general plans of the project. Concluding that K & M Paving was not a trespasser and that some duty was owed to it by Pioneer, we are of the opinion under this record that Pioneer had an obligation to exercise ordinary care for the protection of K & M Paving and its employees. See Young v. Herrington, Tex.Civ.App., 312 S.W.2d 685 (no writ history); Morgan v. Empire Southern Gas Co., Tex.Civ.App., 236 S.W.2d 198 (no writ history); McWilliams v. Kentucky Heating Co. (Ken.Sup.Ct.) 166 Ky. 26, 179 S.W. 24. Appellant’s first three points of error are therefore overruled.

By the next two points of error appellant urges that appellee was contribu-torially negligent as a matter of law in that K & M Paving knew there were gas lines in the vicinity, but did not avail themselves of the maps and plats showing their location. To support its position, appellant relies on testimony of appellee’s foreman who admitted he knew lines were in the area where the accident occurred.

It is fundamental that the question of contributory negligence is generally, by reason of the very nature of the defense, one of fact for the jury to decide. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; Lang v. Henderson, 147 Tex. 353, 215 S.W.2d 585. In order that an act shall be deemed negligence per se, it must have been done contrary to a statutory duty or it must appear so opposed to the dictates of common prudence that we can say without hesitation or doubt that no careful person would have committed it. Gulf, C. & S. F. Ry. Co. v. Gasscamp, 69 Tex. 545, 7 S.W. 227; Temple Elec. Light Co. v. Halliburton, 104 Tex. 493, 140 S.W. 426; Lang v. Henderson, supra; Ice Service Co. v. Scruggs (Tex.Civ.App.), 284 S.W.2d 185 (refused n.r.e.). When the facts and circumstances are considered such as appellee’s foreman’s eleven years of experience; the depth and manner in which the gas line was laid at the point of contact; the notice given to Pioneer; and the visible evidence of the gas meters and regulator off of the right-of-way, we can not say the acts of appellee’s employees were contributorially negligent as a matter of law. In our opinion the alleged acts of contributory negligence were questions of fact to be decided by the jury. The jury determined these questions in favor of appellee.

Appellant’s last four points of error concern the refusal of the trial court to submit certain requested special issues. The requested issues pertained to whether or not appellee should have discovered the gas line in question; assumption of risk by ap-pellee’s agents or employees; failure of ap-pellee to request appellant to turn off the gas at the location in question before proceeding with the excavation; and whether or not appellee was a trespasser with respect to appellant’s personal property. These requested issues involved different shades of issues submitted in the court’s charge. It is therefore our conclusion these requested issues did not present any controlling or ultimate issues not submitted in the issues contained in the trial court’s charge. We are therefore of the opinion the court’s charge complied with Rule 279, Texas Rules of Civil Procedure.

After carefully reviewing this record we are of the opinion it presents no reversible error. The judgment of the trial court is accordingly affirmed.

ON MOTION FOR REHEARING

Appellant’s motion for rehearing earnestly insists that we erred in holding that K & M Paving Company was not a trespasser. To support this position appellant relies principally on Mountain States Tel. & Tel. Co. v. Vowell Const. Co., 161 Tex. 432, 341 S.W.2d 148. We are convinced there are distinguishing facts between the instant case and the Vowell case. We therefore do not consider the Vowell case controlling. The primary distinction between the two cases is the notice that had been given to the party whose utility line had been broken. Justice Norvell wrote in the Vowell case:

“Although Vowell knew that a cable had been laid in Mauer Drive, no demand, request or suggestion was made to the telephone company that it lower its cable along this street in view of the contemplated paving operations. It follows that the location of the cable was in all things legal and in accordance with the franchise granted by the city.”

After holding that the molesting or severing of the cable by Vowell was a violation of a property right which gave rise to a cause of action regardless of negligence, the court used the following language:

“However, as above pointed out, there is no evidence * * * that the City or anyone acting for it had requested that the telephone company check its lines and if necessary remove and re-lay them so that they would be below a specified depth before paving operations were undertaken. The owner of conduit lines lawfully in a street or alley can hardly be expected to know that their existing location is unsatisfactory in view of contemplated street surfacing or other improvements unless notified to that effect.”

In the instant case Pioneer not only had actual notice of the construction job and had received a preliminary right-of-way map, but at K & M Paving Company’s foreman’s request Pioneer’s division engineer went on the project and did in fact locate his company’s gas line at one location. Although this was done approximately one mile from the point where the line was later broken, the engineer had knowledge of the scope and direction the paving project was to take. We think this knowledge in addition to the action taken by the engineer placed a duty on Pioneer that cannot be placed on the telephone company in the Vowell case.

Another distinction exists in the manner in which Pioneer had laid the gas line at the point of contact. As pointed out in our original opinion, the line was laid in a zig-zag manner giving it a deceiving-effect to an observer. There is evidence in the record to the effect that the line would not have been struck if the line had been laid straight to the visible gas meters. Undoubtedly the line was laid at this point in accordance with good engineering practices, but this would be no defense under the circumstances before us.

It might be further added that there may be a distinction between an underground telephone cable and a high • pressure gas line. The former is not Considered inherently dangerous whereas a gas line, carrying a highly combustible máterial, is considered to be highly dangeróus. Lane v. Community Natural Gas Co., (Sup.Ct.) 133 Tex. 128, 123 S.W.2d 639.

Appellant again strongly relies on Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, to support its position that it owed no duty to K & M Paving as a matter of law. We think we adequately distinguished that case from the one under consideration in the original opinion.

We remain convinced that the facts and circumstances of this case are such that fact issues were raised that required a determination of such issues by the jury. The jury resolved these issues in favor of the appellee and against appellant.

Being of the opinion a proper disposition of the case was made, the motion for rehearing is overruled.


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    Gertrude Taylor BROOKS et al. v. W. M. TAYLOR.
    No. 7159.
    Court of Civil Appeals of Texas. Amarillo.
    June 18, 1962.
    Rehearing Denied Sept. 4, 1962.

      Cade & Bowlin, Thomas B. Duggan, Jr., Lubbock, for appellants.
    Calloway Huffaker and Harold Green, Tahoka, for appellee.
   DENTON, Chief Justice.

W. M. Taylor instituted this suit against Robert Marvin Taylor, Gertrude Taylor Brooks and husband H. F. Brooks, Bertha T. Molthan and husband Elmer Molthan, Ben F. Taylor and Alvin Taylor, to cancel and set aside a warranty deed executed by the said W. M. Taylor, on the ground of duress. The case was submitted to the jury on one special issue. In response to such issue the jury found W. M. Taylor’s signature and acknowledgment on the deed in question had been obtained under duress. From a judgment entered canceling and setting aside the deed all defendants, with the exception of Robert Marvin Taylor, duly perfected this appeal.

This dispute concerns real estate owned by Charlie Taylor who died intestate on January 1, 1960. The defendants below were the brothers and sisters of Charlie Taylor and W. M. Taylor was the only surviving heir of James Abslutn Taylor, deceased, also a brother of Charlie Taylor. It is undisputed the parties to this suit were the only heirs at law of Charlie Taylor who left an estate consisting of both real estate and personal property of the approximate value of $75,000.00. The net value of the estate was fairly evenly divided between the realty and the personal property.

The appellee alleged that on January 14, 1960, some two weeks after the death of Charlie Taylor, Ben F. Taylor advised him that he, W. M. Taylor, was not entitled to any part of Charlie Taylor’s estate and that if he insisted upon any share of it the said W. M. Taylor would not live to enjoy it. Other threats and accusations made by the said Ben F. Taylor were also alleged. It is appellee’s contention that by reason of these threats he executed the deed in question which conveyed his right, title and interest in all of the real estate to the defendants below in exchange for one-sixth of the personal property. A review of the record very clearly reveals that ill feelings were held by some members of the Taylor family toward their nephew, W. M. Taylor. He had at least two controversies with members of the family concerning the location of fence lines, and several members, of the family felt W. M. had not shown the proper attention to his late grandmother Ta}dor during her last illness. This seems-to be the background of the family dispute. This feeling, which apparently was shared' by the deceased Charlie Taylor, was admittedly common knowledge within the family. Appellants denied the alleged threats and testified their attitude was that W. M. Taylor did not deserve any part of the estate. Their position is that his legal right to the property had not been questioned.

It is undisputed that on or about January 24, 1960 and subsequent to the discussion between W. M. and Ben F. Taylor on January 14, 1960, W. M. went to the home of his aunt, Gertrude Taylor Brooks, and made the proposition that he would accept one-sixth of the estate’s personal property as his share of the estate. Appellants contend the warranty deed executed by W. M. Taylor on February 8, 1960 merely carried out the offer proposed. It is undisputed that W. M. was tendered checks representing one-sixth of the personal property. Appellee contends he offered to accept this amount and did in fact execute the deed for fear of his life or bodily harm.

Appellants’ first three points of error complain of the admission into evidence of testimony of a dispute between appellee and Charlie and Ben F. Taylor in the summer of 1958 over a fence line; admission of evidence of the dispute between appellee and Ben F. Taylor on April 26, 1960 and the admission of testimony of appellee’s daughter to the effect Ben F. Taylor forced her car into a bar ditch in April, 1960. The first incident occurred some 18 months prior to the execution of the deed, and the latter two incidents took place some two months after the deed was signed. Appellants contended at the trial and on this appeal that testimony concerning the 1958 dispute was prejudicial and too remote and that the latter two occurrences took place after the deed was executed and was prejudicial and improper and could not “possibly constitute duress in the execution of the deed prior thereto on February 8, 1960.” In order to pass upon these points, we deem it expedient to briefly review the nature of the cause of action sought to be proved, and the burden of proof.

Where a party seeks to avoid a deed on grounds of duress, duress has been defined as a condition of the mind produced by improper external pressure destroying the free agency of the grantor and inducing him to execute a conveyance not of his own volition. Prontzinski v. Baker, 364 Ill. 451, 4 N.E.2d 862. See also 26 C.J.S. Deeds § 61, page 757. Texas courts substantially follow this definition. Pfeuffer v. Haas, Tex.Civ.App., 55 S.W.2d 111, error dismissed. Obviously, in seeking to set aside the deed in question appellee had the burden of establishing his allegations of duress. The very nature of duress involves the state of mind of the person pleading it. What constitutes duress is a question of law, but whether a person acting voluntarily or as a result of duress is a fact issue to be determined by the jury. Brown v. Westerfeld, Tex.Civ.App., 129 S.W.2d 451, error dismissed, judgment correct. The law recognizes the difficulty encountered in proving a person’s state of mind. Blanton v. Sherman Compress Co., Tex.Civ.App., 256 S.W.2d 884 (n. w. h.); Smith v. Jungkind, Tex.Civ.App., 252 S.W.2d 596, refused. In 20 Am.Jur., Sec. 345, page 320-321, the general rule is stated in the following language:

“Whenever issues of duress, undue influence, fraud, and good faith are raised, the evidence must take a rather wide range and may embrace all the facts and circumstances which go to make up the transaction, disclose its true character, explain the acts of the parties, and throw light on their objects and intentions. Such matters are ordinarily not the subject of direct proof, but to be inferred from the circumstances, and in all such cases, great latitude of proof is allowed and every fact or circumstance from which a legal inference of the fact in issue may be drawn is competent. * * * Evidence of subsequent acts between the parties which have a relevant bearing upon such issues is admissible.”

After considering the nature of the cause of action sought to be proved together with the burden of proof placed on appellee, we are of the opinion the evidence under consideration was properly admitted for the consideration of the jury.

By the next two points of error appellants complain of the refusal of the trial court to submit appellants’ requested Special issue and its accompanying definition of duress. The single issue which was submitted to the jury inquired whether “ * * * the signature and acknowledgment of W. M. Taylor on the deed in question was obtained under duress as that term is hereinabove defined.” The issue was preceded by the following definition:

“The term ‘Duress’ as used in this Charge means: Any coercion of another, either mental, physical, or otherwise, causing him to act contrary to his •own free will or to submit to a situation •or condition against his own volition or interests. In other words, duress is the exercise of sufficient influence over •another to destroy the free agency of the party influenced, and overcome his will to the extent that it will cause him to do that which he otherwise would not do.”

The requested issue and definition differed from the ones given in the court’s charge in that the requested issue and definition required duress to he the “sole and efficient” cause of appellee’s execution of the deed. The issue and definition submitted by the •court was essentially the same as that submitted in Bank of Fredericksburg v. Wendel, Tex.Civ.App., 11 S.W.2d 341 (dismissed), and Werner v. Brehm, Tex.Civ.App., 216 S.W.2d 991, (refused n. r. e.). See also Hailey v. Fenner & Beane, Tex.Civ.App., 246 S.W. 412 (n. w. h.); Pfeuffer v. Haas, supra; 21 Tex.Jur.2d page 115. Appellee based his cause of action on the single ■ground of duress. In our opinion this distinguishes the instant case from those relied on by appellants. We therefore conclude the special issue and the accompanying definition given by the trial court were proper submissions under the record in this ■case.

Appellants’ next point of error is levelled at the failure of the trial court to grant their motion for a directed verdict. This involves the question of law of no evidence. No authorities need be cited for the well settled rule that in passing upon the law question of no evidence it is our ■duty to consider only the evidence which is favorable to the issue and disregard entirely all evidence which is adverse, contrary or conflicting to the favorable evidence.

Appellee testified that Ben F. Taylor told him that Charlie Taylor “ * * * didn’t want me to have any part of the estate and if I put in for any part of it he would kill me. I wouldn’t live to enjoy it.” This was corroborated by Marvin Taylor who testified his brother Ben F. Taylor told him he was going to stop fighting and “was going to start using bullets.” Both appellee and Marvin Taylor testified that Ben F. Taylor was a person of violent temper. The testimony is uncontroverted that Ben F. Taylor was not present when appellee executed the deed, but was waiting in his automobile outside the court house in Plains, Texas, where it was signed. Appellee testified, “I knew Ben was outside and I was in fear of losing my life if I didn’t sign these papers.” Portions of appellee’s testimony concerning the other controversies with Ben F. Taylor were also corroborated by his wife and daughter and his attorney’s son who was present at the April, 1960 meeting between appellee and Ben F. Taylor at the latter’s home. Even though it is clear appellee proposed the so-called “settlement” by originally agreeing to accept one-sixth of the estate’s personal property as his share of the estate; that Ben F. Taylor obviously agreed to accept this proposal in spite of his assertions that appellee was not entitled to any of the estate; and that the said Ben F. Taylor was not physically present when the deed was executed, we are of the opinion and so hold there was evidence of duress. Appellants’ sixth point of error is accordingly overruled.

Appellants’ seventh point of error complains of the failure of the trial court to grant their motion for judgment non obstante veredicto on the ground the controlling issues were not submitted to the jury. The trial court may grant a judgment non obstante veredicto if a directed verdict would have been proper, and where a jury finding has no support in the evidence. Rule 301, Vernon’s Ann.Texas Rule. What we have said in connection with the preceding point and the points of error dealing with the special issue and definition submitted is applicable to this point of error under consideration, and the same is overruled.

In view of the disposition of this case we do not deem it necessary to discuss ap-pellee’s counterpoints which contend the deed in question is void or at least voidable because of a failure of consideration.

After carefully considering this entire record we are of the opinion it reflects no reversible error. The judgment of the trial court is affirmed.


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    John P. WAGNER, Appellant, v. SHEETS & WALTON DRILLING COMPANY et al., Appellees.
    No. 3739.
    Court of Civil Appeals of Texas. Eastland.
    July 13, 1962.
    Rehearing Denied Sept. 7, 1962.
    Perkins, Bezoni, Kirwan & McWhorter, Midland, for appellant.
    Harrell & Thompson, Breckenridge, Cul-ton, Morgan, Britain & White, Amarillo, for appellees.
   This is an appeal from a judgment which denied relief sought by plaintiff, John P„ Wagner, to equitably impress an overriding royalty reservation in an assignment of a December 7, 1953, oil and gas lease on an oil and gas lease covering the same land which was procured on January 6, 1959.

The December 7, 1953, lease was from D. R. Wright and wife as lessors to Mrs. O. H. DeGrazier as lessee covering all of the south one-half and the northwest one-fourth of Section 4, Block 3, S. P. Ry. Co. land in Stephens County, and was for a primary term of five years, expiring December 7, 1958. The lease contained the following provision:

“Notwithstanding anything to the contrary expressed herein, it is agreed and understood that upon the expiration of the primary term hereof, each producing well located on said land will perpetuate this lease as to 40 acres of . land, and no more, lessor shall execute and deliver a release hereof as to all acreage not so held by production.”

This lease ultimately became vested in Sheets & Walton Drilling Company, defendants herein, subject to a %2nds overriding royalty interest, owned and held by grantees or assignees holding under Mrs. DeGrazier. When Mrs. DeGrazier assigned the lease in February of 1956, she reserved a %2nds of ^jths overriding royalty. No provision of the assignments executed by her indicated that assignees were obligated to maintain the lease in force beyond its original term.

This suit was originally brought by Mrs. Walter B. Smith against Sheets & Walton Drilling Company. Mrs. Smith was an as-signee of %2nds of the overriding royalty interest reserved by Mrs. DeGrazier, but pending litigation John P. Wagner acquired Mrs. Smith’s overriding royalty interest and was substituted as plaintiff. The remaining portion of the overriding royalty interest reserved by Mrs. DeGrazier is not here in controversy.

Prior to the end of the primary term of the 1953 lease on December 7, 1958, Sheets & Walton had drilled a well on the northwest one-fourth of the southwest one-fourth of Section 4 which was included in the lease. Although the well first produced oil, it was not in merchantable quantities and the well was plugged back and completed as a gas well capable of producing gas, and was shut-in as a gas well.

On January 5, 1959, Sheets & Walton, the owners or assignees of the 1953 lease, executed a release on all the land covered by such lease “except insofar as said lease covers a 40 acre tract around a shut-in gas well located on said property, the 40 acre tract being decribed as the northwest one-fourth of the southwest one-fourth of said Section 4.” On January 6, 1959, Wright and wife executed to Sheets & Walton a new lease covering all the south one-half and the northeast one-fourth of Section 4, which is the same land described in the 1953 lease. They later executed a substitute lease bearing the same date, but which was not executed until December 14, 1959.

Prior to the expiration of the primary term of the 1953 lease W. W. Walton, who was one of the partners of Sheets & Walton Drilling Company, began negotiations with Mr. and Mrs. Wright to acquire a lease covering the same acreage as was contained in the 1953 lease in such form as to allocate the number of acres to the gas well as promulgated by the Railroad Commission of Texas in order to permit full allowable to be produced from the gas well. On September 23, 1959, Sheets & Walton Drilling Company, by letter agreement, sold to Texoma Production Company, among other leases, the oil and gas lease dated December 7, 1953, from D. R. Wright and wife to Mrs. O. H. DeGrazier and the oil and gas lease dated January 6, 1959, from D. R. Wright and wife to Sheets & Walton Drilling Company.

It is undisputed .that Sheets & Walton Drilling Company at all times down to and including the date of the execution of their assignment to Texoma Production Company recognized the overriding royalty in-térest in question as being outstanding. The evidence also shows that Texoma Production Company at all times material hereto knew that the overriding royalty was outstanding and that Sheets & Walton Drilling Company recognized same. The question presented is whether the 1953 lease and the overriding royalty interest of appellant has terminated as to all of the land described therein except the northwest one-fourth of the southwest one-fourth of Section 4 upon which the gas well is located, or whether appellant’s overriding royalty interest should be and is by equity impressed upon all the acreage described in the 1953 and the 1959 leases.

In our opinion the trial court did not err in failing to impress appellant’s overriding royalty interest on those portions of the lands covered by the 1959 lease except the 40 acres upon which the gas well was located. Substantially the same question was before this court in Thomas v. Warner-Quinlan Company, Tex.Civ.App., 65 S.W.2d 321, (Writ Ref.). In that case Judge Funder-burk speaking for the Court stated as follows :

“Defendant in error, having committed no wrong as against plaintiffs in error, no constructive trust could arise out of the act of taking the new lease. The parties occupied no fiduciary relation, at least none looking beyond the natural terms of the leases assigned under the contract. We therefore conclude that the plaintiffs owned no interest in the production from the 140%-acre tract under the new lease.”

In 3 Summers Oil & Gas, Section 554, it is stated as follows:

“While the right to overriding royalty, or a sum of money paid out of production of oil or gas, created in the assignment, does not survive the termination of the assigned lease, yet in a number of cases the assignor has claimed that the assignee, by permitting the lease to expire, or by surrender thereof, and the taking of a second lease from the lessor, has violated a relation of trust and confidence, and that the assignor should be entitled to such overriding royalty or money out of production under the renewal lease. The mere assignment of an oil and gas lease creates no such fiduciary relation. If it is created, it must be by the terms of the assignment. In a number of cases the courts have held that the provisions of the assignment did not create a fiduciary relation between the parties so that the assignor would be entitled to the payment of overriding royalties or other sums out of oil or gas produced under a second lease taken by the as-signee.”

Numerous other cases and authorities are to the same effect and we have found none to the contrary.

By the terms of the 1953 oil and gas lease it would have expired in the absence of production at the end of the primary term. It was further provided that even in case of production at the expiration of the primary term each producing well would perpetuate the lease as to 40 acres and no more. The continuation of the overriding royalty depended upon the continuation of the lease. There was no provision in the assignments executed by Mrs. DeGrazier in 1956 under which ap-pellees hold, and in which Mrs. DeGrazier retained the overriding royalty interest' held by appellant, which required her assignee to maintain the 1953 lease in force beyond its primary term. In none of the assignments under which Sheets & Walton Drilling Company hold was there any provision that the overriding royalties theretofore retained should be continued in any new leases, if any, that might be obtained on said lands. When Sheets & Walton permitted the 1953 lease to expire and released same except insofar as said lease covered the 40 acre tract around the shut-in gas well in question and then secured a new lease on all the land covered by the 1953 lease they were doing no more than that which they had the right to do under the 1953 lease and the assignments under which they held. The 1953 lease had by its own terms and by the executed release expired, except as to the 40 acre tract around the gas well. As to that 40 acres “and no more” the lease was by its terms perpetuated. The execution of the 1959 lease covering the same land was not an extension of the previous lease, although it did, in effect, recognize its perpetuation insofar as the 40 acre tract was concerned. True, it would have been greatly to the advantage of the holders of the overriding royalty interest for the 1953 lease to be perpetuated in toto or that such overriding royalty be continued in effect as to all lands covered by such lease in any new lease agreement. The holders of the 1953 lease, however, had no such obligation. There was no fiduciary relationship between the parties which required the holders of that lease to maintain it or the overriding royalty interest of appellant in force as to all the land involved therein. See Montgomery v. Phillips Petroleum Company, Tex.Civ.App., 49 S.W.2d 967, (Writ Ref.); Shropshire et al. v. Hammond, Tex.Civ.App., 120 S.W.2d 282.

We cannot agree with appellant’s contention that the fact that Sheets & Walton Drilling Company recognized that the overriding royalty interest was outstanding created a confidential relationship by reason of which equity would impress the new lease with their overriding royalty. Actually both Sheets & Walton Drilling Company and their assignee, Texoma Production Company, still recognize the overriding royalty insofar as it concerns the 40 acre tract perpetuated by the shut-in gas well under the provisions of the 1953 lease. The fact that Mr. Walton of Sheets & Walton Drilling Company may have been of the opinion that the legal effect of the transactions shown by the evidence was that appellant’s overriding royalty applied to all the land covered by the new lease is not controlling. The controlling considerations are the provisions of the leases and assignments here involved. This is not a case in which the parties have acted upon their interpretation of an ambiguous instrument. The provisions of the original lease and assignments under it are not ambiguous and plainly show that the 1953 lease has expired except as to the 40 acre tract. There is no provision for the overriding royalty in the new lease. We hold that there was no confidential relationship between the parties which would impress such lease with the overriding royalty with which the 1953 lease was burdened. Appellant’s points are overruled.

The judgment of the trial court is affirmed.