author: SMITH, Justice. GRIFFIN, Justice

text:
    Jimmy B. MYERS, Petitioner, v. GULF COAST MINERALS MANAGEMENT CORPORATION, Respondent.
    No. A-8994.
    Supreme Court of Texas.
    Oct. 3, 1962.
    Rehearing Denied Oct. 24, 1962.

      Nye, Cohn & Morris, Corpus Christi, for petitioner.
    King, Anderson & Porter, Corpus Christi, for respondent.
   SMITH, Justice.

In September, 1960 Myers and Gulf Coast entered into a contract, commonly referred to as a farmout agreement or letter agreement. Myers alleged, in this suit, that on September 28, 1960, he offered Gulf Coast certain rights, title, and interest in and to a certain oil and gas leasehold estate on specified terms and conditions in writing, and that Gulf Coast accepted the offer and paid the sum of $500.00 immediately upon acceptance of the terms and conditions of- the contract, but failed to comply with the terms of the contract by paying the additional sum of $2000.00 within 30 days from the date of acceptance or commencement of drilling operations, whichever was sooner, as provided in the contract. Hence, this suit to recover of and from Gulf Coast the sum of $2000.00, with interest at the rate of 6% per annum from November 6, 1960 until paid. On January 16, 1961, Gulf Coast filed a general denial and prayed that Myers take nothing by his suit.

On February 7, 1961 Gulf Coast filed its motion for summary judgment based upon the contention that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law upon the pleadings on file and a letter agreement between the parties. A copy of the letter agreement was attached to the motion for summary judgment. On February 23, 1961 Myers filed an affiadvit with a copy of the letter agreement attached, and on March 24, 1961, in a motion for summary judgment, alleged that there was no genuine issue as to any material fact in the case and that he was entitled to judgment as a matter of law.

On May 9, 1961 the trial court granted Myers’ motion for summary judgment, and the judgment entered recites that the court found that the pleadings, opposing affidavits and the letter agreement, attached as an exhibit to both motions, showed an absence of any genuine issue as to any material fact and that summary judgment should be rendered for Myers as a matter of law. Gulf Coast’s motion for summary judgment was overruled. On Appeal, the trial court’s judgment in favor of Myers for $2000.00 and interest at the rate of 6% per annum from November 6, 1960 was reversed and judgment was rendered that Myers take nothing by his suit, thus sustaining Gulf Coast’s motion for summary judgment. Tex.Civ.App., 354 S.W.2d 944.

We have concluded to sustain the judgment of the trial court for the reasons now to be stated.

The farmout agreement contains an introductory paragraph, being the recital portion of the contract, and numbered operative paragraphs l, 2, and 6, and we are directly concerned with the meaning of these paragraphs, including the introductory paragraphs, in determining the true meaning of the contract.

The Court of Civil Appeals has held that the words “may earn” found in the recital portion of the farmout agreement were permissive rather than compulsive. The court, apparently having made the recital paragraph controlling over the operative paragraphs of the agreement, went on to hold that the agreement meant that Gulf Coast could either gain the rights or lose them as it willed, citing the cases of State v. Clements, Tex.Civ.App., 319 S.W.2d 450, (1958), wr. ref., and Kleck v. Zoning Board of Adjustment of San Antonio, Tex.Civ.App., 319 S.W.2d 406, (1958), wr. ref., in support of its holding.

In the case of State v. Clements, supra, the court was called upon to construe a 1956 amendment to the Texas Constitution. The amendment added Section 51-c to Article III, Vernon’s Ann.St., and provided that the Legislature may grant aid and compensation to any person who had theretofore paid a fine or served a sentence in prison under the laws of this State for an offense for which he was not guilty. The court simply determined that the word “may” as first used in the Constitutional Amendment, and as later used in connection with the word “deem” in the amendment, was permissive in meaning and that obviously the amendment was not self-executing. Kleck, supra, was a zoning ordinance case, the court holding being that where a municipal zoning ordinance provided that noncommercial parking lots “may be permitted”, the word “may” was merely permissive and the Zoning Board of Adjustment had the right to use its discretion in granting or denying applications for noncommercial parking lot permits, subject to the limitations, conditions, and restrictions set out in the ordinance. This holding refuted the contention of the applicant for a noncommercial parking lot permit that where the ordinance said parking lots for noncommercial parking “may be permitted” it meant “must be permitted”. In rejecting this contention, the court said that to adopt Kleck’s theory would be to hold that the Zoning Board had no discretion in the matter, but must grant a proper application as a matter of right.

It is to be noted that by refusing the application for writ of error in each of these cases, this court adopted the opinion in each case as its own. Our approval of these cases still stands. However, we decline to follow the holding of the Court of Civil Appeals that the holdings in those cases are decisive of the question we are called upon to decide by this appeal. We do not mean by this to say that the rules of construction of written contracts which we consider applicable here were not applied in those cases. In the present case, we are to be governed by the universal rule in this jurisdiction that an instrument, such as the farmout agreement involved here, must be viewed in its entirety and that no single portion, sentence, or clause when considered alone will control. We have no doubt but that this rule was implicitly followed by the court in both the Clements and Kleck cases and a correct construction was made of the instruments under consideration. The result reached in those cases, however, does not necessarily mean that the same result should obtain in this case. The courts are to ascertain the real intention of the parties, and the very nature of the inquiry dictates that there can be no fixed rule, for every case, in a great measure, depends upon its own facts, the context of the instrument, and circumstances. It is elementary that if there is no ambiguity, the construction of the written instrument is a question of law for the court. See Turner v. Montgomery, Tex.Com.App., 293 S.W. 815; North v. North, Tex.Civ.App., 2 S.W.2d 481, 483; Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, 308.

The Court of Civil Appeals has stated that the term “may earn” was not compulsive, but instead was permissive, and based upon that premise, that court has held that Gulf Coast was under no duty to pay the $2000.00, and that the “ * * * contract gave it the power, if it so willed, to make that payment and commence drilling and thereby gain the rights stated in the contract.” In effect, the court has held that the contract amounts to no more than an option permitting Gulf Coast, the ob-tainer of the farmout, to do certain things, but that under the terms of the farmout agreement, Gulf Coast was not required to do anything. The holding upholds the contention of Gulf Coast that the only agreement was that Gulf Coast could earn if it complied with the conditions listed, and that the failure to pay the sum of $2,-000.00, the second condition listed, rendered the farmout agreement void and ineffectual as far as Gulf Coast was concerned. With this we cannot agree.

Myers contends that the Court of Civil Appeals in construing the term “may earn” contained in the recital or introductory paragraph of the farmout agreement, adopted a limited choice of definitions from which to determine the one meant by the contract, as evidenced by its statement that the term “may earn” was not compulsive, but instead was permissive. Myers argues that the term “may earn” can equally express the conditions of competency, ability, possibilty, probability or contingency, Black’s Law Dictionary, 3rd Addition, p. 1171, as well as permission, and upon such premise, he contends that when the term “may earn”, as used in this farm-out agreement is defined as showing possibility or contingency, it is more in keeping with the intent of the parties than the definition of permissiveness found by the Court of Civil Appeals. We agree. The definition of “may earn” adopted by that court violates the rule that the courts in construing contracts are to determine the intention of the parties from the contract as a whole and then adopt that definition which is most consistent with such intent and will render the questioned term harmonious with, rather than repugnant to, the other provisions of the contract. See Fleming v. Ashcroft, 141 Tex. 41, 175 S.W. 2d 401; General Insurance Corporation v. Laney, Tex.Civ.App., 224 S.W.2d 746, 751 (1949), no wr. hist.; Little v. Kennedy, Tex.Civ.App., 195 S.W.2d 255 (1946), wr. ref. n. r. e.

The introductory or recital paragraph, which contains the term “may earn” should be reconciled with the operative clauses and given effect, so far as possible. 17 C.J.S. Contracts § 314, p. 733, but the primary duty of the courts in construing contracts is to ascertain and effectuate, if possible, the mutual intention of the parties at the time of the execution of the contract. By giving the term “may earn” the meaning heretofore outlined, we find that the unambiguous operative paragraphs clearly provide that Myers by the farm-out agreement granted Gulf Coast certain valuable rights to explore and drill for oil and gas and the further right to receive from Myers an assignment of a part of the leasehold estate if production were obtained. The consideration flowing from Gulf Coast to Myers for such valuable rights acquired was, first, the payment of $500.00, and the promise to pay the further sum of $2000.00. It should be noted that numbered paragraph 1 does not say that Gulf Coast may pay $2000.00. It says that Gulf Coast agrees to pay $500.00 and $2000.00. There is no language in either the recital or introductory paragraph or in the operative paragraphs of the farm-out agreement which can be construed to give Gulf Coast the right to pay at will. The express language in the operative portion of the contract makes it clear that it was not the intention of the parties that Gulf Coast could at will “make that payment of $2,000.00 and coimience drilling” and "thereby gain the rights stated in the contract.” [Emphasis added.] The term “may earn”, used in the contract in its conditional or contingent sense, did not render conditional the obligation to pay the $2,000.00. The words “at will” used by the Court of Civil Appeals are not used anywhere in the farmout agreement. Operative paragraph numbered 6 is the only paragraph containing language whereby Myers was obligated to make an assignment of an interest in the oil and gas lease, but it contains no language that by making the payments provided for in numbered paragraph 1 and by the commencement of drilling as provided for in numbered paragraph 2, Gulf Coast would thereby gain the rights stated in the contract. The farm-out agreement when considered in its entirety recognized that the right of Gulf Coast to an assignment was speculative and contingent in that it was further conditioned upon production of oil and/or gas and other minerals in paying quantities. In other words, under our construction of the farmout agreement, including our definition of the term “may earn”, Gulf Coast was obligated to pay to Myers the full consideration of $2,500.00 even though the drilling operations later resulted in no production due to-the existence of physical and geological circumstances beyond the will and control of either Myers or Gulf Coast.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

GRIFFIN, Justice

(dissenting).

I agree with the opinion of the Court of Civil Appeals.

      . “This letter when accepted by you will evidence the understanding and agreement by and between Gulf Coast Minerals Management Corp., whereinafter called “Gulf Coast”, and Jimmy B. Myers, under which agreement, Gulf Coast may earn certain rights, title and interest in and to that certain leasehold estate, hereinafter described, subject to the reservations hereafter contained, all in accordance with the following terms and conditions, to wit:

      . “D Gulf Coast agrees to pay the sum of ¡¡5500.00 to Jimmy B. Myers upon acceptance of this agreement; and the additional sum of $2,000.00 within 30 days from the date of this agreement is accepted, or when drilling operations are commenced, as hereinafter provided, whichever is the sooner.

      . “2) Within 60 days from September 27, 1960, Gulf Coast agrees to move in and commence drilling operations for a test well in accordance with the terms and conditions of this agreement and the hereinafter described oil, gas and mineral lease, as amended a copy of which lease and amendment is attached hereto and the terms thereof, made a part of this agreement. Such drilling operations shall be conducted at the sole risk, cost, and expense of Gulf Coast in an effort to obtain production as a reasonable and prudent operator would do and shall be prosecuted to a minimum depth of Five Thousand Seven Hundred Feet (5,7000 unless oil and/or gas in paying quantities are found at a lesser depth.

      .“6) In consideration of the full and satisfactory compliance fcy Gulf Coast with all of the terms and provisions hereinabove set out and upon completion of a well capable of producing oil and/or gas in paying quantities, Jimmy B. Myers agrees to assign to Gulf Coast Minerals Management Corp. the oil, gas, and mineral lease, dated September 1, 1960 from Emil Pillaek, et ux, Lessor, to Jimmy B. Myers, Lessee, covering the following described land in Jim Wells County, Texas, to-wit: * * *”

      . This case discusses a collection of Supreme Court cases.


source: Caselaw Access Project

author: SMITH, Justice. CALVERT, Chief Justice CULVER, Justice

license: Public Domain

text:
    DENTON COUNTY, Petitioner, v. G. H. BRAMMER, Jr., et ux., Respondents.
    No. A-8744.
    Supreme Court of Texas.
    July 18, 1962.
    Concurring Opinion Oct. 3, 1962.
    Rehearing Denied Oct. 3, 1962.

      Coleman & Whitten, Denton, for Denton County.
    Gerald E. Stockard, Denton, for Bram-mer and another.
   SMITH, Justice.

In February, 1953 special condemnation proceedings were instituted by Denton County, Texas, to condemn land owned by the Brammers, in which the Brammers filed timely objections to the award ($800.-00) of the Commissioners, but delayed for a period of seven years after filing their objections in the county court to have citation issued and served, and allowed a period of five years to elapse after their withdrawal of the Commissioners’ award before obtaining a setting and trial in the county court of their claim for compensation and damages. For convenience, the parties will hereafter be referred to as Denton County and Brammer.

On December 12, 1960, seven years after filing his original objections and exceptions, Brammer filed in the county court an instrument designated as “Defendants’ Amended Objections to Award of Special Commissioners”. Denton County and Brammer stipulated that no citation' was ever issued or served. No waiver of service of citation is disclosed by the record. However, on December 13, 1960, Denton County filed its original answer to Bram-mer’s amended objections and exceptions to the award of the Commissioners, and, among other defenses, pleaded that Bram-mer had abandoned his “appeal” as a matter of law, and moved the court to dismiss such “appeal”. The court overruled the motion to dismiss. Brammer offered no explanation or excuse for the long delay between the date of filing the original objections and exceptions and the filing of the amended objections and exceptions. The trial court simply overruled Denton County’s motion, apparently without hearing evidence.

Thereupon, Brammer, having stipulated that Denton County’s proceedings were regular and the county had the right to condemn the land sought in the cause, and that the Denton County Court had jurisdiction of the subject matter, the case proceeded to trial only upon the issue of the value of the land to be taken, and the issue as to the damages to the remainder of Brammer’s land by reason of such condemnation and taking. It was also stipulated that all values and damages were to be fixed as of April 2, 1953, the date on which Denton County deposited with the County Clerk of Denton County, Texas, the sum of $800.00, the amount of the award of the special Commissioners.

Based upon jury findings and the stipulation of the parties, the trial court entered its judgment for Brammer for the sum of $4,956.00, together with interest at the rate of 6% from April 2, 1953, on the excess of the amount awarded by the jury verdict over the Commissioners’ award, and awarded Denton County the fee simple title to the land involved. The Court of Civil Appeals denied Brammer the recovery of interest awarded by the trial court, but in all other respects affirmed the trial court judgment. 350 S.W.2d 888.

Each party is here with an application for writ of error. Brammer’s application has been granted because of the granting of the application of Denton County.

The question of law presented to this Court by Denton County is: Whether the trial court abused its discretion in failing to hold that the circumstances of the unexplained failure of Brammer to cause citation to issue, and the undisputed evidence that Brammer waited for a period of five years after having withdrawn the $800.00 deposit (the award of the Commissioners) before obtaining a setting and trial of his claim for compensation and damages, raised a conclusive presumption that Brammer had abandoned his objections.

Brammer complains of the judgment of the Court of Civil Appeals in so far as that judgment reversed the judgment of the trial court awarding interest.

It is our opinion that the trial court did abuse its discretion in failing to hold that the circumstances above mentioned raised a conclusive presumption that Bram-mer had abandoned his objections. It follows, therefore, that the judgments of the trial court and the Court of Civil Appeals must be modified as follows: Deny Bram-mer a recovery for all sums of money in excess of $800.00, the amount of the award of the special Commissioners; affirm the judgments of both courts awarding to Den-ton County the fee simple title to the land involved; and affirm the judgment of the Court of Civil Appeals denying Brammer a recovery of interest. This conclusion effectively disposes of Brammer’s point that he was entitled to recover interest.

There are certain legal principles which control our decision. We recognize that the filing of objections to an award of Commissioners by a condemnee does not constitute the institution of a suit by the condemnee. When Brammer filed his original objections to the award of the special Commissioners, the special condemnation proceedings which had theretofore been instituted by Denton County, Texas, became a cause pending in the County Court of Denton County. See Pearson v. State, 159 Tex. 66, 315 S.W.2d 935. The cause, thus filed, is to be tried and determined as in other civil causes in the county court. Article 3266, Section 6, Vernon’s Annotated Civil Statutes. We recognize that the filing of the original objections and exceptions by Brammer simply converted the special condemnation proceedings into a suit and invested the county court with jurisdiction of the subject matter of the case. See Fitzgerald v. City of Dallas, Tex.Civ.App., 34 S.W.2d 682, wr. ref.; State v. Nelson, 160 Tex. 515, 334 S.W.2d 788.

filing of the original objections in this case vacated the award of the spe-speCommissioners. The condemnor, Den-Den-County, became the plaintiff and Bram-Bram-the condemnee, became the defendant. Although the condemnee, Brammer, became the defendant, we construe the statute, Arti-Arti3266, supra, to mean that the condemnee, Brammer, had the burden of causing the issuance of citation and the obtaining of service of such citation upon the condemnor, Denton County. While the condemnor, Denton County, as plaintiff, had the burden of proving all the essentials necessary to show a right to condemnation, Fort Worth & D. N. Ry. Co. v. Johnson, 125 Tex. 634, 84 S.W.2d 232, and had the burden of going forward to trial, it was under no legal obligation to do so unless and until it had been served with citation. -Of course, cita-citawas never served, and, as heretofore mentioned, Brammer waited seven years before filing his amended objections and exceptions to the award of the Commis-Commisand waited five years after with-withthe $800.00 deposit before obtain-obtaina setting and trial of his claim for com-comand damages. During all this time, the cause remained on the docket of the County Court of Denton County, Texas. In the absence of citation, Denton County’s suit could not have been dismissed for want of prosecution, and Denton County was under no obligation to voluntarily answer without the service of citation.

While mere lapse of time between the filing of objections and the trial in this cause cannot operate as an abandonment by Brammer of his objections and exceptions to the award, the circumstances of this cause raised a conclusive presumption of abandonment by Brammer of his objections, and since such circumstances were wholly unexplained, there was a clear abuse of judicial discretion on the part of the trial court in overruling Denton County’s motion to dismiss.

Brammer abandoned his objections and exceptions long before the filing of his amended objections and exceptions to the award, and, therefore, was not entitled to a judicial determination of the matters presented in his objections and exceptions to the special Commissioners’ award. See Flanagan v. Smith, 21 Tex. 493; Ponton v. Bellows, 13 Tex. 254; Gillespie’s Adm’r v. Redmond, 13 Tex. 9; Bogle v. Landa et al., 127 Tex. 317, 94 S.W.2d 154; Ware v. Jones et al., Tex.Com.App., 242 S.W. 1022; Routh v. City of San Antonio, Tex.Civ.App., 302 S.W.2d 452, no writ hist.; Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, 491; Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85.

Since the duty devolves upon the condemnee to cause the issuance of citation, it seems logical to say that he must act with reasonable diligence, and, upon failure to so act, the rules announced in the above cases wherein plaintiffs failed to prosecute their suits with reasonable diligence should be applicable in cases where a condemnee fails to cause the service of citation, and the question of his diligence is in issue. Brammer, so far as the citation was concerned, occupied the same status as a cross-plaintiff, and having failed to act with diligence and having failed to offer any explanation for such failure, he abandoned his objections and exceptions as a matter of law. The rule in Callahan v. Staples, supra, applies here. In that case wherein the issue of abandonment was raised, this Court said:

“Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence, and whenever a delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit, * * * discontinuance results.” [Emphasis added.]

This rule was quoted with approval in Bevil v. Johnson, supra (1957).

The judgments of the trial court and the Court of Civil Appeals are both reversed and judgment is here modified and rendered that G. H. Brammer, Jr. and Mrs. G. LX. Brammer, Jr. recover only the sum of $800.00, being the sum awarded to the Brammers by the special Commissioners, and the judgments of the trial court awarding Denton County, Texas, the fee simple title to the tract of land involved is in all things affirmed.

CALVERT, C. J., and WALKER, GREENHILL and STEAKLEY, JJ., dissent.

CALVERT, Chief Justice

(dissenting).

I respectfully dissent. I would reverse the judgments of the courts below and remand the cause for further proceedings. '

The true question before this Court is not whether as a matter of law Brammer abandoned his objections to the award of the special commissioners, but is whether the trial judge abused his discretion in • overruling and in not sustaining Denton County’s motion to dismiss the objections. Our latest expression on the subject of discontinuance or abandonment is found in Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85. In that case we reaffirmed the power of a trial court to dismiss a legal proceeding because of failure to prosecute it with due diligence, and said:

“The matter rests in the sound discretion of the trial court. It is not an unbridled discretion, but a judicial discretion subject to review. Upon review, the question is whether there was a clear abuse of discretion by the trial court. That is a question of law.” (307 S.W.2d 87)

Before an appellate court can decide the law question of whether there has been a clear abuse of discretion by a trial court, the record before that court must have been such as to call for the exercise of discretion and it must have been exercised. This is made clear by our decision in Callahan v. Staples, 139 Tex. 8 161 S.W.2d 489, from which the majority quote. The rule there announced is that “whenever a delay of an unreasonable duration occurs, , such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment * * *, and a discontinuance results.” That is but another way of saying that unreasonable delay in prosecuting a legal proceeding as to which one has the duty of action raises a rebuttable presumption of abandonment, and in the absence of evidence of facts and circumstances excusing the delay the presumption will become conclusive and a discontinuance will result. A conclusive presumption cannot be rebutted or explained away. The full import of the quotation from Callahan v. Staples cannot be obtained by separating it from the facts and the actual holding in the case.

The essential facts in Callahan v. Staples are these: On June 9, 1928, Callahan and Robertson recovered a judgment against Staples, who had been cited by publication. On June 6, 1930, Staples and Bowen (who held under Staples)-filed a motion'for new trial under the provisions of Article 2236, ■Vernon’s Annotated Texas Statutes. Other than the taking and filing of Staples’ deposition on August 25, 1931, no action was taken toward prosecution of the motion for new trial until October 24, 1938. A motion to dismiss the motion for new trial on the ground of abandonment was filed. Staples and Mrs. Bowen offered to prove that they had good reason for the long delay in prosecuting their motion for new trial, but the trial court refused to hear evidence and dismissed the motion. This court specifically held that the trial court erred in refusing to allow the mov-ants “to show, if they can, a sufficient excuse for the delay, which occurred prior to October 24, 1938, in the prosecution of the motion for new trial.” Of particular significance is the language of the court immediately following that which is quoted in the majority opinion. It is:

“However, since the discontinuance ' must be based on a factual situation involving lack of due diligence, same does not and cannot become effective until the basic facts are adjudicated by the court. Whenever the hearing for such adjudication is had, the plaintiff has the right to be heard to explain, if he can, his delay in prosecuting his suit.” (161 S.W.2d 491)

Considered together, the rules of the Callahan and Bevil cases add up to a reasonable, logical and salutary whole. One who files a judicial proceeding owes a duty to prosecute it with due diligence. When a motion to dismiss a proceeding on the ground of abandonment is filed, the trial court must first determine whether the proceeding has been oil file, without action, for an unreasonable length of time. If it has not, the motion should be overruled summarily. If it has, a rebuttable presumption of abandonment arises, and an opportunity should be afforded the party who filed the proceeding to prove, if he can, that he had good reason for his delay in prosecuting the ■ proceeding. If' he fails or refuses to offer proof, or if the proof offered ’fails to show good reason for the delay, the presumption is not rebutted and becomes conclusive, and the motion to dismiss should be granted. If proof is offered and does show good reason for the delay, the presumption is rebutted and the motion should be overruled. Whatever may be the action of the trial court, and at whatever stage it is taken, it is to be taken in the exercise of sound judicial discretion and is erroneous only if it is so arbitrary as to constitute an abuse of discretion.

If Callahan stands for anything it stands for the proposition that it is an abuse of discretion to grant a motion for dismissal based upon abandonment without affording the party who filed the proceeding an opportunity to offer evidence showing good reason for the delay. And yet, this court’s action in this case in sustaining Denton County’s motion to dismiss contains the same inherent vice. Brammer has had no opportunity to offer evidence explaining his delay, and our judgment denies him that opportunity.

So far as the record before us discloses, the trial judge summarily overruled the County’s motion to dismiss. There is no indication that he heard evidence of any kind from any source, or that he offered either party an opportunity to present evidence. He may have concluded that a delay of seven years in having citation issued and served on the County and a delay of five years in having the case set for trial after withdrawal of the deposited award was not unreasonable delay. If so, I am satisfied that his action in overruling the motion was an abuse of discretion. But it does not follow that the judge abused his discretion in failing summarily to grant the motion.

When the trial judge acted he had before him a record showing unreasonable delay by Brammer in having citation issued and served and in having the case set for trial. As matters then stood there was a rebuttable presumption óf abandonment by Brammer of his objections. But a summary granting of the motion without affording Brammer an opportunity to offer evidence rebutting the presumption would, according to Callahan, have been an abuse of discretion. For, as we said there, a discontinuance “does not and cannot become effective until the basic facts are adjudicated by the court.”

The only possible point of distinction between what we held to be wrong in Callahan and what we hold to be right here is that in Callahan Staples requested the trial judge to hear evidence on the reason for his delay, while in this case Brammer made no such request. But that distinction fails to recognize the simple facts of life in a judicial proceeding. In Callahan there was reason for the request because the judge was granting the motion to dismiss and Staples was trying to offer evidence to convince the judge that he was not justified in taking that action. In this case there was no reason for Brammer to request an opportunity to offer evidence to convince the judge that he should overrule the motion to dismiss because the judge was taking that action without evidence. To turn Bram-mer’s right to maintain his suit on his failure to request the trial judge for an opportunity to offer evidence is, under the circumstances, utterly unrealistic and unreasonable.

No opportunity has been offered Bram-mer to present evidence to the trial judge to explain his undue delay in the respects mentioned, and the trial judge, therefore, has had no opportunity to exercise his discretion in adjudicating the basic facts of the discontinuance. I would reverse the judgments of the courts below and would remand the cause to the trial court with directions to hear such evidence as Bram-mer may care to offer on the motion to dismiss. The trial judge should then act on the motion to dismiss. If good reason for his delay is not shown by Brammer, his objections should be dismissed and judgment should be entered on the award just as though no objections had been filed. If good reason is shown, the motion to dismiss should be overruled and the court should proceed to retrial of the case on its merits. In either event the court’s ruling on the motion to dismiss would be reviewable on appeal as for abuse of discretion.

WALKER, GREENHILL and STEAK-LEY, JJ., join in this dissent.

CULVER, Justice

(concurring).

I concur in the result reached here, namely, the reversal of the judgments of the trial Court and the Court of Civil Appeals, and the rendition of judgment in favor of G. H. Brammer and wife, only in the sum of $800.00, for the reason that in my opinion the matters of fact alleged by the con-demnees in their brief to excuse their delay are not sufficient in law.

      . “6. If either party be dissatisfied with ' the decision, such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court.”


author: NORVELL, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Petitioner, v. Joe B. SEABOLT, Respondent.
    No. A-8770.
    Supreme Court of Texas.
    Oct. 17, 1962.

      Turpin, Kerr, Smith & Dyer, Midland, for petitioner.
    Warren Burnett, Odessa, for respondent.
   NORVELL, Justice.

This is a workmen’s compensation case. The trial court rendered judgment upon jury findings allowing Seabolt a recovery for the permanent loss of the use of his right hand. The Court of Civil Appeals has affirmed, 351 S.W.2d 350. We sustain Travelers’ point of error which asserts that "the Court of Civil Appeals erred in affirming a judgment awarding maximum benefits in a Workmen’s Compensation case for injury to a hand, when there is no evidence of the total loss of the use of such hand.” The judgments of the trial court and the Court of Civil Appeals are reversed and the cause remanded for another trial.

In addition to the point above set out, the application for writ of error was also granted upon a point complaining of the way in which the case was submitted to the jury. In determining the question of reversible error in connection with a jury submission, it is necessary to consider the objections of counsel made to the charge and the like. In view of our holding on the “no evidence” point asserted by Travelers, it is unnecessary to consider the details and technicalities of the charge and the objections thereto other than to point out that, as an abstract proposition, Special Issue No. 1 and the definition accompanying it does not embody a correct statement of the substantive law relating to a total loss of the use of a hand. In the interest of clarity, Special Issue No. 1 and the definition accompanying it are here set forth:

"Special Issue No. One.
“Do you find from a preponderance of the evidence that the injury to plaintiff’s right hand on the 6th day of October, 1959, if any, has resulted, or will result, in a ‘loss of use’ of said hand?
“By the term ‘loss of use’, as used in this charge is meant that the member is so affected as to substantially and materially impair the use thereof in the practical performance of its functions in the pursuit of a laboring man.”

Article 8306, § 12 provides that "the permanent loss of the use of the member is equivalent to, and shall draw the same compensation as, the loss of that member.” Although the word “total” is not used, it is clear that the Legislature intended the phrase to mean a total loss of the use of a member. While the absence of the word “total” is not necessarily fatal to a correct submission of an issue, if followed by a proper definition, the use of the word in the issue itself is recognized as the preferable form of submission.

There are two concepts of the phrase, “total loss of the use of a member.” Under the wording of the statute it can be said that a total loss of the use of a member exists whenever, by reason of injury, such member no longer possesses any substantial utility as a part of the body. This meaning of the phrase does not embrace or have reference to the effect which the injury may have upon the injured party’s earning capacity or his ability to secure and retain employment. The loss in law amounts to a partial disability and is compensable as such even though in fact no diminution of earning power has resulted. Aetna Casualty & Surety Co. v. Moore, Tex.Sup., 361 S.W.2d 183, Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926, Texas Employers Ins. Ass’n v. Thrash, Tex.Civ.App., 136 S.W.2d 905, l. c. 907, wr. dism., judgm. cor.

There are however a number of decisions which support a somewhat broader concept than that above stated and one which will in most instances be more favorable to the injured workman than the one just stated. Although a member may possess some utility as a part of the body, if its condition be such as to prevent the workman from procuring and retaining employment requiring the use of the injured member, it may be said that a total loss of the use of a member has taken place. Texas Employers’ Ins. Ass’n. v. Lane, Tex.Civ.App., 251 S.W.2d 181, ref. n. r. e., Travelers Insurance Co. v. Calcote, Tex.Civ.App., 205 S.W.2d 56, ref. n. r. e., Traders & General Ins. Co. v. Maxwell, Tex.Civ.App., 142 S.W.2d 685, wr. dism., judgm. cor. Cf. Choate v. American Motorist Ins. Co., Tex.Civ.App., 323 S.W.2d 188, no wr. hist. The phrase “loss of the use” naturally raises the question of loss of use for what purposes. The decisions mentioned above answer this question by relating the inquiry to purposes of work.

In testing the evidence we are governed by the following proposition or statement of law:

A total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.

Should the evidence be sufficient in law to satisfy either of the two requirer ments stated above the judgment should be affirmed, otherwise a reversal must be ordered.

Seabolt, who was a pipe fitter, testified that he returned to his job within one week after sustaining the injury in question and continued on the job until it was finished. Thereafter, he applied for and received unemployment compensation for a period of time upon his representation that he was able to work but could find no employment. At the time of the trial and for six to eight weeks prior thereto, he was steadily employed on another job in Big Spring, Texas, still as a pipe fitter, and was making a slightly higher wage than at the time of his injury. Seabolt testified that he could not pull on wrenches as he used to, and that he was no longer as accurate with a hammer because of a poor grip. At his present job, he was first assigned to do screw pipe work, but was then transferred to working with a welder since this required less use of the injured hand. The welder with whom Seabolt worked on his pipe fitting job testified that Seabolt favored his right hand and that he frequently had to change positions in order to use his left hand. He did, however, work with his right hand, and his employer had never complained as to the caliber of that work. It can not be said that this evidence is sufficient in law to show either that the hand possesses no substantial utility as a part of the body or that ap-pellee can not procure and retain employment requiring the use of the hand. The testimony shows no more than an impairment in the use of the hand, i. e., a partial loss of the use, rather than a total loss of the use of the hand. The evidence did not call for a submission of the “total loss of the use” theory. The case should have been submitted upon the basis of a partial rather than a total loss of the use of the hand.

What has been said above is to some extent contrary to the concept of total loss of use expressed by way of dicta in Traders & General Insurance Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900, wr. ref. The statement in Porter that by “loss of use * * * is meant that the member is so affected as to substantially and materially impair the use thereof, in the practicable performance of its functions in the pursuit of a laboring man” obviously includes the concept of an impairment of the use of a member. It does not describe a total loss of the use as distinguished from a partial loss of the use of a member, and hence cannot be approved.

Being of the opinion that our order heretofore rendered, which reverses the judgments of the lower courts and remands this cause for a new trial is correct, we overrule appellees motion for rehearing. The foregoing opinion will however be substituted in lieu of the original opinion which is withdrawn.

Motion for rehearing overruled.

      . Vernon’s Ann.Tex.Stats.

      . In its opinion in this case, the Court of Civil Appeals said:
      “The term ‘total loss of use’ has in specific injury cases been used with approval of our appellate courts. (Citing authorities) This would appear to be the more desirable way to submit specific injury loss of use cases, because it more clearly presents the question involved with less possibility of misinterpretation or misunderstanding.”
      See also, Kearby Peery, “Texas Workmen’s Compensation Practice, pp. 97-8.


author: DICE, Commissioner.

text:
    Jimmy W. BOWDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 34723.
    Court of Criminal Appeals of Texas.
    Oct. 17, 1962.
    Ruff Wall, Fred Whitaker, Carthage, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for failure to render assistance following an accident; the punishment, thirty days in jail and a fine of $500.

The indictment, drawn under the provisions of Sections 38 and 40 of Art. 6701d, Vernon’s Ann. Civil Statutes of Texas, charged that the appellant was the operator of a motor vehicle which was involved in an accident with a motor vehicle driven by Betty Finklee; that as a result of said accident the said Betty Finklee received serious bodily injury; and that the appellant did then and there fail to render to the said Betty Finklee reasonable assistance in that he failed to assist in making arrangements for the carrying of the said Betty Finklee to a hospital for medical treatment when it was then and there apparent that such treatment was necessary.

Our able state’s attorney confesses error and concedes that the evidence is insufficient to sustain the conviction.

With such confession of error we agree.

The evidence shows that a Chevrolet automobile driven by Betty Finklee, the injured party, was involved in a collision with a Lincoln automobile owned by the appellant. The collision occurred in front of the Fink-lee residence as Mrs. Finklee was making a left turn into the driveway. In the collision Mrs. Finklee was thrown from the automobile. Her nine-year-old daughter, who was riding with her, remained in the car. Mrs. Finklee’s husband, upon hearing the crash, came out of the house and went to the car. After getting his'daughter out of the car he went to his wife, who was lying on the ground. As he started to get his wife up off the ground, appellant staggered into him, told him his name, and asked that the officers not be called, stating that he had insurance and money. Mr. Finklee and his daughter, taking a position on either side of Mrs. Finklee, then assisted her to his car in the driveway. Appellant followed them to the car. Mr. Finklee then took his wife to a hospital, where she was treated for injuries sustained in the collision. Before leaving the scene appellant was told by Mr. Finklee to remain there until the officers arrived.

Neither the injured party nor her husband requested any assistance of appellant.

It was shown that one of the tires on appellant’s atuomobile was blown out in the collision and that the nearest telephone was two miles from the scene.

Assuming that appellant was the driver of the automobile involved in the collision, he stands convicted for failing to do that which the injured party’s husband and child did do when they assisted her to the car and she was carried to the hospital by her husband.

In Williams v. State, 132 Tex.Cr.R. 33, 102 S.W.2d 212, this court in discussing the court’s charge in a prosecution for failure to stop and render aid stated that the accused’s failure to do for the injured party that which was done by others would not be criminal.

In the recent case of Powell v. State, Tex.Cr.App., 341 S.W.2d 915, a conviction for failing to carry the deceased to a physician or surgeon for treatment following an accident was reversed where the deceased’s brother chose to call an ambulance and the accused’s automobile was disabled.

Such are the facts in the present case, which show that appellant’s automobile was disabled and the injured party’s husband chose to carry her to the hospital.

Because the evidence is insufficient to support the conviction, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Gene MONASCO, Appellant, v. The STATE of Texas, Appellee.
    No. 34650.
    Court of Criminal Appeals of Texas.
    June 30, 1962.
    Rehearing Denied Oct 31, 1962.

      Chancy Croft, Gene Ater, Odessa, for appellant.
    Jack Tidwell, Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the breaking and entry of an automobile for the purpose of committing theft (Article 1404b, Vernon’s Ann. P.C., as amended Acts 1955, page 351); the punishment, two years.

The 1958 Chevrolet automobile owned by Gordon L. Shirley was parked and locked by the owner at the Bruce Courts in Odessa. The next morning, it was discovered that the automobile had been broken into and various items of personal apparel had been removed. Mr. Shirley’s army trench coat and a personal check book were among the items missing.

About 2:10 A.M. appellant was seen by Officer Fillyaw about a block and a half from the Bruce Courts. He was with another man, and they were carrying some clothes. The officer testified that appellant had several items of clothing: “I particularly noticed a trench coat, a pink army type trench * *

The investigation which followed the report of the breaking and entry of the automobile led the officers to the Golder Hotel in Odessa, where the room of appellant was pointed out. Appellant was not present. A warrant of arrest was issued, and officers again went to the hotel and waited until appellant returned. He was arrested and consented to the search of his room.

The trench coat missing from the automobile was found in the closet of appellant’s room. In a pocket of the coat was found the personal check book of Mr. Shirley.

Appellant’s first claim of error is “The trial court erred in not granting defendant’s motion to strike all testimony relating to any evidence found in the room of the defendant as such information was obtained as the result of an illegal search and thus was inadmissible.”

Police Captain James Johnson testified that he first saw appellant at the Golder Hotel between five and six o’clock in the afternoon, and talked with him, and that with his permission he entered appellant’s room, searched it and found the trench coat and check book which were introduced in evidence. On cross-examination, Captain Johnson testified that he went to the Golder Hotel about 2:00 P.M., talked to the manager and found out appellant lived there and returned to the station; that about 5:00 P.M., after detective Fred Johnson filed on appellant and a warrant of arrest was issued, he went back and parked across the street, where he waited for over an hour. Captain Johnson denied that he went in appellant’s room the first time he went to the hotel.

The trial court properly overruled appellant’s request that the evidence relating to the search be discarded because he was under arrest and, therefore, incapable of giving his permission for a search of his home. Feather v. State, Tex.Civ.App., 333 S.W.2d 851; Sikes v. State, Tex.Cr.App., 334 S.W.2d 440; Graves v. State, Tex.Cr.App., 336 S.W.2d 156; Henderson v. State, Tex.Cr.App., 353 S.W.2d 226; and Meza v. State, Tex.Cr.App., 360 S.W.2d 403.

After the State rested, Captain Johnson was recalled by appellant’s counsel and testified that he did not learn that a top coat was in the closet by him or his companion going into appellant’s room during his absence. Appellant then called William B. Jackson, who assisted in the management of the Golder Hotel, who testified that he designated to the officers the room of appellant, and that Captain Johnson walked in and opened the closet door and looked in the closet and said, “There is a gabardine coat.”

Following the testimony of Mr. Jackson, appellant’s counsel moved for an instructed verdict “based upon the evidence produced in court that an illegal search was made of the defendant’s room without his consent and prior to the issuance of a warrant for his arrest, and without a search warrant.” The motion was overruled and exception was reserved.

We do not agree that the motion for instructed verdict may be considered as a motion to exclude the evidence relating to the recovery of the stolen property admitted without proper objection. The fruits of the search were admitted in evidence without any valid objection being leveled thereto. 23 Tex.Jur.2d 227. In developing his own defense, appellant called a witness who attempted to raise an issue as to the legality of the search. Only after this evidence was produced was appellant heard to complain and that by means of an instructed verdict, which was clearly improper. If Mr. Jackson’s testimony did raise an issue as to the legality of the search, the issue should have been submitted to the jury, as appellant requested. However, it does not appear that exception was reserved to the court’s failure to submit the issue. See Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291, and cases there cited.

Our holding that the evidence relating to the search was properly before the court disposes of appellant’s contention that without such evidence his motion for instructed verdict was improperly overruled.

remaining claim for reversal re-reto the overruling of appellant’s motion for mistrial after Captain Johnson, upon be-beasked what happened when he first saw appellant in the hall on the second floor of the Golder Hotel, answered, “I told Mr. Monasco, I knew him by pictures in our identification * *

The trial court instructed the jury to disregard the statement, but overruled appellant’s motion that a mistrial be declared.

The failure of the trial court to declare a mistrial does not call for reversal. Ram-Ramv. State, 165 Tex.Cr.R. 409, 308 S.W.2d 26, supports such holding.

The facts distinguish this case from thé recent case of Hicks v. State, Tex.Cr.App., 355 S.W.2d 189, where there was evidence that the jury considered the witness’s statement that had been withdrawn by the court.

The judgment is affirmed.


author: COLEMAN, Justice.

text:
    LAMONS METAL GASKET CO., Appellant, v. Vernon F. TRAYLOR et al., Appellees.
    No. 13820.
    Court of Civil Appeals of Texas. Houston.
    Oct. 11, 1962.
    Rehearing Denied Nov. 1, 1962.
    B. R. Pravel, Hayden & Pravel, W. James Kronzer, Hill, Brown, Kronzer, Abraham, Watkins & Steely, and Mabel Grey Howell, Houston, for appellant.
    Cooper K. Ragan, John L. Russell, and John E. Pledger, Jr., Houston, for appellees.
   COLEMAN, Justice.

This is a trade secrets case. Appellee, Vernon F. Traylor, brought this suit for a declaratory judgment and damages for wrongful interference with contract rights against Lamons Metal Gasket Company, a corporation. This corporation answered and filed a cross-action against Traylor, Houston Gasket and Packing Co., Inc., and Southern Metallic Gasket Co., Inc., praying for an injunction restraining them from using or revealing trade secrets of Lamons and for damages. The trial court rendered a declaratory judgment sustaining the position of Traylor, but denied damages. All parties have perfected appeals.

In 1946 W. A. Lamons employed Vernon Traylor as superintendent of a manufacturing establishment which he operated under the trade name of W. A. Lamons Manufacturer. W. A. Lamons produced soft gaskets and sold metallic gaskets purchased on the market. Subsequently because of increased competition in the soft goods market the working capital of the business was depleted and Lamons determined that the business would have a better chance of success if it produced the metallic gaskets it sold. He discussed the matter with Traylor, who, in addition to his other duties, undertook to build a machine on which such gaskets could be made. While he had no experience in producing such gaskets and had never built such a machine, from his experience as a machinist and knowledge gathered from studying a metallic gasket and literature on metal working machinery, by trial and error he was successful in making an efficient machine. Thereafter he built three more machines, which were put to use by W. A. Lamons.

Traylor became dissatisfied with his employment and discussed going into a competitive business with Bob Owen and Paul Nuckolls. He told them of certain other machines he wished to build to increase the efficiency of the plant. Owen and Nuckolls requested Traylor to remain with W. A. Lamons and they would try to buy this established business. They were successful, and on May 1, 19S8, Lamons Metal Gasket Company, a corporation owned by Owen and Nuckolls, purchased the business, machines, and “all and singular the rights and appurtenances thereto.” Traylor was retained in the same capacity with the new company at an increased salary. Thereafter he was relieved of some of his management chores so that he could devote most of his time to the building of the new machines. He built five more machines before he left the company in January, 1960.

He then entered into a contract with Houston Gasket and Packing Co., Inc. Within a short time the Lamons Company wrote Houston Gasket and Traylor warning Traylor against making known, and Houston Gasket against making use of, any confidential information or trade secrets which Traylor might have learned while employed by W. A. Lamons or Lamons Metal Gasket Company. Thereafter the contract between Traylor and Houston Gasket was rescinded, but Traylor entered into a contract with Southern Metallic Gasket Co., Inc., a new corporation substantially owned by the principal stockholders of Houston Gasket. He built two machines for Southern Metallic Gasket Co., Inc., substantially similar to those owned by appellant.

Appellant contends that Traylor as superintendent in charge of manufacturing of W. A. Lamons Manufacturer and Lamons Metal Gasket Company was in a special relationship of trust and confidence and that while occupying such relationship he learned how to build the nine machines developed for the specialized purpose of making metallic gaskets. The appellant contends that even though the various component parts of the machines are well known to the trade, the particular combination of parts was adapted to their needs by a process of trial and error and a large expenditure of funds and labor; that the machines in that sense are unique and give them an advantage over their competitors and, even though they may not qualify as inventions in a technical sense, are trade secrets and are entitled to protection as such. The trial court filed findings of fact contrary to the contentions of appellant.

It is undisputed in the record that Vernon Traylor gained his knowledge of the specific machines in question while employed by appellant and W. A. Lamons. There was no express agreement between Traylor and his employers to keep secret the details of the machines which he constructed for them. The trial court found that while Traylor was employed by appellant and W. A. Lam-ons, he was not informed that the design of the machines was confidential or that either of them claimed trade secrets in connection with the machines. The trial court further found that no precautions were maintained to insure secrecy.

An “employees only” sign was posted on the door to the plant, but there was testimony that the purpose of the sign was to eliminate possible interference with the work of employees and to minimize the danger of accidental injuries. Friends of Traylor, Lamons, Owen and Nuckolls were permitted to view the machines in operation. Representatives of customers, prospective customers and others were guided through the plant where the machines were demonstrated and their operation explained in detail. The machines were relatively simple and the component parts were not screened or hidden for the purpose of preserving secrecy as to the manner of their design or operation. These findings of the trial court are supported by evidence of probative force and are not contrary to the great weight and preponderance of the evidence.

The law will imply as part of the contract of employment an agreement not to disclose information which the employee receives as an incident of his employment, if the employee knows that his employer desires such information kept secret, or if, under the circumstances, he should have realized that secrecy was desired. It could not be considered actionable conduct on the part of an employee to reveal or use information gained in the course of his employment when in fact he did not know that his employer desired such information kept secret, and he was not charged as a matter of law with such knowledge. Laughlin Filter Corp. v. Bird Machine Co., 319 Mass. 287, 65 N.E.2d 545; Bristol v. Equitable Life Assurance Society, 132 N.Y. 264, 30 N.E. 506; Carver v. Harr, 132 N.J.Eq. 207, 27 A.2d 895; Woolley’s Laundry, Inc., v. Silva, 304 Mass. 383, 23 N.E.2d 899, 126 A.L.R. 752; Ridsdale Ellis, Trade Secrets, §§ 26,41, 55, and 246.

The trial court found as a fact that the mechanical means, ideas, and functional operations of the machines were not the subject of a secret; that before January 1, 1960 the machines were fully and completely revealed to the public by conducted tours and demonstrations and that the “mechanical means, ideas and functional operations” of the machines were not hidden and no effort was made to keep them a secret. These findings are supported by competent testimony in the record and are not contrary to the great weight and preponderance of the evidence. The trial court did not err in refusing to restrain appellee Traylor from using or divulging the information and knowledge of the machines used by appellant in its manufacturing business which he had learned while employed by appellant since such information and knowledge was not secret. Vulcan Detinning Co. v. Assmann, 173 N.Y.S. 334, 185 N.Y.App.Div. 399; Smoley v. New Jersey Zinc Co., D.C., 24 F.Supp. 294 (aff’d 3 Cir., 106 F.2d 314); Laughlin Filter Corp. v. Bird Machine Co., 319 Mass. 287, 65 N.E.2d 545; Sandlin v. Johnson, 8 Cir., 152 F.2d 8; Carver v. Harr, 132 N.J.Eq., 207, 27 A.2d 895.

trial court also found that the machines, which Lamons Metal Gasket Company contends are trade secrets, were generally known to the metal gasket indus-indusand metal industry as a whole, and that any differences that might exist between them and other machines in the industry are trivial. There is testimony which supports this finding and, while this testimony is strongly controverted, we cannot say that the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Since the information, which appellant contends is its trade secret, is generally known in the industry, there is no legally recognizable trade secret. Brown & Root v. Jaques, Tex.Civ.App., 98 S.W.2d 257; Ridsdale Ellis, Trade Secrets, § 20.

The record in this case is voluminous, consisting of 1270 pages of testimony and several volumes of exhibits. The trial court filed some 79 findings of fact and 29 conclusions of law. Both Traylor and Lamons requested additional findings and conclusions, some of which were granted. Lamons filed numerous exceptions to the trial court’s findings of fact and conclusions of law and has briefed some 26 assignments of error complaining that most of the fact findings are either supported by no evidence or are against the great weight and preponderance of the evidence.

The findings of fact which we have discussed are sufficient to support the judgment of the trial court refusing to enjoin appel-lees’ use of the claimed trade secrets. It would serve no useful purpose to discuss appellant’s assignments of error separately. We have considered each of them and they are overruled.

While we recognize that it is settled law in this State that confidential information secured by reason of fiduciary relationships may not be used or disclosed by the fiduciary irrespective of an agreement not to do so, Welex Jet Services, Inc. v. Owen, Tex.Civ.App., 325 S.W.2d 856, Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, the rule is not applicable here since there was no confidential information given to Traylor, and appellant had no trade secret which the court could protect.

Traylor sought damages from La-mons Metal Gasket Company on the theory that Lamons Metal Gasket Company wrongfully had caused Houston Gasket Co. to terminate its contract with him. The trial court found that the letters sent to Traylor and to Houston Gasket by Lamons Metal Gasket, in which they asserted that the machinery constituted trade secrets, were sent in good faith. There are no findings that in sending these letters the Lamons Company acted without legal justification. The trial court also found that Traylor suffered no damage.

Assuming that the Lamons Company’s claim of trade secrets in the design of the machinery at issue had been sustained by the trial court, neither Houston Gasket nor Southern Metallic would have been liable for the use of the trade secrets had they purchased such information without notice that such information constituted the trade secrets of the Lamons Company. K & G Oil Tool & Service Co., Inc. v. G. & G. Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782; 4 Restatement of Torts, § 758. From the record the trial court could have concluded that the Lamons Company was justified in believing that it owned a trade secret and, therefore, was privileged to assert such claimed right. Tidal Western Oil Corporation v. Shackelford, Tex.Civ.App., 297 S.W. 279, writ ref.; 4 Restatement of Torts (1939), § 773. In any event the trial court concluded that Traylor failed to prove damages, and we are unable to hold that damages were proven as a matter of law.

The judgment of the trial court is affirmed.


author: BELL, Chief Justice.

text:
    Fannie SWEATS et al., Appellants, v. SOUTHERN PINE LUMBER COMPANY, Appellee.
    No. 13918.
    Court of Civil Appeals of Texas. Houston.
    Oct. 4, 1962.
    Rehearing Denied Nov. 1, 1962.

      Adams & Granberry, F. P. Granberry, Crockett, for appellants.
    Ward R. Burke, Diboll, R. E. Minton, Lufkin, Hutson & Cauthan, Groveton, for appellee.
   BELL, Chief Justice.

This suit involves the correct location of the north line of the James Rust Survey in Trinity County. That line will also be the middle south line of the George Wilson Survey because the call in the Wilson field notes is for the north line of the Rust. The Rust is the senior survey. The trial court, sitting without a jury, found the north line of the Rust to be as contended for by appel-lee, that is, it followed the meanders of the cutoff of Piney Creek. This meant that the appellant Payne had cut timber on a tract of about 15 acres which lay in the Wilson Survey which belonged to appellee. Judgment was rendered awarding title to the tract to appellee and it also awarded damages for the value of the timber cut.

As an aid to understanding the opinion we attach hereto a drawing that we have made. The number 175 represents the undisputed northeast corner of the Rust Survey on Piney Creek. The letter M represents the point at which Piney Creek forks. The south fork, or cutoff, of Piney Creek meanders as shown on the drawing. Piney Creek, or the north fork, meanders from M through E, Y and D-l. The area M, E, 176 (the area with diagonal lines) represents the acreage awarded appellee after the trial court found the north line of the Rust to be the cutoff of Piney Creek. Appellee had contended such line was either as the court found or the straight line from 176 to A. S, 175 represents the east line of the Rust. R, B represents the east line of the Ware. A, R represents the west line of the Rust which corresponds with the east line of the Ware. C, D represents the east line of the Evans and a part of the west line of the Wilson. D, T represents the east line of the Gregory and part of the west line of the Wilson.

The number 174 represents the lower southeast corner of the Wilson. B, Y represents a projection of the east line of the Ware from its northeast corner.

The drawing is not to scale. We have not shown some other adjoining surveys as shown by the record because we deem such unnecessary. It suffices to say that their location is not in dispute.

The senior survey is the Richard Gregory, which was surveyed June 2, 1857 by J. W. Hamilton. It is not necessary to notice all of its boundaries, but is only material to notice the call establishing its east line, particularly with reference to the call for Piney Creek. After reaching a point for the inner southeast corner (Point T), there is a call “Thence South 840 vrs., cross Piney Creek 10 vrs. wide course E. cross and recross the same creek at 990 vrs. * * * ” The 990 vara crossing is shown as D-l.

The next day, June 3, 1857, the same surveyor surveyed the M. L. Ware Survey. It was resurveyed by George Gibson September 10, 1859. The material calls here are for the east line and the north line. From its southeast corner the call is “Thence N. 920 vrs. cross Piney cutoff at 1158 vrs. a corner from a white oak 7" in diameter marked X brs. S 63° W 1½ vrs distant, a Lynn 12" diameter marked X brs N. 27 E 2 vrs Distant.” The crossing at 990 varas is just above the letter A on the drawing at point K. The southeast corner calls for a stake from which a stump 4 inches in diameter marked X bears north 3 varas. Then there is the call from point B, or the northeast corner of the Ware to go west and cross the cutoff of Piney at 245 varas. Therefore, because of the bearing trees called for at the southeast and northeast corners the east line of the Ware became a marked line.

The Rust was surveyed June 10, 1958, by J. W. Hamilton. From its southeast corner, represented by the letter S, is the call “Thence north at 238 vrs. pass Castleberry S. W. corner at 2275 Piney Creek.” The figure 175 represents the undisputed northeast corner of the Rust on Piney Creek. Then comes the call that gives rise to the controversy here. It reads: “Thence W. up said creek 519 varas to the E. line of the M. L. Ware pre-emption.” Then is the call “thence S. with the same 809 varas to the S. E. corner of the same.” That is the S. E. corner of the Ware represented by the letter R on the drawing. The problem is created when we apply the call “thence W. up said creek” because about 130 varas west of the northeast corner at the letter M Piney Creek forks. The south fork, or cutoff, runs just a little south of west from M. The north fork, or what appellants choose to call “Piney Creek,” runs due north from M for about 450 varas. It then makes a sharp bend and runs nearly due west and continues for about 1000 varas where it crosses the east line of the Richard Gregory Survey.

It will thus be seen that if the north fork is followed, as appellants contend should be the case, the north line of the Rust will not reach the east line of the Ware. It would, at point Y on the drawing,' reach a projection of the east line of the Ware about 200 varas north of point B, which is the marked northeast corner of the Ware. That point would be about 475 varas north of where Piney cutoff crosses the east line of the Ware. Too, if the north fork is followed it would be about 1000 varas (not following the meanders) from 175 north to the bend, thence west through E to Y, the point where it would cross the projection of the east line of the Ware.

• The George Wilson was surveyed by George Gibson February 18, 1868 and resurveyed in February, 1871. He began at the southeast .corner of the Gregory Survey and ran north with the Gregory east line. The first call called to cross Piney Creek at •150 • varas. -The point of crossing is as shown at point D-l. The seventh call is to run north with the east line of the Rust 309 varas to the Rust northeast, corner. This would be to figure 175 of the drawing. The eighth call then reads “Thence west with Rust’s N. B. 846 vrs. on M-..L. Ware’s E. B. line a stake for cor.” The next call is “north with Ware’s east boundary line 183 vrs., his N. E. corner of his preemption survey a stake from which a white oak 7" in diameter brs. S. 63° W 1% vrs. distant, a Lynn 12" in dia. brs N. 47° E. 2 vrs distant.” The next call is to go west 245 varas where the cutoff of “Piney” is crossed.

• Appellants contend that the Rust north line meanders with what they call Piney Creek from point 175 through E to Y as shown on the drawing. They say Piney Creek was called for and since it is a natural object, it will control unless it is shown the surveyor was mistaken in his call and that there is no evidence that Mr. Hamilton, the surveyor, was mistaken when he called for the north line of the Rust to run west with Piney Creek. They say there was a difference between Piney Creek and cutoff of Piney Creek that was known to the survey- or and the trial court erred in refusing to find there was a difference and such was known to the surveyor, J. W. Hamilton.

Two surveyors, Roland Goodrich and Kenneth Nelson, who had made surveys on the ground of the material lines of the Gregory, Ware, Rust, Wilson and Goff Surveys, testified. We think it unnecessary to notice their testimony in detail but it will suffice to notice the effect of their testimony. Each of them made his survey in the late 1950’s. Mr. Goodrich ran the east line of the Gregory, which is the west line of the Wilson, from point D-l shown on the drawing to the northeast corner of the Gregory shown as point T. He also ran the lines of the Wilson from such corner following the field notes to the east, south and west back to point 175. He also surveyed along the north fork of Piney Creek from D-l through Y, E and 175. Mr. Nelson ran the east line of the Rust Survey from point 174 to 175. This is also an inner west line of the Wilson Survey. Pie then surveyed from point 175 to M to 176 to A, along the cutoff or south fork of Piney Creek, which appel-lee contends is the dividing line between the Rust and Wilson Surveys. Then he surveyed the east line of the Ware Survey from A to B and the north line from B to C. He also surveyed the east line of the Evans Survey from C to D, which would be a part of the west line of the Wilson Survey, and then went from D to D-l on the east line of the Gregory and west line of the Wilson.

The substance of Goodrich’s testimony is that he found the east line of the Gregory as shown on the drawing and the line crossed Piney Creek or its north fork at the approximate point called for by the Hamilton field notes of June 2, 1857. He followed the field notes of the Wilson from the northeast corner of the Gregory and following the calls there given he reached point 175' which is the northeast corner of the Rust Survey. He then followed Piney Creek to point M where it forked and then followed the north fork through E and Y to D-l. Following the north fork he went north from point M. That fork does not reach the east line of the Ware but is 200 varas north of point B, the northernmost point of the Ware. The north fork crosses the Gregory Survey east line at D-l.

The substance of Mr. Nelson’s testimony is that following the south fork or cutoff on Piney Creek, the creek runs almost due west. It, of course, meanders, hut runs a little south of west. The distance by straight line from 175 to A is 600 varas. By meandering the stream, the distance would be between 800 and 900 varas. At point A, B and C he found concrete markers. The one at point B was marked “Dial” on the line. From 176 to A, B and C the lines were marked with blazes on some trees. They had been marked with white paint. He did not find the original bearing trees on the Ware east line called for in the Wilson and Ware field notes. He found the east line of the Ware crossed the cutoff of Piney at about the point called for by J. W. Hamilton, when he surveyed it the day following his survey of the Gregory. The Ware was resurveyed by Gibson two years later in September, 1859.

The surveyors also show by their testimony that the two forks of Piney Creek were alike in their physical characteristics.

We have reached the conclusion that the trial court correctly located the north line of the Rust Survey so as to follow the meanders of the cutoff of Piney Creek from the established northeast corner of the survey to the northwest corner on the east line of the Ware Survey where the creek crosses the east line as shown on the attached drawing shown as point K. Actually the court had before it the line only as far as point 176 but the necessary effect of the judgment is to fix the whole north line with the meanders of the creek to the point where it crosses the east line of the Ware at point K.

It is true, as appellants assert, that a call for natural objects is a call to the highest dignity, but this does not mean that in all circumstances such a call is absolutely controlling. Such a call may be shown to be a mistake like any other call, and this may be shown circumstantially. The cardinal rule is that the footsteps of the survey- or shall, if possible, be followed. Stafford v. King, 30 Tex. 257; Koepsel v. Allen, 68 Tex. 446, 4 S.W. 856.

As shown above by the field notes of the Ware Survey that is senior to the Rust, the east line of the Ware Survey has the status of a marked line because of the bearing trees. Goodson v. Fitzgerald, Tex.Civ.App., 135 S.W. 696, no writ hist. This line was run by J. W. Hamilton, the same surveyor who a year later surveyed the Rust. Presumably, and as indicated by the testimony of Goodrich and Nelson, who found the line, or certainly the portion from A to B, marked, he ran the line on the ground. Maddox v. Turner, 79 Tex. 279, 15 S.W. 237. The result is that when Hamilton called for the north line of the Rust to go “west up said creek to the E. line of M. L. Ware’s preemption,” he called for a known marked survey line. This call in the field notes was for objects of equal dignity, the marked line of an adjoining survey and a creek with two forks. Therefore, we find one of two conflicting locations is possible. Under such circumstances the call will be followed that is most consistent with the intention of the surveyor as reflected by the entire description. Davenport v. Bass, 137 Tex. 248, 153 S.W.2d 471; Davidson v. Killen, 68 Tex. 406, 4 S.W. 561. All of the surrounding facts and circumstances must be looked to in determining the intention of the surveyor. Blackwell v. Coleman County, 94 Tex. 216, 59 S.W. 530; Thomas Jordan, Inc. v. Skelly Oil Co., Tex.Civ.App., 296 S.W.2d 279, ref., n. r. e. Too, where some calls must be rejected, those will be rejected so as to result in the least conflict in the description. Wilson v. Giraud, 111 Tex. 253, 231 S.W. 1074. The calls should be harmonized in so far as possible. Ayers v. Harris, 64 Tex. 296. When they cannot be harmonized, effect should be given to those calls that will result in the least conflict. As few calls should be disregarded as possible. State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228.

When Mr. Hamilton was at point 175, the northeast corner of the Rust, he knew the north fork of Piney Creek crossed the east line of the Gregory Survey at D-l. He knew the location of the east line and north line of the Ware. He had run these lines and had given the east line of the Ware the status of a marked line. He knew where the cutoff of Piney crossed the east and north boundary lines of the Ware. He knew the north fork of Piney did not cross the marked east line of the Ware. When he called to go west with Piney, a creek with one name but two forks, it would seem reasonable to suppose he would think others would understand he meant the south fork because that was the course of such fork, while the course of the other fork from point M was almost due north. Particularly would he think there would be no question about his intending the south fork because it, and not the north fork, crossed the marked east line of the Ware where he called for the line to go. If the northwest corner of the Rust is placed about at point K where the south fork of Piney crosses the east line of the Ware, the west line of the Rust would not be excessively different from the called distance in the Ware field notes from corner R to the cutoff of Piney. Too, the west boundary of the Rust, when adjusted for the offsets on the south end, would coincide with the length of its east boundary line.

When we use Piney Creek from point 175 to M and the south fork of Piney from M to point K, where the south fork crosses the east line of the Ware, we give effect to all of the calls in the Rust field notes.

If, however, we use the north fork of Piney, as the north line of the Rust, we must reject the call for the marked east line of the Ware because that fork of Piney does not cross that line but would pass through point Y representing the terminus, 200 varas north, of a projection of such east line. Too, we would have to reject the call to go south with the east line because you reach that line only at a point 200 varas south. Further, you would have to reject the distance call to the south because if Y is the northwest corner it is about 350 varas to the nearest point south where Piney cutoff crosses the east line of the Ware. Further, if you use the north fork of Piney, you must reject the call for distance because the surveyor called to go 519 varas. Such would place the northwest corner of the Rust just west of the sharp bend in that fork and some 500 varas east of point Y, if we use a straight line instead of meandering the stream. If you use the south fork, however, the distance by a straight line from 175 to A would be 600 varas instead of the 519 called for. Meandering the creek would be between 800 and 900 varas. Further, you would have to reject the call for course because from point M the north fork runs almost due north for about 450 varas and on making a sharp turn to the west runs almost due west to where it crosses-the east line of the Gregory.

Also, in attempting to locate a line it is permissible to reverse the calls. Ayers v. Lancaster, 64 Tex. 305. If we do this and begin at point R, the field notes would read “Thence North with the east line of M. L. Ware’s Preemption Survey 809 varas to Piney Creek; thence east down said creek 519 varas; thence South 2275 varas.” When this is done, you go from R to K to-175 to S. Here it would be the cutoff of Piney that you reach at approximately 809 varas and not the north fork some 500 varas farther north. Here you would reject no call.

Appellants contend that Piney Creek cutoff was a navigable stream and survey lines could not cross it. In the first place, the court found the line to meander with the creek and did not call to cross it. In the second place, we do not think appellant established it to be navigable. In the third place, if it did cross it the patent was validated by Article 5414a, Vernon’s Annotated Texas Civil Statutes; State v. Bradford, 121 Tex. 515, 50 S.W.2d 1065.

Appellants complain of the refusal of the trial court to find that Hamilton knew the difference between Piney Creek and Piney cutoff. We think this was purely an evidentiary matter.

The judgment of the trial court is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Nell C. CUTLER, Appellant, v. GULF STATES UTILITIES COMPANY, Appellee.
    No. 6397.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 4, 1962.
    Rehearing Denied Oct. 31, 1962.
    Barnes & Barnes, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

This is a wrongful death action brought under the authority of Article 16, sec. 26, of the Constitution of the State of Texas, Vernon’s Ann.St. providing for recovery of exemplary damages by the surviving widow and heirs where death is the result of the gross negligence on the part of the party-charged. The action was brought by Nell C. Cutler, as guardian of her minor daughter, and as surviving wife of James O. Cutler, against Gulf States Utilities Company as a result of the accidental death of her husband while he was employed by said company. Trial, before a jury, resulted in a judgment based upon an instructed verdict in favor of the defendant, from which judgment plaintiff has appealed.

On the day of the accident, September 2, 1954, J. W. Kirkland and G. H. Oglesbee, as vice-principals of appellee, dispatched James O. Cutler, the deceased, two subfore-men, J. L. Childress and J. B. Morrison, together with four other employees, to replace a broken insulator on a high voltage power line in the near vicinity of one of appellee’s power plants in Jefferson County. (The exact juxtaposition of the workmen to each other and the measurements between and/of various objects connected with the job hereinafter referred to are not entirely specific when the testimony of the several witnesses are compared as a whole; therefore, positions and measurements referred to herein are the averages of such testimony). Upon reaching the location of the broken insulator Childress, Morrison and Cutler proceeded up a ladder to a steel structure located about 25 feet from the ground. The power line in question, carrying 138,000 volts of electricity, running east and west at about the same height from the.ground as the steel structure, ran parallel to said structure 5 or 6 feet to the north. This power line was attached to the east and west sides of the broken insulator in such manner that the current flowing through the line from the west could not proceed through the insulator to the line connected to the same from the east without the aid of a “jumper”. This “jumper” consisted of a 47-strand copper wire 6 or 8 feet in length, one end of which was attached to the power line east of the insulator with the other end being attached to the power line on the western side thereof. Each end of this “jumper” was attached to the power line by means of a clamp known as a “hot-clamp”. On the same power line approximately 10 feet to the west of the broken insulator was a “wave trap”. The flow of electricity through this “wave trap” was likewise circumvented by means of a “jumper” attached on either side of it by “hot-clamps”. As a part of the procedure in removing the broken insulator, the workmen first attached an insulated block and tackle to the power line in such manner as to take up slack in the same, thereby removing strain from either side of the insulator. As the work progressed, one end of the “jumper” circumventing the “wave trap” in the power line suddenly, and without warning, came loose from the “hot-clamp” in which it was attached with the result that a great electrical flash, or arc, was created. The testimony reflects that this flash was of such dimensions as to have encompassed Cutler, who was working 8 to 10 feet from the “wave trap”. Simultaneously with the electrical flash, Cutler, who had only moments before, detached a safety belt he was wearing, fell to his death from the steel structure to the ground. It was stipulated in the record that his death was the result of his fall. The substance of the acts and omissions constituting gross negligence pleaded by appellant against ap-pellee, to which we give consideration may be grouped as follows:

(1) In failing to cut off the electric current of the power line before proceeding with the repairs; (2) in failing to provide a reasonably safe place to work; (3) in making use of the “jumper” and “hot-clamp” in question when each was defective and inadequate; (4) in failing to provide adequate safety rules and regulations for the performance of such dangerous work; (5) in permitting the use of the “jumper” and “hot-clamp” in question which were loose; (6) in failing to make reasonable inspection of them prior to proceeding with the work; (7) in failing to provide a competent supervisor to inspect the work; (8) in failing to provide proper tools with which to do the work; (9) in failing to warn Cutler of the dangers of the high voltage line.

We do not consider it necessary to state each of appellant’s first 13 points of error complaining of the trial court’s action. It suffices to say that, in substance, they are to the effect that the specific acts and omissions charged against appellee, either separately or considered as a whole, were supported by probative evidence which . established that the same constituted gross negligence on the part of appellee, and that the trial court erred in ruling to the contrary.

The Supreme Court of Texas in Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943), declared that the definition of “gross negligence” given in Missouri Pacific Railway Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888), was the proper definition and that any definition to the contrary was thereby overruled. On page 411, of 10 S.W., of the Shuford case, gross negligence is defined as follows:

“Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the right or welfare of the person or persons to be affected by it.”

The courts of Texas have stressed the word “conscious” as did the Supreme Court in the Bennett case. Later cases have cited with approval this same definition. Langston v. Tex-O-Kan Flour Mills Co., 211 S.W.2d 1020 (Tex.Civ.App.1948); Wooley v. Southwestern Portland Cement Co., 272 F.2d 906 (Fifth Cir.1959); Nichols v. Texas Electric Service Co., 206 S.W.2d 860 (Tex.Civ.App.1947, n. r. e.); J. S. Abercrombie Co. v. Scott, 267 S.W.2d 206 (Tex.Civ.App.1954, n. r e.) ; Union Transports, Inc. v. Braun, 318 S.W.2d 927 (Tex.Civ.App.1958). Mere indifference is not enough to constitute gross negligence. There must be conscious indifference. Helms v. Universal Atlas Cement Co., 202 F.2d 421 (5th Cir., 1953) cert, denied; 346 U.S. 858, 74 S.Ct. 74, 98 L.Ed. 372; Rio Grande Valley Telephone Co. v. Hocut, 93 S.W.2d 167 (Tex.Civ.App.1936); Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830 (1935).

Circumstances compelled the appellant to rely almost entirely upon testimony of appellee’s employees, the names and positions of which are first set out herein-above. The only other witness for appellant was one Paul D. Fontenot who had departed appellee’s employment prior to date of trial, but who was a member of the work crew on the day of the accident. The record is replete with testimony of these witnesses and there is no evidence or testimony to the contrary that all of the lead men in the work crew, including Cutler, were well versed and experienced in the type of work they were performing; that all knew that the power line in question was charged with 138,000 volts of electricity. It was quite customary in the business to do repair work upon these high voltage lines while they were “hot” or charged with electricity. The lead men, including Cutler, had all performed similar work under the same circumstances. The “jumper” and “hot clamps” were the type customarily used in the business and they were not shown to be inadequate or defective prior to the accident. The evidence established that a reasonable inspection of these instruments just prior to the accident failed to disclose that they were loose or improperly secured together to the power line. It was also established that had the “hot clamps” and “jumper” been improperly fastened to the power line that the current of electricity would not have been flowing through said line as it had been doing immediately prior to the time the “jumper” in question came loose. The only evidence as to why the “jumper” did come loose was to the effect that the block and tackle assembly herein-above mentioned, which was being used to take the slack up on either side of the broken insulator, caused a strain upon the power line, shaking it and thereby causing the “jumper” to come loose. There was no allegation or proof that this manner of taking up the slack was negligence. The two foremen supervising the job were only a few feet away from Cutler at the time of the accident. They were in good position to assist and supervise Cutler in the work being performed and they were proved to be competent men of long experience in the work in which they were engaged. The tools and equipment with which the work was being performed were all shown to be of the proper and customary type used in the performance of the work in question. It would take several more pages to even state the substance of the wealth of testimony in the record which refutes the allegations of gross negligence contained in appellant’s petition and it would serve no useful purpose. The record is simply devoid of any proof to sustain any allegations of gross negligence; therefore, appellant’s first 13 points of error are overruled. Bennett v. Howard, supra.

By reason of our foregoing conclusion concerning appellant’s first thirteen points of error, we pretermit a discussion of her fourteenth point. Said point complains of the action of the trial court in striking from her first amended original petition the eighth paragraph thereof which alleged the pain and suffering of the deceased as a basis for determination of exemplary damages.

By her last point of error (fifteen) appellant complains of the action of the trial court in overruling her motion that appel-lee be caused to produce the jumper and clamp giving rise to the arc-flash explosion, together with photographs taken by appellee of the place where the deceased was working at the time of his fall.

The accident occurred September 2, 1954. The motion was not filed until March, 1960. In answer to the “motion to produce” ap-pellee filed its sworn reply to the effect that the jumper and clamp had long been disposed of and had not been in its possession for many years; that the photographs were privileged, having been made by appellee’s agents in connection with an investigation of the circumstances surrounding the accident. The court’s order denying appellant’s motion was upon the same grounds alleged by appellee.

For a thing or document to be subject to discovery it must be in the custody, control or possession of a party to the suit. 3 McDonald, p. 840. In deciding whether or not to order discovery or production, the trial court has a wide discretion and his action will not be reversed unless an abuse of such discretion is shown. 15-A Tex.Jur. (REV.), p. 301. Appellant having failed to raise the issue of abuse of discretion here in regard to any of the things sought to be produced, her last point of error is overruled.

A determination of appellee’s counterpoints invoking the doctrine of assumed risk, contributory negligence and unavoidable accident is not deemed necessary.

Judgment affirmed.