Space Aero Products Co. v. R. E. Darling Co.

Oppenheimer, J., delivered the opinion of the Court. This case involves the question of whether the court below properly enjoined the defendants from using what the appellee claims to be its trade secret in the building of oxygen breathing hoses. It also involves the scope of the injunction granted and other issues in connection with the conduct of the parties and rulings of the trial judge. The appellee, R. E. Darling Co., Inc. (Darling) was founded as an individual business by Mr. Darling in 1948 and began the business of manufacturing oxygen breathing hoses for aircraft personnel, in Bethesda, Maryland.

In 1950, Mr. Darling ¹⁰² undertook a research and development program in the course of which small-bore miniaturized, silicone flexible breathing hoses were produced; these hoses were sold to the Douglas Aircraft Company and to the Navy, beginning in 1953; the hoses were the same general type that are now qualified and referred to in certain military specifications. The business was subsequently incorporated. Four of the defendants below, Joseph A. Jackson; Eugene E. Fasano; Douglas L. Creger and William Phillips 1 (sometimes collectively referred to as the former employees) worked for Darling in various capacities. Each of them had been with Darling for some years; there was no formal contract of employment; each could be discharged by Darling at any time and had the right to leave at any time. ■ In the fall of 1960, these men decided to go into business in competition with Darling.

They sought and obtained financial backing from the appellants, Norris Manufacturing Company (Norris) and William Brandenburg (Brandenburg), the president of Norris. Norris had supplied silicone products to Darling, but in 1959, the officers of Darling had formed the Materials Testing Company to make silicone compound and tubing. In late 1959 or early 1960, the United States Navy had sent a representative to Darling to discuss new proposed specifications for oxygen breathing hoses of certain types of which Darling had been the sole manufacturer and supplier. Thereafter, Military Specification H-22489 was prepared and issued in April, 1960.

Darling began the study and work to qualify hose under the new specifications. On December 14, 1960, the appellant, Space Aero Products Co., Inc. (Space Aero) was incorporated by the former employees, who had resigned from Darling’s employ between December 9 and December 23, 1960. Space Aero commenced business operations in Hyattsville, Maryland, in January, 1961. The first hose built by it was the same as the Darling hose and was built by some of the same people who had built tile hose for Darling.

Space Aero qualified ¹⁰³ its hose under Military Specification H-22489 in the middle of January, 1961; it was submitted to the Navy on February 20, 1961. Darling did not submit any hoses for qualification under this specification until April 25, 1961. The Navy accepted Space Aero’s hose in May, 1961. Darling filed its suit on February 27, 1961.

The appellants filed answers denying that the appellee had a cause of action against any of them. No preliminary injunction was issued. After the protracted taking of testimony, 2 Judge Pugh filed an opinion on May 27, 1964 in which, after reviewing what he regarded as the salient features of the testimony, he found from the evidence that the former employees “learned the know-how to set up a competing business which knowledge was gained by them while in the employ of the plaintiff.” He further found that the former employees owed the duty of fidelity and trust to their employer while they were employed and had breached that duty. He found further: “that other hose manufacturers in this Country have endeavored to produce an oxygen breathing hose which would compete successfully with the plaintiff’s but had failed to do so despite their knowledge and experience but the defendants were able to do so immediately and within twenty days after the charter was granted to its corporation, all because of the knowledge they had gained during their employment by the plaintiff.” Brandenburg and Norris, the court found, had illegally entered into a conspiracy to cause the former employees to cease working for Darling.

Other findings of the lower court will be referred to in the discussion which follows. On June 10, 1964, the lower court entered an order which permanently enjoins and restrains the appellants “from further manufacture and/or sale” of oxygen breathing hoses “of like or similar construction to hose assemblies manufactured to the requirements of United States Military Specification Mil H-22489.” The court further ordered the appellants: “to immediately deliver up to this Court for destruction any and all drawings, manuals, documents and other materials in their posses ¹⁰⁴ sion which describe or disclose the equipment, components, methods or techniques utilized in the manufacture of those hose assemblies.” The defendants were ordered to pay the costs, and the court retained jurisdiction for the purposes of determining Darling’s rights to an accounting and for damages. On June 10, 1964, the date of the injunction, the United States filed a statement as mwcus curiae, in which it requested the court to consider the interest of the United States in the scope of the injunction to be entered, as set forth in the affidavit of Rear Admiral W. T. Hines, attached to and made a part of the statement. This affidavit states, in part: “[I]t affirmatively appears that the National Defense interest would be adversely affected in the delay resulting from any inability of Space Aero Products, Co., Inc. to deliver vitally needed products under Contracts N383-85726A, N383-86598A, and ASO-82299A.” The United States asked that an injunction in the case should exclude the performance of the contracts referred to in Rear Admiral Hines’ affidavit.

On June 17, the appellants filed a petition for modification of the injunction, to which the appellee filed an answer. On June 30, the court below, without a hearing, signed an order denying the petition for modification. The appellants appealed both the orders of June 10 and June 30, 1964. After the appeals, through proceedings in this Court and the lower court, the injunction was stayed upon the giving of a bond for damages.

The appellants contend that the evidence did not support a finding that the former employees violated their duty of loyalty and trust in setting up a company to go into competition with Darling; that the evidence did not support findings that the appellee did in fact possess trade secrets or knowledge proprietary to it and that the appellants wrongfully misappropriated such trade secrets or proprietary knowledge; that the broad scope of the injunction was improper; that the evidence required a finding that Darling had “unclean hands” and should therefore be denied the aid of an equity court; and that the lower court committed reversible error in several of its rulings. We shall consider these contentions in a somewhat different order. ¹⁰⁵ The Existence of a Trade Secret A trade secret is described in Restatement, Torts, § 757, comment b, as follows: “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.” In an excellent treatise by Turner on The Law of Trade Secrets (London 1962), which considers the American as well as the English cases on the subject, the learned author states: “The subject-matter capable of protection may be an industrial secret like a secret machine, process, or formula, or it may be industrial know-how (an increasingly important ancillary of patented inventions) ; it may be information of any sort; it may be an idea of a scientific nature, or of a literary nature (such as the plot of a story or the theme of a television series), or it may be a slogan or suggestion for a method of advertising; lastly, the subject-matter may be the product of work, or expenditure of money, or of trial and error, or the expenditure of time. Secrecy is not necessarily a constituent of a protectable subject-matter, but when it is, different degrees of imperfect secrecy are sufficient in different circumstances to make subject-matter capable of protection.” p. 4.

Whether or not there is a trade secret and, if there is, whether its owner will be protected against persons accused of using it unlawfully, has been considered in numerous cases in federal and state jurisdictions, and in England, as well as by text writers. See inter alia the cases cited in Mycalex Corporation of America v. Pemco Corporation, 159 F. 2d 907, 913 (4th Cir. 1947). The legal principles are not in dispute; it is their ap ¹⁰⁶ plication to the particular facts on which, in general, the decisions turn. As has been done in other cases, we shall summarize what we regard as the salient facts but will not set them out in such detail as to disclose the alleged trade secret, which it is the purpose of this litigation to protect.

Head Ski Company v. Kam Ski Company, 158 F. Supp. 919 (D. C. Md. 1958). See also annotation, In Camera Trial of Hearing and Other Procedures to Safeguard Trade Secret or the Like Against Undue Disclosure in Course of Civil Action Involving such Secret, 62 A.L.R.2d 509 , 530-532, and cases therein cited. In reviewing the testimony, it is to be remembered that Maryland Rule 886 a provides that, when an action has been tried by the lower court without a jury, the judgment of the lower court will not be set aside on the evidence unless clearly erroneous. Wood v. Wood, 227 Md. 211, 176 A. 2d 229 (1961).

If there is substantial evidence to support the lower court’s factual conclusion, that finding must be reviewed in the light most favorable to the prevailing party below. Goodwin v. Lumbermens Mut. Cas. Co., 199 Md. 121, 128 , 85 A. 2d 759 (1952).

The conclusions of law based upon the facts, however, are reviewable by this Court. Tyler v. Secretary of State, 230 Md. 18, 20 , 185 A. 2d 385 (1962). See Moran v. Moran, 219 Md. 399, 401 , 149 A. 2d 399 (1959). There was substantial testimony on behalf of Darling that its manufacture of the hoses involved approximately thirty different steps.

Admittedly, some of these steps consisted of simple manual operations and the use of devices and uncomplicated machinery which in themselves were known to the industry. It is not any one of the steps but their selection, order and conjunction which Darling contends is its trade secret. In general, and without going into the details of the testimony, it is the application of the silicone rubber to produce the desired result which Darling claims is its own unique secret, based on research and experimentation and embodying the result of years of trial and error before the requisite “know-how” was achieved. It is the requisite strength and delicacy of the oxygen breathing hose for pilots which necessitates the numerous methods and techniques which Darling has used. ¹⁰⁷ The court below referred to Darling’s “know-how.” A knowledge of the particular process, method, or material which is most appropriate to achieve the desired result may itself be a trade secret.

Head Ski Company v. Kam Ski Company, supra, 158 F. Supp. at 923 ; Manos v. Melton, 358 Mich. 500 , 100 N. W. 2d 235 (1960); By-Buk Company v. Printed Cellophane Tape Company, 163 Cal. App. 2d 157 , 329 P. 2d 147 (1958); cf. Mycalex Corporation of America v. Pemco Corporation, 64 F. Supp. 420 (D. C. Md. 1946) affirmed 159 F. 2d 907 . See Turner, op.cit., at 35-37. One of Darling’s witnesses, Rothermel, a chemical engineer experienced in the manufacture of flexible hose, had been employed by the Dayton Rubber Company from 1936 until 1960.

He became a technical superintendent of one of the plants of the Dayton Rubber Company (now the Dayco Corporation); later he became Vice-President and General Manager of Strato Safety, a wholly owned subsidiary of Dayton Rubber Company in California. From September 1, 1958 until February 1, 1960, his one assignment was to produce hose that was equivalent or equal to Darling’s hose, which would be accepted by the customers on an equal basis. Rothermel was directed by the president of the Dayton Rubber Company; he had the full facilities of the laboratory and the knowledge of the suppliers of that company and could draw on all of its equipment. To the best of Rothermel’s knowledge, Darling was the sole manufacturer of the hose here in question in 1956 and thereafter; hose of that type, as far as he knew, was not built by anyone other than Darling.

He had hoses manufactured by Darling but, in his opinion, it was not possible to produce the hose by just having a sample of it, except, perhaps, after several years of trial and error. He did not have Military Specification H-22489 at the time he was working to reproduce the Darling hose, although he had the specifications within the three months prior to trial, but, in his opinion, he could not have produced the hose even if he had had the specifications. There was other testimony to the effect that these specifications only gave the details of the particular results which were required in the oxygen breathing hose and did not explain how those results were to be obtained. Rothermel testified further that he had difficulty ¹⁰⁸ in finding proper silicone rubber compound, in putting in communication wires and other matters necessary for the proper manufacture of the desired product.

Opper, a witness called for the defendants, was employed by the Dayco Corporation since 1950; from 1959 he has been manager for the Strato Safety Equipment Division; he worked for several years on oxygen breathing hose and obtained a contract from the Navy for the building of small-bore hose from the Military Specification H-22489 on June 7, 1961, although the company did not qualify until April of 1963. The hoses produced under Opper’s direction had different dimensions from those made by Darling and Space Aero but the specifications under which the Strato Safety hose was manufactured were identical. The appellants contend that Rothermel chose to duplicate the Darling hose unassisted and, as a result, the compound he used refused to stay in place. They produced experts of their own, including Muller, Director of Engineering of H. K. Porter Company, one of the largest industrial manufacturers in the country, who visited the Space Aero plant and testified that each of the elements he saw and the manner in which each step was being performed were substantially the same as one or another of the processes with which he had been familiar in the industry.

The defendants also offered Professor Charles Alfred Shreeve, head of the mechanical engineering department of the University of Maryland, an expert in mechanical engineering. He testified to the same effect as Muller and stated further that the trade secrets he heard described by Mr. Darling on the stand were neither new, novel nor unknown but were all obvious mechanical processes. Darling contends that Muller was unable to recall or describe much of the equipment and many of the process steps utilized at Space Aero; and that Shreeve could not remember many steps and techniques used in the Space Aero process. None of the appellants’ expert witnesses, other than Brandenburg, testified he could have reproduced the Darling hose without having seen it in actual manufacture.

Brandenburg, a research chemist and manufacturer of silicone products, testified he was thoroughly familiar with the Darling hose building process, which he had helped develop, ¹⁰⁹ and that each of the steps was common knowledge in the industry. He admitted, however, that there were no other companies building the hose. The finding of the court that other hose manufacturers in this country have endeavored to produce an oxygen breathing hose which would compete successfully with Darling’s but fat least until 1963) have failed to do so, is clearly supported by the testimony. The testimony as to whether Darling’s methods and processes were unique, and, as a composite result, known only to it, or whether they were generally known and in the public domain, is voluminous and conflicting.

The record, as a whole, convinces us that the trial judge was not in error in his implicit finding that Darling’s “know-how” in the manufacture of its hoses was the subj ect matter of a trade secret. This holding does not extend to the male disconnect, referred to at length in the evidence. This disconnect is attached to the hose, and is fitted to a female connector in the plane which leads to the oxygen supply. The testimony shows that the drawings of the male disconnect, bearing standard military specification numbers, were originally obtained from Douglas Aircraft Company, which had developed them, and then recopied under Darling’s name.

The disconnect could be ordered as a complete unit merely by using the military specification and order numbers. Several companies listed these numbers in published catalogues. The male disconnect shown in the drawings can be purchased on the open market. Darling shortened the part as shown in the drawings by half an inch, added some knurling and rounded the end of the insert portions.

These changes are visible on inspection of the part. None of the elements of a trade secret is present in respect of the male disconnect, nor does the testimony support any design rights of Darling therein. A trade secret as to the manufacture of the hoses themselves can exist apart from the disconnect attached to them. Even though a process or method may be the subject of a trade secret, a substantial element of secrecy must exist before the owner of the method is entitled to judicial protection.

Absolute secrecy is not essential but a substantial element of se ¹¹⁰ crecy must exist so that there would be difficulty in others properly acquiring the information. Mycalex Corporation of America v. Pemco Corporation, 64 F. Supp. 420, 423 (D. C. Md. 1946); Excelsior Steel Furnace Co. v. Williamson Heater Co., 269 Fed. 614, 616 (6th Cir. 1920) ; Turner, op. cit., 71-98; Callmann, Unfair Competition and Trade-Marks, § 53.3 (e) ; Ellis, Trade Secrets, §§ 26, 53. A trade secret owner, however, does not abandon his secret by a limited public publication for a restricted purpose. Abernethy v. Hutchinson, 1 H. & T. W. 28, 3 L.J.

(o.s.) (Ch.) 209 (1824). The Restatement sets forth some factors to be considered in determining whether given information is one’s trade secret. These factors are: “(1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” Restatement, Torts, § 757 b. The testimony was uncontradicted that the Darling process was the result of years of experimentation and research; approximately a quarter of a million dollars went into the development of the processes and methods.

The value of the information gained in the development of the hoses to Darling is clear. From a small business in 1948, Darling has grown to a point where in excess of two hundred persons are employed and where it is manufacturing one hundred or more different types of hoses, with a gross of nearly five million dollars a year. The value which the information would have had to other companies, if they could have been successful in making a similar type of hose, is evident if only from the efforts of Dayco Corporation which tried for years to duplicate the Darling method and, despite its resources, was unsuccessful until 1963. The Darling methods were known, and indeed had to be known, to some of its employees, including its former employees who formed Space Aero.

The extent of measures taken by Darling to guard the secrecy of the information is in dispute. As ¹¹¹ evidence of the requisite secrecy, Darling points to the testimony that, during the initial stages of the development of the hoses, the activities and process were kept secret even from Darling’s employees. The Instruction Guide issued for training, offered in evidence, states that the methods and processes and the manner in which materials were used must be considered as trade secrets, and that to divulge this information to any individual outside of the company would provide others with knowledge and information detrimental to the existence of the company. A lock box was maintained in the plant for blueprints and a list of authorized personnel with keys was carefully maintained.

The training of the company’s employees was in a separate area and, according to Darling’s witnesses, the trainees were frequently told that the company had processes of which no one else in the world knew. The appellants’ testimony presented a quite different picture. A former supervisor testified that she and other employees were never cautioned to hold the method of manufacture in confidence. The mutable Phillips testified that, while he knew there was no one else in the United States making hoses in a method similar to that of Darling, he did not recall being admonished not to discuss the product.

The Darling methods were also known to Brandenburg who, through Norris, was involved in Darling’s business. Norris did not manufacture oxygen breathing tubes, but its sales of its silicone products to Darling increased from a volume of a few hundred dollars in 1953 or 1954 to about three hundred thousand dollars in I960. During the years of the relationship, Brandenburg made many visits to the Darling plant, and testified that he was familiar with each step of the process of making the hoses and had been of material help in the entire development. On the latter point, however, there was conflicting testimony on behalf of Darling, to the effect that Brandenburg had only been consulted in the area of the compounds which he furnished.

Judge Pugh, in his opinion, while making no express findings of fact, referred to the evidence that Brandenburg had full and complete knowledge of the operation of the Darling plant and that, independently of this knowledge, Brandenburg had the know-how to build the hose. Whether or not the ¹¹² testimony would have justified a finding to this effect, the relationship of the parties is pertinent. Darling and Norris were working together, as manufacturer and supplier, in what was, to some extent at least, a joint enterprise. Brandenburg testified, in answer to a question by the court, that it was not the policy of his company to “go around telling other people what some one else is doing.” “There was a certain amount of ethics involved.” By Brandenburg’s own testimony, there was some element of confidence and trust in the relationship.

Under all the circumstances, Brandenburg’s knowledge of the process, however complete, did not negate the substantial element of secrecy necessary to the existence of a trade secret. Saco-Lowell Shops v. Reynolds, 141 F. 2d 587 (4th Cir. 1944) ; International Industries v. Warren Petroleum Corp., 99 F. Supp. 907 (D.C. Del. 1951). See Chun King Sales v. Oriental Foods, 136 F. Supp. 659, 662 (D.C. S.D. Cal. 1955). Cf.

Mycalex Corporation of America v. Pemco Corporation, 159 F. 2d 907 (4th Cir. 1947); and Messler v. Knapp Bros., 52 F. Supp. 812 (D.C. Mass. 1942). There was much testimony as to tours through the plant and particularly as to a public demonstration of hose-building for the Greater Washington Industrial Council, during which small groups of guests were given demonstrations of hose-building and other techniques. The appellants point, inter alia, to the testimony that two overhead garage doors to the street were left open and that workers were free to have visitors while they were assembling the hose. Darling’s plant was located not in one of the country’s great industrial centers, but in a relatively small, if growing community.

The testimony, taken as a whole, convinces us that Darling took precautions to guard the secrecy of its process which, under the circumstances, were reasonably sufficient. In its particular community and environment, it may well be that Darling considered that too elaborate efforts at concealment would call attention to what was being concealed, as in Poe’s “Purloined Letter.” In any event, as the lower court emphasized in its opinion, no one else succeeded in making hoses according to the Darling process. Until the formation of Space Aero by Darling’s former employees, Darling’s efforts at secrecy, like the process itself, met the basic criterion of success. ¹¹³ Upon consideration of all the testimony in the light of the applicable legal principles, we are convinced that Darling’s processes and methods in manufacturing its oxygen breathing hoses (apart from the male disconnect fitting) constituted a trade secret. The Liability of the Former Employees The development of the law of trade secrets is a result of balancing two conflicting elements essential to our society.

There is a strong policy favoring free competition; an employee is entitled to use the skill and knowledge of his trade or profession which he has learned in the course of his employment, for the benefit of himself and the public, if he does not violate a contractual or fiduciary obligation in doing so. C-E-I-R, Inc. v. Computer Corporation, 229 Md. 357, 366 , 183 A. 2d 374 (1962); Ritterpusch v. Lithographic Plate Service, Inc., 208 Md. 592, 595 , 119 A. 2d 392 (1956); Restatement, Torts, §§ 708 and 757, comment a; Herbert Morris Ltd. v. Saxelby, 1 A.C. 688 (1916); Sir W. C. Leng & Co. v. Andrews, 1 Ch. 763-777 (1909). On the other hand, in order to promote the progress of science and the useful arts, the law provides certain protections to an originator. Among these protections are the patent and copyright statutes and the law of torts prohibiting unfair competition.

The law protecting trade secrets is another protection. The basis of the law as to trade secrets, apart from breach of contract, is abuse of confidence or impropriety in the means of procurement. Justice Holmes stated the legal principle in Du Pont Powder Co. v. Masland, 244 U. S. 100 (1917), as follows: “The word property as applied to trade-marks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. Whether the plaintiffs have any valuable secret or not the defendant knows the facts, whatever they are, through a special confidence that he accepted.

The property may be denied but the confidence cannot be. Therefore the starting point for the present matter is ¹¹⁴ not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs, or one of them. These have given place to hostility, and the first thing to be made sure of is that the defendant shall not fraudulently abuse the trust reposed in him. It is the usual incident of confidential relations.

If there is any disadvantage in the fact that he knew the plaintiffs’ secrets he must take the burden with the good.” 244 U. S. at 102 . The Restatement summarizes the doctrine enunciated in the case law as follows: “One who discloses or uses another’s trade secret, without a privilege to do so, is liable to the other if * * * (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.” Restatement, Torts, § 757. See also Carter Products, Inc. v. Colgate-Palmolive Co., 130 F. Supp. 557, 571-75 (D. C. Md. 1955). Judge Pugh points out in his opinion that the uncontradicted evidence shows that each of the former employees was an employee of Darling from November 1, 1956 to the month of December, 1960, and that each of them had an important position with the plant in the building of oxygen breathing hoses.

After setting forth the nature of their assignments, Judge Pugh states that “in their respective positions these defendants knew the hose business, each having learned all there was to know from the plaintiff.” He then stated: “While in the employ of the plaintiff, the defendants at the instigation of Jackson, discussed going into the hose business from September, 1960, to early in December, 1960, and such discussions led to the making of plans, financial and otherwise, to go in the business of manufacturing the same kind of oxygen breathing hoses manufactured by the plaintiff. The incentive to go in business was to submit bids to the United States Navy under its Military Specification H22489, which was open to the public in the month of April, 1960. All individual defendants knew of the existence of this Military Specification which came to the knowledge of ¹¹⁵ the individual defendants who were employees of the plaintiff by virtue of their employment with the plaintiff. * * * It was only twenty-nine (29) days after the charter was granted to the defendant corporation when it submitted a hose to the Navy on February 20, 1961. The rapidity with which this was done is only attributable to the fact that the individual defendants, except William Brandenburg and Norris Manufacturing Company, had gained the knowledge to set up a business and manufacture the hose under the military specifications, which came to their knowledge while they were employed by the plaintiff.” The processes used by Space Aero were the same as those used by Darling.

While Darling did not qualify under the military specification until several months after Space Aera had submitted its hose to the Navy, Darling contends that information which would have accelerated Darling’s qualification had been obtained by Jackson, one of the appellants, while still in Darling’s employ, and was intentionally withheld and secreted by him. This claim is disputed by the appellants, but, in any event, the dispute on this issue goes to whether or not Darling is entitled to damages for loss on the Navy contracts by reason of the appellants’ breach of their duty of fidelity, and not to whether that duty had been violated. The testimony amply supports the findings of fact of the court below. While none of the former employees had signed a contract with Darling in which they formally agreed not to use the information acquired by them, and while they were free to leave their employment at will, Judge Pugh found that they owed the duty of fidelity to their employer while they were employed.

We agree. C-E-I-R, Inc. v. Computer Corporation, supra, 229 Md. at 366 ; Ritterpusch v. Lithographic Plate Service, Inc., supra, 208 Md. at 602 . That C-B-I-R and Ritterpusch involved the improper solicitation by employees of their employer’s customers, rather than the improper use of the employer’s trade secret, does not make the principle for which those cases stand less applicable. It is the breach of the confidential relationship rather than the form which that breach takes which is determinative. ¹¹⁶ Much of the testimony concerned the taking of various drawings and other material from Darling’s plant by some of the former employees before they left the company’s employ and the subsequent steps taken by Darling to endeavor to gain repossession of the drawings.

The court below found as a fact that some of the former employees had in their possession, after leaving Darling’s employment, certain sketches of oxygen breathing hoses which they had taken while they were employed by Darling, without Darling’s knowledge. One of the former employees, Jackson, instructed his wife over the telephone, when he was in California after severing his connection with Darling, to burn the drawings in his possession in his home. Wilkinson, another former employee, burned some of the drawings which Jackson had given him. The court below also found that there were some of Darling’s drawings on the drawing-board in the home of another of the former employees which were copies of Darling’s drawings.

Judge Pugh found that it was doubtful as to whether or not the drawings were in fact the drawings of Darling, but that the evidence clearly showed they were in fact Darling’s property. During the argument of this appeal, counsel for the appellants admitted that the taking of these drawings was wrongful. 3 Judge Pugh also found that other records of Darling’s, such as copies of its Security and Quality Control Manuals, were in possession of some of the former employees after they had severed their employment. The testimony strongly indicates that all the drawings to which reference has been made were in effect public property or were drawings or copies thereof sent to Darling by the Douglas Aircraft Company. The appellee does not contend it had trade secrets in these drawings.

The testimony does not show, in our opinion, that these drawings were necessary for the production of the oxygen breathing hose by Space Aero and the individual appellants, or the securing of the Navy contracts. As Judge Pugh infers in his