Dallas Cowboys Football Club, Inc. v. Harris, s. 15849

• Decision Date: 26 May 1961
• Docket Number: 15891,Nos. 15849,s. 15849
• Citation: 348 S.W.2d 37
• Parties: DALLAS COWBOYS FOOTBALL CLUB, INC., Appellant. v. James B. HARRIS, Appellee.
• Court: Texas Court of Appeals

Page 37

348 S.W.2d 37

DALLAS COWBOYS FOOTBALL CLUB, INC., Appellant. v. James B. HARRIS, Appellee.

Nos. 15849, 15891.

Court of Civil Appeals of Texas, Dallas.

May 26, 1961.

Rehearing Denied June 23, 1961.

Wynne & Wynne, Dallas, for appellant.

Lyne, Blanchette, Smith & Shelton, Dallas, for appellee.

DIXON, Chief Justice.

Preliminary Statement

Appellant Dallas Cowboys Football Club, Inc., hereinafter called the Club, a member of the National Football League, brought this action against James B. Harris for injunction to restrain Harris from playing professional football, or engaging in any activities related to professional football for anyone except the Club. Appellant alleged that Harris was bound by the terms of a written contract to play football for the Club and no one else, but that in violation of his contract he was playing football for the Dallas Texans Football Club, a member of the American Football League. The suit was for injunction only. No money judgment was sought.

After hearing and upon execution of $15,000 injunction bond a temporary injunction was granted to the Club on July 29, 1960. Harris took an appeal from this temporary order.

Meantime the trial court had reached the main suit for trial on the merits, and on September 21, 1960, following return of a jury verdict favorable to Harris, had rendered judgment that the Club take nothing by its suit against Harris. The Club took an appeal from the judgment on the merits.

The result was that when the appeal from the temporary injunction order was reached by us for submission on October 27, 1960 the case had already been tried on its merits, judgment on the merits had been entered by the trial court denying the Club a permanent injunction, and the Club's appeal from the judgment on the merits had been perfected by the filing of a cost and supersedeas bond in the amount of $30,000.

Prior to submission of his appeal from the temporary order, Harris filed a motion to dismiss his appeal on the ground that said appeal had become moot, as the temporary injunction had necessarily been dissolved by the entry of the judgment on the merits denying the Club a permanent injunction. In support of his motion Harris cited, among others, the case of Fort Worth Street Ry. Co. v. Rosedale Street Ry. Co., 68 Tex. 163, 7 S.W. 381, 383.

On October 24, 1960 we overruled Harris' motion to dismiss his appeal. In an unpublished opinion we distinguished the cases relied on by Harris from the case presented to us by his appeal. For example we pointed out that in the Fort Worth Ry. Co. case, supra, the temporary injunction had expired by its own terms regardless of the entry of judgment on the merits. The temporary order in that case expressly provided that the temporary injunction 'remain in force and effect only until the hearing of this case is had * * *.' (Emphasis ours).

The temporary order in this case is quite different. It provides that the injunction shall issue 'pending final hearing and determination of this cause, * * *.' (Emphasis ours). The temporary injunction did not expire under its own terms, but remained in effect pending final determination, which means final determination on appeal.

In the absence of an appeal and supersedeas the judgment on the merits by the trial court would undoubtedly have been a final determination and would have had the legal effect of dissolving the temporary injunction. But the judgment on the merits was superseded. The supersedeas bond in favor of Harris in the amount of $30,000 is conditioned that the Club will 'prosecute its appeal with effect' and will perform the judgment in case the 'judgment of the Supreme Court or the Court of Civil Appeals shall be against it.' In overruling Harris' motion to dismiss we cited Williams v. Pouns, 48 Tex. 141; Gulf C. & S. F. Ry. Co., v. Fort Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199, 3 S.W. 564; Williams v. Williams, 60 Tex.Civ.App. 179, 125 S.W. 937, 940; Bagby v. Bagby, Tex.Civ.App., 186 S.W.2d 702, 708; Quarture, et ux. v. Allegheny County et al., 141 Pa. Super. 356, 14 A.2d 575, 578; Sinking Spring Water Co. v. Gring, 257 Pa. 340, 101 A. 732; and Davies v. Fidelity & Deposit Co. of Maryland, 93 Cal.App.2d 13, 208 P.2d 414, 416.

After overruling Harris' motion to dismiss his appeal from the temporary injunction we went on to consider the appeal itself. On November 4, 1960, we reversed the trial court's order and rendered judgment denying the Club a temporary injunction. In its motion for rehearing the Club contended that we had misinterpreted some of the testimony reproduced in the statement of facts filed in the temporary order appeal. In support of its contention the Club cited and quoted from the amplified testimony reproduced in the statement of facts filed in the appeal from the judgment on the merits, which statement of facts by that time had been filed in this Court.

On examination of the whole record of both appeals we concluded that we probably had made a mistake and that the evidence in the second statement of facts shed a different light on some of the fact situations.

Consequently, on December 30, 1960 we sustained the Club's motion for rehearing, set aside our decision and withdrew our opinion in which we had reversed and rendered the trial court's order granting the Club a temporary injunction. At the same time we entered an order consolidating the two appeals. See Lewisville & N. O. Ry. Co. v. Paul's Administration, 314 Ky. 473, 235 S.W.2d 787; Neuman & Kirmse v. Vogelsang, Tex.Civ.App., 236 S.W. 128; Nixon v. Malone, Tex.Civ.App., 95 S.W. 577, 584; 4 Tex.Jur.2d 225; 5 C.J.S. Appeal and Error Sec. 1402, p. 532. Thereafter, the consolidated appeals were duly submitted and are now before us for determination. We shall first consider the appeal from the judgment denying the Club a permanent injunction.

Club's Appeal from Judgment on Merits

In June 1958 James B. Harris for a consideration of $8,000 signed a contract to play football and to engage in activities related to football only for the Los Angeles Rams Football Club, a member of the National Football League. This contract covered a period of time beginning with the execution of the contract and extending to the first day of May following the 1958 football season, which latter date was May 1, 1959. The contract also included a clause providing that the Club at its option might renew the contract for an additional year.

Both Harris and the Los Angeles Rams Football Club performed the primary contract which by its terms expired May 1, 1959. A controversy arose between the parties with reference, among other things, to the exercise by the Los Angeles Rams Club of its option on Harris' services for another year. As a result Harris chose not to play professional football during the 1959 season. Instead he reentered the University of Oklahoma as a student and also accepted a position as assistant football coach at the University.

In April 1960 Harris signed a contract to play football during the 1960 season for the Dallas Texans Football Club of the newly organized American Football League.

Harris' contract with the Los Angeles Rams was by its terms assignable. On July 22, 1960 the contract was assigned to the Dallas Cowboys Football Club, Inc., a new member of the National Football League. On the same date this suit was instituted against Harris by the latter Club to restrain Harris from playing football for anyone except the Club.

Since the Club contends that Harris, as a matter of law, is bound by the terms of the 1958 contract and its option to play football only for the Club for an additional year, we deem it advisable to reproduce material parts of the contract:

'2. The player agrees during the term of this contract he will play football and will engage in activities related to football only for the Club and as directed by the Club * * *.

'3. For the Player's services * *, and for his agreement not to play football or engage in activities related to football for any other person, firm, corporation or institution during the term of this contract, and for the option hereinafter set forth * * * the Club promises to pay the Player * * * the sum of $8,000.00.

'5. The Player promises and agrees that during the term of this contract he will not play football or engage in activities related to football for any other person, firm, corporation or institution except with the prior written consent of the Club and the Commissioner, * * *.

'8. The Player hereby represents that he has special, exceptional and unique knowledge, skill and ability as a football player, the loss of which cannot be estimated with any certainty and cannot be fairly or adequately compensated by damages and therefore agrees that the Club shall have the right, in addition to any other rights which the Club may possess, it enjoin him by appropriate injunction proceedings against playing football or engaging in activities related to football for any person, firm, corporation or institution and against any other breach of this contract * * *.

'10. On or before the date of expiration of this contract, the Club may, upon notice in writing to the Player, renew this contract for a further term until the first day of May following said expiration on the same terms as are provided by this contract, except that (1) the Club may fix the rate of compensation to be paid by the Club to the Player during said period of renewal, which compensation shall not be less than ninety percent (90%) of the amount paid by the Club to the Player during the preceding season, and (2) after such renewal this contract shall not include a further option to the Club to renew the contract; * * *

'Should Player * * * retire from football prior to the expiration of this contract or any option contained herein, and subsequently * * * return to professional football, then * * * the time elapsed between * * * his retiring from professional football and his...