Inter-Continental Promotions, Inc. v. MacDonald

• Decision Date: 10 October 1966
• Docket Number: No. 22685.,22685.
• Citation: 367 F.2d 293
• Parties: INTER-CONTINENTAL PROMOTIONS, INC., Appellant, v. William B. MacDONALD, Jr., and New Amsterdam Casualty Company, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

367 F.2d 293 (1966)

INTER-CONTINENTAL PROMOTIONS, INC., Appellant, v. William B. MacDONALD, Jr., and New Amsterdam Casualty Company, Appellees.

No. 22685.

United States Court of Appeals Fifth Circuit.

October 10, 1966.

Mallory H. Horton, Miami, Fla., for appellant.

Marion E. Sibley, Miami Beach, Fla., for appellees.

Before WISDOM and COLEMAN, Circuit Judges, and HUGHES, District Judge.

WISDOM, Circuit Judge:

Before a small crowd in Miami Beach, Florida, February 25, 1964, Cassius Clay (Muhammad Ali) knocked out "Sonny" Liston in the seventh round of a lackluster prize fight for the heavyweight championship of the world. Inter-Continental Promotions, Inc. owned both fighters. William B. MacDonald, the on-the-scene promoter, had agreed to pay Inter-Continental $625,000 for the live gate rights. Unfortunately for MacDonald, the gate receipts amounted to only $225,000. He turned over this amount to Inter-Continental. Inter-Continental sued for the balance. MacDonald and his surety now say that it was illegal to promote a prize fight in Florida, and that the contract was illegal on its face. The district court, agreeing with the defendants, dismissed the complaint. We disagree.

* * * * * *

The contract between the parties called for MacDonald "to stage and handle the live aspect of the promotion". The two opening paragraphs of the contract provide:

1. Inter-Continental hereby agrees to produce Charles "Sonny" Liston and Cassius M. Clay, Jr., on Tuesday, February 25, 1964, at an hour to be named, at the Miami Beach Convention Hall in Miami Beach, Florida, where they will then and there engage in a boxing contest with each other, for fifteen rounds or less, for the Heavyweight Boxing Championship of the World.

2. MacDonald shall have the right and obligation to promote said boxing contest in the manner he deems fit; to print and sell admission tickets thereto; to collect the proceeds of ticket sales; to arrange all seating; to make whatever arrangements he deems necessary for the press; to pay all local, state, and federal taxes on admissions; to arrange and pay for the undercard preliminary fights; to pay all fees and expenses of the controlling boxing commission; to advertise and promote said live gate; to make press releases; and, to do any and all things of that kind and nature reasonably necessary for the enhancement of said live gate.

MacDonald agreed to post a bond of $300,000 insuring his performance. New Amsterdam Casualty provided this bond.

The contract required MacDonald to pay the sum of $625,000 "upon the completion of the boxing contest". At the time MacDonald made his payment of $225,000, apparently he assumed that the contract was lawful.

Inter-Continental notified New Amsterdam of MacDonald's default. New Amsterdam refused to pay the $300,000 allegedly due under the performance bond. Inter-Continental then brought this diversity action for breach of contract against MacDonald and New Amsterdam.

The defendants moved to dismiss the original complaint on the ground that Florida law makes it a felony "to voluntarily engage in" or "to render aid" in "any pugilistic exhibition, fight or encounter * * * for which any admission fee is charged"¹ except "* * * boxing exhibitions held by and under the auspices of the American Legion, disabled American veterans, veterans of foreign wars of the United States, * * *" or one of several other specifically approved organizations.²

Inter-Continental moved to amend its complaint. The amendment alleges facts bringing the contract within the exception permitting "boxing exhibitions" to be held under the auspices of certain organizations:³

"Said contract concerned the holding and conducting of a pugilistic contest which was to be held on February 25, 1964 between Charles `Sonny\' Liston and Cassius M. Clay, Jr. Said contest was held by and under the auspices of the Veterans of Foreign Wars of the United States and was licensed and/or permitted by the City of Miami Beach, Florida, as a pugilistic exhibition held under the auspices of the Veterans of Foreign Wars of the United States. In this connection, plaintiff specially pleads Florida Statutes Annotated Section 548.03 as being the statutory basis for (a) the legal holding and conducting of said pugilistic encounter, and (b) the legality of said contract."

The district court did not rule on this motion for leave to amend nor refer to it in the order dismissing the complaint.

The court gave two reasons for its order. First, the "contract between the parties called for the promotion of a prize fight", not a "boxing exhibition" within the meaning of the exception provided in Section 548.03. Second, even if it was a "boxing exhibition, none of the parties to the contract are within the exception provided in Section 548.03" because none is a member of any of the exempted organizations listed in that section of the law. "Nor does the contract provide that the fight shall be held under the auspices of one of the exempted organizations."

I.

There is no doubt that a contract to perform an illegal act is void and will not be enforced in Florida courts. Local No. 234, etc. v. Henley & Beckwith, Inc., 1953, Fla., 66 So.2d 818; Lassiter & Co. v. Taylor, 1930, 99 Fla. 819, 128 So. 14, 69 A.L.R. 689. But a close look at the statute's language and legislative history compels the conclusion that the Florida legislature regards a prize fight as a "pugilistic exhibition"; a prize fight with gloves as a permissible "boxing exhibition", if it meets certain requirements.

A. Section 548 was enacted in 1895. Section 548.01 is entitled, "Prize fighting, pugilistic exhibition; penalty." It reads:

Any person who shall voluntarily engage in any pugilistic exhibition, fight or encounter, with or without gloves, between man and man, or in an exhibition or fight between man and bull, or between man and any other animal, for money or anything of value, or upon the result of which any money or anything of value is to be collected, acquired, bet or wagered, or to see which any admission fee is charged, directly or indirectly, shall be punished by a fine of not less than two thousand five hundred, nor more than five thousand dollars, or by imprisonment for not more than five years.

The statutory definition, originally enacted without provisos, is contained in Section 548.03:

By the term "Pugilistic exhibition, encounter or fight, with or without gloves," as used in this chapter, is meant any voluntary fight or personal encounter, by blows, between two or more persons, for money, prize of any character, points, distinction or fame, or other thing of value, or upon the results of which any money or thing of value is bet or wagered, or for which an admission fee is charged, directly or indirectly. (Emphasis added.)

The defendants construe the definition as referring to three different kinds of pugilism: (1) exhibition, (2) encounter, and (3) fight. Or at least two: (1) exhibition and (2) encounter or fight. They rely on Webster's New International Dictionary (2d Ed.) to show that "fight" means "a violent physical struggle for victory" and "encounter" means "a meeting with hostile purpose". They make no reference to Webster's definition of "exhibition" as "any public show; a display as of feats of skill". By exclusion, the defendants reach the result that a "pugilistic exhibition" is not a "fight" or an "encounter" and therefore does not apply to prize fights. Since the contract refers to the contestants as "fighters" and to the match as a "fight for the heavyweight championship", the defendants contend the subject of the contract was a "fight or encounter", not an "exhibition". The defendants assert in their brief that "the definition of the conduct condemned by the statute is for the purpose of differentiating between the condemned conduct and certain conduct not condemned, as set forth in the proviso clause of said section as follows: `provided that nothing contained herein * * shall be construed as applying to boxing exhibitions held by and under the auspices of the American Legion'" and certain other organizations. This is a patent error, for the legislature defined the condemned conduct in 1895, thirty-two years before the proviso was added to the statute. The 1927 amendment does carve out an exception for certain approved boxing exhibitions,⁴ but the word "exhibition" as used in this proviso must take the meaning originally given it when Section 548.03 was enacted.

As we read the law, and as the legislature characterized the offense in the title to Section 548.01, the condemned activity is prize fighting or, more accurately, "pugilistic exhibitions". The term "prize fighting" has no technical or common law meaning. Sullivan v. State, 1890, 67 Miss. 346, 7 So. 275. A "prize-fighter", today as in 1756 when Dr. Samuel Johnson defined the words, is "one that fights publicly for a reward". The legislation prohibits one thing — public displays of pugilism for reward; not two things, (1) sparring exhibitions and (2) fights or encounters. The title to Section 548.03, therefore, is "Pugilistic exhibition defined".

A simple test exposes the fallacy in the defendants' theory. If, as they argue, a "pugilistic exhibition" is something different from a "fight" or an "encounter", one should be able to arrive at the definition of pugilistic exhibition by dropping the words "encounter or fight" and that portion of the section relating only to these words. No portion of the section relates exclusively to "encounter or fight". We find, therefore, that

"By the term pugilistic exhibition * * * is meant any voluntary fight or personal encounter by blows * * at which an admission fee is charged." (Emphasis added.)

Pugilistic exhibitions are therefore public fights for money — in short, prize fights. The laws of some states use the term "prize fighting" or its equivalent without qualifying it. In such cases it "includes all fights of that...