Kelly v. Illinois Bell Telephone Company

• Decision Date: 23 October 1962
• Docket Number: Civ. A. No. 62 C 955,62 C 932.
• Citation: 210 F. Supp. 456
• Parties: Thomas F. KELLY, Sr., Thomas F. Kelly, Jr., and George L. Kelly, co-partners, doing business under the name and style of Illinois Sports News, Plaintiffs, v. ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, The Western Union Telegraph Company, a New York corporation, Defendants, and United States of America, Defendant-Intervenor.
• Court: U.S. District Court — Northern District of Illinois

210 F. Supp. 456

Thomas F. KELLY, Sr., Thomas F. Kelly, Jr., and George L. Kelly, co-partners, doing business under the name and style of Illinois Sports News, Plaintiffs, v. ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, The Western Union Telegraph Company, a New York corporation, Defendants, and United States of America, Defendant-Intervenor.

Civ. A. Nos. 62 C 955, 62 C 932.

United States District Court N. D. Illinois, E. D.

October 23, 1962.

Edward J. Calihan, Jr., Chicago, Ill., and Walter E. Gallagher, Washington, D. C., for plaintiffs.

Roy W. Sears, Eckhart, Klein, McSwain & Campbell, Chicago, Ill., for Western Union Telegraph Co.

James P. O'Brien, U. S. Atty., for defendant-intervenor.

Walter Cummings, Jr., Sidley, Austin, Burgess & Smith, Chicago, Ill., for Illinois Bell Telephone Co.

WILL, District Judge.

The Court, having examined the pleadings, the Stipulations of Facts, and the documents admitted as evidence in this case, and having heard the arguments of and examined the briefs filed by counsel, makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

1. Thomas F. Kelly, Sr., Thomas F. Kelly, Jr. and George L. Kelly are residents of the State of Illinois and are copartners in and sole owners of the business known as "ILLINOIS SPORTS NEWS" (hereinafter referred to as "Illinois"). Their principal office is located at 906-08 South Wabash Avenue, Chicago, Illinois.

2. Illinois publishes the publication known as "Illinois Sports News", various editions of which are printed daily, except Sunday, in the English language, and circulated and displayed for sale to the public generally throughout the midwest and as far south as Florida and Louisiana. The publication is printed on a semi-stiff sheet of hard paper approximately 12½ by 19 inches in overall dimensions, and double folded so as to make eight pages each approximately 6¼ by 9½ inches.

3. The information contained in the different editions varies considerably. Some editions printed for use at a particular race track contain information only with respect to the races being run at that track on the date of publication (See Court exhibit No. 1). Other editions contain information with respect to races being run at various tracks throughout the country as well as short news items with respect to matters of interest in sports other than horse racing, such as golf, baseball, boxing, etc. (See Court exhibit No. 2.)

4. Illinois, which has a bona fide list of actual prepaid subscribers, has been published regularly since 1947 at the same address, under the same name and style.

5. Illinois has continuously utilized the facilities of the defendant Illinois Bell Telephone Company, an Illinois corporation (hereinafter referred to as "Telephone Company"), and The Western Union Telegraph Company, a New York corporation (hereinafter referred to as "Western Union") as well as the facilities of the UNITED PRESS INTERNATIONAL (hereinafter referred to as "United") since the following dates:

                Telephone Company             1947
                Western Union                 1951
                United                        1947
                

In addition, Illinois has had and used second class mail privileges granted by the United States Post Office Department since 1947.

6. Certain of the employees of Illinois, including linotypers and drivers, are members of various unions and Illinois has contracts with such unions.

7. Since 1947 Illinois has used the facilities provided it by the Telephone Company in carrying out its everyday business and, in addition, receives by telephone each morning, except Sundays, certain information concerning horse racing, more particularly described as follows:

(a) "Scratches" means the names of horses which have been withdrawn from the horse racing events in which they had been entered to compete.

(b) "Jockeys and Weights" means the names of the jockeys who will ride specified horses in that day's racing events and the weights of said jockeys.

(c) "Track Condition", meaning whether or not the track is wet, fast, muddy, or slow.

(d) "Program Selections", the selections by the track handicapper, which appear in the official printed program, constituting the truck handicapper's estimate of the winner, place (second) and show (third) horses as they will finish in each particular racing event.

(e) "Post Position of Horses", meaning the relative position from the inside to the outside of the track in which the horses will start the race.

8. The foregoing information, after receipt, is studied by so-called handicappers employed by Illinois at its place of business, who prepare their own estimates of the respective abilities of each of the horses entered in the various racing events, and their own estimates of the possibilities of each horse winning in the event in which he is entered. The information received by telephone, as previously set forth, together with the handicappers' estimates or forecasts of what the wagering through the pari-mutuel machines at the track is likely to be, which is called the "morning line", as well as the handicappers' own selection or estimate of the order in which the horses will finish in each event, is published in certain of the editions of the Illinois Sports News. In addition, certain information concerning the past performances of the various horses is published in the same editions.

9. With the exception of the "morning line" and "past performance" information, all of the foregoing is also transmitted by telephone each morning, except Sundays, to the Detroit Sports News of Detroit, Michigan, Harvey A. Junior of Miami, Florida, and The Toronto Daily Sports News of Toronto, Ontario, Canada. Each of these publications contains horse racing information and they have been published for 19, 32 and 28 years respectively.

10. In addition, the telephone facilities are also used to obtain information from race tracks in the Chicago, Illinois; Detroit, Michigan; New Orleans, Louisiana; and Hot Springs, Arkansas areas when such tracks are running. The information received from the tracks in question consists of the names of the horses entered and their anticipated jockeys for the following day's races.

11. For many years Illinois has used the facilities of Western Union each day, except Sunday, for the transmission of racing information and other information of a general character to Chicago's American of Chicago, Illinois formerly the Chicago Herald-American, the Chicago Turf Bulletin of Chicago, Illinois, The Pierce News Company of St. Louis, Missouri, and, prior to July 20, 1962, a business owned by plaintiffs as co-partners and known as the Louisville Daily Sports News (hereinafter referred to as "Louisville"). Each of the foregoing publishes publications containing horse racing information and information of a general character.

12. Illinois uses the facilities of United for the receipt of information of a public and sporting character. Some of such information is published by Illinois in its publications and some is transmitted by Western Union teleprinter facilities as hereinbefore set forth.

13. Neither Illinois nor Louisville have, since September 13, 1961, furnished any information, other than by means of their publications, to any person or business except as set forth in paragraphs 9 and 11 hereof.

14. Neither plaintiffs nor their employees accept bets or wagers either by telephone or telegraph or otherwise.

15. The various editions of Illinois' publications may generally be described as follows:

(a) Harness Track Edition — sold in Chicago at newsstands and at the harness track when harness racing events are being held in the Chicago area containing entries, morning line, post position, handicap order, jockeys, weights and past performances. This publication is published and available for purchase at approximately 3 P.M. on racing days.

(b) Early "Overnight" Edition — sold in Chicago at newsstands, in the local tracks and out of town and in other states to news distributors, containing entries, overnight line, handicap order, jockeys, weights, past performances, post position, and information of a general nature, and is published and available for purchase after 3:30 P.M. daily, except Sundays.

(c) Late "Overnight" Edition — sold out of town, and in other states, to newsdealers and newsstands, except on Saturday night, when part of this edition is sold in Chicago, containing entries, overnight line, handicap order, jockeys weights, past performances, post position, results and information of a general nature, and is published and available for purchase after 6 P.M. daily, except Sundays.

(d) Latest Turf Edition — sold in Chicago at newsstands and within 40 miles thereof and to news distributors in nearby states, containing entries, jockeys, post position, weights, morning line, scratches, past performances, results and information of a general nature, and is published and available for purchase after 9 P.M. daily, except Sundays.

(e) Race Track Edition — sold at newsstands in the Chicago area and in the local tracks and containing entries, jockeys, weights, morning line, post position, scratches, past performances and results of horses entered in events at the local tracks and is published and available for purchase after 10 A.M. daily, except Sundays.

(f) Weekly Edition — published once weekly, giving "selections" of outstanding horses entered at various race tracks which might participate in racing events scheduled for the succeeding week.

16. The last edition published by Illinois for a particular day's racing events is printed, published and distributed before 10:30 A.M. of that day and the first edition for the following day's racing events is printed, published and distributed after 3:30 P.M. Prior to July 20, 1962, Louisville printed, published and distributed only one edition daily, except Sundays, which was distributed before 10:00 A.M. The Louisville office then closed until the...