Norman v. Century Athletic Club

• Decision Date: 11 November 1949
• Docket Number: No. 18,18
• Citation: 69 A.2d 466,193 Md. 584
• Parties: , 15 A.L.R.2d 777 NORMAN et al. v. CENTURY ATHLETIC CLUB, Inc.
• Court: Maryland Court of Appeals

Page 584

193 Md. 584

69 A.2d 466, 15 A.L.R.2d 777

NORMAN et al. v. CENTURY ATHLETIC CLUB, Inc.

No. 18.

Court of Appeals of Maryland.

Nov. 11, 1949.

Leonard Weinberg and Charles Mindel, of Baltimore (George L. Clarke and Weinberg & Green, of Baltimore, on the brief), for appellants.

Lucy Ann Garvey, of Baltimore (Avrum K. Rifman, of Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARKELL, Judge.

This is an appeal from an order overruling a demurrer to a bill for (a) declaration that plaintiff, lessee under a lease, has the right 'to broadcast its boxing bouts by television' and (b) an injunction against defendants, successors in interest to the original lessor, from barring plaintiff from 'broadcasting by television its boxing bouts'.

The lease in question, dated October--, 1943, between Coliseum Club, Inc., lessor, and plaintiff, lessee, recites that lessor owns and operates a large building known as the Coliseum, 'for use as a sports center', and plaintiff 'promotes and stages boxing bouts' on Monday nights in Baltimore, under sanction of the State Athletic Commission. By the lease lessor lets to plaintiff and plaintiff leases and takes from lessor all the premises known as the Coliseum Arena, 'together with the equipment in the Arena necessary to conduct professional boxing bouts, such as bleacher seats, chairs and boxing ring, for the exclusive use and possession' by plaintiff, of the Arena on Monday night of each week, from 7 p. m. to 1 a. m., for a term of five years to begin April 7, 1946 and to end April 7, 1951, 'at the following rental' which plaintiff covenants to pay: Five per cent of 'the gross receipts accruing from all professional boxing bouts, contests and exhibitions', less all taxes, present or future, 'immediately after the computation of the amounts' each Monday night, with the privilege to plaintiff 'to use the box office' in the afternoon from 'noon and upwards' when called for by plaintiff. Lessor will not lease the Arena to anyone else 'to stage and promote professional boxing bouts' at any time during the term of the lease. If 'the percentage of the rent receipts' shall amount to less than $75 for any Monday night, plaintiff will pay lessor the difference. Should plaintiff 'call off any scheduled boxing bout' before the day of the bout, no charge will be made by lessor to plaintiff; should plaintiff call it off on 'the day of the fight' up until 6 p. m., plaintiff will pay lessor $50, if after 6 p. m. $75. Plaintiff will not during the term of the lease stage or promote any professional boxing contest in Baltimore elsewhere than at the Coliseum, except one such contest during any fiscal year, for which plaintiff will pay lessor 2 1/2 per cent of its gross receipts, less taxes.

Lessor will keep the cooling system in operation and furnish heat, will furnish chairs and bleacher seats, and 'the present regulation size boxing ring' with lights in the entire building and over the ring, 'will keep the inside of the Coliseum Arena clear of all debris and fit for the purpose intended', chairs are to be placed by lessor in their proper location, to be 'fit for the use intended' and to be 'dusted and made reasonably fit for use' by lessor before 8 p. m., the opening for the seating of patrons. Lessor is to furnish hot water for showers and to keep all the plumbing and toilets in conditions for use by patrons.

Paragraph 6 provides: 'The Landlord agrees to allow the Tenant or its agent, the privilege of broadcasting the boxing bouts and also allows the tenant, or its agent, to install Western Union wires direct to the ring. The Landlord agrees to furnish a reasonably adequate loudspeaker for the purpose of announcing the various fights during the course of the evening.'

Should plaintiff fail for four consecutive Monday nights to stage a contest, lessor has an option to cancel the lease. Plaintiff, unless otherwise ordered by the State Athletic Commission, will have, at each show, at least one ten-minute intermission 'just prior to the main bout'. '* * * all rights and concessions for the sale or distribution of food and beverages' are reserved to lessor, and lessor, 'its vendors, employees and agents may conduct said business and sell and dispense food and beverages during the hours of tenancy.'

By an agreement contemporaneous with the lease, plaintiff agreed with three individuals to pay them, for services in procuring the lease, five per cent of 'the gross receipts accruing from all professional boxing bouts, contests and exhibitions', less taxes. Thus ten per cent in the aggregate was payable by plaintiff under the two contracts. Defendants are successors in interest to both lessor and these individuals, and in these capacities receive ten per cent.

The current lease of April, 1943 was preceded by a similar five-year lease, dated April 1, 1941, between the same parties, which contained the same provision, above quoted, for 'the privilege of broadcasting' and allowing plaintiff 'to install Western Union wires direct to the ring.' In October, 1947 lessor was dissolved and by a liquidating dividend distributed its assets, including the current lease, to defendants, who were the owners of all its capital stock.

During 1945 plaintiff 'broadcasted boxing bouts over the entire United States under the sponsorship' of a hat manufacturer, which paid plaintiff a sum varying between $1000 and $1250 each week for ten consecutive weeks. Plaintiff also 'conducted a world's championship boxing match and exercised the privilege of having sports writers from the leading newspapers of the country telegraph the blow-by-blow description to their various home papers * * * in the various large cities of the United States'. The bill alleges that: 'Recently the art of broadcasting has developed to a point where, by the improved use of electric pulsations or * * * waves, the broadcasters not only can transmit sound but also can transmit sight, that is, transmit visually the fight itself within a limited radius.' In short, television has become commercially practicable. Plaintiff 'is in a position to have the boxing bouts broadcasted by television', but defendants refuse to permit plaintiff 'to broadcast the boxing bouts by television'. Plaintiff has never included its receipts from broadcasting in the computation of percentages, payable by it under the two agreements, of 'the gross receipts accruing from all professional boxing bouts, contests and exhibitions'. Defendants do not concede that such receipts need not be included in such computation.

The question presented is whether, by the true construction of the lease of October, 1943, plaintiff has 'the privilege of broadcasting the boxing bouts' by television. What does the word 'broadcast' mean in this context?

In 1888 the verb 'broadcast' was defined: '1. To scatter (seed, etc.) abroad with the hand. [Use in 1813 quoted.] 2. fig. To scatter of disseminate widely. ['The * * * doctrine * * * has been broad-cast.' 1829.]' Oxford Dictionary. By 1933 it had acquired another more specific meaning: '3. To disseminate (a message, news, a musical performance, or any audible matter) from a wireless transmitting station to the receiving sets of the listeners. [Uses in 1921, 1922, 1923 and 1924 quoted.]' Oxford Dictionary, 1933 Supplement. Substantially the same literal, figurative and specific meanings are given in more recent dictionaries. Cf. The New Century Dictionary (1936); Funk and Wagnalls' New Standard Dictionary (1949); Webster's Unabridged Dictionary (1936, 1946); Webster's International Dictionary (1943); American College Dictionary (1947). Webster's adds a specific meaning (to plow in a certain way) with reference to agriculture. In the American College Dictionary the radio meaning is the one first mentioned. We have been referred to no definition, and have found none, of 'broadcast' as meaning to transmit by television. The Standard so defines 'televise' and 'telecast', which in the American College is defined as meaning to broadcast by television. Doubtless the word 'broadcast', in its general figurative sense or in its specific radio sense, figuratively used, can, with a limiting context (e. g., 'broadcast by television'), be applied to television. It may often have been said, with reference to telegraph or newspapers, that news, gossip, a baseball game or a prize-fight was broadcasted, or with reference to a loudspeaker or amplifier, that a speech was broadcasted. The parties to the lease now in question, who were engaged in the boxing industry, not in radio or television science, art or business, did not indulge in figures of speech or in coining new words or new uses of old words. They contracted specifically 'to furnish a reasonably adequate loudspeaker' for announcing fights, to allow plaintiff 'to install Western Union wires direct to the ring', and to allow plaintiff 'the privilege of broadcasting the boxing bouts.'

'As of January 1, 1942, there were 9 commercial television stations and 23 experimental television stations licensed.' Federal Communications Commission Mimeograph No. 57,820. Warner, Radio and Television Law, sec. 72(b) p. 644. In Norman v. City of Las Vegas, 1947, 64 Nev. 38, 177 P.2d 442, 450, a case not similar to the instant case, the court, referring to the word 'disseminate', said, 'The word creates the same picture as 'broadcast', which Webster defines as 'to disseminate widely', and whose present popular meaning is identified with radio, which disseminates information to the four corners of the earth.' In April, 1941 or April, 1943--or now--the only ordinary meaning of 'the privilege of broadcasting the...