Traweek v. Radio Brady, Inc.

• Decision Date: 07 May 1969
• Docket Number: No. 11671,11671
• Parties: Terry TRAWEEK, Appellant, v. RADIO BRADY, INC., et al., Appellees. . Austin
• Court: Texas Court of Appeals

Page 240

441 S.W.2d 240

Terry TRAWEEK, Appellant, v. RADIO BRADY, INC., et al., Appellees.

No. 11671.

Court of Civil Appeals of Texas.

Austin.

May 7, 1969.

Rehearing Denied May 28, 1969.

James O. Cade, Lubbock, for appellant.

R. Daniel Settle, with Cantey, Hanger, Gooch, Cravens & Scarborough, Fort Worth, Sam A. McCollum, III, Brady, for appellees.

PHILLIPS, Chief Justice.

This case comes to us in the form of a summary judgment proceeding . Appellant, a theatre operator in Brady, Texas, brought suit against the owner and operator of a radio station in that same city for malicious breach of contract for refusal to broadcast certain radio advertising on behalf of a movie entitled 'The Graduate.'

The trial court granted Appellee Radio station's motion for summary judgment and we affirm this judgment.

Appellant is before this Court on eight points of error. ¹ The substance of these points is the alleged errors of the court in failing to find fact questions as to the existence of the contract to broadcast certain advertising material over the radio station, as to a breach of this contract, whether Appellee acted in malice in breaching the contract, whether the court erred in overruling Appellant's motion for leave to file certain supplemental pleadings.

We overrule these points.

At the time of the hearing Appellant had alleged that: 'Plaintiff and defendants entered into an oral contract * * * whereby Radio Brady, Inc., acting by and through its president, Haney, agreed to run advertisements over its * * * radio station advertising a moving picture known as 'The Graduate'. * * *'

In their original answer, Appellees denied any such agreement and further alleged that any such agreement would be illegal, void and unenforceable as a matter of law.

Attached to Appellees' motion for summary judgment is an affidavit by Appellee Haney, stating facts showing that Radio Brady, Inc. is duly licensed by the Federal Communications Commission and under the applicable laws and regulations, Appellees have the right to determine, select, supervise and control the material broadcast over its station and cannot assign, transfer or delegate these rights and duties. The affidavit further recites that Appellees had run one prerecorded advertisement, but refused to run certain other advertisements containing the language '* * * are you trying to seduce me?'

Appellant did not controvert this affidavit.

On the day of the hearing of the motion Appellant filed a pleading entitled 'Plaintiff's Contest to Defendant's Application for Summary Judgment' to which was attached Appellant's affidavit and other exhibits.

In his affidavit Appellant stated that: 'it not being the intent of this plaintiff to allege that there was a contract with Radio Brady, Inc. to 'run all material presented to Defendants by Plaintiff' but that the advertisements to be run were certain specific recorded advertisements to be run and which were each to be specifically agreed upon by the parties.'

Thus at the hearing both parties were in agreement that Appellees had not agreed to broadcast all material presented them by Appellant, but, according to Appellant, the advertisements to be run 'were each to be specifically agreed upon by the parties.' These facts, as a matter of law, demonstrate that there was no contract, but merely an agreement to make a contract which is unenforceable because it is indefinite and uncertain. Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472 (Tex.Comm'n App.1937).

Appellees' position in this regard is further buttressed by the applicable Federal rulings and decisions to the effect that should Appellees agree to broadcast all advertisements tendered to them, without qualification, such an agreement would be illegal under the provisions of 47 U.S.C., Sec. 310(b). Also see National Broadcasting Company v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344, wherein the Court stated that the licensee has the duty of determining what programs shall be broadcast over his station's facilities, and cannot lawfully delegate his duty to transfer the control of his station directly or indirectly. The licensee is obliged to reserve to himself the final decision as to what programs will best serve the public interest. See also McIntire v. Wm. Penn Broadcasting Co. of Philadelphia, 3 Cir., 151 F .2d 597.

With respect to Appellant's contention that the alleged breach was done with malice: in the first place, at the time of the hearing Appellant had not alleged a cause of action against Appellees for a malicious breach of contract; in the second place, since the court found as a matter of law that there was no contract, there could be no malicious breach.

In further support of his contention that Appellees breached on oral contract with malice, Appellant cites Appellees' refusal to give Appellant equal time to reply to an editorial broadcast by Appellees, which Appellant claims to be malicious. This editorial is quite long and it would serve no useful purpose to reproduce it here. Suffice to say that it is neither malicious nor actionable. It refers only to the movie in question; states certain facts concerning the plot, then...