Western Union Telegraph Co. v. Eckhardt

• Decision Date: 07 November 1927
• Docket Number: (No. 7155.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 2 S.W.2d 505
• Parties: WESTERN UNION TELEGRAPH CO. v. ECKHARDT.
• Court: Texas Court of Appeals

2 S.W.2d 505

WESTERN UNION TELEGRAPH CO. v. ECKHARDT.

(No. 7155.)^*

Court of Civil Appeals of Texas. Austin.

November 7, 1927.

Rehearing Denied. November 23, 1927.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by O. G. Eckhardt, Jr., against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hart, Patterson & Hart, of Austin, and Francis R. Stark, of New York City, for appellant.

Henry H. Brooks and Robert M. Turpin, both of Austin, for appellee.

McCLENDON, C. J.

The parties: O. G. Eckhardt, Jr., plaintiff and appellee; Western Union Telegraph Company, defendant and appellant.

The cause of action: Damages for delay in delivery of a telegram offering plaintiff employment as a professional baseball player.

The judgment: For plaintiff upon special issue verdict for $500 (loss of salary during the proffered contract period, up to the amount limited by the contract of transmissal), with interest thereon from September 27, 1925, the end of the 1925 season.

The material evidence: Plaintiff (24 years old at time of trial, January 1927) had had the following experience as a baseball player: Austin high school team, as pitcher and outfielder; University of Texas team three years as pitcher and outfielder; and player of semiprofessional baseball in summer with various Texas teams. In the late summer of 1924 he endeavored to obtain employment as a professional baseball player for the 1925 season through one Saplica, who is described as a "scout of the Cleveland American League Baseball Club." These efforts were continued through the ensuing winter. On June 3, 1925, the following telegrams in order following were sent over defendant's wires:

Saplica to plaintiff:

"Have chance to get you job, Columbus American Ass'n. Wire answer Elks Club immediately."

Plaintiff to Saplica:

"Can report June tenth if terms satisfactory. Wire details. Would want to go if terms satisfactory."

Saplica to plaintiff:

"Salary three hundred fifty month to start with June tenth reporting satisfactory answer immediately."

The first and third were addressed to "Oscar Eckhardt, Jr., Ball Player, Austin, Texas." The third was not delivered until June 9th; the delay resulting in loss of opportunity to accept the employment offered. Plaintiff thereafter obtained employment with the Cleveland Club, of the American League, at a salary of $350 a month. The evidence shows that he did not become a member of the Cleveland team, but was merely a "visitor," to be tried out by the club with a view of his employment for the 1926 season. He was with that club from July 1st to August 15th, when he voluntarily left the employment. In the meantime he "signed up" with the Cleveland Club for the 1926 season at $400 a month. Prior to June 3, 1925, he had a contract as athletic coach with the Canyon Normal School, services to begin early in September, 1925. The terms of this contract are not shown. There was evidence that he assigned as his reason for leaving the Cleveland Club that it was in order to comply with this contract. It was shown that the contract he would have been given with the Columbus Club had he accepted it promptly was the uniform player's contract approved by the National Association of Professional Baseball Leagues, for "the playing season of 1925," binding him to all the rules and regulations of the association, and carrying with it right of transfer to other clubs and option on his services for the following season. It contained the usual clause in such contracts that it was terminable "at any time by the club or by any assignee." The message sued upon was an unrepeated one, and bore the following restriction, which defendant relied upon as a limitation upon its liability:

"The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any message received for transmission at the unrepeated-message rate beyond the sum of five hundred dollars."

Appellant urges five propositions, which, for convenience, we will consider in a different order from that in its brief.

The fifth proposition is that the offer was only of a hiring at will, since no definite duration was stated, and the salary per month would only bind the sender to the rate stated; and the fourth is to the effect that in any event the sender was not bound beyond the period of one month beginning June 10, 1925. Under the fifth proposition only nominal damages would be recoverable, and under the fourth loss of salary from June 4th to June 30th only, both inclusive, since the employment with Cleveland at the same rate began July 1st.

The evidence conclusively shows that plaintiff was negotiating for employment as a regular member of a professional team, and that a standard form of contract was used in the employment. There are no essential elements of difference between this form and that under consideration in the leading case of Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 58 L. R. A. 227, 90 Am. St. Rep. 627. We hold the proffered employment was for the 1925 season.

In so far as these propositions may be construed to raise the question of notice to defendant, they are manifestly without merit. The first and third messages carried on their face notice that they were negotiations for employment as a player with a well-known professional baseball team a member of a well-known association. While we may not take judicial notice of the terms of employment made with players, it is a matter of common knowledge that an elaborate system of rules and regulations have been promulgated dealing with terms of employment of players, to which every player must bind himself by contract. This being true, the telegrams carried on their face sufficient notice to the transmitting company that they related to an offer of employment consistent with the usual course of dealing in the designated business. Pfiester v. Western Union Tel. Co., 282 Ill. 69 118 N. E. 407, Ann. Cas. 1913D, 738, is an all fours case.

The first proposition questions the sufficiency of the evidence as a matter of law to sustain the fourth jury finding to the effect that, if plaintiff had made a contract with the Columbus Club, he would have remained with that club during the 1925 baseball season longer than he remained with the Cleveland Club. The above-recited evidence amply supports this finding. If he had made the contract, a fact which the question presupposes, he would have been bound for the entire 1925 season with an option on his services for the 1926 season. He was anxious to play professional baseball, and the jury could well find that, if the contract had been made, he would have lived up to it, and would have been permitted to continue under it during the contractural period. Neither the fact that he voluntarily left the Cleveland Club, where he was receiving the same rate of compensation, nor the fact that he had a previous contract for September employment under terms not shown by the record, were sufficient to negative as a matter of law the reasonable inference that, if he made the Columbus contract, he would not have continued employment under it beyond August 15, 1925. The Cleveland employment was only at will; he was not a member of, and did not play on, the team; and, when he left, he had accomplished the main purpose of the employment, namely, to obtain a contract for the 1926 season. Neither the terms nor the status of the coaching contract were shown, and the jury might reasonably infer that he would not have sought or become bound upon the Columbus contract if a compliance with its terms would necessarily require that he breach his coaching contract.

In the argument appellant urges two further contentions under this proposition: First, that, having received the Cleveland employment at the same salary as the Columbus offer, and having voluntarily left the former, he can only recover for loss up to the time the former began (July 1st); second, that, having entered upon the coaching employment during the Columbus contract period, he must give credit for what he earned under the former. The answer to these contentions is that there was no pleading to sustain the former, and no pleading or evidence to sustain the latter.

These were matters of defense, as to which the burden both of allegation and proof rested upon appellant, Mansfield v. Nichols (Tex. Civ. App.) 265 S. W. 746, and authorities collated.

There is no pleading that plaintiff could have earned more than he did earn with the Cleveland Club. His employment at $350 a month is alleged, and that "the sum of paid to plaintiff by the Cleveland Club during the period of time plaintiff was with it was equal to or greater than the sum which plaintiff would have received from said Columbus Club during said period of time if he had made contract with it."

Appellant's second proposition complains of the admission in evidence of Reach's 1926 Baseball Guide to the effect that the Columbus Club 1925 season began April 17th and closed September 27th.

In connection with this guide, Wm. J. Disch, university baseball coach, or semiprofessional baseball player since 1898, during which time he had "become fairly familiar with what things were official and regarded as official in baseball," testified:

"This little book handed me is Reach's Guide, which is an official baseball publication. * * * I know from my knowledge of baseball that the records contained in this work are supposed to be correct from year to year. I have not noted any mistakes in any of the guides. This is based upon a comparison of what I know on the outside with certain facts contained in this book. * * * This is an official record as kept from year to year by A. J. Reach and A. G. Spalding, leading men in baseball affairs of the country, and supposed to be the official record of all baseball games. It is accepted as official and correct by the...