O'Connor v. St. Louis American League Baseball Co.

REYNOLDS, P. J. (after stating the facts).— Learned counsel for appellant make twelve assignments of error but in their argument they have confined themselves to eight points. It is first argued that the relationship that exists between an employer and employee is one of peculiar trust and confidence and that where in an action by the latter for breach of the'contract of employment the former pleads facts constituting a fraud on that relationship as a justification, for the employee’s discharge, the issue on such fraud is equitable in its nature and that an appellate court will not consider itself bound by the findings of the court or jury below but will review all the evidence of the fraud. We do not appreciate the force of this argument in the case before us. None of the authorities cited by learned counsel for appellant fit this case. This is purely an action at law — an action in which, on all controverted facts, the verdict of the jury is binding upon the ap — 190 — pellate court, if sustained by substantial evidence and tbe result of correct instructions as to tbe law. But as in all actions at law, we may review the evidence to determine whether there is substantial evidence to sustain the verdict. Doing that here, we find that the verdict, in so far as it finds there was no legal ground for the discharge of plaintiff, is fully warranted. There is no substantial evidence that plaintiff was desirous of favoring Lajoie in his contest for batting honors over Cobb, or that he, in disregard and in violation of his duties, and to favor Lajoie, instructed Corriden to play so far back of his regular position as to allow Lajoie to make successful hits, and which he could not otherwise have made. To have sustained these charges, the jury would have had to act on the vaguest' suspicion. It is true that Lajoie “bunted” and that Corriden, being far back from third base, was not able to handle the balls so “bunted.” But the jury must have found that there was no substantial evidence that plaintiff or anyone else could have anticipated, from his manner of holding his bat, that Lajoie intended to “bnnt” all of them. Even the fact that he did “bunt” the first evidently did not convince the jury that plaintiff should have anticipated his bunting any others. Failing to satisfy the jury on this very material point, as we must assume from the verdict was the case, defendant was bound to fail in its effort to prove good cause for the discharge of plaintiff. The second proposition made by those learned counsel is, that where the employee does an act which injures or has a tendency to injure the'employer’s business, such an act is a sufficient justification of the discharge of the employee, irrespective of fraud, and it is not necessary to show that the act caused actual loss to his employer, if it appears that the latter is liable to be damaged by the act complained of. Coun191 . sel cite in support of this Wade v. Wm. Barr Dry Goods Co., 155 Mo. App. 405, 134 S. W. 1084. However true the proposition that it is not necessary to show actual loss may be, it still remains a question of fact for a jury to determine whether the doing of a particular act was in violation of the employee’s duty and did tend to the injury of the employer. So we held when Wade v. Wm. Barr Dry Goods Company again came before us on appeal, as see 191 Mo. App. 629, 177 S. W. 66 8. As will be seen by the instructions given in this case, the question of whether the plaintiff had violated his duty and been unfaithful to his employer was fairly submitted to the jury; was distinctly presented as an issue by the instructions asked and given at the instance of plaintiff as well as the one asked and given at the instance of defendant. The third proposition urged by learned counse] is, ‘ ‘ a contract which binds only one party is void for lack of mutuality of obligation. ’ ’ This point, as elaborated in the argument of those counsel is, that as the second clause of the contract calls for services only during the season of 1910, and makes no provision for any services for the season of 1911, that therefore there is no mutuality, or no consideration; that plaintiff is under no obligation, by the contract, to do anything for the season of 1911. That proposition must rest on the further proposition that the time set out in this second clause is conclusive. But if it appears that the employment was for the season of 1911 as well as for that of 1910, then there is nothing in this point. To sustain it would be to ignore the fundamental proposition in the case, namely, that the employment, as expressed in the very first clause of the contract, is for two seasons. As by the verdict of the jury, returned under the evidence in the case and the instructions given, the jury found there, was an employment for the two — 192 — seasons at a stated compensation for each season, the like duties followed for each year and so created a mutuality of contract. The fourth proposition advanced and argued is that a contract which is void on its face, or which differs from the one pleaded, is not admissible in evidence; that a party cannot recover on a void instrument nor can he sue on one cause of action and recover on another. Very distinctly the plaintiff in this case sued on a two-year contract; very clearly from the testimony in the case he entered into the contract only on the agreement that he was to be employed for two seasons. The contract introduced in evidence, when produced by defendant, very clearly and distinctly, in the first clause, sets out in so many words that the defendant agrees to pay plaintiff “the sum of $5000 per season for 1910 and 1911,” whereas the second or following clause limits the employment to the season of 1910, “beginning on or about the 1st day of April, 1910, and ending on or about the 15th day of October, 1910, which period of time shall constitute the life of this contract, unless sooner terminated in accordance with the further provisions of this contract.” This does not present a case of ambiguity but of conflicting clauses in the contract, and these two clauses are in irreconcilable conflict. It is to be remembered that this contract was drawn up by the president of the defendant corporation, and, as in all like cases, is to be construed most strongly against the person drawing it. The question then is, which of these clauses is to control? Both cannot stand together. We are not without what we think conclusive authority on this question. Employers’ Liability Assurance Corporation v. Morrow, 74 C. C. A. Rep. 640, is a case on a liability assurance policy, in which policy two clauses appeared, the first promising indemnity in the sum of $10,000 — 193 — in case of the loss of an arm; the second apparently limiting the amount payable in case of the loss of an arm to a sum which the weekly earnings of the assured bore to the principal sum due. Judge Burton, then circuit judge, delivering the opinion of the court and treating of these antagonistic clauses, has said (l. c. 644): “How, then, can a subsequent provision stand which altogether changes the measure of such recovery for such an injury from an agreed, definite, fixed amount, by substituting for that a sum to be ascertained by the ratio of his weekly wages to the weekly indemnity contracted to be paid only for a disability not resulting in the loss of a limb? But if the contract to pay a definite or fixed sum for the loss of an arm is to be abandoned for a sum ascertained by a measure of the kind suggested, then which ‘weekly indemnity’ payable under this policy, or the other concurrent policy, are we to take as furnishing that factor in the problem?” After further considering the effect of these antagonistic clauses, Judge Burton says (l . c. 645): “It is trifling with the substance of things to say that two such antagonistic clauses can stand together, or that the latter is a mere modification of the other. If the agreement in the prior clause is antagonistic to the agreement in the later clause, one must yield to the other. But it is a well-settled principle of construction that if two clauses are repugnant, and cannot stand together, the first will stand and the last will be rejected.” Many authorities are cited in support, of this proposition. In Royle Mining Co. v. Fidelity & Casualty Company of New York, 126 Mo. App. 104, 103 S. W. 1098, the Kansas City Court of Appeals also had before it an employer’s liability contract, which, under the general terms of the policy, contracted for the pay — 194 — ment of an amount certain in case of loss or injury to ■the employee, but under subsequent and following special agreements, this liability to pay was limited, namely, providing that there should be no liability if the injury happened by reason of disregard of the law by the employer in operating his mine. Judge Johnson, speaking for the Kansas City Court of Appeals, says that the injury to the employee was undoubtedly occasioned by failure of the employer to comply with the provisions of our statute governing the operation of mines, and under the special agreement there was to be no liability on the assured if that was the cause of the accident. Thereupon Judge Johnson (l. c. 111) says: ‘ ‘ Our first concern is with the question of whether or not the special agreement is enforcible at all. If it can be harmonized with the other agreements in the contract, the exemption from liability it provided was of avail to defendant when the question of its liability under the policy first arose, but on the other hand, should we find that its terms are repugnant to those embraced in a preceding part of the contract to which greater weight must be attached in the interpretation of that instrument as a whole, then the proviso under consideration should be rejected in toto and the defense founded upon it must fall for lack of support. The main purpose of the contract as expressed on its face was to indemnify plaintiff ‘against loss from common law or statutory liability.’ That purpose must be given effect, and if the limits attempted to be imposed on it in the subsequent proviso under consideration are so closely drawn that they destroy the expressed purpose of the parties, the prior clause must override the subsequent restrictive clause. The rule announced by Blackstone (2 Blackstone 381) ‘that in a deed if there be two clauses so totally repugnant to each other that they cannot stand together, — 195 — the first should be received and the latter rejected/ has been generally followed in the construction of simple contracts.” This is followed by the citation of a number of authorities, both decisions and text-writers, and among the authorities cited it is to be noted that they include several of those also cited in Employers’ Liability Assurance Corporation v. Morrow, supra. Many other authorities might be cited in support of this proposition but they are so fully collated in the two opinions above referred to, that by Judge Ltjeton of the United States Circuit Court of Appeals, and that by Judge Johnson of the Kansas City Court of Appeals, that we do not think it necessary to add others. So that it follows that these words in this clause of the contract which purport to limit the employment to the season of 1910, even independent of any parol testimony explaining them, are to be entirely disregarded and the contract treated as controlled by the words in the first clause; that is, an employment for the seasons of 1910 and 1911. This made it the contract as pleaded; did not make it a void contract and was no failure of proof. So it was treated by the jury when under the instructions of the court and the evidence in the' case, they found that the plaintiff’s employment under the contract was for the term of two years. The fifth point urged by learned counsel is that where by reason of mistake a contract is defective or fails to express the real intention of the parties, the remedy is in equity for reformation and that before either party can recover upon it in an action at law the equitable remedy for reformation must first be invoked in the same or a separate proceeding. That is a general rule but we do not think it applicable here. Under the authorities which we have cited, this contract did not need reformation. The latter clause, in — 196 — so far as it attempts to fix the employment for the season of 1910, falls out-as- completely as if not written, leaving a valid contract of employment for two years. The court might have so instructed the jury, but it chose to submit the question of the duration of the contract to the jury. Surely appellant has no cause to complain of this. Piad the verdict been otherwise, plaintiff might have had ground for complaint. This answers the further argument that where an ambiguity appears on the face of an instrument and the ambiguity is patent, the contract must be construed by the court itself, and oral testimony of the intentions and prior negotiations of the parties is not admissible. It is true that testimony was introduced as to what took place between the parties at the time of the consummation of this contract or immediately before it. It is a question as to whether proper and timely objections were made to this testimony. Certainly the motion of defendant to strike out the testimony of plaintiff as to this, after that testimony had been given, no ground of objection having been made to the question, came too late. A well-settled rule for the interpretation of contracts is here applicable. Our Supreme Court has said in Tetley v. McElmurry, 201 Mo. 382, l. c. 393-4, 100 S. W. 37: “Where a contract is equivocal ... a recognized canon of interpretation is to seek out the construction the parties to the contract placed upon it themselves and apply that.” Here, after the games had been played on the 9th of October, 1910, Mr. Johnson, the president of the American League, of which defendant was a part, writes O’Connor by letter of October 11, 1910, herein-before set out, that he has seen newspaper reports reflecting on the good faith of the playing and asks him — 197 — to explain. Thereupon Oi’Connor and others went to Chicago, met Mr. Johnson and were heard by him, Hedges, president of this defendant club, apparently also participating or advised of it. The hearing evidently was to determine whether O’Connor should thereafter be permitted to remain with the St. Louis Club. Johnson ruled that he should not and Hedges acquiescing and under the rules of the association O’Connor was offered to the seven other clubs in the League. All refused him. Thereupon Hedges, by letter of November 29, 1910, formally notified O’Connor that the St. Louis American Leagme Baseball Company “elected to terminate its contract with you as a member of the St. Louis American League Baseball Club for the season of 1911 and that you have been tendered an unconditional release.” These proceedings before Johnson and this letter of Hedges are explainable on no other theory than that they understood the employment of O’Connor was for the season of 1911, as well as for that of 1910. If plaintiff was not then under contract for the season of 1911, why go to all this trouble and expense, for Johnson says he paid the expenses of O’Connor and the others to get them to Chicago, to inquire into the conduct of O’Connor in a season which had ended? There is no pretense that this inquiry was with a view to employ O’Connor for another season; it was to determine whether his then contract for the season of 1911 should remain in force. No other construction can be put on the letter of date November 29, 1910, from Hedges to O’Connor, in which the former writes the latter that the purpose of the letter is “to confirm what you (O’Connor) have understood for more than a month past, viz., that the St. Louis American Baseball Company has elected to terminate its contract with you as a member of the St. Louis American League Baseball Club for the season of 1911, and that you have — 198 — been tendered an unconditional release.” If the contract of employment ended with the season of 1910, all this was uncalled for. Beyond doubt it showed that appellant’s officers then construed this contract as covering the season of 1911 as well as of 1910. By its course of conduct alone, if for no other reason, defendant put a construction upon the contract by which it is bound. The seventh and eighth points made by learned counsel for appellant are to the rejection of the evidence 'attempted to be introduced as- to newspaper publications. It is sufficient to say as to these points that an examination of the bill of exceptions as set out in the abstract fails to show that any legal objections were offered to the admissibility of this testimony, nor is the- evidence proposed to be offered before us in such shape that we can pass upon its admissibility. Our conclusion on the whole case is, that the instructions placed the case before the jury in a very favorable light for appellant and we see no cause to disturb the verdict of the jury, nor the judgment of the trial court on that verdict. That judgment is affirmed. Nortom and Allen, JJ., concur.