VICKERS, J. pro tem.
The plaintiff-respondent Schultz alleged in his complaint that on July 2, 1948, he and the defendant-appellant corporation entered into a written contract under which he agreed to play professional football for the appellant for the season of 1948 for which the defendant-appellant agreed to pay $8,000; that on July 14, 1948, he reported to the training camp of appellant; that on August 12, 1948, he was discharged without cause or justification by the appellant; that he had "done and performed any and all conditions and covenants on his part to be done and performed under said contract"; that on September 25, 1948, he notified the appellant that he was ready, able and willing to perform the services required under the contract; that the defendant failed and refused to permit such performance and that he was only paid $500 by respondent; and was thereby damaged in the sum of $7,500. By its answer the appellant admitted the execution of the contract and that respondent reported for training as alleged and was discharged; appellant denied that the termination was without cause or justification. Appellant's answer also admitted the receipt of the notification of September 25th and that there was no acceptance of respondent's
From the transcript it appears that there was little dispute in regard to the evidentiary facts except as to the cause and extent of the physical disability suffered by the respondent. Respondent had been a professional football player for approximately seven years. During the 1946 or 1947 football seasons, while playing with the Los Angeles Rams, he was partially incapacitated from a back injury. On June 28, 1948, he was examined by appellant's physician, who reported to it that he was in excellent physical condition and that there was no evidence of prior injury to his back or otherwise. On July 14, 1948 (12 days after the execution of the contract) he was examined by another physician on behalf of the appellant who certified to the appellant that respondent was in excellent condition and there were no symptoms of previous back injury. Between July 14th and July 18th respondent engaged in the regular training activities in Ventura, with the rest of the team and took part in two vigorous scrimmages. On July 18th respondent developed a pain in the back of his leg and numbness in his foot which greatly interfered with his attempts to run and he immediately reported his condition to the team trainer, William Kapela, and the team head coach, James Phelan. During the next few days the trainer gave respondents treatments to alleviate the condition but with little or no success. The trainer made full written reports of respondent's condition to the insurance carrier, it being one of his duties. Shortly after July 18th, under the coach's instructions, respondent was examined by three orthopaedic specialists who, after examination, reported to appellant that the respondent was suffering from a herniated disc in his lower back and sometime prior to August 12th informed appellant that it would be very dangerous for him to attempt to play football and that it was doubtful, if not certain, that his playing days were over. Between July 18th and August 12th the respondent reported for practice in proper attire but was not able to
"Under the terms of your contract you agreed to be in proper physical condition to play professional football for our club. Our doctors medical report indicates that you are not in proper physical condition.
"We wish therefore, to advise you that your contract is terminated effective immediately." On August 20th respondent received from appellant a more formal notification of discharge. Prior to this, on August 12th, Coach Phelan suggested to the respondent that he see another orthopaedic specialist named Dr. Billig. He did so and Dr. Billig examined and treated him thereafter. Dr. Billig found him to be suffering from sciatic neuritis and under the doctor's treatment his condition rapidly improved. On August 23d Dr. Billig released him to resume his activities as a football player and on September 23d discharged him as fully recovered without fear of recurrence. On August 12th respondent had protested being discharged and thereafter on many occasions had conferences with Coach Phelan and with officers of appellant informing them of Dr. Billig's reports of his condition and attempted to have himself reinstated and allowed to perform his contract. Appellant refused both requests. Respondent attempted to secure employment with some of the other clubs of the same football league without success and was informed in September by Mr. Lindheimer that he could not play with "The Chicago Rockets" (one of such clubs) and, "to get back to Los Angeles." On September 25th respondent's attorney, by letter to appellant, declared the disability was sustained by respondent while acting in the service of appellant and that respondent was then ready, able and willing to perform under the contract. On October 25th the complaint was filed.
The trial court found that on July 14th, respondent was examined by appellant's physician and found by him to be in excellent physical condition; that such physician was at that time informed of respondent's previous back injury "to-wit, a slipped disc." The court further found that on August 12th,
If we assume appellant made no requests for specific services from respondent after July 18th because of respondent's incapacity from injury, such injury and incapacity were not a ground under the contract for respondent's discharge. The court found that respondent's injury, causing his incapacity, was incurred while he was performing the services required of him. This finding is more fully considered hereafter. Such injury and incapacity was a risk which appellant specifically assumed under paragraph 7 of the contract. This paragraph reads in part as follows: "If this contract is terminated by Club by reason of Player's failure to render his services hereunder due to disability resulting directly from injury sustained in the performance of his services hereunder and written notice of such injury is given by the Player as provided in Regulation 6, Club agrees to pay Player at the rate stipulated in paragraph 2 [$8,000]...." Paragraph 7 further provides that in all other cases, if the contract is terminated during the training season, the player will receive only his expenses.
In addition to finding that the discharge was without cause the court also found that it was not true, as alleged in the third affirmative defense, that pursuant to paragraph 7 of the contract respondent had been fully compensated. As we have noted above it was under paragraph 7 that appellant contended that respondent's failure to give appellant written notice of his injury absolved appellant from liability to compensate respondent for anything except his training expenses and transportation. The court having found to the contrary it necessarily must have impliedly found that the failure of respondent to give the written notice did not bar his right of recovery and we must apply the rule of implied findings quoted above. If we were of the opinion that these two findings were not impliedly found, we would be impelled to make such findings under the power given this court under Code of Civil Procedure, section 956a.
The judgment is affirmed.
Wood (Parker), J., concurred.
I concur. Again I feel compelled to comment upon the prevalent lack of understanding on the part of counsel as to the function of findings and the importance of relating them to the material issues.
There were findings that plaintiff is a resident of Los Angeles County; that defendant is a California corporation, and upon all the other allegations of the complaint which were admitted. There was also a finding that all the allegations of the affirmative defenses were untrue. By this blanket finding the court found that defendant did not discharge plaintiff because of physical disability; that the contract was not terminated during the training season; that defendant did not pay plaintiff's expenses and transportation as required by the contract; that the contract did not provide
But the errors and defects do not end with the findings upon immaterial or admitted facts or with those last mentioned. The one important question was whether plaintiff suffered disability resulting directly from injury sustained in the performance of his services. There was no finding upon that issue, although defendant earnestly insisted in writing that a finding should be made, as well as specific findings upon other issues. Defendant even went so far as to make an unsuccessful application to the District Court of Appeal for a writ of mandate to require the court to make additional findings.
It will be seen from the main opinion that the court has been required to make a painstaking and laborious analysis of the findings in order to determine whether there is a reasonable basis for regarding them as sufficient to support the conclusions of law and judgment. I agree that there was substantial evidence to support the finding that plaintiff was physically able to play football when he first engaged in practice, and in view of this finding, I believe a finding that he was subsequently injured in the performance of his services should be implied. But even if the finding were not implied a contrary finding would not have been logical, inasmuch as there was nothing to suggest injury except in practice. By this narrow margin I conclude that the inadequate, contradictory, false and confusing findings do not justify a reversal.