Author Archive

Dick Arndt and the Saga of Henry Aaron’s Historic No. 755

On July 20, 1976, Dick Arndt got up in the morning and shuffled off to his job as a vocational rehabilitation counselor. Once his day shift ended, Dick headed to his part-time gig as the Brewers’ groundskeeper at Milwaukee County Stadium, where he was in charge of opening and closing the gate for the bullpen cart. This, however, would be no ordinary day for Arndt.

Aaron ball 1-page-0
Photo credit: Journal Photo/Eugene Burton

The sparse crowd of 10,134 that night — about a fifth of capacity — was there to see the Angels take on the lowly Brewers, part of the draw being 42-year-old Hank Aaron during his farewell season. In the seventh inning, Arndt was sitting in the left-field stands keeping a lookout for any signals that a pitching change was to be made. With the Brewers ahead 2-1, George Scott hit a two-run home run, increasing the Milwaukee lead. Aaron came up next and drove a Dick Drago offering on a line into the left-field seats, flying about 10 feet over Arndt’s head. The ball settled into an empty row, where Arndt quickly retrieved it. Read the rest of this entry »

Don Newcombe and His Likeness: You Be the Judge

Don Newcombe began his professional baseball career as a teenager with the Newark Eagles of the Negro National League in 1944. As a rookie hurler with the Brooklyn Dodgers in 1949, he quickly established himself as an ace — he was named an All-Star, started two games for the Dodgers in the World Series, and was eventually crowned Rookie of the Year. This photo taken of him during that 1949 World Series would be used as evidence in a lawsuit nearly 50 years later:

Photo by Ralph Morse / Time Life Pictures / Getty Images

Newk last pitched in the majors in 1960 with the Cleveland Indians and spent 1961 with the Spokane Indians in the Pacific Coast League trying to resurrect his major league career. After making a single start for Japan’s Chunichi Dragons in 1962, Newcombe retired from baseball as the only player in major league history to have won the Most Valuable Player Award, the Cy Young Award, and the Rookie of the Year Award (Justin Verlander has since matched this feat). Newcombe’s playing career, however, was cut short due to military service (1952-53) and a personal battle with alcohol.

After his playing career ended, Newcombe, who drank his first beer as an eight-year-old, began to imbibe heavily. He eventually lost his New Jersey cocktail lounge to tax agents and a liquor business to bankruptcy, his wife left with their three kids, and he had to pawn a World Series ring to pay his rent. Having hit rock bottom, Newcombe embarked on the road to recovery, ultimately dedicating his life to helping others who struggled with addiction. He joined the Los Angeles Dodgers’ front office in 1970 and served as the team’s community relations director, specializing in drug and alcohol awareness programs. He additionally served as spokesman for the National Institute on Drug and Alcohol Abuse pursuant to presidential appointments by Richard Nixon, Gerald Ford, and Ronald Reagan.

Accordingly, Newcombe was sickened to discover that a beer advertisement in the February 1994 Sports Illustrated “swimsuit edition” appeared to feature his likeness. The full-page illustrated ad for Killian’s Irish Red (owned by Coors Brewing Company) showed a seemingly generic pitcher in his windup, a nondescript infielder, and a fictional ballpark. The players’ uniforms did not show a team name or logo and did not utilize the same color scheme as the 1949 Dodgers. However, “Newcombe, along with family, friends and teammates immediately recognized the pitcher featured in the advertisement as Newcombe in his playing days.” Willie Mays and Duke Snider, in particular, recognized Newcombe immediately.

Advertisement Inset

Read the rest of this entry »

Where Have You Gone, Baseball Boulevard?

Baseball Boulevard Logo

Joe DiMaggio’s foot was “parboiled” by a trainer, delaying his Major League debut in 1936. This footnote, no pun intended, occurred in St. Petersburg, Florida and was immortalized with a plaque along Baseball Boulevard.

For some baseball fans, seeing a game in each of the 30 Major League ballparks is a dream. Others take it to the next level, creating checklists that contain minor league ballparks, spring training facilities, museums and historical markers. While professional baseball stadiums are relatively easy to find, baseball-themed museums and memorials are often tucked away in locations far from the beaten path. Frankly, the number of baseball museums and historical markers across the United States and Canada is staggering.

One of the most ambitious baseball historical marker projects ever was installed in St. Petersburg in 1998. The Jim Healey and Jack Lake Baseball Boulevard was named for the two men who campaigned for a Major League team in St. Petersburg. Costing over $47,000, home plate-shaped plaques were installed in chronological order listing a significant event from each year of St. Petersburg baseball from 1914 through 1998. These highlights often had a humorous tenor, recalling not only the cooking of Joltin’ Joe’s foot but Babe Ruth having been chased off of Crescent Lake Park field by an alligator in 1925, a 1940 game played by men riding donkeys and the infamous Sidd Finch hoax in 1985. The trail culminated with a plaque celebrating the arrival of the Devil Rays as the city’s first year-round home team in 1998.

Recently, this author took in a Tampa Bay Rays game at Tropicana Field and set out the next day to walk Baseball Boulevard. Armed with an article from the Tampa Bay Times detailing the route, the course was plotted – at nearly a mile and a half in length – the plaques were to be found at intervals starting at Al Lang Stadium, up 1st Street and traveling down Central Avenue before turning towards Tropicana Field at 13th Street.

Arriving at the starting point, it was apparent that remodeling work was underway at Al Lang Stadium. Named for the former mayor who championed spring training in St. Petersburg, Al Lang Stadium was the spring training home for Major League teams from 1947 through 2008. It is now the home field for the Tampa Bay Rowdies, a professional soccer team with a loud green and yellow color scheme.

The first historical plaque

The first of the commemorative plaques was easily found, highlighting the first spring training game ever held in St. Petersburg, a Chicago Cubs 3-2 victory over the St. Louis Browns at Coffee Pot Park in 1914. Also easy to spot was a marker honoring Al Lang, himself, and the trailhead legend, which reads:

Florida’s love affair with baseball began in St. Petersburg in 1914 when the city’s former mayor, Al Lang, convinced Branch Rickey to move his St. Louis Browns to the Sunshine City for spring training.

For the next 84 years, St. Petersburg collected grand springtime memories. Then, in 1998, the spectrum changed as the Tampa Bay Devil Rays began play and made St. Petersburg their year round home.

We invite you to stroll along Baseball Boulevard and relive a colorful history that highlights the time spent in St. Petersburg by some of the sport’s greatest and most exiting players-stars such as Babe Ruth and Joe DiMaggio of the Yankees, Stan Musial and Bob Gibson of the Cardinals, Tom Seaver of the Mets and Cal Ripken of the Orioles.

The Boulevard also honors the contributions of local heroes who worked tirelessly to bring Major League Baseball to St. Petersburg.

It is named in honor of Jim Healey and Jack Lake, both of whom were instrumental in the construction of Tropicana Field and the city’s success in securing a Major League Baseball franchise for Florida’s West Coast.

Walking north on 1st Street, however, no other plaques were found. Turning on Central to head west, the markers were nowhere to be seen. Having continued to 5th Street, it seemed rather unusual that no plaques or pedestals had yet to be encountered. People on the street were not much help. The first four folks had never even heard of Baseball Boulevard. The fifth person knew that “they moved ‘em” and that was about it.

Accessing the newspaper article again by iPhone revealed, unseen at the bottom of the page, that it had originally been published in the St. Petersburg Times on September 16, 1998. A previously undiscovered article explained that Baseball Boulevard did not garner the attention the planners had hoped and by 2011 several of the concrete pedestals had fallen into disrepair. Faced with costs of repairing and replacing the pedestals, the city decided instead to relocate the plaques to Al Lang Stadium.

Now having returned to Al Lang Stadium, it was clear that no other plaques were on display there. A walk around the entire exterior did not reveal any commemorative markers. Peering into the concourse did not yield any signs of relocation. This was now a full-blown mystery.

Al Lang Stadium facade

A couple of tradesmen were bothered with questions about Baseball Boulevard and neither had any information about the plaques. Just about to leave, with more questions than answers, a carpenter appeared out of nowhere and pointed at the stadium’s façade. “They’re right there, don’t you see them?” in a clear attempt to poke fun at a tourist. “Huh?”

“Come closer,” he said, “you can kinda see the outline of the plaques under that banner.” It was true, the home plates that had been lovingly relocated to Al Lang Stadium were now ingloriously covered by a Rowdies banner.

Outline of covered plaques

It was perfectly clear that the Rowdies did not hold the plaques or the area’s baseball history in high regard. What a shame. A must-see destination for baseball history buffs is now just a shadow of its former self, cloaked in garish green and yellow. Hopefully we will live to see Baseball Boulevard resurrected.

The Untold Story of Roberto Clemente’s Plane Crash Litigation

The Fatal Crash

Roberto Clemente was both a remarkable ballplayer and genuine folk hero. As an outfielder for the Pittsburgh Pirates, Clemente was a perennial All-Star and Gold Glove recipient. He won four batting titles, was the National League’s MVP in 1966 and the World Series MVP in 1971.

Roberto Clemente

On September 30, 1972, Clemente stroked a double off of Mets pitcher Jon Matlack to reach the 3000 hit milestone in his final regular season at bat. After closing out the 1972 season with a playoff series loss to the Cincinnati Reds, Clemente traveled to Nicaragua in November to manage the Puerto Rican All-Stars in the Amateur Baseball World Series.

A 6.2 magnitude earthquake rocked Managua, Nicaragua on December 23, 1972. Some 5,000 people lost their lives, another 20,000 were injured and over 250,000 were displaced from their homes. Swayed by the time he had just spent in Nicaragua, Clemente coordinated a extraordinary effort to provide emergency supplies to the victims. Even after sending three airplane loads to Managua, there were still supplies that needed to be flown to Nicaragua.

Clemente was approached by Arthur Rivera, who offered the services of his DC-7 cargo plane to airlift the remaining relief supplies. Clemente inspected the plane and agreed to pay Rivera $4000 (approximately $22,000 today) upon his return to Puerto Rico.

By law, Rivera was to provide a pilot, co-pilot and flight engineer. Rivera hired a pilot, Jerry Hill, and appointed himself as the co-pilot, despite his lack of certification to co-pilot the DC-7. He was unable to hire a flight engineer for the flight.

Unbeknownst to Clemente, the DC-7 had been involved in an accident on December 2, 1972 when a loss of hydraulic power caused the aircraft to leave the taxiway and crash into a water-filled concrete ditch. After the incident, an airworthiness inspector with the Federal Aviation Administration (F.A.A.) questioned Rivera about intended repairs to the plane. Mr. Rivera confirmed that he intended to repair the plane and the inspector took no further action.

Thereafter, the damaged propellers were replaced and the engines were run for three hours, showing no signs of malfunction. The airplane was returned to service by the repairmen; however, no inspection was conducted by the F.A.A. prior to the ill-fated flight. In fact, the plane had not even been flown since its arrival from Miami in September, 1972.

The loading of Rivera’s DC-7 was completed on December 31, 1972. Clemente decided to personally accompany this flight after having been advised that their prior shipments may not have reached the intended recipients due to governmental interference with the relief efforts.

The flight plan was filed with the F.A.A. on the morning of December 31st. At approximately 9:11 p.m., the flight taxied down Runway 7 and was cleared for takeoff at 9:20 p.m. The weather was good and visibility was at 10 miles.

Upon takeoff, the plane gained very little altitude and at 9:23 p.m. the tower received a message that the plane was turning back around. Unfortunately, the aircraft did not make it, crashing into the Atlantic Ocean about one and a half miles from shore. Everyone aboard the plane, including Roberto Clemente, perished in the crash. He was just 38 years old.

The post-occurrence investigation revealed that there was an engine failure before the crash and that the plane was nearly 4200 pounds over the maximum allowable gross takeoff weight.

Resulting Lawsuit

Vera Zabala Clemente and the next of kin of the other passengers filed a lawsuit against the United States of America alleging that the F.A.A. employees were negligent under the Federal Tort Claims Act and responsible for the resulting crash. (The Federal Tort Claims Act is a limited waiver of sovereign immunity that authorizes parties to sue the United States for tortious conduct.)

Factually, the plaintiffs’ claim was based on the premise that the F.A.A. owed a duty to promote flight safety which was breached by their failure to revoke the airworthiness certificate of the DC-7 after the December 2, 1972 accident; monitor the repair process; and, otherwise discover that the plane was not airworthy, had an improper registration number, was not properly weighted and balanced and did not have a qualified crew. It was the plaintiff’s contention that had the F.A.A. acted in accordance with their own internal procedures (Order SO8430.20C, “Continuous Surveillance of Large and Turbined Powered Aircraft”), the aircraft would have been denied flight clearance, the deceased passengers would have been advised of the deficiencies and that the plane crash would never have happened.

The United States countered that the F.A.A. did not have any legal duty towards the decedents to “discover or anticipate acts which might result in a violation of Federal Regulations.” They also claimed that there was no connection between any duty and the fatal crash.

Who won?

The trial court found for Vera Zabala Clemente and the next of kin of the other deceased passengers on the issue of negligence.


The trial court was convinced by the F.A.A. investigative report that the cause of the crash was “overboosting” of the No. 2 engine at takeoff and the fact that the plane was overloaded by more than two tons. Because the flight crew was inadequate, the situation was such that “…for all practical purposes the Captain was flying solo in emergency conditions.”

Section 6 of Order SO8430.20C called for “continuous surveillance of large and turbine powered aircraft to determine noncompliance of Federal Aviation Regulations.” Furthermore, a “ramp inspection” was required to determine that the crew and operator were in compliance with the safety requirements regarding the airworthiness of the aircraft as to the weight, balance and pilot qualifications. Any indication of an “illegal” flight crew was to be made known to the crew and persons chartering the service. Finally, discovery of such noncompliance was to be given the highest priority, second only to accident investigation.

The trial court found that these provisions of the Continuous Surveillance of Large and Turbined Powered Aircraft order were applicable to Roberto Clemente’s chartered flight and that the decedents were within the class of people sought to be protected under the order. If the required ramp inspection had been completed, the lack of a proper crew and overloading would have been discovered, Clemente would have been notified and, presumably, he would not have agreed to board the plane and avoided his untimely death.

The order was held to be mandatory in nature and because the F.A.A. violated its own orders, a failure to exercise due care was evident. Accordingly, the F.A.A.’s failure to inspect and ground the plane “contributed to the death of the…decedents.”

The appeal

The United States appealed the decision claiming that the trial court erred in its finding of a duty on the part of the Federal Aviation Administration. The critical question the appellate court was asked to address was whether the F.A.A. staff in Puerto Rico had a duty to inspect the subject DC-7 and warn the decedents of “irregularities.”

The appellate court acknowledged that the Federal Aviation Act was enacted to promote air safety but that this “hardly creates a legal duty to provide a particular class of passengers particular protective measures.” Further, the issuance of the Continuous Surveillance of Large and Turbined Powered Aircraft order was done gratuitously and did not create a duty to the decedents or any other passengers.

The court ultimately held that the order created a duty of the local inspectors to “perform their jobs in a certain way as directed by their superiors.” The failure to comply with this order, however, was grounds for internal discipline but did not create a cause of action based on negligent conduct against the F.A.A.

It is well-founded that the pilot in command has responsibility to determine that an airplane is safe for flight. There was nothing in this F.A.A. directive that shifted this responsibility to the federal government.

Further, the court found that the failure of the F.A.A. to inspect the plane did not add to the risk of injury to the passengers and there was no evidence that any of the deceased had relied on the F.A.A. to inspect the aircraft prior to takeoff or even knew about Order SO8430.20C.

Who won the appeal?

The United States. The finding of negligence on the part of the Federal Aviation Administration was reversed.

In its opinion, the appellate court concluded, “The passengers on this ill fated flight were acting for the highest of humanitarian motives at the time of the tragic crash. It would certainly be appropriate for a society to honor such conduct by taking those measures necessary to see to it that the families of the victims are adequately provided for in the future. However, making those kinds of decisions is beyond the scope of judicial power and authority. We are bound to apply the law and that duty requires the reversal of the district court’s judgment in favor of the plaintiffs.”

The plaintiff’s request that the case be heard by the United States Supreme court was denied.

Baseball’s Most Ridiculous Patented Equipment

Background – what does a patent get you?

Long ago, governments recognized that protecting inventors’ efforts was essential to encourage technological advancement but realized that limiting the time in which an inventor had the exclusive right to market their invention served the greater good by preventing the inventor from controlling a useful product forever.  Patents were first granted in Europe in the late 1400s and the patent system was first enacted in the United States in 1790.  To date, there have been thousands of baseball-related patents issued covering everything from game equipment to methods of compressing game broadcasts.

In the United States, a patent is an intellectual property right granted by the government to an inventor that “excludes others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.  Currently, a utility patent is enforceable for 20 years from the date on which the application was submitted, assuming that periodic maintenance fees are paid as scheduled.

What can be patented?

A utility patent will be granted for a machine, process, article of manufacture, composition of matter (or any improvement to an existing machine, process, article of manufacture, composition of matter) as long as it is “new, nonobvious and useful.”  There are certain things that cannot be patented, however, such as laws of nature, abstract ideas and inventions that are morally offensive or “not useful.”

The “non useful” component is somewhat interesting in that the patent examiner is charged only with making a decision whether an invention will function as expected and otherwise has a “useful purpose.”  As you will see below, “useful” does not always mean that the invention will be marketable.

So how did James Bennett hope to change baseball?

While it is not clear whether inventor James E. Bennett of Momence, Illinois is the same James Bennett who played for the Sharon Ironmongers in the 1895 Iron and Oil League, it seems clear that he did not exert any forethought as to whether his inventions would be practical when used under baseball game conditions.  Either that or he just really hated catching a ball with the existing baseball glove technology available at the turn of the 20th Century.

By the early 1900s, baseball gloves had undergone constant improvement.  Starting with George Rawlings in 1885, (Pat. No. 325,968) protective gloves were becoming more acceptable to protect fielders’ hands.  In 1891, Harry Decker added a thick pad to the front of the glove (Pat. No. 450,355) and Bob Reach added an inflatable chamber (Pat. No. 450,717).  By 1895 Elroy Rogers had designed the classic “pillow-style” catcher’s mitt (Pat. No. 528,343) that would be used with little change until Randy Hundley pioneered the one-handed catching technique in the 1960s using a hinged catcher’s mitt.

Regardless of the existence of the baseball glove technology in use at the time, James Bennett tried to think outside the box by eliminating the catcher’s mitt altogether and, instead, attaching that box to the catcher’s chest.  Here is 1904’s “Base Ball Catcher” in all of its ill-conceived glory:

Front View
Side View

Bennett apparently envisioned the catcher squatting behind home plate acting as a passive target for the pitcher’s offerings and designed this contraption to accept the pitched ball into the cage such that it would strike the padding and drop through a chute into the catcher’s hand so it could be returned to the mound.  As you can see, however, the device would have significant shortcomings should the catcher have to attempt to throw out a would-be base stealer, be required to catch the ball for a play at the plate, attempt to block a wild pitch or especially to field his position on a ball put in play in front of the plate.

But Bennett was not finished yet! In 1905, he patented a two-handed “Base Ball Glove” with an oversized pocket to trap the ball:
Front and Back View

Bennett claims that this poorly imagined glove is easy to use because the fingers on the player’s throwing hand were specially designed to “permit the easy and quick removal of that hand to grasp and throw the ball.”  Just as with the “Base Ball Catcher,” however, this design does not offer the player much in the way of a catching radius.

So what happened to James E. Bennett’s inventions?
As of 1918, he was still looking for investors, according to this advertisement he placed in the August and October issues of “Forest and Stream” magazine.

Revenue Sharing Deal Cubs Struck with Rooftop Owners Holding Up Wrigley Field Renovations

During the 2013 baseball season, the City of Chicago approved a $500 million plan to renovate Wrigley Field and build an adjacent office building and hotel.  Included in the renovation plan is the proposed construction of a large video board behind the left field bleachers and signs advertising Budweiser behind the right field bleachers.  The Cubs have delayed the start of this project, however, because the owners of the rooftop businesses across from the ballpark have threatened to file a lawsuit against the Cubs because the proposed signage will obstruct the views of the field from their respective rooftop businesses.

Rooftop Litigation History

Detroit Base-Ball Club v. Deppert, 61 Mich. 63, 27 N.W. 856 (Mich., 1886)

Disputes over neighbors viewing ballgames are nothing new.  In 1885, John Deppert, Jr. constructed a rooftop stand on his barn that overlooked Recreation Park, home to the National League’s Detroit Wolverines, future Hall of Famer Sam Thompson and a rotation featuring the likes of men named Stump Wiedman, Pretzels Getzien and Lady Baldwin.  The Wolverines claimed that they had to pay $3000 per month for rent and that the 50 cent admission fees, helped to offset this cost.  They were thereby “annoyed” by Deppert charging people, between 25 to 100 per game, to watch the games from his property and asked the court to forever ban Deppert from using his property in this manner.

Deppert countered that the ballgames had ruined the quiet enjoyment of his premises, that ballplayers often trespassed on his land in pursuit of the ball and that he often had to call the police to “quell fights and brawls of the roughs who assemble there to witness the games.”  He further claimed that his viewing stand had passed the city’s building inspection and that he had the legal right to charge admission and sell refreshments.

The trial court dismissed the Wolverines case and the ball club appealed.  The Supreme Court of Michigan agreed that the Wolverines had no right to control the use of the adjoining property; therefore, Deppert was within his rights to erect a stand on his barn roof and sell refreshments to fans that wanted to watch the game.  Furthermore, there was no evidence that Deppert’s rooftop customers would otherwise have paid the fees to enter Recreation Park.

Similarly, the rooftops of the buildings across the street from Shibe Park were frequently filled with fans wanting a view of the Philadelphia Athletics game action.  While never happy about the situation, Connie Mack was pushed too far in the early 1930s when the rooftop operators started actively poaching fans from the ticket office lines.  Mack responded by building the “Spite Fence,” a solid wall that effectively blocked the view of the field from the buildings across 20th Street.

Lawsuits were filed but the “Spite Fence” remained in place throughout the remainder of the use of Shibe Park, later renamed Connie Mack Stadium.

The Current Dispute

Chicago National League Ball Club, Inc. v. Skybox on Waveland, LLC, 1:02-cv-09105 (N.D.IL.)

In this case, the Cubs sued the rooftop owners on December 16, 2002 seeking compensatory damages, disgorgement to the Cubs of the defendants’ profits and a permanent injunction prohibiting the rooftop owners from selling admissions to view live baseball games at Wrigley Field, among other remedies and under several causes of action.  According to the complaint, the Cubs alleged that the defendant rooftop operators “…have unlawfully misappropriated the Cubs’ property, infringed its copyrights and misleadingly associated themselves with the Cubs and Wrigley Field.  By doing so, Defendants have been able to operate multi-million dollar businesses in and atop buildings immediately outside Wrigley Field and unjustly enrich themselves to the tune of millions of dollars each year, while paying the Cubs absolutely nothing.”

In their statement of undisputed facts, the defendants countered that the rooftops had been used to view games since the park opened on April 23, 1914 as home of the Chicago Federal League team and that the Cubs conceded that their present management knew the rooftop businesses were selling admissions since at least the late 1980s.

In May 1998, the City of Chicago enacted an ordinance authorizing the rooftops to operate as “special clubs,” which allowed them to sell admissions to view Cubs games under city license.  The City wanted their piece of the action and interestingly, the Cubs made no formal objection to the ordinance.  Based on the licensure and lack of any opposition from the Cubs, the rooftop owners made substantial improvements to enhance the experience and to meet new City specifications.

By January 27, 2004, the Cubs had reached a written settlement with owners of 10 of the defendant rooftop businesses which assured that the Cubs “would not erect windscreens or other barriers to obstruct the views of the [settling rooftops]” for a period of 20 years.  The remaining rooftop owners later settled and the case was dismissed on April 8, 2004, just days ahead of the Cubs home opener set for April 12th.

After the 2004 agreement legitimized their businesses, the rooftop owners made further improvements to the properties.  Long gone are the days that a rooftop experience meant an ice-filled trough of beer and hot dogs made on a single Weber.  The rooftop operations are now sophisticated businesses with luxurious accommodations, enhanced food and beverage service and even electronic ticketing.

As a result of the settlement agreement of Cubs’ 2002 lawsuit, the team now has legitimate concerns that a subsequent lawsuit by the rooftop owners to enforce the terms of the contract could ultimately result in the award of monetary damages to the rooftop owners; cause further delays in the commencement of the construction project due to a temporary restraining order; or, be the basis of an injunction preventing the Cubs from erecting the revenue-producing advertising platforms for the remainder of the rooftop revenue sharing agreement.

It is obvious that the rooftop owners need the Cubs more than the Cubs need them; however, the Cubs wanted their piece of the rooftop owners’ profits (estimated to be a payment to the Cubs in the range of $2 million annually) and now the Cubs have to deal with the potential that their massive renovation project will be held up by the threat of litigation over the blocking of the rooftop views.

Merkle’s Boner and False Imprisonment

Talcott v. National Exhibition Co., 144 A.D. 337, 128 N.Y.S. 1059 (2 Dept., 1911)

What was Merkle’s Boner?

On September 23, 1908 the Chicago Cubs played the New York Giants at the famed Polo Grounds.  Al Bridwell came to bat with two outs and the game tied 1-1 in the bottom of the ninth.  He laced a single to the outfield and the runner on third trotted home, thinking he had just scored the winning run.  The Cubs second baseman Johnny Evers, of the famed “Tinkers to Evers to Chance” double play combination and future Hall of Fame inductee, however, called for the ball from the outfield because Fred Merkle, the Giants runner on first, had not touched second base.  Although there is controversy regarding whether Evers got the actual ball back, the umpire ruled Merkle out at second and due to the force, the apparent winning run was erased.

As was common at the time, the fans at the Polo Grounds would walk across the field after the game to exit the ballpark.  By the time the play was decided and the winning run nullified, however, the fans believing the Giants had won were already streaming across the field and it was impossible to resume the game before the game was called on account of darkness.

On October 6, 1908, the National League Board of Directors made its final ruling that because Merkle had failed to reach second, the force rule was applied correctly and the game was a tie.  At the end of the season, the Cubs and Giants were tied for first place and a makeup game was needed to determine which team would play in the World Series.  This game was played on October 8, 1908 at the Polo Grounds and reportedly drew 40,000 people, the largest crowd ever to have attended a single baseball game at the time.

The Cubs won this game over the Giants and went on to beat the Tigers 4-1 in the World Series, their last World Series victory.

The play that forced the makeup game was dubbed “Merkle’s Boner” and Fred Merkle was tagged with the nickname “Bonehead.”  Years later, Merkle admitted that he never touched second base but claimed he had been assured by umpire Bob Emslie that the Giants had won.  Despite a solid 16-year Major League career, including four seasons with the Cubs, Merkle was never able to shake the stigma of the play.

What does Merkle’s Boner have to do with this case?

As a result of the play and the October 6th mandate for the makeup game, the Polo Grounds played host to the makeup game on October 8, 1908.  This game was “of very great importance to those interested in such games, and a vast outpouring of people were attracted to it.”  On the morning of the game, the ticket booths at the Polo Grounds were inundated with people trying to secure reserved seats for that afternoon’s game.

Plaintiff Fredrick Talcott, Jr. went to the ballpark intending to buy tickets for the game and entered an “inclosure” where the ticket booths were located.  After finding that the tickets were sold out, he tried to leave the inclosure along with a great number of people also trying to exit at the same time.  As he attempted to leave, however, ballpark attendants prevented his exit and he was “detained in the inclosure for an hour or more, much to his annoyance and personal inconvenience.”  Mr. Talcott brought this lawsuit seeking damages for false imprisonment.  He further claimed to have been pushed by the defendant’s “special policemen.”

The Giants countered that plaintiff simply could have used one of the other exits available.  Mr. Talcott alleged, however, that he was not aware of any other exits to the inclosure and none were pointed out to him.

Who won?

The case went to a jury trial and Mr. Talcott was awarded $500 in damages (approximately $12,000 today) with judgment entered on May 19, 1910.

The Giants appealed but the appellate court affirmed the judgment in favor of Mr. Talcott.


The jury found that that plaintiff’s detention was unwarranted.  The appellate court agreed with this finding, ruled that the award was not excessive and found no reason to interfere with the jury’s verdict.

Additionally, the court found that Mr. Talcott was not required to demonstrate that he incurred any special or actual damages as a result of the detention.