Dade Enterprises, Inc. v. Wometco Theatres, Inc.

• Decision Date: 07 March 1935
• Parties: DADE ENTERPRISES, Inc. v. WOMETCO THEATRES, Inc.
• Court: Florida Supreme Court

160 So. 209

119 Fla. 70

DADE ENTERPRISES, Inc. v. WOMETCO THEATRES, Inc.

Florida Supreme Court

March 7, 1935

Rehearing Denied April 5, 1935.

En Banc.

Suit by the Wometco Theatres, Incorporated, against Dade Enterprises Incorporated. From an order granting a temporary injunction defendant appeals.

Reversed and remanded, with directions. Appeal from Circuit Court, Dade County; Uly O. Thompson, judge.

COUNSEL

Herbert S. Sawyer, W. O. Mehrtens, and Evans, Mershon & Sawyer, all of Miami, for appellant.

Henry D. Williams and Albert B. Bernstein, both of Miami, for appellee.

OPINION

DAVIS Justice.

This was a suit for an injunction wherein the allegations of the bill of complaint were to the effect that a certain motion picture described as 'The House of Rothchild' was of peculiar value to complainant and could not be duplicated that complainant had caused to be advertised to the public that said motion picture would be exhibited at its theaters on certain specified dates; that in the course of so advertising the picture, complainant had spent various sums of money to announce to the public that said picture would play at a certain theater of plaintiff in the Miami area on a certain date; that notwithstanding certain contractual rights which complainant had acquired in, and was entitled to enjoy concerning, the exhibition of said moving picture at its theater, pursuant to a contract it had entered into involving same and giving the plaintiff the prior right to first exhibit said moving picture at its theaters defendant, Dade Enterprises, Inc., had knowingly undertaken to enter into a conflicting contract with reference to the identical moving picture, giving to it the right to exhibit said moving picture at an earlier date in advance of the date contracted for by complainant and advertised by it for such exhibition at its own theaters; that such conduct on defendant's part operated to deprive complainant of the special and peculiar value inherent in its contractual right to a first run exhibition of the particular picture in complainant's theaters, because of the fact that the picture in controversy was of such unique character and public interest as to be incapable of being duplicated; that United Artists Corporation, the perpetrator of the contractual violation against complainant's rights, maintained no office or agent in the state of Florida; and that therefore complainant, in order to be saved irreparable injury, should have an injunction against the defendant, Dade Enterprises, Inc., to restrain it from exhibiting said moving picture 'The House of Rothchild' in violation of complainant's prior right to exhibit such moving picture in the same territory, as secured by the contract upon which complainant relied, which it was averred defendant well knew at the time it also undertook to contract with United Artists for exhibition of the same picture but for a date prior to that already confirmed to complainant.

The chancellor granted a temporary injunction, which was superseded by an order entered by a justice of this court, and defendant appealed.

Complainant's bill was framed on the theory that by reason of its alleged contract right securing to it the privilege of a 'first run' exhibition in the Miami area of the moving picture in controversy, it was entitled to injunctive relief against the defendant, Dade Enterprises, Inc., in order to stop the defendant from lending its aid and assistance toward the violation of complainant's contract covering the same subject-matter, notwithstanding there was admittedly no contractual or other privity of relationship between complainant, Wometco Theatres, Inc., and the defendant, Dade Enterprises, Inc.

The weight of modern authority holds that interference with any contract amounts to a tort. That rule has been consistently adhered to in this state since the decision of this Court in Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 11 Am. St. Rep. 367. In such cases the injured party has an action against the party in default upon the contract, but he is not limited thereto. He may also maintain an action against the wrongdoer who induced such breach. 4 Page on Contracts, § 2426, p. 4298.

If one maliciously interferes with a contract between two persons, and induces one of them to breach the contract to the injury of the other, the injured party may maintain an action against the wrongdoer, and where the act was intentional, malice will be inferred. To do intentionally that which is calculated in the ordinary course of events to damage, and which in fact does damage, another person in his property or trade, is malicious in the law, and is actionable if it is done without just cause or excuse. Carmen v. Fox Film Corp. (D. C.) 258 F. 703; E. L. Husting Co. v. Coca Cola Co., 205 Wis. 356, 237 N.W. 85, 238 N.W. 626, 84 A. L. R. 22.

And upon a like principle, it has been held that when owing to special features, a contract involves peculiar convenience or advantage, or where the loss occasioned by its breach would be a matter of uncertainty, so that the breach of such contract might be deemed to cause irreparable injury and subject to equitable enforcement, the threatened or impending tort of a third party who interferes with the performance of such contract, or consciously contributes to the impairment of the right of a party thereto to avail himself of its obligations, may be enjoined by the party whose enjoyment of existing contractual rights is thus endangered; the application of this doctrine being no longer restricted to contracts for personal services. Alcazar Amusement Co. v. Mudd & Colley Amusement Co., 204 Ala. 509, 86 So. 209; Montgomery Enterprises v. Empire Theater Co., 204 Ala. 566, 86 So. 880, 19 A. L. R. 987; Standard Fashion Co. v. Siegel-Cooper Co., 30 A.D. 564, 52 N.Y.S. 433; New York Phonograph Co. v. Jones (C. C.) 123 F. 197; Turner v. Hampton, 97 S.W. 761, 30 Ky. Law Rep. 179.

In such cases a party may be enjoined against his own tortious act even if other parties interested with him are within the jurisdiction and not joined. In such a suit to enjoin an unlawful act of tortious interference with the perrormance of a contract the breach of which will occasion irreparable injury to one entitled to avail himself of such contract's obligations, it is not necessary to enjoin all the tort-feasors as defendants where there are more than one, since a person receiving injury from the tortious acts of others has a remedy against one or all of the tort-feasors and may enforce that remedy against one or all at his election, either at law or in equity. Dail-Overland Co. v. Willys-Overland, Inc. (D. C.) 263 F. 171; Friedberg v. McClary, 173 Ky. 579, 191 S.W. 300, L. R. A. 1917C, 777; Cole Silver Mining Co. v. Virginia & Gold Hill Water Co., 6 Fed. Cas. 67, No. 2,989, 1 Sawy. 470.

So the theory of complainant's bill for injunctive relief as filed in the court below was sound, and equitable relief was properly granted thereon if such bill, or the cause for equitable relief set forth therein, was not otherwise insufficient to support an injunction.

The appeal in the case now before us is solely from the interlocutory order granting complainant below a temporary injunction after a motion to dismiss the complainant's bill for want of equity had been overruled, and after the defendant below had filed its answer denying the equity of the bill and had proceeded to a hearing on the injunctive application which was decided in the affirmative after a hearing of testimony, affidavits, and documentary evidence submitted by the respective parties.

Upon an application for injunctive relief, or upon motion to dissolve the same, either party thereto shall have the right to introduce evidence, and the chancellor shall grant, dissolve, or continue the injunction applied for, according to the weight of the evidence. Section 4970, C. G. L., section 3178, R. G. S. Where the defendant to a bill for injunction files an answer at the hearing of the application that is fully responsive to the bill and that denies all the equities thereof, the general rule is that the judge in granting or withholding the injunction must be governed by the weight and legal effect of the evidence. Campbell v. White, 39 Fla. 745, 23 So. 555.

The facts of the present case, as disclosed at the hearing, were substantially as follows:

On October 26, 1933, United Artists Corporation, a distributor, entered into a contract of license with Sparks East Coast Theatres, an exhibitor, for the exhibition of a certain motion picture film known as 'The House of Rothchild.' Section 6 of that contract of license, entitled 'Fixing Exhibition Dates,' was worded as follows:

'Sixth. The exhibition date or dates of such motion picture, unless definitely specified or otherwise provided for in the schedule, or otherwise agreed upon shall be as follows:

'(1) A road show is not a general release and the said motion picture will become available to the Distributor for distribution only upon the completion of any such road show. Any 'two a day' exhibition, exclusive of extra shows, at advanced admission prices for one or more weeks prior to release for general distribution of said motion picture shall be deemed an exhibition thereof as a road show. Should the motion picture be 'road shown' in the immediate vicinity of the exhibiting theatre, in the same zone, as that word is understood in motion picture parlance, this contract for the exhibition of said picture may, at the option of either party, be cancelled by written notice given to the other party within 15 days after the commencement date of such road show.

'(2) Upon delivery by the producer, the Distributor shall make the motion picture available

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