Hallmark Productions v. Mosley

• Decision Date: 11 August 1951
• Docket Number: No. 14311.,14311.
• Citation: 190 F.2d 904
• Parties: HALLMARK PRODUCTIONS, Inc. v. MOSLEY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

190 F.2d 904 (1951)

HALLMARK PRODUCTIONS, Inc. v. MOSLEY et al.

No. 14311.

United States Court of Appeals, Eighth Circuit.

July 24, 1951.

Rehearing Denied August 11, 1951.

J. L. London, St. Louis, Mo. (Louis L. Hicks, Clayton, Mo., on the brief), for appellant.

Lester Watson, Clayton, Mo. (Stanley Wallach and Herbert W. Ziercher, Clayton, Mo., on the brief), for appellees Arthur C. Mosley and Stanley Wallach.

Francis C. Flynn and Norman C. Parker, St. Louis, Mo., for appellee PRBH Corp.

Before GARDNER, Chief Judge, and RIDDICK and COLLET, Circuit Judges.

GARDNER, Chief Judge.

This was a suit brought by appellant Hallmark Productions, Inc., an Ohio corporation, against PRBH Corporation, a Missouri corporation, and against the sheriff and prosecuting attorney respectively of St. Louis County, Missouri. As against PRBH Corporation appellant seeks specific performance of a written contract and a declaratory judgment, and as against the sheriff and prosecuting attorney seeks injunction against these officers enjoining them from interfering with the performance of a contract entered into between Hallmark Productions, Inc. and the PRBH Corporation. The parties will be referred to as they were designated in the trial court.

Plaintiff is the owner and distributor of a film known as "Mom & Dad". On September 7, 1950 it entered into a contract with the defendant PRBH Corporation by the terms of which the latter corporation agreed to exhibit the film Mom & Dad at the Sky Line Drive-In Theater located in St. Louis County, Missouri. In pursuance of this contract the picture was exhibited on the evening of September 25, 1950, at which time it was viewed by two deputy sheriffs of St. Louis County, Missouri, and on the following day a letter was sent by defendant Stanley Wallach, prosecuting attorney, to PRBH Corporation, which letter contained the following statement:

"After a viewing of the picture Mom & Dad at your above listed theater by members of the St. Louis County Sheriff's Office, the evening of September 25th, 1950, and a report to this office that same is of an obscene and indecent nature, it is hereby ordered that the showing of this picture shall be discontinued forthwith.

"Your failure to comply herewith will result in arrest and prosecution of you and the members of your staff involved in any further showing of this picture."

In addition to this letter, the assistant prosecuting attorney orally stated to the manager of the theater that if the exhibition of the picture were not discontinued "we will arrest the moving picture machine operators and we will arrest the manager, the one in charge of the theater". The night of September 26th a deputy sheriff came to the theater to check up on what picture was being shown. Following the receipt of this letter and the statement of the deputy prosecuting attorney threatening arrest and prosecution of the officers or employees of the PRBH Corporation, there was no further showing of the picture. Under the terms of the contract the PRBH Corporation agreed to show the picture beginning September 25, 1950, and continuing until receipts should drop below $400.00 nightly. On the night of September 25th there were approximately 1500 people present at the theater, the admission charge was sixty cents. Following the refusal by PRBH Corporation to continue showing the picture, a suit was instituted in the St. Louis County Circuit Court by the producer of the film Mom & Dad seeking to enjoin Arthur C. Mosley and Stanley Wallach, sheriff and prosecuting attorney respectively of St. Louis County, Missouri, from interfering with the exhibition of this picture, which suit was dismissed prior to the institution of the present action, whether without prejudice or on its merits does not appear from the record. Diversity of citizenship was alleged but it appeared from the testimony that the interest of plaintiff and PRBH Corporation was identical, and the court expressed the view that if the parties were properly aligned there would be no jurisdiction based upon diversity of citizenship. There was evidence from which the Court might have determined whether or not this picture was obscene, immoral or indecent. Mr. Harry Newbold, one of the deputy sheriffs who viewed the picture, testified as to its nature. He testified that as a part of the program a Mr. Elliot gave a lecture. This lecture was given at what is referred to as an intermission. In connection with the lecture he exhibited and sold two booklets, one entitled "The Manual of Hygiene — Father and Son" and the other entitled "The Digest of Hygiene — Mother and Daughter". These were sold at $1.00 a piece. The witness testified with reference to this lecture: "He had two books, one was for the female sex and one was for the male sex. I believe he made mention of the father's taking the male sex book in order that he might explain to his son all the contents of this particular book, and likewise the same thing as to the mother having the female sex book, where she would be enlightened as to information of sex matters between her and her daughter. * * * Then he (the lecturer) said the picture would continue and which would be rather gruesome, probably would be particularly offensive to the people, might have sickness or an ailment, that they would be able to get a nurse who was on duty at the concession stand, along with an assistant, that if anyone should faint or need that assistance to send someone over to the concession stand, they would immediately come to the automobile and render assistance. * * * There was a line of traffic, I believe they formed two lines or possibly three lines, and we were on the middle line, and there was one motor vehicle, there was a very young person, a boy, and two girls on that motorcycle, and they pulled out just ahead of us. I even called attention, I said, `Looks like there are juveniles here' — he said `yes'. They were around 16 years of age, I imagine, maybe a little less. Nothing was said by Mr. Parker (the manager) that he was restricting the picture to children under 16. * * * I am a father, I have three daughters and two sons. In my opinion the picture should not be shown to the general public without any restrictions whatever. If you want my personal opinion I wouldn't allow my children to go. I wouldn't take my son to see it personally. * * * I would be embarrassed, the scenes are pretty blunt. They are awfully blunt if you ask me. The picture exposes all the private parts. If you want my personal opinion, if you call that obscene, I could say yes, it is obscene in that respect. My understanding of the word `obscene' would be exposing the private parts of a male or female or a nude." Asked what part of the picture was immoral, the witness testified: "Well I tell you, they lead you on up, they first have a picture of a girl in a prom, apparently a teenager. She becomes involved with a boy. Later she becomes — she is pregnant, so on, going to school. There is an explanation by their teacher of the different sex, male and female, what constitutes pregnancy, about diseases and so forth, and it leads on in the scenes of the high school where he is discharged for having a discussion between male and female in the same classes and altogether he was discharged entirely. Then they show the actual birth of a baby, that is in the picture, the private parts of this woman is shown, open and coming apart. That is in a natural birth. Then you see the baby's head coming through the private parts of this woman, and then you see the doctor's hands go in and tug and pull to get the baby out. It is certainly very ugly. Then you go on down to where you see the caesarean operation * * * There's just a half dozen cuts where they go through layer after layer of flesh. They even explain why the blood isn't trickling in there, what holds back the blood to a certain degree is by some sort of chemical or medicine the doctor uses, yet you can see the blood trickling as they cut. They get down to this sac, the female organ, and that is cut, and then when they cut the sac, there is an expansion of water and a sort of mattery water, whatever it happens to be, comes out. He (the lecturer) explains that and then the picture explains that that baby has to be taken out in a certain matter of seconds. The hands go in there, start pulling that baby out of the sac. They show from where it is taken over and handed to a doctor, medicine put in the eyes, laid on the table, regular delivery on an operating table, on the delivery table, completely in every form.

"Q. Now is that what you say is indecent or immoral? A. I would say it is very nasty, yes.

"Q. You mean it is nasty; you mean in sense of indecent? A. Yes, I would say it would be in that respect, certainly. That is my opinion. You told me the other day, would I give my personal opinion, and that is what I had in mind the whole time.

"Q. Is there any other part of the picture you think is indecent, immoral or obscene? A. Then it goes down to the disease forms of it, shows forms of syphilis, shows how it eats the mouth, eats the lips, get to the extent of a hole in the roof of the mouth, exposes the whole entire body of a male covered with sores, with the exception of his private parts, there is a white strip on, I imagine it is about eight inches down, which covers the exact private part of the male, but the rest of the body is exposed entirely."

A number of other witnesses, without going into detail expressed their opinion as to the character of the picture, giving it as their opinion that it was obscene, immoral and indecent. On the other hand, there was testimony on behalf of plaintiff which did not go into the details of the picture but which consisted of expressions of opinions that the picture was educational and not obscene. Other facts will be developed during the course of this opinion.

The...