Heath v. Motion Picture Mach. Operators Union No. 170

Decision Date14 May 1956
Docket NumberNo. 1,No. 45026,No. 170,170,45026,1
Citation290 S.W.2d 152,365 Mo. 934
Parties, 38 L.R.R.M. (BNA) 2127, 30 Lab.Cas. P 69,964 Marcus HEATH, Flossie Heath, Marvin Heath, Anne Catherine Heath, Albert Flippin, d/b/a Hillcrest Drive In, Respondents, v. MOTION PICTURE MACHINE OPERATORS UNION NO. 170, 1402 Main Street, Kansas City Missouri, Anthony Badami, President, George Barrett, business representative of the above Union, and John Doe, as individuals and representatives of that class of individuals associated together in the above union, Appellants
CourtMissouri Supreme Court

Eugene A. Farris, Richmond, Alan F. Wherritt, William J. Turpin, Liberty, for appellants.

Robert F. Sevier, William E. Turnage, Liberty, for respondents.

COIL, Commissioner.

Plaintiffs, who claimed to be the joint owners and operators of the Hillcrest Drive In Theater, located about a mile north of Gashland on Missouri Highway 169, opened that theater for business on June 4 or 5, 1954. Either on June 4 or 5, 1954, and for several nights thereafter, members of defendant union, acting on the order of defendant George Barrett, the union's business agent, and with the knowledge and approval of defendant Anthony Badami, the union's president, caused the theater to be picketed. Members of the public arriving at the entrance were informed by signs carried by the pickets that the theater did not employ union operators affiliated with the American Federation of Labor, and, perhaps, by a sign stating that the theater was unfair to organized labor, Motion Picture Machine Operators Union No. 170.

Plaintiffs successfully prosecuted their action to enjoin that picketing and defendant union and its president, Anthony Badami, and its business representative, George Barrett, as individuals and as representatives of the class consisting of the members of Local Union No. 170, have appealed. They contended in the trial court and contend here that prohibition of picketing under the facts and circumstances in evidence denies to them their constitutional right of free speech. Under all the circumstances shown in the record, we are of the opinion that this case involves the construction of the Constitution of the United States within the meaning of Article V, Section 3, Missouri Constitution of 1945, V.A.M.S., and is thus within the jurisdiction of this court. See Barber v. Time, Inc., 348 Mo. 1199, 1203, 159 S.W.2d 291, 292[1-4].

The evidence showed that the theater was a local enterprise not engaged in interstate commerce and there was no evidence adduced which would support a reasonable inference that the controversy here involved affects interestate commerce to any substantial degree.

In our view, decisive of our disposition is the fact question as to what status plaintiff Albert Flippin occupied with respect to the other plaintiffs and with respect to the conduct of the business known as the Hillcrest Drive In. We shall, therefore, review in some detail the evidence pertaining to that question.

Plaintiff Marcus Heath was the owner of the Plaza Theater in Liberty, Missouri. He there employed plaintiff Albert Flippin as the operator of the projection machine. Flippin was not and never had been a member of defendant union or of the international with which defendant was affiliated. Marcus Heath and his wife Flossie purchased 33.37 acres of land in April, 1953, apparently as a site for an open-air theater. Thereafter, during the latter part of 1953 and during 1954, Marcus Heath, with the assistance of his son, Marvin Heath, built the Hillcrest. Marvin, according to the testimony, had put into the equipment and construction of the theater (exclusive of the ground) $5,000 cash and a year's uncompensated labor. Marcus furnished all but $2,000 of the additional capital consumed in the construction and installation of the theater which, when completed (including Flippin's investment to be noted hereafter), represented a total cost of $100,000, as we understand, exclusive of the cost of the real estate. In March 1954, Marcus Heath engaged in a conversation with Flippin in which the subject of the cost of the Hillcrest was discussed. Heath indicated that he had spent more money than he had anticipated, but expressed the opinion that he had to proceed to completion. Flippin suggested that he could furnish $2,000, and Heath indicated that the $2,000 would help in the payment of some bills. As a result, Heath and Flippin met a short time later in the 'Sweet Shop' operated in connection with the Plaza Theater, and there Flippin paid to Heath $1,500 in cash and Flippin's check dated March 6, 1954, for $500. In the meantime, Heath had written the following memorandum which was signed by Flippin and both Marcus and Marvin Heath at or shortly after the time the $2,000 was paid: 'In consideration of $2,000 invested in Hillcrest Drive In but not in the real estate: Albert Flippin will share in 1/50 of the net profits. M. S. Heath and Marvin Heath shall have the first option of buying my 1/50 interest at any time after one year for $2,000. 'If we refuse, Albert Flippin can sell to any person he desires to.'

It appears that the entire transaction between Heath and Flippin consumed a period of 30 to 40 minutes and that Flippin obtained the cash from its location in a watch repair shop which he, Flippin, operated in Liberty. Marcus Heath testified that he used the $1,500 cash to pay bills for materials and equipment which went into the drive-in theater and that the check was deposited in his account approximately a month after the date the check bore, and that the $500 obtained from the check was also used for the payment of bills in connection with the theater.

It was developed on cross-examination that Marcus Heath considered that, upon the signing of the memorandum, Flippin was a partner or a co-owner of the business, and that, while Flippin had no interest in the real estate, he did have a one-fiftieth interest in the buildings and other structures. Marvin Heath testified that he was a partner or co-owner of the theater except as to the real estate. Flippin testified that he understood he was one of the owners of the Hillcrest but that his sole duty was to run the projection machine; that he further understood that he, Marcus, and Marvin were the co-owners; and that while the profits from the snack bar probably were included by the terms of the memorandum, he did not claim an interest in the profits from that operation. He also said he was to get $80 per week for running the projection machine in addition to his one-fiftieth interest in the profits; that he had not received the $80 per week to the time of trial; that he was to get the $80 only if the business made it; and that the only money he had received was $100 which he had to have.

It further appeared that a bank account was maintained under the name of Hillcrest Drive In Theater and a separate account under the name of Hillcrest Snack Bar; that each of the three men could write checks on the Hillcrest Drive In account; that the insurance policies on the theater were in the names of the five plaintiffs and that the account which was kept for the purpose of determining the excise tax due the United States was in the name of the five plaintiffs; and that no persons were listed as employees. It also appeared that the wives of the two Heaths claimed no interest in the proceeds of the theater operation.

The evidence further showed that it was not until May 1954 that defendant Barrett, on behalf of Local 170, talked with Heath or anyone connected with the Hillcrest operation, and it thus would appear that the transaction between the Heaths and Flippin was completed two months prior to any conversation of the present plaintiffs with any representative of defendant union. The evidence clearly established the fact that both Marvin Heath and Albert Flippin recognized that Marcus Heath was the 'boss' in determining the policies and in carrying out the details of the theater's operation.

The trial court found as facts that the five plaintiffs were the owners of the theater and that plaintiff Albert Flippin was the operator of the projection machine. Defendants contend that the finding of the court below that Albert Flippin was a coowner is against the weight of the credible evidence. They say that there was no legitimate partnership among the five plaintiffs, that the terms of the memorandum executed indicated that Flippin's participation in the project could be limited to one year, that such fact plus the circumstances surrounding the execution of the agreement and the payment of the money indicates that the arrangement was a fictitious one for the express purpose of permitting, in the event of any dispute with a labor union, the claim that Albert Flippin was a co-owner.

It is true, as defendants contend, that the exact relationship among the five plaintiffs was to a large extent a vague and indefinite one and perhaps so vague and indefinite as to defy a declaration of the legal relationship created in so far as concerned many questions which might arise as among the parties. It would appear, however, that the sole question we need to determine is whether by virtue of the executed memorandum and the understanding of the parties, Flippin was in the position (in so far as concerned defendant union) of a co- owner or coproprietor of a business who was engaged in the self-operation of one of the tasks connected with the operation of that business. If we assume, for the present, that the testimony pertaining to Flippin's status and the manner of its acquisition is true, then we are of the opinion that Flippin occupied a position which, for instant purposes, placed him in the same category as a bona fide partner who was entitled to the same immunity, if any, accorded to a one-man business in which the businessman-proprietor performed all of his work without the assistance of employees.

The question of...

To continue reading

Request your trial
8 cases
  • Adams Dairy, Inc. v. Burke
    • United States
    • Missouri Supreme Court
    • 9 Julio 1956
    ... ... Drivers and Inside Dairy Employees, Union Local 603, ... affiliated with International ... 2 ... July 9, 1956 ... Motion for Rehearing or to Transfer to Court en Banc ... Portland Moving Picture Machine Operators' Protective Union, Local No ... guaranty of free speech.' See Heath v. Motion Picture Machine Operators Union No ... ...
  • Kerkemeyer v. Midkiff
    • United States
    • Missouri Supreme Court
    • 11 Marzo 1957
    ...to do that work which he had been doing or permit the work not to be done in his barbershop. In Heath v. Motion Picture Machine Operators Union No. 170, Mo.Sup., 290 S.W.2d 152, 158, this court held that the exertion of economic pressure on an owner of a business by means of picketing to co......
  • Baue v. Embalmers Federal Labor Union No. 21301 AFL-CIO
    • United States
    • Missouri Supreme Court
    • 9 Marzo 1964
    ... ... which it sought to have executed by the operators of funeral homes conducting in excess of 85 ... Kansas City Motion Picture [Mach.] Operators Union, 282 Mo. 304, 1 S.W. 95; Heath v. Motion Picture Machine Operators Union, Mo ... ...
  • Helton v. Hake
    • United States
    • Missouri Court of Appeals
    • 27 Febrero 1978
    ... ... Feb. 27, 1978 ... Motion for Rehearing and/or Transfer Denied April 3, ... of L.-C.I.O., Local No. 396 and the Union steward Ben Hake. From a judgment on a jury ... Heath v. Motion Picture Machine Operators Union No ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT