Hughes v. Kansas City Motion Picture M.O. Local No. 170

• Citation: 221 S.W. 95,282 Mo. 304
• Parties: HUGHES et al. v. KANSAS CITY MOTION PICTURE MACHINE. OPERATORS, LOCAL NO. 170, et al.
• Decision Date: 01 April 1920
• Court: Missouri Supreme Court

221 S.W. 95

282 Mo. 304

HUGHES et al. v. KANSAS CITY MOTION PICTURE MACHINE. OPERATORS, LOCAL NO. 170, et al.

Supreme Court of Missouri, in Banc.

April 1, 1920.

Rehearing Denied April 30, 1920.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Suit by John E. Hughes and Wesley H. Briner, copartners under the name Eastern Theater, against the Kansas City Motion Picture Machine Operators, Local No. 170, and others, for an injunction to restrain picketing. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

Charles M. Miller, of Kansas City, and Henry Lamm, of Sedalia, for appellants. Walsh & Aylward, of Kansas City, for respondents.

GOODE, J.

These plaintiffs brought this action to obtain relief by injunction against the picketing of plaintiffs' place of business on the corner of Ninth and Lister streets in Kansas City, where a moving picture show was conducted under the name of the Eastern Theater. The defendant Kansas City Motion Picture Machine Operators, Local 170, is a voluntary organization of picture machine operators in Kansas City, and is affiliated with a much larger union known as the International Alliance Theatrical Stage Employés. The other defendants are members of the Local Union No. 170. Plaintiff Hughes was a member of the local union from 1912 until September 1, 1915, when he ceased to be because he was sentenced to pay a fine of $100, or, in default of payment, to suspension from the local union for one year for having divulged secrets of the union, it was asserted by de" Pendants, but denied by him. Hughes refused to pay the fine, and the union put the fine and suspension together, as he said, meaning that he was suspended from membership and could only be reinstated by paying the fine. He then formed a contract, of a kind not clearly stated, for a picture theater at Fifteenth and Spruce streets in said city. The union objected to his working there, because it was against the rules of the union for a member to have an interest in a show and conduct it himself. Another fine of $100, as we gather from the testimony, was imposed on him. It seems Hughes had conducted another theater also at Thirty-Ninth and Main streets, where a union operator of the machine used to throw the pictures on the screen was discharged when Hughes became the owner of the place, Hughes said because he would be required by the rules of the union to sign a contract with the operator for a year, which he could not afford to do; that if he would have "to quit the show, he would have to quit the union first."

Those disagreements are in no way related to the present controversy, except their tendency to prove bad feeling existed between Hughes and the local union prior to January 3, 1916, when Hughes became a partner with the other plaintiff, Briner, in the Eastern Theater. Briner had in his employ at that time to handle the projecting machine a union operator named Shuttier. As Hughes was capable of operating the projector, Shuttler was given two weeks notice to quit. In the interim members of the local union called on Hughes and told him if he would enter the union again his fine would be reduced to $75. Hughes asked if, in that event, he would be permitted to operate his machine, and was told by the members of the union they would not consent for him to do so under any circumstances; that he must employ a union operator and pay him the union scale. Hughes said the business would not justify paying the scale of wages, $17 a week, in addition to the city license fee and the war tax, and that he thought he had a right to operate his own machine. The agents of the union told him they would put their pickets out at his theater and keep them there until he gave in to their proposition. Picketing was begun on April 16, 1916, being postponed until that time for some unexplained reason. On said day the members of the executive board of the union went to the Eastern Theater with an operator and also two pickets, and told Hughes he could take his choice, hire the operator or be picketed. He asked time to consider the proposition, but the agents refused to grant it and put the pickets on duty that night.

The testimony goes to show plaintiff Hughes' wife was knocked down on the sidewalk by one of the pickets that evening, whereupon the pickets scattered, as did a crowd of persons who had collected about the front of the theater; but this is the only evidence of the commission of an act of violence, although the picketing continued until the present action was begun, two months later, on June 13th. The pickets worked by walking up and down the sidewalk in front of the theater, addressing themselves to persons who passed and saying, "This place is not fair to organized labor; please do not patronize it;" and sometimes, "The picture machine in this theater is run by a nonunion operator; please do not patronize it." The testimony for defendants is that the request was not addressed to individuals, but "to the public," and in a moderate tone; and it does not appear the voice or manner of the pickets was boisterous or threatening. The patrol of the sidewalk usually began about 7:45 o'clock in the evening, when the attendance was most numerous.

Plaintiff Hughes testified the agents of the union told him they would ruin him and break up his business; that they had spent $5,000 to make another theater hire a union operator, and would, spend that much on him. The union offered to find him a position as operator in some other theater if he would hire a union man for his place, but he refused for the reason that his wife was incapable of looking after the business, as it seems she, instead of Briner, the other owner, was assisting to do, and the business would not bear the expense of a hired operator. Plaintiff had employed a union operator at a picture theater on Ninth street and Troost avenue, which his wife conducted for a while.

One witness testified she had been in the habit of patronizing the Eastern Theater, but on account of the controversy with the union ceased to do so, as her husband said there was danger. Another witness testified that on a Sunday afternoon he became alarmed and took his boy out of the theater on account of the way "they [the pickets and a gathering of persons] were acting." This witness said two pickets were walking in front of the place, and a crowd of 15 or 20 persons were on the northeast corner; among them two men whom he had seen acting as pickets previously; that he thought there might be a fight or riot.

According to the witnesses for the plaintiffs the receipts of their business fell off about $15 a week after the picketing began and in consequence of it.

Several witnesses for defendants said the demeanor of the pickets was quiet and peaceable; and though they (the witnesses) were in the habit of passing the place, they had seen no disturbance. By way of counteracting the influence of the pickets, the wife of Hughes would sometimes walk along with them, and would say to passers-by, "This place is not unfair to organized labor;" and on one or two occasions she threw a bunch of tickets at the pickets. The testimony for defendants brought out clearly the real grievance the union cherished against plaintiffs, and the sole reason why they maintained pickets in front of their place of business. A man named Brown, who was not a member of the union, stayed about the projecting machine in the theater, and the union agents thought he was operating it; but the evidence conclusively shows he was a student, and paid Hughes for instructing him. The testimony shows there was a rigid rule of the union that no proprietor of a moving picture show should operate his own projecting machine, and that in every case a member of the union must be employed. The reason assigned by defendants for this rule is that experience had shown persons would claim to be interested as a partner in the business and to have the right to operate as such when, in fact, the claim was a subterfuge, used as a means to obtain a position as operator without becoming a member of the union and at a wage less than the union scale; that if such a rule was not enforced, proprietors of theaters, even though members of the union themselves, would be able to employ nonunion operators at a lower wage, under the guise of taking them in as partners. There was testimony, too, in behalf of defendants about the proprietors of other theaters, who employed union operators and otherwise complied with the rules of the union, having complained on occasions when some proprietor was permitted to handle his own machine. It should be stated there was evidence that the object of the union and its rules was to improve the condition of the members and of the laboring classes in general by increasing wages and elevating the scale of living. Some of the individual defendants testified in denial of the charges that they had threatened to ruin the plaintiffs, put them out of business, or cherished ill will against them.

The court below in its judgment found that each and all of the defendants had been engaged in picketing plaintiffs' place of business and persistently requested the public not to patronize it, on the theory plaintiffs did not employ a union operator, and therefore was unfair to union labor; that the picketing resulted in substantial damage to the business of plaintiffs; but was conducted in a peaceable manner, and therefore was not unlawful; that if defendants were enjoined from continuing their conduct, they would be deprived of the rights of free speech and personal liberty guaranteed by sections 4 and 30, article 2, of the state Constitution, and Amendments 1 and 14 to the national Constitution; that if the temporary injunction was dissolved, plaintiffs would not be deprived, without due process of law, of their right to acquire, possess, and enjoy property and the gains of their industry, and...