Hughes v. Kansas City Motion Picture Machine Operators
| Decision Date | 30 April 1920 |
| Citation | 221 S.W. 95,282 Mo. 304 |
| Parties | JOHN E. HUGHES et al., Partners Doing Business Under Name of Eastern Theater, Appellants, v. KANSAS CITY MOTION PICTURE MACHINE OPERATORS, LOCAL NO. 170, et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. J. Seehorn, Judge.
Reversed and remanded (with directions).
Charles M. Miller for appellants.
(1) The trial court erred in holding that defendants' asserted constitutional right of free speech and personal liberty gave them the right to picket plaintiffs' business even in a "peaceful manner," and interfere with or destroy it, and that such did not violate plaintiffs' constitutional right to conduct and carry on their business without interference by defendants. Hardie-Tynes Mfg. Co v. Cruse, 189 Ala. 66; Lohse Patent Door Co. v Fuelle, 215 Mo. 458; Barr v. Essex Trades Council, 53 N.J.Eq. 101; Fitts v. Atlanta, 121 Ga. 567; Allgeyer v. Louisiana, 165 U.S. 578, 41 L.Ed. 835; Hopkins v. Oxley Stove Co., 83 F. 912; Local Union No. 313, Employees' Internat. Alliance v Stathakis, 205 S.W. 450; Webb v. Cooks' Union, 205 S.W. 465; St. Germain and Wife v. Internatl. Union No. 9, 97 Wash. 282, 166 P. 662; Huntworth v. Tanner, 87 Wash. 684; Gompers v. Buck Stove & Range Co., 221 U.S. 418, 439; Hitchman Mine Case, 245 U.S. 256; Montgomery v. Railroad, 258 F. 382; Roraback v. Mo. Pic. Operators' Union, 140 Minn. 481, 168 N.W. 766, 169 N.W. 529. (2) The trial court erred in holding under the evidence that the picketing was done in a "peaceable manner" from which we understand the court means without coercion, intimidation, threats, force or violence. Ex parte Stout, 198 S.W. 967; St. Germain v. Internatl. Union No. 9, 97 Wash. 282, 166 P. 664; 24 Cyc. 834; Local Union No. 313 Hotel & Restaurant Employees' Internatl. Alliance v. Strathakis, 205 S.W. 450; Webb v. Cooks', Waiters' & Waitresses' Union No. 748, 205 S.W. 465; Jones v. Van Winkle, 131 Ga. 336; Pierce v. Stablemen's Union, 156 Cal. 70, 103 P. 324; Beck v. Ry. Teamsters' Union, 118 Mich. 497; Otis Steel Co. v. Local Union, 110 F. 698; Lohse Patent Door Co. v. Fuelle, 215 Mo. 467; Goldberg v. Stablemen's Union, 149 Cal. 432, 86 P. 806; 1 Eddy on Combinations, sec. 539.
Walsh & Aylward for respondents.
(1) The plaintiffs had a right to conduct their business without unlawful interference, but this right is qualified by the personal and natural right of the defendants to do any lawful act without molestation, regardless of any injury caused thereby, because these respective rights are at least equal to each other, the resulting damage incidental thereto, and the plaintiffs had no "vested right" to the lessened patronage, if any, produced thereby. The trial court did not err in holding, therefore, that the "picketing" of the plaintiffs' business was "peaceful," and to deny the defendants the right so to do in a "peaceable manner" would be to deprive them of their constitutional rights of "free speech" and "personal liberty." St. Louis v. Gloner, 210 Mo. 502; Clothing Co. v. Watson, 168 Mo. 145; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212; Ex parte Heffron, 179 Mo.App. 639; Berry Foundry Co. v. Moulders' Union, 177 Mo.App. 88; Root v. Anderson, 207 S.W. 257; Door Co. v. Fuelle, 215 Mo. 450; Mo. Const. secs. 4, 14 and 30, Art. 2; Foster v. Retail Clerks' Assn., 78 N.Y.S. 860; Bossert v. Dhuy, 221 N.Y. 732; National Protective Assn. v. Cummings, 170 N.Y. 315; Mills v. U. S. Printing Co., 99 A.D. 605, 81 N.Y.S. 185; Wyckoff Amusement Co. v. Kaplan, 170 N.Y.S. 549; Butterick Pub. Co. v. Typ. Union, 100 N.Y.S. 438; Searle Mfg. Co. v. Terry, 106 N.Y. 438; Beaton v. Tarrant, 102 Ill.App. 124; kemp v. Division No. 241, 255 Ill. 213; Iron Moulders' Union v. Allis Chalmers Co., 166 F. 45; Goldfield Mines Co. v. Goldfield M. U., 159 F. 501; Tri-City Council v. American Steel Foundries, 238 F. 732; Duplex Printing Co. v. Deering, 247 F. 198, 252 F. 722; Karges Furn. Co. v. Wood Workers' Local, 165 Ind. 421, 2 L. R. A. (N. S.) 788; Minnesota Store Co. v. Cavanaugh, 131 Minn. 458; Mfg. Co. v. Hollis, 54 Minn. 223; Gray v. Council, 91 Minn. 171, 21 L. R. A. 337, 40 Am. St. 319; Empire Theater Co. v. Cloke, 163 P. 107; Lindsay v. Montana Fed. of Labor, 37 Mont. 264; Pinkerton v. Verberg, 78 Mich. 573; Beck v. Teamsters' Union, 118 Mich. 516; Carew v. Rutherford, 106 Mass. 1; Plant v. Woods, 176 Mass. 492; Everett Waddey Co. v. Typ. Union, 105 Va. 188, 5 L. R. A. (N. S.) 795; Jones v. Van Winkle, G. & M. Works, 131 Ga. 336, 17 L. R. A. (N. S.) 848, 127 Am. St. 235; Daley v. Superior Court, 112 Cal. 94; Parkinson v. Council, 154 Cal. 581; Traux v. Bisbee Local, 171 P. 124; Maryland Lodge v. Adt, 100 Md. 252; Stoner v. Robert, 43 Wash. L. R. 437. (2) The question as to whether the "picketing" was, or was not, "peaceful," and thereby lawful, was a question of fact for the trial court, and it did not err in so finding that the "picketing," under the evidence, was "peaceful." Phillips v. Trust Co., 214 Mo. 684; Hummell v. Zinn, 184 S.W. 1157; Brecker v. Fillingham, 209 Mo. 583; Creamer v. Bibert, 214 Mo. 479; Tanker v. Kier, 195 Mo. 203; Hoffman v. Hoffman, 217 Mo. 191; Jones v. Thomas, 218 Mo. 540; Walker v. Wallis, 186 S.W. 1041.
OPINION
In Banc
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 Employees. 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 one hundred dollars, 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 defendants, 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 theatre 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 one hundred dollars, as we gather from the testimony, was imposed on him. It seems Hughes had conducted another theatre 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 in 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 Shuttler. 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 seventy-five dollars. 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, seventeen dollar 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 theatre 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 members of the executive board of the union went to the Eastern Theatre 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 theatre; 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 thirteenth. 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 non-union operator; please do not...
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