Mississippi Theatres Corporation v. Hattiesburg Local Union No. 615

• Decision Date: 06 January 1936
• Docket Number: 31970
• Citation: 164 So. 887,174 Miss. 439
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI THEATRES CORPORATION et al. v. HATTIESBURG LOCAL UNION NO. 615

164 So. 887

174 Miss. 439

MISSISSIPPI THEATRES CORPORATION et al. v. HATTIESBURG LOCAL UNION NO. 615

No. 31970

Supreme Court of Mississippi

January 6, 1936

Division A

Suggestion Of Error Overruled February 3, 1936.

APPEAL from the chancery court of Forrest county HON. BEN STEVENS Chancellor.

Suit by the Hattiesburg Local Union No. 615, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, against the Mississippi Theatres Corporation and others. From an order overruling motion to dissolve an injunction defendants appeal. Affirmed.

Affirmed.

Luther A. Smith, of Hattiesburg, for appellants.

There is no equity on the face of the bill. A court of equity will not decree the specific performance of a contract for the rendition of personal services.

Sims v. Van Meter Lbr. Co., 96 Miss. 449, 51 So. 495; Chambers et al. v. Davis et al., 128 Miss. 613, 91 So. 346; 14 R. C. L., page 385, sec. 86; 32 C. J., secs. 307 and 308, page 199; Restatement of the Law of Contracts, sec. 379; Hewitt v. Magic City Furniture Co., 107 So. 745; Electric Lighting Co. v. Mobile, 19 So. 721.

Another fatal defect is found in the bill of complaint. It does not allege nor show that complainant will suffer any irreparable injury if the injunction is not granted; in fact, it does not allege any injury whatever.

Green v. Lake, 54 Miss. 540, 128 Am. Rep. 378.

Temporary restraining orders should be granted only to prevent irreparable injury.

Mayer v. State, 103 Miss. 645, 60 So. 576; 14 R. C. L., sec. 20; 1 How. 108; 6 L.R.A. (N.S.) 1115; Griffith's Chancery Practice, sec. 35, note 26.

Another fundamental objection raised by courts to enforcing by affirmative decree the performance of such contracts as we find in the case at bar is that the decree could not meet the requirements as to certainty.

Griffith's Chancery Practice, sections 625 and 626; Boner Bros. v. Canadry, 79 Miss. 234, 30 So. 638; Railroad Co. v. Payne, 93 Miss. 60, 46 So. 405; Sims v. Lumber Co., 96 Miss. 452, 51 So. 495; Clement v. Reid, 17 Miss. 536; Jones v. Farms Co., 116 Miss. 295, 76 So. 880.

That the court erred in issuing the mandatory injunction in this case, and especially in refusing to dissolve it, is manifest upon consideration of the legal requirements for such extraordinary process.

Pearman v. Wiggins, 103 Miss. 4, 60 So. 1; 22 Cyc. 743; Griffith's Chancery Practice, sections 443 and 444; Morris v. Trussel, 109 So. 854; Thomas v. Miss. Light & Power Co., 152 So. 269.

James E. Coughlin and T. Price Dale, both of Hattiesburg, for appellee.

Since the reasons for the rule against enforcing contracts for personal services do not exist in connection with contracts of this kind, recent holdings of the courts are that labor unions can enforce by injunctive process the performance by employers of contracts of this kind.

Ribner v. Rasco Butter & Egg Co., Inc., 238 N.Y.S. 132; Sutton v. Unity Button Works, Inc., 258 N.Y.S. 863; Harper et al. v. Local Union No. 520, etc., 48 S.W.2d 1033; Gilchrist Co. v. Metal Polishers, etc., 113 A. 320; Y. & M. V. R. R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669.

Counsel for appellants attacks the bill of complaint on the ground that it does not allege that complainant, appellee here, will suffer irreparable injury if the injunc-should not be granted, and in fact that it does not allege any injuries whatever. The bill of complaint sets out the contract sued on and charges a breach thereof by the defendants, appellants here, and alleges that the complainant has not an adequate remedy at law for such breach and shows wherein and why it does not have such remedy. The law presumes an injury when the breach of a contract is shown.

Sutton v. Unity Button Works, Inc., 258 N.Y.S. 863.

The Ribner, Sutton and Harper cases, supra, are to the effect that the court committed no error in issuing the mandatory injunction and declining thereafter to dissolve it.

Argued orally by L. A. Smith, for appellant, and by T. Price Dale, for appellee.

OPINION

McGowen, J.

The Hattiesburg Local Union No. 615, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, filed its bill in equity against the Mississippi Theatres Corporation, Al H. Yeomans, L. J. Brown, and Louis J. Hammack, in which an injunction was sought by the local union to compel the appellants to continue in its employment members of its union who were ready, willing, able, and competent to perform the services required under a written contract entered into by the parties appellee and appellant. The written contract between the Mississippi Theatres Corporation, the employer and the local union, representing the employees, was executed on the 13th day of May, 1935, and was to continue in force until May 13, 1936. By this contract the Theatres Corporation agreed with the local union to employ "only those stage and moving picture employes and machine operators supplied by the local union;" and further provided for the scale of wages for the various classes of employees, and for working conditions.

The local union agreed, on its part, to furnish competent men to perform work as required by the employer; and it was stipulated that the employer could terminate its contract with any individual upon two weeks' notice; the same privilege being granted to the individual employee.

The bill charged that at the time of the execution of the contract, and ever since, the local union has had, and continues to have, competent moving picture machine operators with whom to fulfill and carry out its part of the contract, and at all times was ready, willing, and anxious to carry out its contract by having available the men called for in the contract, and that for a short time it was carried out by both parties; but that prior to the filing of the bill the employer refused to employ competent moving picture operators, instead employed others not furnished by the local union, and had discharged all the men so furnished by it.

The bill further charged that the Theatres Corporation had on June 4, 1935, entered into what purported to be a lease contract with L. J. Brown and Louis J. Hammack, whereby the said corporation pretended to lease to the said individuals its theater building in Hattiesburg, and whereby the lease contract pretended to give the said Brown and Hammack the right and power to discharge and hire whomsoever they chose.

It was further charged that the lease contract was not bona fide, not being made for the purpose of leasing the theater to said Brown and Hammack, but for the sole purpose of enabling the Theatres Corporation and Yeomans to refuse to carry out their contract so entered into with the complainant; and, further, that the Rose Theatre in Hattiesburg was being operated in this manner in the name of Brown and Hammack, and that the employers declined to re-employ the discharged operators or any others whom the complainant might have furnished for the work, as provided.

It was further charged that under the terms of the contract the employer was not forced to keep in its employ any person furnished by the union where the employer, for any reason, preferred not to do so.

It is alleged by the union that it had no adequate remedy at law; that it could not recover as damages the salaries of the individuals which it was obliged to furnish under the contract; and that no individual member of its union could recover, for the reason that it could not assert that any particular individual would have the right to sue for damages on account of wages, because of the power granted in the contract to the employer to discharge at will, on two weeks' notice, any individual furnished by the local union.

The bill prayed for a temporary mandatory injunction, to be made perpetual on final hearing, requiring the employer to carry out its contract by re-employing its members. A temporary writ of injunction on the fiat of the chancellor was issued and served, requiring the employers named immediately to re-employ, and to continue to employ until the cause could be heard on its merits, operators for the moving picture machine in the Rose Theatre in the city of Hattiesburg to be furnished by the union under the contract, which was made an exhibit to the bill.

The above-named employers appeared and filed their demurrers to the bill on the principal ground that there was no equity on the face of the bill, and filed therewith a motion to dissolve the injunction; and the cause was heard on the pleadings. The court below overruled the motion to dissolve the injunction, and declined to allow an appeal to settle the principles of the case; and the cause is now here upon an order made by a member of this court; the appeal being granted to settle all the controlling principles thereof, with supersedeas.

1. The principal assignment of error is that the court below erred in granting an injunction in this case, because a court of equity will not decree the specific performance of a contract for the rendition of personal services. In the cases of Sims v. Vanmeter Lbr. Co., 96 Miss. 449, 51 So. 459 and Chambers et al. v. Davis et al., 128 Miss. 613, 91 So. 346, 22 A.L.R. 114, this court followed the rule generally recognized by the courts, that equity will not decree the specific performance of a contract for personal services. In the latter case certain brakemen sought by a bill in equity to have their seniority rights, as such, enforced by a court of equity; these rights having been secured to them by a contract between their union and the railroad company. Both of these cases,...