Music Hall Theatre v. Moving Picture Mach. Operators Local No. 165

• Decision Date: 06 June 1933
• Citation: 249 Ky. 639,61 S.W.2d 283
• Parties: MUSIC HALL THEATRE v. MOVING PICTURE MACHINE OPERATORS LOCAL NO. 165 et al.
• Court: Kentucky Court of Appeals

61 S.W.2d 283

249 Ky. 639

MUSIC HALL THEATRE v. MOVING PICTURE MACHINE OPERATORS LOCAL NO. 165 et al.

Court of Appeals of Kentucky

June 6, 1933

Appeal from Circuit Court, Campbell County.

Suit by the Music Hall Theatre against the Moving Picture Machine Operators Local No. 165 and others. From an adverse judgment plaintiff appeals.

Reversed with directions.

Charles E. Lester, Jr., of Newport, and James M. Gilbert, of Pineville, for appellant.

Roger L. Neff, Jr., and Raymond L. Murphy, both of Newport, and Pogue, Hoffeimer & Pogue and J. A. Culbertson, all of Cincinnati, Ohio, for appellees.

STANLEY Commissioner.

This suit was brought by the appellant, Music Hall Theatre, that is, John Burkart, doing business and operating a moving picture theater in Newport under that style, against the appellees, "Moving Picture Machine Operators, Local No 165, International Alliance Theatrical State Employees of United States and Canada," an unincorporated association, which is a labor union, together with its officers and several individuals, to enjoin them and their agents from picketing and interfering with plaintiff's business. Their action was charged to be maliciously and unlawfully done and their representations to the public to be false and misleading, all of which had resulted in intimidation and coercion or prospective patrons. For several years members of this Union had been employed in operating plaintiff's machines. It appears that the theater had closed in the summer because its expenses were exceeding its income. As authorized by the contract which plaintiff had with the union, notice was given of its termination on August 31st. Negotiations to make a new contract were futile.

Before this time, an individual had been conducting a trade school in Cincinnati, in which the operation of moving picture projection machines was taught. He had incorporated an organization known as "Moving Projectionists' Operators of America." Upon completing the prescribed course, the students in this trade school were given a card of membership in it. The organization was in no way affiliated with the American Federation of Labor or any other union. It was an adjunct of the trade school, and seems to have been merely a scheme which permitted the specious statements that its members were members of a union. This case has the atmosphere of principally being a contest between the union and the trade school.

On September 4th the plaintiff employed one of the members of this school organization at a substantially less wage than he would have had to pay a member of the defendant Union. Thereupon the defendants and their representatives began a systematic picketing of plaintiff's theater by having a man patrol the sidewalk at and near its entrance carrying a banner with this inscription: "This Theatre does not employ Union Operator member of Local No. 165, M. P. M. O. & I. A. T. S.E. of U.S. A. & Can. Affiliated with the American Federation of Labor." Two or three men accompanied the bearer of the banner. Handbills were distributed, but the record does not disclose their contents. There is substantial evidence that, in addition to these acts, the picketers accosted prospective patrons at the entrance and about the theater, and, calling them aside, talked with them. Some of them were told that the building was a fire trap; that no show was going on at the time, and it would not open; that the operators were not union men, and did not understand their business; and that there would likely be a fire. All of these things had the effect of intimidating the patrons or prospective patrons of the theater. Excepting the inscription on the banner, they were false and misleading. The result was a falling off in plaintiff's business of about 50 per cent.

The circuit court refused to issue the injunction, and the appeal is brought from that judgment.

The development of the law in respect to labor disputes and the use of injunctive processes has become rather complex. This is not surprising, since the contests involve a conflict between what are regarded as inherent and inalienable rights and the right to their protection. On the one hand are the rights of property, of contract, of doing business in one's own way, of being let alone; the freedom of conducting a lawful business, and the incidental right to good will and to appeal to the public for patronage; and similar paramount privileges. On the other hand are the rights of economic self-preservation; of improving...