Short v. Hotel Riviera, Inc.

• Decision Date: 27 February 1963
• Docket Number: No. 369,No. 4550,A,369,4550
• Citation: 79 Nev. 94,378 P.2d 979
• Parties: Benny SHORT, Appellant, v. HOTEL RIVIERA, INC., a Nevada corporation, Musicians' Protective Union, LocalF. of M. of Las Vegas, Nevada, Lewis Elias, Respondents.
• Court: Nevada Supreme Court

Page 979

378 P.2d 979

79 Nev. 94

Benny SHORT, Appellant, v. HOTEL RIVIERA, INC., a Nevada corporation, Musicians' Protective Union, Local No. 369, A. F. of M. of Las Vegas, Nevada, Lewis Elias, Respondents.

No. 4550.

Supreme Court of Nevada.

Feb. 27, 1963.

Rehearing Denied March 19, 1963.

Morton Galane, Las Vegas, for appellant.

Woodburn, Forman, Wedge, Blakey & Folsom, Reno, Berkson & Phillips, Las Vegas, Brown & Matteucci, Las Vegas, for respondents.

BADT, Chief Justice.

This is an appeal from a summary judgment in favor of the three respondents above named. Short, appellant, had charged these three respondents with participating in a conspiracy for the purpose of obstructing and interfering with him in the pursuit of his occupation of conducting a relief band in the Las Vegas, Nevada, area, pursuant to which, among other things, the musicians in appellant's relief band were persuaded, induced, and enticed to terminate their employment under appellant, and to continue at the Hotel Riviera under the leadership of Elias, depriving appellant of their services during a period when he was under contract to fulfill other resort hotel engagements, all to appellant's damage, more particularly set forth.

Appellant assigns error in the court's order for a summary judgment in favor of the defendant union, the Riviera, and Elias on the ground that there were material issues of fact for determination. We are of the opinion that the assignment of error is well taken. Although we have approved the salutary purposes of the rule to the end that trials may be obviated when they would serve no useful purpose (Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670; Franktown Creek Irrigation Co. v. Marlette Lake Co., 77 Nev. 348, 364 P.2d 1069; Dredge Corp. v. Husite Co., 78 Nev. 69, 367 P.2d 676; Scapecchi v. Harolds Club, 78 Nev. 290, 371 P.2d 815), we have never approved its use where material issues of fact remained for determination. Corn v. French, 71 Nev. 280, 289 P.2d 173; Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492; Smith v. Hamilton, 70 Nev. 212, 265 P.2d 214. Confining ourselves for the moment to the single question as to the sequence of events appearing in the record, we do not think it can be said that no reasonable man could conclude from those facts and reasonable inferences to be drawn therefrom that the defendants did not conspire to injure the plaintiff or that he was not damaged thereby.

We turn now to the facts. These facts are derived from sundry discovery depositions, affidavits, the testimony taken at the hearing of a motion for a temporary injunction, and numerous exhibits received in evidence. In the Las Vegas area the bylaws of the local musicians' union precluded musicians from working more than six nights a week. In this situation the necessity of relief bands or relief orchestras arose which served the various resort hotels on the seventh night. Benny Short was the leader of such a relief orchestra, which he had organized in 1946. In the 16 years following he had recruited and trained such orchestra and enjoyed an excellent reputation. In 1960, the period involved herein, it played on the regular orchestra's night off at the Flamingo, Sahara, Thunderbird, and Riviera resort hotels and the Mint Club. Early in 1961 the hotel started a new production. Before the first night that Short would have played in relief, approximately January 8, 1961, the president of the hotel requested permission from the union to replace Short with the regular house conductor. When the request was refused the president told union officials he would 'terminate' Short. Subsequently Short inquired of these same officials if something was the matter and they replied that nothing was wrong. It elsewhere appeared however that there had been many complaints against Short's conducting. Approximately the same date as this latter conversation Elias, then chairman of the Union Trial Board, rejected appointment to a position on the union's executive board, saying he had an excellent chance to enter the relief band field.

On the 22d of February the hotel typed a termination notice to Short, but did not mail it. Then on the 28th Elias said he knew all the musicians in the Short band were going with him and that he had been offered the hotel job. On that date the hotel mailed the previously typed termination notice to Short, who received it on March 1. On the same date he received the termination notice from his entire band. The contractual relationships between Short and his band members and Short and the hotel were terminable at will, provided certain notice was given. It is not disputed that this provision of the contracts was performed. On that day Short was informed by the stage manager of the hotel that his entire band was staying (under Elias) and that the union had said it was okay.

Short still had contractual obligations with four clubs and it appeared that these would be in jeopardy if he failed to provide adequate music. Therefore on March 17, 1961, Short asked the union to waive the rules and permit him to conduct the house bands at the other clubs for one month, to enable him time to recruit a new band. The executive board of the union refused permission. A similar request was made on the 14th of April, which was also refused. After denying the permission to Short, the union granted similar privileges to Elias on March 24 and later dates.

During this period, starting with the evening of February 28, Elias solicited all the hotel jobs. While the orchestra was still employed by Short, though a few days after their notice of resignation, all the members that had decided to go with Elias had a 'get together meeting' which was also attended by Elias. During this interval they also called upon the officers of the union to ascertain whether they had violated the union's bylaws, as charged, in accepting employment from Elias.

The plaintiff charges that the union acted out of actual malice, in an attempt to 'get him' because of previous disagreements between him and the union officers.

Alleging these facts, appellant sought a judgment against the Riviera, the union, and Elias, charging them with an unlawful conspiracy, and alleging damage.

In the court below the learned district judge first denied the motion for summary judgment, saying in part, after referring to the testimony of the officers of the union and their 'unequivocal statements':

'It is not enough to say that the Hotel Riviera Inc. had the right to discharge Benny Short. This I feel is unequivocal. Pursuant to the contract it had that right. But if coupled with a bad motive from the Union and the interference of Lewis Elias in the organization of a band when other musicians were available and the fact that Lewis Elias was on the Trial Board of a complaint against Benny Short, coupled with the fact that the Riviera Hotel did not enter into a contract with Lewis Elias for the taking over of Benny Short's band until the 22nd day of March 1961 gives rise to an implication--if coupled together--that the Plaintiff may be entitled to relief. As dim as the hopes of the Plaintiff may be from the factual standpoint in the Court's opinion, the Court feels that it is not called to pass upon the question of controverted evidence even though the opportunity to prevail on the part of the Plaintiff may be indeed negligible. It would be in the best interest, according to the rules of law, to let this matter be decided by a jury rather than on a preliminary motion wherein the Court must of necessity weigh some of the testimony.' (Emphasis supplied.)

Thereafter the court granted a rehearing of the motion for summary judgment and granted the same, saying in part: 'The Union did what it had a right to do. And in spite of anything else, it could have been done through hatred, ill-will, malice or anything else. They had a right to bring a proceeding against Mr. Short. They had a right to try him in their tribunal. And he submitted to that jurisdiction. He exhausted all his remedies there. Now, whether they hated him or whether they didn't is wholly immaterial. They had a right to try him. [With regard to] the other defendant, the Riviera Hotel as appears from all of the evidence that I can recall, a situation arose during one of their shows where they were unhappy over the music situation. The president of the corporation called on the union officials and asked them to come in and counsel them. After that had been done the union officials stated that if rehearsals were granted, a couple of extra weeks time, that they thought the plaintiff would then be able to take care of the situation. The president of the hotel asked on a Saturday night to have the services of a relief band leader. That request was denied. The by-laws of the Union hold that they have a right to deny that request. Now, that too could have been done with ill will; it could have been done for spite; it could have been done for any reason in the world. But still I can't find where it is the basis for any law suit. Now, upon being rejected Mr. Goffstein of the Hotel Riviera stated, 'Well, if I can't have my men and that's all there is to be to it, I will have to terminate Mr. Short.' I can't for the life of me see, after reading all the authorities, after going over all the factual situation again any reason that this situation should be prolonged and therefore the motion for summary judgment on behalf of the defendants will be granted.'

We are of the opinion that the court's first decision was right and its second decision wrong. The second opinion eliminates all consideration of the element of malice, all consideration of 'the interference of Lewis Elias in the organization of [Short's] band when other musicians were available * * *,' all consideration of 'the fact that the Riviera Hotel did not enter into a contract for taking over of Benny Short's band until the 22d day of March,' and all...