Twentieth Century-Fox Film Corp. v. Lardner
| Citation | 216 F.2d 844 |
| Decision Date | 09 November 1954 |
| Docket Number | No. 13491.,13491. |
| Parties | TWENTIETH CENTURY-FOX FILM CORPORATION, Appellant, v. Ring LARDNER, Jr., Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
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Herman F. Selvin, Irving M. Walker, Wright & Garrett, Los Angeles, Cal., for appellant.
Kenny & Cohn, Charles J. Katz, Los Angeles, Cal., for appellee.
Before STEPHENS and CHAMBERS, Circuit Judges, and CLARK, District Judge.
Ring Lardner, Jr., plaintiff and appellee, in the year 1947 was working under written contract as a screen writer for Twentieth Century-Fox Film Corporation. The latter, defendant and appellant, will hereinafter be referred to as "Fox."
Lardner was discharged on November 28, 1947, by Fox. Lardner filed suit and obtained judgment for approximately $25,000 in salary accruing after his discharge. This is a diversity case and Fox has appealed.
The events leading up to the discharge of Lardner start in 1947 with an investigation and hearings of the Un-American Activities Committee of the United States House of Representatives investigating alleged Communist infiltration of the motion picture industry. In advance, House investigators had been to Hollywood, but the actual hearings were in Washington. Those hearings with which we are concerned were held in October, 1947.
Lardner was one of ten witnesses from the motion picture employees who declined to tell the committee whether they were members of the Communist party. The refusal was oblique. The answers were not responsive to the questions and essentially consisted of questioning the authority of the congressional committee. The refusal of Lardner was made on October 30. On November 24, the "ten men," including Lardner, were cited by the House of Representatives for contempt. Prosecution in the district court in Washington, D. C., followed, Lardner being there convicted on June 22, 1950. Meanwhile, Lardner had been discharged by Fox on November 28, 1947, four days after the citation for contempt. The Fox board of directors on November 20 had adopted a resolution providing that any employee cited for contempt of Congress for failing to answer whether or not he was a member of the Communist party should be discharged.
Another of the "ten men" was Lester Cole. He was discharged by Loew's, Incorporated, for the same reason. He sued upon his contract, and his civil action was tried before his conviction in the criminal case in Washington. Lardner's civil case was tried below after he was convicted, after he had served his sentence and after this court's decision on appeal of Cole's case, Loew's, Incorporated v. Cole, 9 Cir., 185 F.2d 641. The 1947 congressional hearing on the motion picture industry is at the root of Cole's case and Lardner's. The conduct of the two before the committee is similar in all aspects important to this case. The events of the hearing are well described by Judge Pope in Cole's decision. For brevity, reference is made to the report of Cole's case. Throughout, reference and comparison will be made to the Cole litigation, and the facts herein stated may not be adequate without a reading of Cole's case.
Both Loew's and Fox justified the discharge of Cole and Lardner respectively under the so-called "morals" or "good conduct" clause of the contract. Inasmuch as the Cole decision seemed to have been, and properly so, the chart for the trial of this cause, it may be well to set forth in parallel columns the good conduct clause of Cole's contract and the similar one in Lardner's contract. They are as follows:
Cole's Lardner's
"The employee agrees to conduct "That the artist shall perform the
himself with due regard to public services herein contracted for in
conventions and morals, and agrees the manner that shall be conducive
that he will not do or commit any to the best interests of the producer
act or thing that will tend to degrade and of the business in which the
him in society or bring him producer is engaged, and if the artist
into public hatred, contempt, scorn shall conduct himself, either
or ridicule, or that will tend to while rendering such services to
shock, insult or offend the community the producer, or in his private life
or ridicule public morals or in such a manner as to commit an
decency, or prejudice the producer offense involving moral turpitude
of the motion picture, theatrical or under Federal, state or local laws
radio industry in general." or ordinances, or shall conduct
himself in a manner that shall offend
against decency, morality or
shall cause him to be held in public
ridicule, scorn or contempt, or that
shall cause public scandal, then, and
upon the happening of any of the
events herein described, the producer
may, at its option and upon
one week's notice to the artist, terminate
this contract and the employment
thereby created."
One may observe that Lardner's contract said everything that Cole's said and a little more.
Fox justified the discharge on the ground that Lardner, by his conduct before the congressional committee, had breached the good conduct clause of the contract and therefore it, Fox, was excused from performance. Lardner replied that he had not breached the contract, but if he had breached it, then Fox, by continuing him on the payroll for almost a month and by giving him a new assignment, had waived the breach and was not justified in discharging him late in November.
While the defense was not expressly pleaded here, just as Cole did, Lardner forcefully claimed that the "ten men," he among them, were encouraged by their employers to defy Congress; that when a public clamor arose over the conduct of the screen writers, the producers then gave up the ten men as a burnt offering to appease public opinion. Both the appearances before Congress and the trial of Lardner's civil case were done with flair, if not flamboyance, by both producers and the screen writers.
Lardner won on the general issue at the trial for damages in the United States District Court for the Southern District of California. Also, the jury, on interrogatories, answered that Lardner had not breached the good conduct clause, but if he had, Fox had waived it.
By specifications of error, Fox raises a number of contentions. The most important ones are asserted as follows:
1. The trial court erred in permitting witnesses to testify on the issue of waiver as to conversations with certain Fox executives without a requisite foundation of authority.
2. The trial court erred in not receiving in evidence discussions had at the meetings of the board of directors and the executive committee of Fox during the period from the time of Lardner's appearance before the congressional committee in October until his discharge in November.
3. The trial court erred in not admitting into evidence the record of Lardner's conviction of contempt of Congress for his refusal to testify on October 30, 1947.
4. The trial court erred in admitting into evidence the fact that after Lardner's discharge Fox, on all films publicly exhibited and upon which Lardner had worked, continued to give him credit for his part therein.
5. The trial court erred in giving certain instructions and refusing others.
The Lardner contract called for two stints of ten weeks each, ten weeks being the usual minimum time for a screen writer's work on a scenario. At the time of Cole's discharge at Loew's, he was in the middle of a term of writing. The situation was different with Lardner. At the time of testifying in Washington, Lardner was finishing his work on his first picture (ten weeks) under his contract.
Lardner returned to Hollywood after the congressional hearings, and the production department of Fox went ahead with plans to use his services further. On November 26, a letter was given Lardner in behalf of Fox (signed by Lew Scheirber, who signed as executive manager). On that date Lardner endorsed his acceptance thereof.
By its terms, the letter referred to the basic contract and stated that Fox had not made up its mind whether it would produce another picture, "House by the River," but Lardner should go to work on it and he would be paid his regular weekly wage of $2,000. If Fox discontinued work thereon, the picture would not count as the second picture Lardner was to be assigned under the contract. This letter, together with Fox's delay of 29 days after Lardner testified before the committee in discharging him, was essentially the basis of Lardner's claim that Fox had lost any right which it otherwise may have had to discharge him.
While Fox is "the" producer, yet in its organization it has individual company producers who take charge of the production of assigned pictures. William Perlburg was one of these producers and it was with him that Lardner had worked on his picture under the subject contract. Lardner was permitted to testify as to a conversation he had with Perlburg in November, after Lardner's return from Washington. Perlburg was quoted as saying, after the hearings, that Darryl Zanuck, described by Lardner as West Coast manager, had commented unfavorably on the congressional proceedings and that Zanuck had said he was...
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