Warner Bros. Pictures v. Gittone

• Decision Date: 09 February 1940
• Docket Number: No. 7258.,7258.
• Citation: 110 F.2d 292
• Parties: WARNER BROS. PICTURES, Inc., et al. v. GITTONE, Mayor, et al.
• Court: U.S. Court of Appeals — Third Circuit

110 F.2d 292 (1940)

WARNER BROS. PICTURES, Inc., et al. v. GITTONE, Mayor, et al.

No. 7258.

Circuit Court of Appeals, Third Circuit.

February 9, 1940.

Wm. A. Schnader and Howard S. McMorris, both of Philadelphia, Pa. (Schnader & Lewis, of Philadelphia, Pa., of counsel), for appellants Paramount Pictures, Inc., and others.

D. Benjamin Kresch and Morris Wolf, both of Philadelphia, Pa. (Wolf, Block, Schorr & Solis-Cohen, of Philadelphia, Pa., of counsel), for appellants Warner Bros. Pictures, Inc., and others.

Benjamin M. Golder, of Philadelphia, Pa., for appellant Vitagraph, Inc.

William B. Rudenko and Harry Shapiro, both of Philadelphia, Pa., for appellees.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

PER CURIAM.

This is an appeal by the defendants from a decree of the District Court for the Eastern District of Pennsylvania granting a preliminary injunction. The suit was brought under Section 16 of the Clayton Act, 15 U.S.C.A. § 26. The principal litigants are engaged in various phases of the moving picture industry. The decree appealed from was entered by the District Court upon a record consisting primarily of affidavits filed by the parties. The only oral testimony received by the court was that of adverse witnesses called by the plaintiffs as for cross-examination. Their testimony, however, as we read the record, was not of the first importance to the fundamental issue in the case. That issue is the right of the defendant distributors to refuse to furnish the plaintiff theatre with first-run moving pictures. In the view we take this question, fundamental to the moving picture industry and perhaps also generally, may not be decided at this stage of the proceeding.

We have pointed out frequently that the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. New York Asbestos Mfg. Co. v. Ambler Asbestos Air Cell Cov. Co., 3 Cir., 102 F. 890; Barker Painting Co. v. Brotherhood of Painters, 3 Cir., 15 F.2d 16; Murray Hill Restaurant v. Thirteen Twenty One Locust, 3 Cir., 98 F.2d 578. To justify the granting of such an injunction there must be a showing of irreparable injury during the pendency of the action. American Mercury v. Kiely, 2 Cir., 19 F.2d 295; Murray Hill Restaurant v. Thirteen Twenty One Locust, supra. It must also appear that the injunction is required to preserve the status quo pendente lite. American Mercury v. Kiely, supra; 1 Joyce on Injunctions, § 109a; 1 High on Injunctions, § 10.

In the present case the trial judge found that the exhibitor plaintiffs have suffered and will continue to suffer irreparable loss unless given injunctive relief. The defendants strongly urge that this finding is not supported by the record. We need not decide this question, however, for we are...