Hughes v. Kansas City Motion Picture MacHine Operators, Local No. 170

GOODE, J. These plaintiffs brought this action to obtain relief by injunction against the picketing of plaintiffs’ place of business on the corner of Ninth and Lister streets in Kansas City, where a moving picture show was conducted under the name of the Eastern Theater. The defendant, Kansas City Motion Picture Machine Operators, Local 170, is a voluntary organization of picture machine operators in Kansas City, and is affiliated with a much larger union known as The International Alliance Theatrical Stage Employees. The other defendants are members of the Local Union No. 170. Plaintiff Hughes was a member of the local union from 1912 until September 1, 1915, when he ceased to be, because he was sentenced to pay a fine of *310 one hundred dollars, or in default of payment, to suspension from the local union for one year for having divulged secrets of the union, it was asserted by defendants, but denied by him. Hughes refused to pay the -fine and the union put the fine and suspension together, as he said; meaning that he was suspended from membership and could only be reinstated by paying the fine. He then formed a contract, of a kind not clearly stated, for a picture theatre at Fifteenth and Spruce streets in said city. The Union objected to his working there, -because it was against the rules of the union for a member to have an interest in a show and conduct it himself. Another fine of one hundred dollars, as we gather from the testimony, was imposed on him. It seems Hughes had conducted another theatre also at Thirty-ninth and Main streets, where a union operator of the machine used to throw the pictures on the screen, was discharged when Hughes became the owner of the place; Hughes said, because he would be required by the rules of the union to sign a contract with the operator for a year, which he could not afford to do; that if he would have “to quit the show, he would have to quit the union first.” Those disagreements are in no way related to the present controversy, except in their tendency to prove bad feeling existed between Hughes and the local union prior to January 3, 1916, when Hughes became a partner with the other plaintiff, Briner, in the Eastern Theater. Briner had in his employ at that time, to handle the projecting machine, a union operator named Shuttler. As Hughes was capable of operating the projector, Shuttler was given two weeks notice to quit. In the interim members of the local union called on Hughes and told him if he would enter the union again, his fine would be reduced to seventy-five dollars. Hughes asked if, in that event, he would be permitted to operate his machine, and was told by the members of the union they would not consent for him to do so under any circumstances; that he must employ a union oper *311 ator and pay Mm the union scale. Hughes said the business would not justify paying the scale of wages, seventeen dollar a week, in addition to the city license fee and the war tax, and that he thought he had a right to operate his own machine. The agents of the union told Mm they would put their pickets out at his theatre and keep them there until he gave in to their proposition. Picketing was begun on April 16, 1916, being postponed until that time for some unexplained reason. On said day members of the executive board of the union went to the Eastern Theatre with an operator and also two pickets, and told Hughes he could take his choice; hire the operator, or be picketed. He asked time to consider the proposition; but the agents refused to grant it and put the pickets on duty that night. The testimony goes to show plaintiff Hughes’ wife was knocked down on the sidwalk by one of the pickets that evening, whereupon the pickets scattered, as did a crowd of persons who had collected about the front of the theatre; but this is the only evidence of the commission of an act of violence, although the picketing continued until the present action was begun, two months later, on June thirteenth. The pickets worked by walking up and down the sidewalk in front of the theater, addressing themselves to persons who passed and saying: “This place is not fair to organized labor; please do not patronize it;” and sometimes: “The picture machine in this theater is run by a non-union operator; please do not patronize it.” The testimony for defendants is that the request was not addressed to individuals, but “to the public,” and in a moderate tone; and it does not appear the. voice or manner of the pickets was boisterous or threatening. The patrol of the sidewalk usually began about 7:45 o ’clock in the evening, when the attendance was most numerous. Plaintiff Hughes testified the agents of the union told him they would ruin him and break up his business; that they had spent five thousand dollars to make *312 another theatre hire a union operator and would spend that much on him. The union offered to find him a position as operator in some other theatre if he would hire a union man for his place; hut he refused for the reason that his wife was incapable of looking .after the business, as it seems she, instead of Briner, the other owner, was assisting to do, and the business would not bear the expense of a hired operator. Plaintiff had employed a union operator at a picture theatre on Ninth street and Troost avenue, which his wife conducted for a while. One witness testified she had been in the habit of patronizing the Eastern Theatre, but on account of the controversy with the union, ceased to do so, as her husband said there was danger. Another witness testified that on a Sunday afternoon he became alarmed and took his boy out of the theatre on account of the way “they [the pickets anda gathering of persons] were acting.” This witness said two pickets were, walking in front of the place, and a crowd of fifteen or' twenty persons were on the northeast corner; among them two men whom he had seen acting as pickets previously; that he thought there might be a fight or riot. According to the witnesses for plaintiffs the receipts of their business fell off about fifteen dollars a week after the picketing began and in consequence of it. Several witnesses for defendants said the demeanor of the pickets was quiet and peaceable; and though they (the witnesses) were in the habit of passing the place, they had seen no disturbance. By way of counteracting the influence of the pickets, the wife of Hughes would sometimes walk along with them, and would say to passersby: “This place is not unfair to organized labor ; ’ ’ and on one or two occasions she threw a bunch of tickets at the pickets. The testimony for defendants brought out clearly the real grievance the union cherished against plaintiffs, and the sole reason why they maintained pickets in front of their place of business. A man named Brown, who was not a member of the union, *313 stayed about the projecting machine in the theatre and the union agents thought he was operating it; but the evidence conclusively shows he was a student and paid Hughes for instructing him. The testimony shows there was a' rigid rule of the union that no proprietor of a moving-picture show should operate his own projecting machine, and that in every case a member of the union must be employed. The reason assigned by defendants for this rule is, that experience had shown persons would claim to be interested as a partner in the business and to have the right to operate as such when, in fact, the claim was a subterfuge used as a means to obtain a position as operator without becoming a member of the union and at a wage less than the union scale; that if such a rule was not enforced, proprietors of theatres, even though members of the union themselves,- would be able to employ non-union operators at a lower wage, under the guise of taking them in as partners. There was testimony, too, in behalf of defendants, about the proprietors of other theatres who employed union operators and otherwise complied with the rules of the union, having complained on occasions when some proprietor was permitted to handle his own machine. It should be stated there was evidence that the object of the union and its rules was to improve the condition of'the members and of the laboring classes in general, by increasing wages and elevating the scale of living. Some of the individual defendants testified in denial of the charges that they had threatened to ruin the plaintiffs, put them out of business or cherished illwill against them. The court below in its judgment found that each and all of the defendants had been engaged in picketing plaintiffs’ place of business and persistently requested the public not to patronize it, on the theory that plaintiffs did not employ a union • operator and. therefore, was unfair to union labor; that the picketing resulted in substantial damage to the business of plaintiffs; but was conducted in a peaceable manner and, therefore, was not *314 unlawful; that if defendants were enjoined from continuing their conduct they would he deprived of the rights of free speech and personal liberty guaranteed by Sections 4 and 30, Article II, of the State Constitution, and Amendments 1 and 14 to the National Constitution; that if the temporary injunction was dissolved, plaintiffs would not be deprived, without due process of law, of their right to acquire, possess and enjoy property and the gains of their industry, and would not be denied the equal protection of the law as guaranteed by Sections -4 and 30 of Article II of the State Constitution and Amendments 5 and 14 to the National Constitution. Therefore the temporary injunction was dissolved, judgment given' against plaintiffs and for costs; and from the judgment this appeal was taken. Disputes8 Picketing The earlier disputes of Hughes and defendant union have no bearing, we think, on the decision of this case; but the circumstances of them have been related because the briefs of both sides attach importance to them. No doubt those controversies engendered mu^ual suspicion and aversion between Hughes- and the members of the local union, but the only conduct of plaintiffs assigned by the executive board of the union for picketing the Theatre, was that plaintiffs refused to hire a union operator to handle the picture projecting machine and persisted in having it operated by Hughes. Beyond question the demand of the union that plaintiffs should desist from conducting the business in that way and should employ an outside °Pera^or) was arbitrary and unlawful. The right asserted by plaintiffs to keep down the expense of their business by having Hughes manipulate the projector, is the simple and primitive right of a man to earn a -livelihood with his own hands; as much so as that of a blacksmith to blow his forge. [Truax v. Raich, 239 U. S. 33.] This-right the rule of the union denied to Hughes, even if he became a member. The controversy is not one wherein members of an organized body of employees have struck or taken other *315 methods to increase their wages, shorten their hours of labor, or improve the sanitation and comfort of the conditions under which they work. It is not the outcome of any grievance of organized labor that contains merit, as involving resistance to oppression or an equitable division of profits yielded by labor and capital in combination. On the contrary, Hughes claims no more, in effect, than the members of the union claim; i. e., the privilege of earning the ordinary wage of operating a picture machine by doing the work himself instead of paying to have it done. The evidence shows he had never discriminated against union operators; but on the occasion when he needed an outside operator, had employed a union man. The decision of the union to enforce against plaintiffs the rule that no proprietor of a moving picture theatre should handle his projector, was an attempt to deprive Hughes of his right to make a living by the work of his hands, and to deprive him and his partner of the right to manage their business according to their own judgment and, so far as the evidence shows, in the only method it could be made profitable ; a method remotely affecting, if at all, the interests of organized labor. Clearly in doing this defendants wronged the plaintiffs. [Hopkins v. Stave Co., 28 C. C. A. 99, 83 Fed. 912.] The determination of the union to put the rule into effect against plaintiffs, involved, as the course of events shows, the intention to coerce plaintiffs into observing it by reducing the income of their business to such an extent that they must yield or be ruined. The reduction was to be accomplished by a patrol of pickets in front of the theatre and repeated untrue statements by the pickets to patrons of the theatre and other passers-by, that plaintiffs were unfair to organized labor, and by requests not to patronize them. Hneasiness, amounting to. intimidation, was stirred in some of the patrons, which kept them away from the exhibitions and, no doubt, aversion to plaintiffs was aroused in others with the like result; the very result indeed that the defendants admit was intended. *316 This conduct of the union, including the defendants, was a violation of the legal rights of the plaintiffs which worked continuous damage to their business and entitles them to redress. [Lohse Door Co. v. Fuelle, 215 Mo. 421; Clarkson v. Laiblan, 178 Mo. App. 708.] The views expressed and the judgments rendered regarding the respective rights of the employing and the employed classes of society are discordant and may be occasionally extreme, one way or the other; but we have seen no judicial opinion which in principle or ruling would justify, as lawful, the behavior of defendants. Free Speech Defendants contend the picketing was peaceable and, therefore, lawful, and that to prevent it by the writ of injunction will deprive them of their privilege of free speech and the use of the public streets. Withoa^ denying that there can be peaceable picketing, as some courts have held, we dissent from the proposition that picketing is lawful, as a matter of course, simply because it is not accompanied by assaults, threats or other methods of intimidation. In some instances we consider peaceable picketing is lawful. For example where, in the prosecution of a strike, pickets are posted to observe and report what takes place on the employer’s premises, and in the course of their task use neither violence nor threats toward other employees. [Fletcher Co. v. Assn. of Machinists, 55 Atl. (N. J.) 1077; Karges Furn. Co. v. Woodworkers Union, 165 Ind. 421, 2 L. R. A. (N. S.) 788.] It has been held, but not by all courts, to be lawful in such instances, when nothing more is done by the pickets than to endeavor by argument and persuasion, to prevent other workmen from taking service under the employer against whom the strike is directed. [St. Louis v. Gloner, 210 Mo. 502; Standard Tube, etc., Co. v. International Union, 7 Ohio Nisi Prius, 87; Iron Moulders Union v. Allis-Chalmers Co., 166 Fed. 45, 20 L. R. A. (N. S.) 315.] It is unlawful, according to the authorities, when a strike is in progress, for members of a labor union to endeavor to persuade employees *317 to break their contracts; and doubtless picketing for that purpose is unlawful. [Martin, Modern Law Labor Unions, secs. 207, 209,'and cases cited.] The question of whether peaceable picketing is always lawful, has been passed upon by the Supreme Court of the. United States in a recent decision, wherein the opinion said the fundamental error of the defendants in that case consisted “in the assumption that all measures that may be resorted to are lawful if they are peaeeablé; that is, if they stop' short of physical violence or coercion through fear of it. In our opinion any violation of the plaintiffs’ legal rights, contrived by defendants for the purpose of inflicting damage, or having that as its neccessary effect, is as plainly inhibited by the law as if it involved a breach of the peace. A combination to procure concerted breaches of contract by plaintiff’s employees constitutes such a violation.” [Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 257.] The picketing in the case at bar, although free from assaults, except in one instance, and from threats, was not free from an intimidating influence on some of the patrons of plaintiffs’ business, whether the defendants intended to intimidate or not, and the picketing was accompanied by a misrepresentation regarding the attitude of plaintiffs toward organized labor. In numerous cases, but not upon uniform reasoning or principles, relief, and by injunction, has been afforded against picketing of that character; which, in reality, amounts to a boycott. According to some courts, the fact that coercive conduct occurs in carrying out an agreement among a powerful combination of persons to compel submission to their will in some part of the management of a business, is ground for restraint in equity, even though similar efforts to coerce by one person would not be. [American Federation of Labor v. Buck’s Stove & Range Co. 33 App. D. C. 83, 32 L. R. A. (N. S.) 749; Burnham v. Dowd, 217 Mass. 351; Pickett v. Walsh, 192 Mass. 572, 6 L. R. A. (N. S.) 1067.] In Massachusetts if the court deems the rule the union seeks to compel employers to observe is illegal, an injunction will be granted to re *318 strain its enforcement as soon as the employer is notified it will be enforced and before overt acts to that end are taken. [Haverhill Theatre Co. v. Gillen, 229 Mass. 413.] In the present case there were both notice to plaintiffs the rule would be enforced and the prosecution of overt acts of an annoying and injurious character. The motive with which corcive acts are done against an employer is of moment according to the Federal doctrine; that is, whether the purpose of the members of the labor organization was primarily and in good faith to promote their own welfare, and that of the working classes, or was principally to damage and subdue a proprietor. [Hitchman Co. v. Mitchell, 245 U. S. 229, 256.] Unless express malice against the proprietor and a desire arising therefrom to injure him is proved by positive evidence, the inquiry into the principal motive of the union is best answered by considering how closely or how remotely, in a particular case, the object to be achieved by the union is related to the interests of the members; a point occasionally adverted to in discussing this subject. [See note to Bossert v. Dhuy, 221 N. Y. 342, Ann. Cas. 1918 D. p. 661.] In addition to the authorities cited above, as supporting the proposition that equity will enjoin interference with a business by unlawful picketing and other methods of boycotting, when irreparable damage will be inflicted, we cite the following decisions as directly in point, and given upon facts not materially unlike those at bar: Roraback v. Operators Union, 140 Minn. 481; Haverhill Theatre v. Gillen, 229 Mass. 413; Webb v. Cooks’ Union, 205 S. W. 465; Re Langell, 50 L. R. A. (N. S.) 412 and note. *319 Nuisance *318 The point of difficulty is, not whether the picketing as prosecuted was wrong, but whether the writ of injunction can be used to prevent it. Decisions of this and other courts are cited as holding it may not. An extensive examination of the conflicting pronouncements in other jurisdictions on the subject will not be undertaken; and instead we. refer the reader to the cases we have cited, *319 or that are cited in the briefs of counsel, as to the different doctrines and rulings. The courts of review of this State have declared peaceable picketing is lawful and cannot be enjoined; but the instances were where the legality of the act was determined with reference to the effect of the absence of intimidation by violence and threats, and not with reference to the harassment of the complainants and the damage to their business by the manner in. which the picketing was done. Intimidation happened in the present case, as we have stated; and in consequence of it and of the propaganda conducted by the pickets in defaming the behavior of plaintiffs to organized labor, much damage was inflicted on them, considering the small scale of their business. They and their employees .was compelled, for months, during the busiest hours of the evening, to do their work under the constant annoyance of the 'picketing a few feet from the entrance of the theatre. To break the effect of the misrepresentations of the pickets, Mrs. Hughes walked the sidewalks, informing passers-by that plaintiffs were not unfair to organized labor, and it may be fairly concluded that plaintiffs were forced into this unpleasant activity to preserve, in some measure, their patronage. • To our minds such a condition of affairs constituted a private nuisance and an tolerable one. No organization should be permitted to thus vex and harrass men, at any rate when the act objected to by the organization affects so remotely the welfare of the members as in the present instance. In truth we have found no case, except the Minnesota and Massachusetts one, cited above, where the picketing, and boycotting by other means, were for so trivial a cause. Most of the decisions were in cases of lockouts, black lists and strikes directly connected with the struggle of workingmen to better their lot, and involving large issues of general social welfare. In most of the opinions on the subject, defamatory words, spoken or printed, are treated as acts intended to carry out an unlawful conspiracy and, therefore, to be prevented; like other acts done for that purpose; *320 little being said about constitutional guarantees of freedom of speech. But in a case, determined by this court, an injunction was refused to restrain the publishing of a circular declaring’ a boycott by the Knights of Labor against the complainant and setting forth the reasons why. The writ was denied on the ground that a court of equity has no jurisdiction to restrain the publication oí a libel, and for the further reason the Constitution of the State declares every person shall be free to say and publish what he will, being-’responsible for what he says. [Marx & Haas Clothing Co. v. Watson, 168 Mo. 183, construing Sections 4 and 14, Article LE, Mo. Const.] The proposition maintained by that opinion against the power of a court of equity to enjoin the utterance of a slander or libel, where there is nothing else in the case, is, we think sound; although it is difficult to understand how some judgments could have been given without denying or ignoring the proposition. Another decision invoked for defendants is St. Louis v. doner, wherein the right of persons to move about on the streets and sidewalks at their pleasure was upheld, so long as they conducted themselves in an orderly manner, and even though.they were there as pickets. The'case did not involve and in no way touched upon, the question of whether a person whose business is beset to the extent of creating a nuisance, may have relief by injunction. [St. Louis v. Gloner, 210 Mo. 502.] Our attention has been called to no decision, either of this or either of the appellate courts, where that question was considered or determined. We hold that the picketing by defendants of the premises of these plaintiffs was, as carried on, a nuisance that worked irreparable injury, and is subject to be enjoined. Authority for this view is not wanting. In Gilbert v. Mickle, it was held to be a nuisance for the officials of the City of New York to have a placard bearing the words, “Strangers beware of mock auctioneers,” paraded before the auctioneer’s door. However, as the officers acted under the authority of a statute', making it their duty to warn strangers and others against mock *321 auctioneers, and the court not being clear the statute was unconstitutional or whether the complainant was a mock auctioneer, injunction was denied. [4 Sandf. Chancery, 357.] In Sherry v. Perkins, it was ruled that banners displayed in front of a person’s premises, calculated to injure his business and deter workmen from taking, or continuing in, employment under him, constituted a nuisance which equity would enjoin. The inscription on the banner read: “Lasters are requested to keep away from P. P. Sherry’s, per order L. P. U.” The letters were the initials of the Lasters’ Protective Union. The court treated the banners as having an intimidating effect and tending to prevent workmen from taking employment in defendant’s factory. [147 Mass. 212.] In Vegelahn v. Guntner, two men had been stationed in front of the plaintiff’s factory and kept there during the day to persuade men not to take the places of workmen who had struck. It seems, too, they were not only attempting to persuade, but used threats of injury and harm. But the court said: “The patrol was an unlawful interference both with the plaintiff and with the workmen, within the principle of many cases, and, when instituted for the purpose of interfering with his business, it became a private nuisance.” [167 Mass. 92, 98.] Boycott As said before, this is really a case of a boycott established against the business of the plaintiffs to make them submit to a rule of the union, the picketing and the statements of the pickets being the means employed to ren(^er the boycott effectual in driving the plaintiffs into submission. However, the petition was framed for relief only against the picketing and that wrong alone was dealt with in the judgment below. The evidence brought into view the intention of the union to compel plaintiffs to regulate their business according to the union’s rule, instead of by plaintiffs? own judgment; to displace the law of the land by the rule of the union, as the criterion of the rights of the plaintiffs. As the relief sought is against the picketing, and the judgment related *322 to that conduct, the appeal, of course, must determine whether the judgment denying relief against the picketing was right. Yet the purpose to be achieved by the union was clearly proved, and both that purpose and the methods used to.accomplish it were illegal. The method was to diminish the volume of plaintiffs’ business and destroy it if necessary, by measures which were continually harrassing to plaintiffs while they were conducting their exhibition. They were in the same situation, practically, that a physician would be in, if an association of physicians were to have two men walk to and fro in front of his office and in his hearing and in the hearing of his patients, say continually, for months: “This man is a quack; please do not patronize him.” We think both on principle and authority, the plaintiffs are entitled to relief by injunction against such wrongs, instead of being left to a multiplicity of actions at law. [24 Cyc. pp. 834 et seq.] Referring to the constitutional guaranties invoked by defendants we remark that the Fifth Amendment to the National Constitution is a restraint on Congressional action only and has no bearing on the rights of defendants in this case. Rights. The clause of the Fourteenth Amendment, providing against a State’s depriving a person of liberty without due process of law, the kindred provisions in Sections 4 and 30 of Article II of the Constitution of this State, and the guaranty of freedom of speech in Sec- ^ sa^ are not, it is hardly necessary to say, absolute rights to be exercised by a person without limit or reference to the correlative rights of others. To follow a lawful business or vocation is part of the liberty protected by the constitutional limitations; but when the business is carried on at a place or in a manner to make it a nuisance and injurious to others, it is no longer within that protection, but is an illegal act. [Joyce, Nuisances, sec. 26; Bielman v. Railway Co., 50 Mo. App. 151; Bradbury Marble Co. v. Gaslight Co., 128 Mo. App. 96.] And nuisances causing ir *323 reparable- damage may be enjoined. [1 Am. & Eng. Enoy. Law (2 Ed.), p. 64.] Tbe privilege of free movement on the streets and of free speech belonged to defendants, bnt not to the extent that they might be exercised (for no legitimate purpose of defendants) in a place and manner and with the intention to annoy and damage plaintiffs. [Medford v. Levy, 31 W. Va. 650.] The judgment is reversed and the cause remanded with directions to the court to set aside the judgment dissolving the temporary injunction heretofore granted and to issue a permanent injunction against defendants, restraining them from picketing in front of plaintiffs’ theatre. Woodson, J., concurs; Graves and Williamson, JJ., concur in separate opinions; Blair, J., dissents in separate opinion, in which Walker, C. J., and Williams, J., concur, Woodson, Goode, and William,son, JJ., concur in separate opinion of Graves, J.