Opinion
May 16, 1950.
Appeal from the Circuit Court of Hillsborough County, Henry C. Tillman, J.
J. Tom Watson and Morison Buck, Tampa, for appellant.
Morrice S. Uman, Tampa, for appellees.
This is an appeal from an order dismissing a bill for injunction seeking to restrain the defendants, members of a labor organization, from the peaceful picketing of the place of business of the plaintiff. It is contended by plaintiff that the picketing is maintained in order to effect an unlawful objective, and that it is subject to restraint by a Court of Equity, even though no acts of violence have occurred or are threatened.
The dismissal was upon motion, and not upon the merits; the Chancellor based his decision upon our holdings in the cases of Whitehead v. Miami Laundry Company, 160 Fla. 667, 36 So.2d 382, Moore v. City Dry Cleaners Laundry, Inc., Fla., 41 So.2d 865, and Johnson v. White Swan Laundry, Fla., 41 So.2d 874, which, in turn, he considered to be based upon the decision of the Supreme Court of the United States in Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093.
The facts well pleaded in the bill, admitted by the motion to dismiss are, that plaintiff is the proprietor of a moving picture theatre in the City of Tampa; pickets, not more than two in number, walked back and forth before the theatre, bearing signs reading "Broadway Theatre does not employ Union operator. We don't patronize Broadway Theatre. Local No. 321, IATSEMPO": thereafter the sign was changed to read "The movie operators' union is picketing the Broadway Theatre because of the failure of management to enter into a contract with the Union"; that patronage of the theatre as a result of the picketing has decreased by more than seventy-five per cent.
Based on these facts, the bill alleges in substance by way of conclusions that the end sought by the picketing was to require plaintiff to discharge a nonunion operator employed by him, and to employ instead a union operator, and failing in such efforts, to boycott the theatre and interfere with its patronage; and that the picketing is unlawful because it is in contravention of Section 12 of the Declaration of Rights of the Constitution of the State of Florida, F.S.A. as follows: "* * * The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union, or labor organization; provided, that this clause shall not be construed to deny or abridge the right of employees by and through a labor organization or labor union to bargain collectively with their employer".
It will be noted that the bill is rather sketchily drawn, and that several allegations are by way of innuendo, rather than direct statements of fact. Because of this we are of the opinion that the Court below should not be held in error for having granted the motion to dismiss, but are of the further opinion that time should have been allowed for amendment so as to give plaintiff an opportunity, if he so desires, to set forth facts which entitle him to relief.
Pending the determination here of this appeal, the law relating to the subject matter of the bill has been clarified in our holding in the case of Local Union No. 519 of United Association of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Robertson, Fla., 44 So.2d 899, and that case should be of assistance to counsel and the Chancellor, if further proceedings are had herein.
Affirmed, with directions to allow amendment to the bill, if plaintiff applies for permission to amend within fifteen days from the going down of the mandate.
ADAMS, C.J., and TERRELL, CHAPMAN, THOMAS, HOBSON and ROBERTS, JJ., concur.