Before MAJOR, Chief Judge, DUFFY and FINNEGAN, Circuit Judges.
Plaintiffs appeal from an order entered October 6, 1949, permitting the motion picture, "Come to the Stable," to be exhibited in the United Artists Theatre, operated by defendant Balaban & Katz Corporation, for a period of eight weeks on an exclusive first run. The petition upon which the order was entered was filed by Illinois-United Artists Theatre Company, a Delaware corporation, but upon a showing that it had no property interest in pictures played in the United Artists Theatre, defendant Twentieth Century-Fox Film Corporation joined in the petition.
The instant controversy is an aftermath of a suit instituted by the plaintiffs under the Sherman Antitrust Act for an injunction and the recovery of treble damages. The gist of the complaint was that by reason of a conspiracy among the defendants plaintiffs were prevented from securing pictures for exhibition in their theatre until after the preferred exhibitors had been able to show them in the earlier and more desirable runs, and that as a result plaintiffs had been discriminated against in the distribution of feature films in favor of competing theatres owned or controlled by some of the defendants. In that suit a jury returned a verdict for $120,000 in plaintiffs' favor, and thereupon the trial court gave judgment for treble that amount. The matter of enjoining the defendants was reserved for future action.
Upon appeal, this court affirmed the finding of conspiracy alleged in the complaint but reversed on the question of damages. 150 F.2d 877. Upon certiorari, the Supreme Court affirmed the judgment of the trial court both upon the finding of conspiracy and the award of damages. 327 U.S. 251. The cause was remanded to the trial court, whereupon plaintiffs filed a supplemental complaint in which they prayed for equitable relief. On October 16, 1946, the District Court entered a decree enjoining the defendants from engaging in numerous designated activities designed to terminate and prohibit a continuation of the conspiracy. With the exception of one provision which was ordered modified, this decree was affirmed by this court. 162 F.2d 520. Subsequently, the lower court adjudged one of the defendants, RKO Radio Pictures, Inc., guilty of contempt in violation of the decree, which was also affirmed by this court. 170 F.2d 783.
We need not enter any detailed narration of the facts giving rise to and involved in this prolonged litigation. They are fully revealed in the previous opinions of this and the Supreme Court. It is pertinent perhaps to note that all the proceedings from their inception, including that which culminated in the order appealed from, have been heard and decided by a single Judge, namely, Honorable Michael L. Igoe.
The court below made no findings of fact other than those contained in a memorandum opinion wherein it is stated:
"The evidence indicated that 'Come to the Stable' is a story conveying a message of religious significance, and that a run of more than two weeks is needed to establish the character of the film, an achievement which should also be of benefit to the outlying theatres.
"At the time the decree was entered, the possibility was contemplated that under certain circumstances, outstanding motion pictures might be presented for more than two weeks. I believe that 'Come to the Stable' is such a picture and that an extended first run would not conflict with the decree. While there can be no doubt that the petitioner is interested in the commercial success of the picture, that concern does not affect my conclusion that the motion picture is one of unusual character justifying special allowances under the decree. 'Come to the Stable' may therefore be exhibited in the United Artists Theatre for a period of eight weeks, on an exclusive first run."
Plaintiffs contend that the court was without jurisdiction to modify its decree of October 16, 1946, and that in any event it was without power or authority so to do. Defendants argue to the contrary and further contend that a proper construction of the decree gives the court a discretionary power under its duty to execute and enforce the decree. It may be noted that the decree provides "That jurisdiction of this case shall be and it is hereby retained for the purpose of enforcing and modifying this decree."
Both sides lay much stress upon the decision in United States v. Swift & Co. et al., 286 U.S. 106. That case immediately dispels any contention that the court in the instant matter was without jurisdiction. In the Swift case the court stated (page 114): "We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions though it was entered by consent. * * * A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need." There, it was held, however, that the court was without power to modify the injunction in the absence of a proper showing of changed conditions not readily foreseeable at the time the decree was entered. As to the power of the court in the instant matter to modify, we think the same reasoning must be applied. In our judgment, there was neither sufficient allegation nor showing which would authorize the court to modify its decree. The main argument of defendants on this score is that the defendant Twentieth Century-Fox Film Corporation in complying with the decree has adopted a completely different method of distributing pictures in the Chicago area. This evidently is not a changed condition within the holding of the Supreme Court in the Swift case. There, referring to the decree, the court stated (page 116): "It did not say that the privilege to deal in groceries should be withdrawn for a limited time, or until the combination in respect of meats had been effectually broken up. It said that the privilege should be renounced forever, and this whether the units within the combination were acting collectively or singly. The combination was to be disintegrated, but relief was not to stop with that."
We need not, however, further labor the point as to the court's power to modify its decree for the reason that in our judgment the order under attack cannot be regarded as a modification.The decree remains just as it was and its validity is not now open to attack. The important and controlling question is whether the court had any discretionary power to permit a limited suspension of a single provision of the decree upon the application of a party to whom it was directed. And this involves a construction or interpretation of the relevant portions of the decree.
The material provision is contained in paragraph VII, wherein the defendants are enjoined "from delaying the exhibition of any motion picture in the Chicago Exchange territory by permitting a run of such picture longer than two weeks on a first run in a theatre owned, leased or operated by any defendant or for a run longer than one week on any subsequent run of such picture in a theatre owned, leased or operated by any defendant or by creating dead or waiting time between the conclusion of the first run of a picture in any such theatre in such territory and the next succeeding run of said picture or from permitting move-overs in the same run of a picture from one theatre owned, leased or operated by any defendant to another such theatre or from preparing, publishing, adopting, enforcing or attempting to enforce any uniform plan, system or schedule of release or clearance with the intent, for the purpose or with the effect of accomplishing the performance of any of the acts enjoined in the foregoing paragraph V hereof ." (We have italicized the phrases of this provision material to the question before us.)
Plaintiffs argue that this provision is plain and unambiguous and, therefore, definitely and certainly fixed the rights of the parties. The validity of the argument that the court was without power to grant the permission under attack is dependent upon the soundness of this premise. Defendants contend that the injunction against a first run of more than two weeks is limited or qualified by the phrase, "with the intent, for the purpose or with the effect of accomplishing the performance of any of the acts enjoined in the foregoing paragraph V hereof." More specifically, it is contended that the last phrase of paragraph VII (above quoted) is applicable to all the acts enjoined in said paragraph, while plaintiffs contend that it is only applicable to the enjoined act which it immediately follows. Defendants' grammatical construction of this provision finds support in Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348, ...