Forehand v. Moody , 200 Ga. 166 ( 1945 )

"A court of equity will not enjoin the commission of crime generally; but it has jurisdiction, and will in a proper case, at the instance of the State, restrain an existing or threatened public nuisance, though the offender is amenable to the criminal laws of the State. . . If a criminal act affect the whole community, or a part of the community necessarily brought in contact therewith, the act may be abated by process in the name of the State as a public nuisance, although criminal." Dean v. State, 151 Ga. 371, 374 (106 S.E. 792, 40 A.L.R. 1132). A picture show is not per se a nuisance; but if operated on the Sabbath day by a person pursuing his business or the work of his ordinary calling, and if such operation is not a work of necessity or charity, then the operation becomes a criminal act under § 26-6905 of the Code, which will affect a substantial number of the citizens in the community, and at the instance of the State will be enjoined as a public nuisance. Rose Theatre Inc. v. Lilly, 185 Ga. 53 (193 S.E. 866); Atkinson v. Lam Amusement Co., 185 Ga. 379 (195 S.E. 156); Rosser v. Lam Amusement Co., 185 Ga. 725 (196 S.E. 404).

No. 15258. NOVEMBER 15, 1945. REHEARING DENIED DECEMBER 3, 1945. W. C. Forehand, in his official capacity as Solicitor-General of the Tifton Judicial Circuit, and on information filed with him by nine residents of Tift County, as shown by copy attached, filed a petition against R. T. Moody, Mrs. R. T. Moody, Cecil White, Edna Baker, Peggy Ann Parker, and S.C. Rogers, naming R. T. Moody as owner, and the others as his employees, in the operation of a certain motion-picture house in the Town of Omega, to enjoin the operation of such picture show on the Sabbath. It was alleged that R. T. Moody and the other defendants named had on March 11 and 18, 1945, on the Sabbath day, kept open such moving-picture house for usual and ordinary business, at which time the public attended and paid for admission thereto; that in keeping such motion-picture house open for business on the Sabbath day the defendants were pursuing the business of their ordinary calling on the Lord's day; that it was not a work of necessity or charity; that they intend to continue the operation of such motion-picture shows on the Sabbath day; that the operation of such picture shows on the Sabbath day is a public nuisance, and unless restrained will be a continuing nuisance, and should defendants be permitted to continue to operate such moving-picture shows on the Sabbath day it will result in a multiplicity of suits; that the operation of said moving-picture shows on Sunday will have the effect of lowering the social and moral standards of the Town of Omega, and will have the effect of weakening and making less effective the status of the moral statutes of the State; that the petitioner has no adequate remedy at law, and the operation of said picture shows on Sunday will have a tendency to demoralize the moral standards of the city and overthrow the peace, comfort, and happiness of the citizens; that the damage resulting in the community and city will be irreparable; that the intent and purpose of the defendants in operating said theater is prompted by their desire to increase their profits and pecuniary compensation, although the same is in violation of the law and the good morals of the community. The petition prays for process; that the defendants be enjoined and restrained from operating the motion-picture house or showing any motion pictures therein on Sunday; that the defendants be enjoined and restrained from maintaining the continuing public nuisance described; and for further relief.

The defendant, R. T. Moody, filed his response in which he set forth: That he has never operated a picture show in the Town of Omega on the Sabbath day; that prior to March 11, 1945, it was suggested to him that there was a great need in the Town of Omega and vicinity for funds to be used for charitable purposes, and inasmuch as respondent did not operate a picture show in said town on Sunday that it would serve a good purpose if operated for charity; that accordingly the respondent subleased to S.C. Rogers the picture-show building which he had under lease in the Town of Omega, and leased to said Rogers the picture equipment therein, a copy of the lease contract being attached to the response, marked "Exhibit A," to which reference is prayed; that he has no connection with the operation of such picture show; that he admits that on March 25, 1945, he worked one day at said picture show, but it was solely for accommodation, and he received no pay for such services, but worked solely in an effort to acquaint the other employees of said S.C. Rogers in the proper method of operation of picture shows; that the operation of said picture show on Sunday, although the contract provides for the payment of a standing rental of $20 per week and 25 percent of the gross proceeds, constitutes a loss to respondent in that fixed expenses exceed the amount of rental received; that he is advised that the entire proceeds received from said show, less only the amounts actually paid for the rental of said picture show and the salaries of the employees, are devoted to charity, and that in the operation thereof no person will be employed who was previously employed by the respondent in the operation of said show or who is now employed by him during week days, and that no employee is required to pursue, or does pursue, or will be required in the future to pursue, the business or work of his or her ordinary calling on the Lord's day; that the operation of said picture show in no wise constitutes a nuisance; that the pictures shown are educational and uplifting and in no manner tend to degrade the morals of the community, but furnish to patrons relaxation and are a benefit to the community. The respondent prayed that he be discharged.

On May 26, two days before the judgment of the court, R. T. Moody amended his response by adding a paragraph alleging that since the filing of the original answer he had executed an additional contract with S.C. Rogers and Mrs. Buck Blalock, chairman of the Tift County Camp and Hospital Council at the American Red Cross, by the terms of which contract Mrs. Blalock has been substituted for S.C. Rogers, and Rogers will act only as agent or trustee for Mrs. Blalock, in the operation of said picture show on Sunday, and all of the funds arising therefrom will be awarded to Mrs. Blalock, as chairman aforesaid, to be used for the Finney General Hospital. A copy of such additional contract is attached as "Exhibit B."

S.C. Rogers filed his response, in which he alleged: That prior to March 11, 1945, he never had any connection with the operation of the picture show; that since that date he has never operated or had any connection with the operation of a picture show except upon the Sabbath day; that since March 11, he has operated in the Town of Omega a picture show, which R. T. Moody has under lease, solely for charity under the contract, a copy of which is attached, marked "Exhibit A," to which reference is prayed; that since the rental of said picture show as set out in said contract, this respondent has been sole and exclusive operator and manager, and has employed all of the personnel and paid them; that, after paying the salaries of the persons employed by him and the rental provided for in said lease contract, he has kept the proceeds remaining to be devoted to charity, it being the intention of the respondent to select worthy objects of charity and to expend the same for their use, and his purpose to employ only such personnel as are not engaged in work with picture shows on week days; that he did obtain the services of R. T. Moody on March 25, but that such services will not hereafter be so employed; that since he began his operations he has employed the following: Cecil White, former janitor for R. T. Moody at said picture show, as operator, Miss Edna Baker, formerly employed by R. T. Moody as cashier, as usher; that said named parties will not henceforth be employed in any connection in the operation of said picture show on Sunday; that the respondent proposes to use the entire proceeds obtained from the operation of said picture show for charity, less the amount required for rental and the salary of employees, the respondent devoting his time and services without pay; that the operation of said picture show in no wise constitutes a nuisance; that the pictures shown at said show are educational and uplifting and in no manner tend to degrade the morals of the community, but furnish to patrons relaxation and benefit the community. The respondent prayed to be discharged.

The lease contract which is attached as "Exhibit A" to both responses sets out the terms of the agreement, dated March 10, 1945, substantially as follows: That R. T. Moody has leased to S.C. Rogers for each Sunday, a picture show complete, including house, machines, slides and films, located in the Town of Omega, Tift County, Georgia, and known as "Omega Theater;" that Rogers agrees to pay for such picture-show equipment the sum of $20 per week plus 25 percent of the gross receipts derived from each Sunday's operation, as film rental and for personal services; that the contract may be terminated at will by either party by giving ten days written notice to the opposite party; that the lessee Rogers agrees that all funds derived from the operation of said picture show on Sunday, with the exception of the amount to be paid to Moody as rental, shall be devoted entirely to such charitable objects as may be determined by Rogers; that Rogers is to have sole and complete control of the operation of said Sunday picture shows; and that no person shall be employed in any technical or skilled capacity unless approved by Moody.

The supplemental contract, entered into on May 26, 1945, between Moody, Rogers, and Mrs. Buck Blalock, as chairman of the Tift County Camp and Hospital Council of the American Red Cross, recited that: whereas on March 10, 1945, Moody leased to Rogers a certain picture show and equipment in Omega, Georgia, to be operated by said Rogers for charity; and whereas ever since that time Rogers has operated under the terms of said contract the said picture show entirely for charity; but whereas it has been determined that the Tift County Camp and Hospital Council of the American Red Cross is the most worthy object of charity to which the proceeds from the picture show shall be allotted, such Council devoting all of its proceeds for the benefit of World War veterans in Finney General Hospital at Thomasville, Georgia; it is therefore agreed that Mrs. Blalock, chairman as aforesaid, shall be substituted for Rogers, and that said contract shall remain in existence as the same originally existed, except that Mrs. Blalock is to receive the entire proceeds from the operation of said picture show on Sundays with the exception of the cost of rental and the payments to employees, and Rogers shall continue to supervise the operation of said picture show, but he is to act only as trustee for Mrs. Blalock, and shall pay the said funds to her promptly as collected.

The case came on for hearing on May 28, 1945, before Honorable R. Eve, Judge of the Superior Court of the Tifton Judicial Circuit, to whom all issues of fact and questions of law had been submitted. The petitioner introduced an affidavit by 74 residents of Omega, Georgia, which set forth: That for a number of months R. T. Moody has operated a picture show in the Town of Omega; that beginning on March 11, 1945, the same motion-picture house has been operated on each Sabbath day, and in such operation motion pictures have been exhibited to the public for a fixed admission fee; that the operation of such motion-picture show on Sunday was not a work of necessity or charity; that, although R. T. Moody and S.C. Rogers have been requested not to operate the same, they refuse to discontinue the operation of these shows on the Sabbath day; that the operation of such picture show on the Sabbath day is a continuing public nuisance and will have the effect of lowering the moral standards of the people in Omega, and of weakening and making less effective the respect for the statutes and written laws of the State of Georgia and the respect of the people in such community for law and order, and has already brought about strife among the citizens of such community; that the operation of such picture show on the Sabbath day will tend to overthrow the peace, comfort, and happiness of the community with the result that it will be damaged in an irreparable manner; that this disregard of the law, in addition to being a menace to the happiness of said community, tends to break down and destroy the constituted authority and security of government.

The defendants introduced in evidence the affidavit of 64 residents of Tift County, which stated: That the affiants are familiar with the operation of the picture show in Omega, Georgia; that there is but one picture show in operation in Omega; that they are familiar with the class of pictures shown at said show by R. T. Moody prior to the date when it was taken over by S.C. Rogers; that they are familiar with the class of pictures being shown at said picture show by Rogers; that since March 11, 1945, Rogers has managed said show when the same has been operated on Sunday; that the class of pictures shown by Moody in said picture show prior to March 11, 1945, and the class of pictures shown by Rogers since said date, have not been and are not degrading to the morals of said community; that, to the contrary, they are educational; that no show is kept in progress during the hours when church is in session in Omega; and that in deponents' opinion the picture show does not constitute a nuisance, but furnishes relaxation for residents and citizens of Omega attending the show.

R. T. Moody, duly sworn, testified in part as follows: "I own the picture show at Omega. I don't know how long I have been running it, about four years I think. . . I have been present at each picture show that was held in my place on Sunday beginning on March 11, 1945. . . I was just there, more or less. I had a lot of valuable equipment there and naturally a fellow wants to hang around to see what goes on. You don't want to turn it over to a fellow that is green help. If you see something going wrong you could do something about that. . . I gave no advice concerning the operation of the picture machine. . . from henceforth it is not my purpose to attend the picture show until the personnel employed by Mr. Rogers becomes experienced. . . I have film rent, advertising to be paid out by me. . . We lease pictures for a certain date at a certain price. The rental varies from $10 to $15, . . I doubt that $1 would handle the electricity bill for the operation of the show, it would be about $1.50 for the complete operation and electric current consumed. We have previews which cost $2.50 a piece and advertising which costs sixty cents plus express to and from Atlanta. We have tickets, about ten cents would handle the tickets we furnish to Rogers. Other expenses are carton for blinding the lamps, oil for projector, and natural wear and tear on the equipment. There is rent on the building. The building rents for $31 per month, about $1 a day in a 31-day month. I think that covers the expenses. We have a short subject on Sunday, we usually have two. Yes, we buy film for that, . . the short subject $1.50 to $3 plus expenses on that, which makes each short subject cost $2.50 to and from Atlanta. No sir, if I figure the expenses, I do not make anything out of the money which Mr. Rogers pays me, I lose money. Well, I would say I lost on the average per Sunday $10. No, I don't expect to receive any benefits in connection with the operation of the Sunday show. . . I furnish the films that are shown on Sunday. . . I show advertisements on Sunday shows. I contract for those advertisements. I am paid for these advertisements on business establishments. . . We show four previews on Sunday if we have them. Yes, that is a preview of the pictures which we will show during the week."

S.C. Rogers, duly sworn, testified in part as follows: "I am the person who operated the picture show in Omega on Sunday, beginning with March 11, 1945. On March 11th the employees who worked with me were Cecil White, projectioner, Peggy Ponder, ticket seller, Edna Baker, usher. I paid Mr. White $3, Peggy Ponder $2 and Edna Baker $1. No, these people did not work at the picture show on the 18th. Mr. Moody worked as operator, his wife sold tickets, Edna Baker ushered. I paid them the same price paid the others. On April 11 I employed Cecil White, projectioner, Mrs. Moody, cashier, and Betty Rogers, usher, and paid them the same amount. On April 8th Cecil White was operator, Mrs. Moody, cashier, Betty Rogers, usher. I paid them the same amount. Yes, Mrs. Moody is the wife of the owner of the show. Yes, Mr. Moody has been present at each show. . . I have not taken out any license to run this show; when I leased it from Mr. Moody he said he had a license. Yes, I work under the same license he has. . . I charge adults 21 cents plus 4 cents tax, 11 cents plus 4 cents tax for children. Yes, on March 11, my gross receipts were $35.60 and expenses $28.40, leaving $7.20. On March 18, the gross receipts were $30.81 and expenses $27.20, leaving $3.61. . . on March 25 my gross receipts were $21.93 and expenses $23.00. On April 1st, my receipts were $22.68 and expenses $26.00. On April 8, my total receipts were $35.13 and my total expenses $27.28 leaving a balance to me of $7.85. . . The best I can remember, R. T. Moody operated that machine on March 18th. . . I am not employed in connection with any picture show on any day except Sunday. . . I don't employ any one in connection with the operation of this show that is employed by Mr. Moody on the week day. . . From the first proceeds from this show I gave Mrs. Bass a check for $7.20 for the lunch room at Crossland, but she said she was afraid to use it for fear she might have to go to court. If she has ever cashed it, it has never come back through the bank. Yes, I propose to use all the proceeds, less the amount which I pay Mr. Moody under our contract for charity. . . I do not propose to use any of the proceeds from this show for any purpose except for charity after I have made an investigation and found it worthy; . . I pay myself nothing for services."

After hearing the evidence, the judge entered an order denying the injunction. W. C. Forehand, as Solicitor-General of the Tifton Judicial Circuit, the petitioner in the court below, assigns error on said judgment, as contrary to law and contrary to evidence, and because the judge should have granted an injunction and the other equitable relief prayed. It is very strongly argued and insisted in the brief for the plaintiff in error that the Code, § 26-6905, as follows, "Any person who shall pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or charity only excepted, shall be guilty of a misdemeanor,"does not contain all the provisions of the act approved March 4, 1762 by the Colonial Legislature; and that, the act of 1762 not having been repealed, the statute should contain other provisions to prohibit certain sports and pastimes on the Lord's day. It is not essential that any ruling be here made on this contention of the solicitor-general. His petition was based on the provisions of the Code section above cited, and his petition, on the information of certain citizens, was properly brought and alleges a cause of action for an injunction against the operation of a picture show in the Town of Omega on the Sabbath day.

In Rose Theatre Inc. v. Lilly, 185 Ga. 53 (supra), this court sustained the trial court in overruling a general demurrer to a petition of the solicitor-general under allegations substantially the same as in this case. The effect of overruling the general demurrer to the petition was to hold that the petition alleged a cause of action, and, if the evidence supported the allegations of the petition, and injunction should be granted. The ruling in Rose Theatre Inc. v. Lilly, supra, was followed in Atkinson v. Lam Amusement Company, 185 Ga. 379 (supra), and Rosser v. Lam Amusement Company, 185 Ga. 725 (supra).

Two questions are presented in this case for consideration and determination: (1) Are the defendants, Moody and Rogers, each pursuing his business or the work of his ordinary calling on the Lord's day in the operation of a picture show in the Town of Omega? (2) Is the operation of the picture show in the Town of Omega on the Lord's day a work of necessity or charity?

The defense in this case is based squarely on the theory that the defendants are not pursuing their business or the work of their ordinary calling on the Lord's day, and that the operation of the picture show is a work of charity. The evidence shows that the defendant Moody had been engaged for some time prior to March 10, 1945, in the operation of a picture show in the Town of Omega on week days only; that on March 10, he made a contract with Rogers, and thereafter both Rogers and Moody operated a picture show in Omega on Sunday; and that Moody continued to operate such show on week days.

Moody's evident purpose in his contract with Rogers was to escape the prohibition against his pursuing his business or the work of his ordinary calling on the Lord's day. Their contract purports to be a lease by Moody to Rogers of the picture-show building and equipment upon payment of $20 per Sunday plus 25 percent of the gross receipts as rental and for personalservices. The evidence further shows that Moody was present each Sunday at the operation of the picture show. He explained his presence by saying: "I had a lot of valuable equipment there. . . You don't want to turn it over to a fellow that is green help. If you see something going wrong you could do something about that." This testimony shows that Moody was present at the picture shows on Sunday to protect and conserve his property, which, unquestionably, as the owner and operator of the picture show on week days, would be a part of his business or the work of his ordinary calling. Moody's further evidence — "Yes, I show advertisements on Sunday shows. I contract for those advertisements. I am paid for these advertisements on business establishments" — indicates that he was exercising the same authority as to the showing of advertisements on Sunday that he could exercise on week days, and that he was receiving the same benefit from such advertisements on Sunday, in so far as compensation was concerned, as he received on week days. It was not necessary that the solicitor-general show that Moody discharged all of his business or the work of his ordinary calling on the Lord's day. He did pursue a substantial part of his business or the work of his ordinary calling; and, unless it be shown that the operation of the picture show on Sunday was a work of necessity or charity, Moody was violating the Code, § 26-6905.

The evidence shows that Rogers does not operate a picture show on any day but Sunday. It is a well-settled principle of law that an act done on one Sunday alone is not pursuing one's business or the work of his ordinary calling on the Lord's day. Sanders v.Johnson, 29 Ga. 526; Ellis v. State, 5 Ga. App. 615 (63 S.E. 588). Where such acts are repeated on successive Sundays, they become a part of his business or the work of his ordinary calling. Reed v. State, 119 Ga. 562 (46 S.E. 837); Scandrett v.State, 124 Ga. 141 (52 S.E. 160).

The evidence of both Moody and Rogers shows that the usual and ordinary procedure was followed on the Sabbath day as on week days, that tickets for admission to the picture show were sold and money received at the same charge made for the shows on week days; that personnel was employed and paid, and Moody participated in the employment of certain employees; and that Rogers, under his contract with Moody, paid sums pursuant to the agreement. Every substantial detail of the business as operated by Moody on week days was continued on Sunday, even to the showing of advertisements, and previews of pictures that were to appear in the theater the following week. When it was shown that the defendant Rogers on five consecutive Sundays participated in the operation of a picture show in the Town of Omega, it was shown that he was carrying on his business or the work of his ordinary calling on the Lord's day. Reed v. State, Scandrett v. State, supra. As in the case of the defendant Moody, if the defendant Rogers is to escape the prohibition of the statute (Code, § 26-6905), it must be shown that the operation of the picture show is a work of charity, since it is nowhere contended or shown by the defendants that the operation of such show is a work of necessity.

Rogers testified as to the gross receipts and the expenses incurred in each Sunday's operation. The total for the five Sundays was $146.15, and the total expenses were $131.88, which would leave a net profit on the five Sundays' operations of $14.27. This view of the evidence is the most favorable to the defendants. The contract between Rogers and Moody provides for a $20 payment for each Sunday's operation, which would be $100, plus 25 percent of the gross receipts, or $36.53. Rogers testified to paying $6 per Sunday for help employed, and for five Sundays this would be $30. The total expenses would then be $166.53, leaving a net operating loss for the five Sundays of $20.38. Moody testified that he was losing $10 per Sunday on each Sunday's operation, or a total of $50, making a loss by Rogers and Moody of $70.38 on the five Sundays' operations. Other evidence of the defendant Moody apparently contradicts his testimony that he is losing $10 on each Sunday's operation. Moody's evidence shows that the picture show may be operated for a flat rental of $20 per Sunday, which would make the 25 percent of gross receipts result in a profit to him rather than a loss.

If the sum of $14.27 was available for charitable purposes and uses, this amount would be less than 10 percent of the gross receipts. The supplemental contract entered into on May 26, substituting Mrs. Blalock for Rogers to receive the net proceeds from the operations on Sunday, provides that the contract between Rogers and Moody is to be continued, and for the payment of expenses incurred by Rogers in the operation of the picture show. Under this contract Mrs. Blalock could only receive a percentage of the gross receipts for the benefit of veterans at Finney General Hospital. The payment of a percentage of gross receipts does not constitute charitable uses and acts within the meaning of the Code, § 26-6905, as held by this court in Thompson v.Atlanta, 178 Ga. 282 (172 S.E. 915), "To devote a part of the proceeds of such business to charity does not make the business a work of charity."

The word "charity" as used in § 26-6905 means giving and not receiving. Thus charity, in the sense of the statute, is not the giving of a small percentage of the proceeds of the business to some charitable use, as might be the case if the operator of a grocery store opened his business on Sunday and gave a percentage of the gross receipts to some charitable use or purpose. In such an instance the grocer could not escape the prohibition of the statute. However, if the grocer opened his place of business on Sunday and actually gave groceries to hungry and distressed persons, where by some calamity, as a flood or fire, such persons were without the necessities of life, such an act on the part of a grocer would undoubtedly be charity within the meaning of the statute. Rogers v. State, 60 Ga. App. 722 (4 S.E.2d 918).

If such a colorable manipulation as is here shown should have the sanction of this court as being within the law of this State, then the provisions of the Code, § 26-6905, would be meaningless and in effect repealed, not by acts of the General Assembly, but by the courts of this State.

The prohibition against a person carrying on his business or the work of his ordinary calling on the Lord's day has been continuously in effect since the adoption of the statute on March 4, 1762, by the Colonial Legislature. See Hennington v. State,90 Ga. 396 (17 S.E. 1009); Hayden v. Mitchell, 103 Ga. 431 (30 S.E. 287). The history and wisdom of this statute was discussed by Chief Justice Bleckley in the case of Hennington v. State, supra where, after discussing the history of the statute, he said in part: "Courts are not concerned with the mere beliefs and sentiments of legislators, or with the motives which influence them in enacting laws which are within legislative competency. That which is properly made a civil duty by statute is nonetheless so because it is also a real or supposed religious obligation; nor is the statute vitiated, or in any wise weakened, by the chance, or even the certainty, that in passing it the legislative mind was swayed by the religious rather than the civil aspect of the measure. . . Opinions may differ, and they really do differ, as to whether abstaining from labor on Sunday is a religious duty; but whether it is or not, it is certain that the legislature of Georgia has prescribed it as a civil duty." Following the reasoning of Chief Justice Bleckley, any personal view that may be entertained by the writer or by any member of this court as to the operation of a picture show on Sunday is not controlling here. The legislative branch of our government has spoken. A person must not carry on his business or the work of his ordinary calling on the Lord's day, unless it be a work of necessity or charity. Approval of such a scheme as is shown here, to defeat the evident purposes of the statute, would mean that every business establishment in the City of Atlanta could be operated on the Sabbath day, and the operators could avoid criminal prosecution by showing that a small percentage of the gross receipts from such business was given to some charitable use or purpose.

The only evidence of charity in this case is the contract provision that the net proceeds will be delivered to Mrs. Blalock for the benefit of disabled veterans at Finney General Hospital. No charitable act is shown on the five Sundays in which the picture show was operated. The evidence is that Rogers gave a check to a Mrs. Bass to be used in the operation of a lunch room at Crossland. It is not shown that this lunch room is a worthy object of charity. Conceding it to be such a worthy object, the check for $7.20 given by Rogers was not cashed by Mrs. Bass, because, as she stated to him, she was afraid to use it for fear she would have to go to court. Under the evidence in this case, the operation of the picture show on the five Sundays was not an act of charity. No amount from the receipts was given for any charitable use or purpose. As to the operations after the contract entered into on May 26, in which Mrs. Blalock was made a party to receive the net proceeds, if the contract should be actually complied with, this would not, for the reasons heretofore stated, be such a charitable act or giving as would authorize the operation of this picture show on the Sabbath day in the Town of Omega.

It has been insisted that the case of Albany Theatre Inc. v.Short, 173 Ga. 121 (159 S.E. 688), is in point and controlling in this case. This contention is unsound for two reasons: (1) That case is substantially different on its facts from the one now before the court. There, it was contended by the defendants that the picture show was to be operated by the American Legion, that no tickets were to be sold or admission charged, that receipts from such operation would arise solely from contributions made by persons attending the exhibition, and that the American Legion was obligated to pay only the expenses that could be actually shown; which is not true in this case. The defendant Moody may have, and probably did, receive a profit on the five Sundays' operations shown. In discussing the evidence in the Albany Theatre case, Chief Justice Russell said that a finding would have been authorized that the sole purpose of the exhibitions was to raise funds for aiding underprivileged children. Under the evidence in this case, it is clearly not the sole purpose of the defendants to raise money for the relief of veterans at Finney General Hospital, when it is shown that Moody is receiving a flat rental, plus a percentage of the gross receipts, plus the compensation for advertising which is shown on Sunday, and is showing previews or advertisement on Sunday of pictures to be shown the following week. Clearly the purpose of a preview of a picture to be shown in the future is to invite and encourage attendance at the theater. and to increase the profits of the operator thereof. (2) Albany Theatre Inc. v. Short, supra, would not be controlling here, had it been in point on the facts, since it was not a full-bench decision. and would therefore have to yield to the cases of Rose Theatre Inc. v.Lilly, Atkinson v. Lam Amusement Co., Rosser v. LamAmusement Co., and Thompson v. Atlanta, supra, which are full-bench decisions by this court, and in accord with the rulings made in this case.

It was error to deny the injunction, and the judgment of the lower court is therefore

Reversed. All the Justices concur.