The Billboard 1922-10-28: Vol 34 Iss 43 (1922-10-28)

O71 NOVEMBER 4, 1922 = The Bi llboarad 107. _—_ nkel, of Brisbane, Australin. The ee oe on grounds of desertion. " Ray F. Finnegan, known in the films for the st ten years as Ray Hanford, filed suit for ttrorce in Los Angeles two weeks ago from ‘Anita Gibson, also in pictures. Mre. May Stanley Childrey recently filed an veation in New York City for separation from her actor-husband, known professionally as Stan Stanley. = oa wéte married in ianapolis, Ind., in . a ag Baker, of Brunk’s Comedians, No. 8 company, secured .' ge: from, Florence ‘nonprofessional, o emphis, Tenn., a Baker, one according to a a former and Winter Garden , is suing C. J. Frederick Miller, nonrofessional, for absolute divorce, After the vee had been reviewed in court last week Justice Leonard Giergerich reserved decision, Mabelle Brown, formerly cashier at Fairmount Park, Kansas City, Mo., and’ who last summer trouped -with the Con T. Kennedy Shows, was granted @ divorce in Kansas City September 22 from Cleve Brown. She is at resent employed at the Coliseum Skating Risk, Kansas City. BIRTHS To Members of the Profession t. and Mrs. W. D. Ament, at their m.. jy oe Beach, Calif., October 20, a tenpound son. Capt. Ament is a prominent show To Mr. and Mrs. J. EB. Dandurant, at their home in St, Louis, October 26, a seven-pound son, Mr. Dandurant was formerly w-edely known in medicine show and theatrical circles as V. B. Curtis. To Mr. and Mrs. L. BR. Mabrey, in New York City, October 10, a son, The mother was known professionally as Louise Astor. To Mr. and Mrs, W. M. Napierkowski, at their home in Pittsburg, Pa., October 7, a_ten, Who has been christened Eddie pard. Mr. Napierkowski_ is a song writer and manager of the West Penn. Music Comany. PTO Mr. and Mrs. Oswald Oscha, recently, a daughter. Mr. Oscha was formerly a picture showman of Port Macquarie, New South Wales. To Mr. and Mrs, J, Lawrence Schanberger, at their home in Baltimore, Md., recently, a son. Mr. Schanberger is manager of the Maryland Theater, Baltimore, and is probably one of the oungest men to hold such a post in any¥*Keith — in the country. His father is Fred C. Schanberger, president and manager of the Kernan enterprises in Baltimore. To Mr. and Mrs. James Z. Smith, October 27, at their home in Corning, N. Y., a daugter. Mr. Smith is a well-known projectionist and was formerly in re of that department at the Bijou Theatér, Corning. To Mr. and Mrs. David ©. Werner, in New York City, October 13, a son. Mr. Werner is connected with the Lewis & Gordon office. MAX HART SUIT MAY BE DISMISSED (Continued from page 5) the United States Courts. He added, bowever, that he would again examine the vatious cases cited and would give his decision in the morning. Then be said: “If the Court dismisses the complaint it will not be for want of equity in it, but because the Federal Court has no jurisdiction over the matter and that, I take it, it would be case of making direct appeal to the Supreme Court. I think the baseball decision clears the air of these cases, but J shall read it and also the Mar.nelli case again.” The lawyers who appeared for Hart were Martin W. Littleton, Judge Eppstein and Laurence H. Axman, and those representing the Keith-Orpbeum and allied iMterests were Mautice Goodman, James J, Walters, Charles H. Studin, William F. 8. Hart and Philip Stern. Few of the rather not.d witnesses were on hand. E. F, Albee, head of the Keith C reuit, Was not there. Neither was Martt. Beck, PF, F. Proctor, nor any of the heads of the circuits. The doorman for the Orpheum offices was on band. So was Pat Casey. Irwin Rosen also Was among those present, altho he said he didn't know why he had been subpoenaed by both sides. Max Hart sat alongside Harry Mountford, and not far from Casey sat James William FitzPatrick. The Morning Session The court convened in the Federal Building. Judge Mack, because of the noise and lack of Ventilation, moved to the Equity court room on the twelfth floor of the Woolworth Building after Attorney Littleton won his plea for a Waver of jury. Judge McCall for the defense d opposed any change in the complaint which would make this move possible, but had finally @greed to have the case go on before Judge Mack and without jury when the judge sugBested that for the purpose of expediting the case both actions be consolidated, with the court to decide later whether a jury might be necessary. When the case was resumed in the Woolworth Building Attorney Littleton Presented the case for the plaintiff, wheretpon Attorney Goodwin for Keith moved for cenieeal, as did Attorney Studin for Orphe Attorney Littleton recited a brief history of the Keith and Orpheum circuits. He said that the B. F. Keith Vaudeville Exchange was incorporated under the laws of Maine in 1906 end was first known as the United Booking Ofices of America, with the “of America’ being dropped some time later. He named the defendants in the Max Hart suit as the B. F. Keith Vandeville Exchange, ‘“‘a man by the ms of B. F. Albee.”’ F. F. Proctor, Jobn J. Lurdock. the Orpheum Circuit, Incorporated gander the laws of Delaware for something ‘ke eleven million dollars): Martin Beck, head of the Orpheum Circuit; The Excelsior Collection Agency, organized’ by Orpheum officials; the Vardeville Collection Agency (incorpori.¢.'2 1910), Frank Vincent, Reid Albee and aurice Goodman. “ ‘The claim of the plaintiff,” sa‘d Littleton, Pa that the B. F. Keith Vaudeville Bxchange, mivated by Eh. F. Albee and his associates. 8 acqui control and the domination of vaudeville business east of Chicago and that the Orpheum Circu‘t, dominated by Martin Beck and his associates, has acquired control and the domination ef the vaudeville business west of Chicago. It also is claimed that these Eastern and Western circuits, neither ever encroaching upon the other, (first) have divided the territory to control all bigtime vaudeville in the United States and (seeond) by combination of theaters and by combination of booking arrangements and the exclusion of ell who m ght encroach upon them have got control of big-time vaudeville in the United States. “In 1907,’" continued Attorney Littleton, “having acquired these theaters East and West, they undertook to prevent competition. In 1907 they had all the important big-time theaters under their control, except those belonging to Perey Williams, and then they made a contract with Williams for his houses in the East."’ Attorney Littleton then referred to the purchase of the Hammerstein vaudeville imterests in New York, and continued: ‘We shall show how ail book'ng ef big-time vandeville must be thru the offices of the B. F. Keith Vaudeville Exchange on the sixth floor of the Palace Theater Building, New York. We shall try to prove that any theater which does not play or book acts from these offices is blacklisted and that the same thing holds true of artists and agents who do not do business with or thru the B. F. Keith Vandeville Exchange. We shall claim that the B. F. Keith interests own outright 52 theaters and in addition book 150 theaters in the East, while in the West the Orpheum Circuit ‘gwns 46 theaters and books probably one hundred other theaters.’’ Attorney Littleton then explained tothe Court the booking method and the collection of commiss'ons and other charges, and made a point of saying that the contract which is made with and thru the Keith offices collects from artists five per cent for playing Keith houses. Littleton also brought out the added 2% per cent commission for collection of this five per cent, and went into details regarding the blacklisting of agepgts, authors, artists and even theater owners who violate the rules of the booking exchange and who do business with those who have been Dlacklisted, “By a system of coercion and domination.” he said, ‘“‘they (the defendants) have taken upon themselves the control of big-time vaudeville or two-a-day vaudeville."’ Littleton then described the operation of the *floor’’, which ig the common term for the B. F. Keith Vaudeville Exchange, and described Hart, who entered the court at this moment, as a manager who had built up in co-operation with artists eighty acts, who had enjoyed a “franchise’’ admitting him to the floor and who had by his efforts put him-elf in the position of earning from sixty to seventy thousand dollars a year net fmeome, “Then one day,’’ said Littleton, ‘“‘Mr. Albee stepped in-and Hart was forbidden, the floor. His franchise was taken away from hm. We shall try to prove, altho I never have seen one of these so-called documents called franchises, that he was denied admission to the ‘floor’ or the exchange. There was no other place where he could go to carry on the business he had built up. When he was ruled off the floor the artiste for whom h®é had been acting realized that to continne they must be booked thru the vaudeville exchange. These acts, learning that contagion had reached Max Hart, had to go to other agents to save themselves, and therefore the plaintiff lost his eighty acts. He was ruled off the field and the business he had built u was destroyed and taken away from him, Wit the system in effect the present big-time vaudeville organization can do the same and does do the same thing now." Maurice Goodman, chief counsel] for the Keith interests, in moving for dismissal of the com laint on the ground that it is insufficient cause ‘or the action, did the expected and grounded his argument on the baseball ruling of May, 1922, when the’Supreme Court held that baseball is not a business conducted in violation of the lews of Interstate Commerce. Attorney Goodman read excerpts from the case, argued that in theory the baseball case is similar or the same as the present issue by say'ng that it has been held that baseball is an exhibition of skill in an amphitheater and that vaudeville is an exhibition of skill in a theater. “In the case of the baseball player and the vaudeville actor going from State to State that which #% im transit is not the thing which fs being sold,” said Goodman, arguing that vaudeville %& not a business in violation of interstate commerce laws. ‘‘The booking office is not directiy selling anything,’’ he continued. ‘‘The booking exchange renders a service and funetions locally. hat happens after an act signs its contract is not the concern of the booking exchange. In the case before your honor the plaintiff Mkely will try to hang h-s hat on the ruling in the case of Marinelli versus the United Booking Offices. We think this case is not in point. Judge Hand distinguished the Marinelli case from the Hammerstein case and for the same reason the Marinelli case is distinguished from this case."" Before moving for dismissal of the complaint Attorney Goodman called upon Attorney Studin, who also argued for dismissal and brought up the rulings resulting from the Federal Trade Commission hearing of four years ago strengthen bis argument. After he moved to dismiss the complaint Judge Mack called a recess for luncheon. At the Afternoon Session At the afternoon sbssion Attorney Littleton, ‘for the defense, opening -shis argument in ep position to the motion for dismissal, first read a part of the complaint ‘which minutely described the workings ef the vaudeville booking office, alleging that when the Keith or Orpheum office booked an act it contracted that the act should be transported with all scenery and other accoutrements from State sto State, Mr. Littleton then turned to the Marinelli case, cited eby the defense, saying that :t had set up practically the came points as the Hart complaint contained, and that im that case Federal Judge Learned Hand ruled that the facts alleged brought it under the jurisdiction of the Sherman Anti-Trust Law. “In the baseball case which has been cited by the defense,’’ said Attorney Littleton, ‘‘the Court of Appeals in citing the Marinelli deec'sion must have found that the booking office was mainly engaged in signing acts to go from State to State, and had no interest in the actual exhibition of the acts, which was the ma‘n interest of the baseball leagues."’ At this point Judge Mack interrupted Attorney Littleton’s discourse, saying: “If I understang the business of the booking offices, it is not to arrange for transportation of acts, but to arrange for the engagements of acts and their transportation is only incidental. How is the action of the booking company made interstate commerce if they arrange for engagements of performers wh'ch incidentally takes into consideration transportation from State to State?” Mr. Littleton then referred to citations of other cases which had been tried under the Sherman act, reading the decision in the famous Butler case, in which it was stated that interstate commerce did not essentially mean the transportation of goods, but that every negotiation and contract made between States was interstate commerce. Hé@ closed his argument by upholding his contention that Hart had the right to maintain his action under the Sherman and Clayton Anti-Trust Acts, saying that the Federal Trade Commission has already termed vaudeville interstate commerce. . Attorney Eppstein took up the argument for the plaintiff, saying that while the Federal Trade Commission had dismissed the com against Keith and other vaudeville interests it had by no means given it a clean slate. He asserted that he had personally gone to Washington and had interviewed the commission with the purpose of redpening the case, and that the commission had advised him that the matter had been dismissed, but that it could see no Treason why he could not file a new complaint. Mr. Eppstein further qualified Attorney Littleton’s remarks by stating that while he recognized the fact that the more important part of the booking agency's efforts was to secure actual exhibitions, transportation of acts was an exceedingly important part of the contracts. Argument on the motion to dismiss bein: closed Judge Mack intimated clearly that he could not see that the business of the defendants was interstate commerce, and that it was therefore out of the jurisdiction of the district court, but added that he again would examine the cases cited in the complaint and answer, and would reserve his decision until Tuesday morning. “If the Conrt d'smisses the complaint,”’ said Judgt Mack, “‘it will not be for y Y UY YYnhyyyjyywyyi Vi f~yy9);, fff YY YY y Yy xl Yy Conducted by ALFRED N ELSON (COMMUNICATIONS TO OUBE NEW YORK OFFICES) Edward Everett, an old-time agent now in the’ cigar business in Easton, Pa., is sufficiently in. ~ terested in this column to keep us posted on what the agents say and do when they visit Easton. He contributes the following: In The Easton Daily Free Press of recent issue, under the headline, ‘‘Forty-One Years Ago Today", L note the following: “H. A. B. Williams, well known as ‘Alphabetical’ Williams, the advance agent for Healy's Hibernian Minstrels, is in town today."’ Wonder how many present-day theatrical pfeople remember ‘‘Alphabetical’’ Williams and the attraction he represented? Possibly no one besides George Roberts, this season fn advance of ‘Hello, Prosperity’’. No offense intended, George, but the opportunity is too good to let slip. How about the letter you owe me? Nelse is expecting 2 few lines o’ information from you for the agents’ column. Willard B. Coxey and W, ‘‘Josh’’ Daly were here this week in advance of Harry Lauder. Two knowing gentlemen who thoroly understand the publicity game. As the result of their work the 8S. RB. O. sign is sure to be displayed the night of Mr. Lauder’s performance, _— 2 We are in receipt of numerous newspapers carrying advance notices and commendable reviews of the Snapp Bros.” Show now playing thru Stab, but .there is no indication on the part of fhe sender to advise us as to who is the agent responsible for this of newspaper puolicity. GRAF PICTURES TO BE DISTRIBUMED°BY METRO San Francisco, Oct. %s.—Max Graf, supervising. director of°the Graf Productions, Inc§ of ‘this city, ‘has returned “from New York after consummating a {contract under the terms of which the photoplays of the producing organization he represents will placed on distribution thruout “the world by the Metro Pictures Corporation, This is a most important development in the motion picture “situation in San Francisco, and it places the city in a position to be recognized as one of the nation’s motion picture centers, Graf, upon his return here, expressed enthusiasm over the outlook for San Francisco's film industry, The first of the Graf productions to be distributed thru the Metro organization is “The Forgotten Law’. The picture will have its premiere showing at Loew's Warfield Theater November 5. want of —in it, but because the Federal Court has no jurisdiction over the matter, and, I take it, it id be a case of making a direct appeal to the reme Court.’’ ‘I think the baseball decision clears the air in these_cases, but I shall read it, and also the Marinelli Case again,’ added Judge Mack. The action of the Court came as a distinct shock to the plaintiff and his friends. Before anyone in the court room realized the case was over, at st for the moment. Max Hart, evading interviewers, was gone. It seemed so much like defeat that Hart's attorneys and friends would say little about the case, pleading that nothing could be said for — until Judge Mack rendered his opinon, . New York, Oct. 28.—Mystery surrounds the disappearance of %mportant papers m the .250,000 action brought by Max Hart, deposed Keith booking agent, against the Keith and affiliated interests. The missing papers were torn from the original complaint filed by Hart's attorneys, Eppstein & Axman, with the clerk of the United States District Court. Discovery that half @ dozen pages had been ripped from the complaint which is to go before Judge Mack was made by newspaper men thiseweek while searching thru the papers with a view to refreshing their m'nds on the chief points in the case. The discovery was reported to the clerk of the conrt. Hart’s attorneys notified of the loss supplied the duplicates of the missing documents which were stamped with the date of receival. GOODE IN HOSPITAL Ottawa, Ont., Oct. 28.—Jimmie Goode, : of The Dumbbells, playing the Russell Theater here, was taken to the hospital Thursday of this week. It was first thought that he would have to undergo an operation, but this was’ unnecessary, and he expects to return to the company within a few days, THEATRICAL BRIEFS Will Curtis is execting a 450-seat picture theater in Reed City, Mich., to be completed about December 1. The stage will be of sufficient dimensions to accommodate vaudeville acts, The Palace Theater, Mingo Junction, 0., was purchased from Nicholas Annis by Charles R. Rosenson, of Steubenville, O. The theater was closed until October 25 for remodeling and redecorating. An entirely different program of photoplays will be shown under the new management. : Following the closing of the opera house at Yellow Springs, O., a college town south of Springfield, three Antioch college students, Francis X. Raynolds, Arthur Rothrock and Edwin Naslund, have secured a lease on the building and converted it into a picture show, which promises to be a financial success, The theater and office building being erected in Whiting, Ind., by the Venus Theater Company, of which A. J. Obreshk is president, will be partially completed December 1. date the offices will be ready for occupancy, while the theater is scheduled to be opened February 15, 1923. The seating capacity of the theater will be 1,000. Work is being rushed on remodeling the Palace Theater, South Bend, Ind. The theater will be one of the most brilliantly lighted in Indiana, having more than 12,000 electric bulbs, exclusive of the stage lighting, which is an entirely independent system. Nearly 1,200 lamps On that ~ are to be used in the borders and footlights, in . addition to four flood and spot lights. HERE AND THERE AMONG THE FOLKS 2 (Continued from page 49) The Arrow Music Publishing people have pro vided the “book end numbers, end Henry Haumel, of the Al H. Woods forces, is said to be furnishing the sinews of war. More about it later. ‘She Douglas Theater, the largest picture house in Harlem, has gone into the hands of eo Brecker, Inc. This concern now controls besides this house tHe Odeon, Roosevelt, Apollo and Plaza. L. F. Murphy, formerly of the Farrugut, of Brooklyn, has been installed as manager. . Lawrence Deas has grown plutocratic since he arrived in Chicago with the Harper & Blanks Company. white companies and otherwise made good. He now owns a car, and, a8 a friend writes, seems to have plenty of “jack. I am sure we are all to hear of his success. JOE SIMMS HAS NEW ACT Joe Simms advises that he with Russell Lee and Daisy Wright have organized the ‘‘Old Home Trio”, a harmony act with some comedy, a little dancing, and equipped with 4 special drop. The act is headed East. Joe is alse the author and owner of the book of “M) Gai’, a musical comedy that he proposes to bring with him. He has also placed a number, “I’m Playing the Field”, with the Irving Berlin Publishing Company. ‘‘Ain't It a Shame to Shimmy on Sunday’, a Witmark reléase made popular by several of our best quartets, is one of Joe’s, He has produced several shows for , —