Variety (May 1926)

. .yfdoestf ay^ jlay, ft,. 1936 VAUDEVILLE VARIETY n the debarred big the legal opinion POINTS MADE IN U. S. COURT DECISION AFFIRMING THE HART CASI Max Hart haH one nrrore opportunity for legal appeal from the adverse ieclsion by the Circuit Court of Appeals In his suit against the "hip time" vaudeville interests, and he will accept it. Following the opinion by Justice Manton who on Monday sustained the federal District Courts ruling dismissing the Hart complaint for $6,260,000 triple damages under the Sherman anti-trust law, Eppstcin & Axman, counsel for Hart, filed a notice of appeal. They will take the matter to the highest tribunal, the U. S. Supreme Court and endeavor once again to reverse the opinion, and order the case remanded to tho Federal Court for a trial. Up to now, the Keith-AIhee and Orpheum interests have had no need \ to interpose a defence. Hart's suit being dismissal by .Justiee Augustus Ji. Hand off the bench, following the presentation of time agent's testimony. Justice Manton's opinion is Illuminating as regards on interstate commerce and vaudeville. Artist Prima Element In summary, it is held that: (1) the primary element that figures in a booking contract is the artist's personal service and that which is hired is the artistic efforts of the performer, above any paraphernalia that may go with the act to embellish it. (2) That this varies from the Binderup vs. Pathe Exchange case whe re Blnderup, picture exhibitor, successfully sued Pathe on anti-trust law charges. In that spools of films were the direct media of interstate com- merce. The same parallel applied to the billposters' case. (3) That the business of acting Is purely n state affair. The mere fact that the actors were obliged to cross state lines and have trans- portation paid, in some instances, does not change tho character of the service nor of the business. (4) Hart is personally scored for his belligerent tactics, the court ruling "the right of a person to do business with whomsoever he desires is well established" to Justify Keith s barring of Hart from its place of business (booking offlce) because of his "Indecent and profane language in and about the offlce" . . . and finally the defendants refused to do business with him when he attempted to take an act which had been already played in one of defendants' theatres nnd claimed it as his own (referring to an act at the Palace in which Hart attempted to interest production managers). 'Telling Off" Agent In an lndei>endent booking agency. Chief male booker and femi- nine assistant were having it out hot and heavy with a vaudevlllian regarding a 14 baggage haul between two duwn east points covered by the agenc> books. 1 Miring the high point of tho verbal jambopiee, the "act" walked out with a parting re- mark: "All you need is a bench and a song lini.-th.'' Early Decision Excerpts from the opinion are appended herewith. The Circuit Court's decision in about a mwilh after the argument of the appeal is In itself surprising in view of the voluminous testimony and record on appeal which was figured would take the court two or three months to wade through, with a decision not expected until summer *nd possibly fall. But seemingly the appeal court merely weighed the legal arguments of Justice Charles Evan Hughes, tho former secretary of state and Chief Justice of the U. S. Supreme Court, who argued on behalf of Keith-Albee-Orpheum, as against Martin W. Littleton's at- tempt to get around that baseball decision which was the "big time's" legal ace-in-the-hole. Justice Hughes was called in for the express purpose of the appeal, his argument before Justice Manton, Hough and Learned Hand (brother of A. N. Hand who dismissed the complaint originally) apparently impressing the court with Its simplicity and soundness. The legal opinion concurs with the "big time" on that point in the following: "It is apparent that animal acts and flash acts are exceptions in the kind of vaudeville acts which go to make up the vaudeville program. The great majority and tho high priced artists seem to give merely their personal services in the performance. A concession at the trial stated that in 1920-1921 the Keith Vaudeville Exchange booked 3,800 vaudeville acts and 11 per cent, carried paraphernalia in boxes and crates. This must be considered to be an incidental feature of the^ busi- ness rather than the dominant one. "There are other estimates of the amounts carried which are not im- portant here to relate. (Mr. Littleton In his argument placed the per- centage at 85). It is sufficient to Uken such property to that of the base- ball players' masks, balls and bats used by them and which were con- sidered incidental in the Federal Base Ball case . . . We observe that the singers, sketch teams, comedians and the like, were required to carry no scenery or property because the theatres possessed such, but they did carry some clothing with them." Interstate A salient point on the question of interstate commerce is: "The business of acting in a theatre is purely a state affair. The mere fact that the actors were obliged to cross stato lines and have trans- portation paid, in some instances, does not change the character of the service nor of the business. As said in Hooper vs. California; *If the power to regulate interstate commerce applied to all the incidents to which said commerce might give rise and to all contracts which might be made in the course of its transaction, that power would embrace the entire sphere of mercantile, activity in any way connected with trade between the States; and would exclude state control over many con- tracts purely domestic in their nature.' The booking contract at bar 1« not an instrumentality of interstate commerce. It is a mere incident of commercial intercourse." Monopoly On the question of monopoly, the following speaks for Itself: "It is hard to conceive of how the defendants could control or monopo- lize vaudeville actors who are free agents, able to contract from week to week with whom they please. Any other theatre owner can book or engage the same acts that have been performed. This Is illustrated by the testimony In this record of well-known managers of vaudeville cir- cuits. Every agreement concerning trades or regulation of trade to a certain extent restrains. The test of legality Is whether the restraint imposed is such as merely regulates and permits competition, or whether it is such that it may suppress or even destroy competition. The facts Peculiar to tho particular business to which the restraint is applied must be considered in each instance; the nature of the restraint and its affects, actual or probable." Hart's Conduct As to Hart's conduct: "The plaintiff has testified to the reasons for the refusal of the de- fendants to do business with him in accepting booking contracts. He Bays much, by his own admissions, to Justify the reason for refusing to do business with him. A fist fight with another agent was started in the office of the defendants and continued in the immediate vicinity and led to the suspension of his business re.ations with the defendant. There la no reason baaed on the common law or the Sherman Law which requires the defendants to do business with plaintiff, if he is objection- able to them and that objection Is bnsed upon sufficient reason." "Personal Service" Touching on Hart's argument "that the defendants combined to con- trol all 'machinery' for booking attractions and dominated the 'purely interstate element of their business', using their power to crush the Plaintiff in his business and to restrain owners of vaudeville theatres, producers, artists and others from negotiating with one another," Justice Manton thinks that "the real test suggested by the plaintiff, is whether or nol the acts complained of directly and unduly restrained interstate commerce . . . The testimony bristles with references to the salary, services and artists who are employed under the contracting arrangements', and it may be fairly said that what is contracted for is an entertainment for hire upon the stage of the theatre with the actors °r artists as entertainers. "It makes little difference whether they are high class artists or par- ticipants In small acts. Another noticeable feature of the contracts made w *th artists or actors Is that it refers to the service as 'personal'. Ill- ness, p Xf t , SOM ;in(1 dPath termlnat08 the agreement. They are contracts lor P' iboi.al services." GEORGIE WOOD VAUDEVILLE'S PETER PAN Address: 44, Inglis Road. Ealing Common, London \V. 5, Eng. Love to Clara Howard, and that goes for Dolly Harmer, too. MARRIAGES Alma Real, Mexican soprano of the Mission Play, San Gabriel, to Victor Kingman (non-professional). In Hollywood, Cal., April 28. Floryanne Thompson, singer, to James J. Vesper in Denver, in March, disclosed In Los Angeles. Catherine Pamela Robinson of Allston, Mass.. to Albert Ethier Moore at Allston April 24. The bride formerly was a member of the Per- cival Vivian Players during a road tour, and the bridegroom was man- ager. They have gone to Chicago where Moore is leading man with the Robert Sherman Stock company and with which the bride also will play. Anita Garvin, screen actress, to Clement Beauchamp, assistant di- rector, Fox, at Ventura, Calif., March 15. Paulette Paquet, film actress, to Kenneth Gibson, stage and film ac- tor, at Los Angeles, May 3. Lawrence "Wheat, screen actor, to Mary Carlisle, stage and screen actress, In Los Angeles, May 1. Thanks From Prison Tim Burke, chairman of the Entertainment Committee of the Welfare League at Auburn (N. Y.) Prison, requests that Variety extend the thanks of the prisoners to the vaudeville and burlesque people who have volunteered entertainment at the prison. There are 1,400 prisoners at Auburn. ILL AND INJURED Evelyn Lasker, injured at Fox's Crotona, New York, several weeks ago. improving slowly. Richard Reddlck has fully recov- ered from a severe illness. Searle Allen remains very 111 In French hospital, New York. Mvdlie Fuller and her company reopened In the Blanche Merrill sketch, "An Even Break." at New- ark, N. J., last week, the blind ac- tress having fully recovered from her recent illness. Early last week while crossing the street In front of the N. V. A. Club on West 46th street, to enter her husband's (Dilly Rogers) car, Mrs. Rogers (Grace Tremont) was struck by a taxicab. She was carried to her room In the clubhouse and attended by Dr. H. Freeman. Miss Tremont was hurt internally and ex- ternally. Sidney Olcott, director for Rich- ard Ilarthelmcss at Hollywood Hos- pital, Hollywood, Cal.. recovering from an adenoid operation. BIRTHS Mr. and Mrs. Harry Seranton, April li6, son. No place of birth mentioned. The father is on the Pantages Circuit. Mr. and Mrs. Clyde Whltson Bel- ford, son at Kendallvllle, Ind., April 17. The parents are with the Six American Belfords on Pantages circuit. Mr. and Mrs. Tom Reed, daughter, at the Sylvan Ix>dgc hospital, Holly- wood, Calif., April 2». The father is director of publicity at Universal City. ENGAGEMENTS James Barton, Polly Walker, Mary Jane, Clatre Luce, Alys Fitx- geraid, Doris Wilson, Paulette God- dard, Audray Dale, Naomi Johnson, Katherine Burke, Beryl Halley, Helen Herendeen, Dorothy Wegman, Dorothy Dahm for Zlcgfeld "Fol- lies" (all from Ziegf eld's "Palm Beach Nights" company). Beatrice Roberta, Bobby Storey, Evelyn Grieg, Yvonne Grey, Anas- tacla Reilly. Noel Francis. Mildred Lunnay, Lillian Kimarl, Flo Lane, Suzanne Fleming for Ziegfeld "Fol- lies," all' from Zlegfeld'a "Palm Beach Nights." PANIC IS ON; 20 HOUSES CLOSE Independent Vaude Mgrt. Seize Upon Excuses First si.uns of the annual sum- mer pani/ has hit the independent bookers. Also the house managers. Both are passing the others aspirin tablets. The first warm snap and daylight saving time share honors as the latest excuse for 20 houses evenly distributed between the "big Ave" independent booker to call It a sea- son as far as vaudeville is con- cerned. Some of the houses may string along with pictures for a time, but most are ready to close or sublet for stock or other purposes. Some bookers bolder than others have Inveigled their houses to re- main open and plunge for "names" and acts that will draw. In some instances they have been successful, but in most their heavy selling talks have been wasted. INCORPORATIONS NEW YORK Fourteenth Street and Avenue A Theatre Corp., Manhattan; capital, $120,000. Directors, Samuel Krohn- berg, L. B. Appleton, Bernard Fliashnick, Brooklyn. Attorneys, Fliashnick and Sustick, 1440 Broad- way. Solroc Pictures, Manhattan; pic- tures; 100 shares common, no par. Directors, Mollie Sallt, Bessie Bran- del, Anne Eichel. Attorney, Nathan Burkan. Western Rodeo Productions Co., Manhattan; theatrical; capital, $5,000. Directors, Ernest Anderson, Frank Kelly. H. Schechter. Barton Bros. Circus Corp., Man- hattan; capital, $60,000. Directors, George E. Barton, Newark, N. J.; Joseph M. Ryan, 408 Bast 15th street; Charles A. Yunchirt, Hemp- stead, L. L Attorney,' Henry H. Banks, 38 Park Row. Covent 'I heat re Corp., Manhat- tan; pictures; 1,500 shares pre- ferred, $100 each; 1,500 common, ho par. Directors, Earle House, Fred- erick W. Proctor, L. Sanford Proc- tor. Attorney, B. J. Hlgley, 100 Broadway. Phoenix Players, Manhattan; the- atrical; 200 shares common, no par. Directors, Benjamin L. Webster, Charles Garslde, D. S. Crltz. At- torneys, Choate, Larocque and Mitchell. Amusement Pictures Corp., Man- hattan; pictures; 150 shares com- mon, no par. Directors, Jacques Kopfstein, Lon Young, L. P. Itun- dell. Attorney, 1L M. Goldblatt, 1GGO Broadway. Omar Amusement Corp., Brook* lyn; amusement park: capital. $10,- 000. Directors, Abraham Machson, C M. (Jrabson. Abraham Richmond. Attorney, Emanuel Urabson, 277 Broadway. Capital Reduction Famous Attractions Corp., Man- hattan; capital stock reduced from SSOO.OOO to $5,000. Dissolution Certificate of voluntary dissolu- tion was filed last week by K. & W. Knterprlses, Manhattan. Connecticut Manhattan Players, Inc., of Brldegport, Conn.; authorized capi- tal, $25,000; to establish* theatiea and produce plays; to begin busi- ness with $4,000; incorporators are: Irene A. Bodnar, Alice Plstey and Mae K. Hanbury, all of Bridge- port. JUDGMENTS Lew Cantor; Novelty Scenic Studios; $1,076. John Cort; S. Knickerbocke r Sales Boom, Inc.; $202.97. I. Jay Faggen; N. Y. Tel. Co.; $41.22. Am. Institute of Operatic Art, Inc.; La Pldus Printing Co.. Inc.; $3,007.65. Wm. A. nold; N. Y. Band Instru- ment Co., Inc.; $I>6.71. THREE HEADLINERS AT FRENCH LICK SPRINGS Introducing to the newcomers in the profession three of America's fore- most headline™. To your left, ladles and gentlemen, you see ROCCO VOCCO the serious dispenser of Feint songs In Chicago and Its surround- ing territory. The gentleman in the center of the group is PHIL KORN- HEISER, tbf> general professional manager for Leo Foist, Inc.. discovered by Leo Feist In the wil'ls of New Vork. He ha.s become one of the great- est hand-shak«-rs in the song game and possibly the worst golfer In the profession. You can meet hlra any time he isn t playing golf at Imh headquarters 711 Seventh Avenue. To the left of Mr. Knrnhelser. we ask your indulgence to look into the eyes and bulging por:l<«ts of GUS KAHN, one ».f the world's greatest song writers find thr- hr-s-t golfer of ihz iriu. ilia latest hit 1a entitled "Ltt'a Talk About My Sweetie." NEW ACTS K. K. Nadfl is sending out "Lone- sume Manor" again with Jimmy Haggerty. "The Wreck," tabloid version of "Shipwrecked," Is being recast for a revival over the Pantages circuit. Harry Howard has shrived his production flash and will do a two- act with Ina Alcova. If you don't advertise in VARIETY don't advertise