Stevenson v. Harris

• Decision Date: 09 January 1917
• Citation: 238 F. 432
• Parties: STEVENSON v. HARRIS et al.
• Court: U.S. District Court — Southern District of New York

238 F. 432

STEVENSON v. HARRIS et al.

United States District Court, S.D. New York.

January 9, 1917

Max D Josephson, of New York City, for the motion.

Nathan Burkan, of New York City, opposed.

MAYER District Judge.

On August 1, 1914, Germany declared war against Russia. Other events preceded and succeeded this declaration until as of midnight, August 4th, Great Britain declared war against Germany.

The world then knew that a conflict of extraordinary proportions was under way. Whatever else may have happened or may hereafter take place, it soon became evident that the war was to be a prolific source of literary and dramatic effort. Of course, the spy was much in evidence in the newspaper accounts of the late summer and early fall of 1914. Stage and story male spies are always very villainous persons. When they are humble men, they usually have very heavy eyebrows, a stoop or slouch, and a sinister look. When they are higher up in spydom, they are well groomed and have an erect bearing but they must also have a sinister look. Female spies usually must be handsome, or at least attractive. Sometimes they have flashing jewels, although occasionally a minor female spy who, say, is the landlady of an inn, is permitted to be afflicted with embonpoint instead of jewels. This war added a new class of spies to fiction, and some say to real life. Persons supposed to have been kindly and inoffensive, it seems, are spies. Most of these, it appears, are in some way connected with inns. It is a sad revelation. Can it be that the kindly Teuton at the Hof in Berlin, who saw that your trunks reached America safely, was a French spy? Is it possible that the solicitous and delightful host at Dijon who recommended the juicy chateaubriand was a German spy? Is it true that the genial head of that charming half villa and half inn with the little garden covered with vines at Rudesheim, who claimed that his ancestors for more than a century had lived and died there, was in reality a Russian spy? And, finally, must we believe that the accomplished proprietor of that home-like abode in Biarritz where you are told you will be more comfortable than at the Palais, because with him you are a name and there you are a number, was not, in fact, loyal to France, but was a member of the German secret service? There was also a temporary vogue in a new kind of spy in the early days of the war.

There was a congress of surgeons at Vienna attended by professional men from all over the world. Among others were some young American physicians and surgeons who affected foreign trimmed beards and flowing ties, as do some American ex-patriates who are pleased to be taken for foreigners. Some of the latter had their wish gratified; some of the former have dispensed with the beards and wear ordinary scarves now, since they were examined and, in some instances, temporarily detained by the military and police authorities of the continental countries.

However, with the many incidents exploited by the press and those conjured up by the imagination of the author and the playwright, it has so happened that every well-regulated novel and war play must have a spy. Having acquired a spy, the novel and the play require that the spy must get somebody into trouble. Lost or stolen passports have long been a source of much difficulty and embarrassment. Then, of course, there must be a love affair, which, preferably, should end happily. American readers and audiences like manly American men who court danger for the sake of chivalry, and they like the courageous American girl who, by her quick wit, never fails to extricate everybody from complications after having herself created them; or there may be the charming foreign young woman whose patriotic devotion makes her insensible to danger and excites sympathy and admiration. Then, there must always be at least one gruff general who orders waiters about in a deep bass voice.

There are a few more canons to be observed. The hero must not be named John or James. He must have the kind of name which annoys him through life while, fortunately, the heroine must have a simple name of biblical or historic origin. If possible, there must be an inn, for that makes a good setting, and even war figures must eat and, besides, there must be waiters or waitresses who hear or impart state and military secrets, as it is quite customary to discuss such matters in a loud voice in restaurants and inns. There are other well-known incidents and expedients, common to all, and as old, at least, as when Virgil sang of arms and the man.

With these well-known ingredients available to those who cared to use them, the plaintiff wrote a novel in the fall of 1914 called 'Little Comrade,' which was published in the January, 1915, issue of Munsey's magazine. The defendants Stewart and Baker likewise, in the fall of 1914, were collaborating in the writing of a comedy, and in the course of their collaboration it occurred to them that a seasonable play would be one based on the war, and they finally wrote the play which it is now sought to enjoin, to which they gave the title of 'Arms and the Girl.' The defendant Stewart is an actor and playwright, and defendant Baker is an author and dramatist. They each assert in their affidavits that they did not read 'Little Comrade' and did not have any information in respect of the same.

It is not possible, within the limits of an opinion, to give the full details of the novel and the play; but a sufficient outline will disclose the essential features.

'Little Comrade': Bradford Stewart, an American surgeon returning from...