Victor Talking Machine Co. v. George, 5169.
| Decision Date | 09 April 1934 |
| Docket Number | No. 5169.,5169. |
| Citation | 69 F.2d 871 |
| Parties | VICTOR TALKING MACHINE CO. v. GEORGE. |
| Court | U.S. Court of Appeals — Third Circuit |
Isaac D. Levy, of Philadelphia, Pa., I. E. Lambert and Robert P. Myers, both of New York City, Louis Levinson, of Philadelphia, Pa., and Louis B. LeDuc, of Camden, N. J., for appellant.
Robert L. Nase, of Flushing, N. Y., and M. J. Fulton, of Richmond, Va., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This is an appeal from a decree in a suit for damages in the District Court adjudging the plaintiff, David Graves George, to be the author of the song entitled, "Wreck of the Old 97," which the defendant recorded on one of its talking machine records.
On September 27, 1903, a Sunday train, No. 97, which ran over the Southern Railroad frem Washington to Atlanta, was late at Lynchburg and in making up lost time, its engineer ran it at a high rate of speed on a steep grade down one side of White Oak Mountain, just north of Danville, Va. As the train reached a curving trestle, it left the tracks and plunged into a ravine below. The crew was killed and the train was completely destroyed.
Quite a number of songs were written by different persons to commemorate this sad event. The testimony shows that shortly after the accident one was written by Fred Lewey, another by Charlie Noell, and a third is alleged to have been written by the plaintiff, David Graves George. Afterwards others were written.
These songs, more or less alike, became very popular in and about Fries, Monroe, Lynchburg, Gretna, Lima, Danville, and Spencer, Va., and were sung to the music of instruments such as guitars and banjos at country gatherings, in plank taverns, and under electric lights on street corners on summer nights. They then mostly passed into disuse and were forgotten for many years, except at Fries, where they seem to have been kept alive largely through the singing and playing of Henry Whitter, an accomplished musician, who played a double accompaniment of the guitar and harmonica.
With the dramatic instinct of a real musician, Whitter shortened Noell's song and made it more "peppy" by changing a few words and quickening the time of the music of the song known as "The Ship That Never Returned," to which he sang it. He added the concluding stanza from the song of "The Parted Lovers." His rendition follows:
You must put her in Spencer on time.
2.
You can watch old ninety-seven roll.
3.
It was on this grade when he lost his airbrakes
And you see what a jump he made.
4.
He was found in the wreck with his hand on the throttle
And was scalded to death by steam.
5.
Some time prior to August, 1924, Vernon Dalhart of Marmoneck, N. Y., was recording for the Edison Talking Machine Company. He had never heard Whitter's song, but was given a record containing it. He listened to the record as it was played, copied the words as he understood them, and rendered the same for the Edison Company.
In August, 1924, he began to work for the defendant and rendered the song for it:
But it's old 97. You must put her in Center on time.'
He looked round then to his black, greasy fireman `Just shove on in a little more coal, and when we cross
That White Oak Mountain, you can watch old 97 roll.'
It's a mighty rough road from Lynchburg to Danville,
And a line on a three-mile grade.
It was on that grade that he lost his average
And you see what a jump he made.
He was going down grade making ninety miles an hour
When his whistle broke into a scream.
He was found in the wreck with his hand on the throttle,
And a-scalded to death with the steam.
After due and careful investigation to ascertain if there were any rights of authors to be protected, and finding none, the song was recorded on one side of a record by the defendant company and thereafter sold, mostly through the South.
The plaintiff says that he composed and wrote this song and brought this suit to recover damages for the violation of his common-law rights in the song. The defendant denies that George wrote it. The authorship of the song, therefore, is the real question in this case.
George says that he wrote and sang it within a week or ten days after the wreck. He relies upon his own testimony in open court and the depositions of members of his family and of several other witnesses to prove his authorship.
It is established beyond doubt that Noell and Lewey wrote the songs bearing their names. Lewey was eighteen years old and Noell was seventeen when the wreck occurred. Lewey was living at the time at Danville, Va., and was one of the first on the scene after the wreck. He was living with the grandmother of George R. Plott and William L. Plott. In fact the Plott brothers and Lewey roomed together.
The following is a copy of Noell's song:
"Come all of you fellows and gather around me and a sad sad story to hear,
All about the wreck of Old Ninety Seven. And the death of the brave engineer.
At the Washington Station that Bright Sabbath morning, just at the rising of sun.
He kissed his dear wife and says my children God bless you. Your father must go on his run.
Steve Brodie was the engineer and a brave, brave man was he.
But a many poor man has lost his life for the Railroad Company.
Ninety Seven was the fastest mail that was ever on the Southern line,
All the freight trains and passengers took the hold for Ninety Seven
For she was compelled to be at station on time.
Ninety seven was the fastest train that was ever on the Southern line
But when she pulled in at Monro Virginia, she was Forty Seven minutes behind.
At Monro Virginia he received his orders, saying Steve you are away behind
This is not Thirty Eight but its Ninety seven. You must put her in to Danville on time.
He climbed in his engine at Monro, Virginia, saying fireman its do or die
I will reverse the lever throw the throttle wide open and we will watch old Ninety Seven fly.
Steve Brodie was the engineer on that fatal Sunday eve,
And his fireman leaned far out at Lynchburg just waiting for the signal to leave.
When they gave him the board he pulled open the throttle although his air brakes was bad.
And the people all said when he passed Franklin junction it seems like the engineer was mad.
The conductor said to the engineer and fireman. Dont neglect that whistle or bell.
For we must put this train on time in to Danville. Or we will drop her right in to Hell.
Steve Brodie said to his faithful old fireman, Just throw in a little more coal.
And when I blow for the Henry Street crossing. You just watch my drivers roll.
Now its a awful bad road from Lynchburg to Danville and from Lima its a four mile grade.
It was on this grade that his air brakes failed him. And look what a jump she made.
Falling down this hill at seventy miles an hour his whistle began to scream
He was found in the wreck with his hand on the throttle he had scalded to death from the steam.
When the news come flashing over the telegraph wires. And this is the way it read.
That brave engineer that pulls ninety seven is lying in North Danville dead.
Did he ever pull in no he never pulled in at one forty five he was due
It was hours and hours dispatchers was waiting but that fast mail never come through.
This song, written soon after the accident, was sent to the Mill News, a newspaper edited by a Mr. Escott and published by the Mill News Publishing Company of Charlotte, N. C.
Lewey's song was written within two or three months after the accident and was sung by him in Danville, Lynchburg, and Fries.
Robert W. Gordon, an eminent authority on this subject, made an exhaustive examination of all the songs written about this wreck. For twenty-five years he devoted himself to the study of American folk songs. For two and a half years he had charge of the Archives of American Folk Song in the Congressional Library at Washington, D. C. In 1923, he was editor of the department in the Adventure Magazine known as "Old Songs That Men Have Sung," and at the same time was Shelden fellow for Harvard University, collecting in the field. He sought to determine the authorship of these songs before any controversy about them arose and before this case was begun. During his investigation, he never heard of the plaintiff. But he learned of the authorship of Lewey, Noell, and others, and of the rendition of Whitter and Dalhart.
The following is the version of the song of the plaintiff, who says the defendant's record was copied from it.
"On a cold frosty morning in the month of September
When the clouds were hanging low
97 pulled out from the Washington station
Like an arrow shot from a bow.
They gave him his orders at Monroe, Va.
Saying Peat you are way behind time
It's not 38 but it's old 97
You must put her in Spencer on time.
He looked at his black greasy fireman
And said shovel in a little more...
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