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Victor Talking Machine Co. v. George

January 3, 1934

VICTOR TALKING MACHINE CO.
v.
GEORGE



Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.

Author: Davis

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

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:

"They gave him up his order at Monroe, Virginia,

Saying Steve you're way behind time,

This is not 'Thirty-Eight' but it's 'Old Ninety-Seven,'

You must put her in Spencer on time.

2.

Steve Brooklyn said to his black greasy fireman,

Just shovel on a little more coal,

And when we cross the White Oak Mountain,

You can watch old ninety-seven roll.

3.

It's amighty rough road from Lynchburg to Danville,

And a line on a three mile grade,

It was on this grade when he lost his airbrakes

And you see what a jump he made.

4.

He was going down grade making ninety miles an hour

When his whistle began to scream,

He was found in the wreck with his hand on the throttle

And was scalded to death by steam.

5.

So come on you ladies you must take warning from this time, now and on,

Never speak harsh words to your true loving husband,

He may leave you and never return."

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:

"They gave him his orders at Monroe, Virginia,

Saying, 'Pete, you're way behind time. This is not 38,

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.

Now ladies, you must take warning, from this time now and on

Never speak harsh words to your true love and husband,

He may leave you and never return."

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 ...


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