High Court Of Justice Before MR. JUSTICE BRANSON I The hearing -was begun of this action brought by Warner Bros. Pictures, Incor- porated, of New York, United States, against Mrs. Bette Nelson, professionally known as Miss Bette Davis, the film star, of Park Lane Hotel, Piccadilly, W.1, for a declaration as to the validity of a contract, dated December 27, 1934, between the plaintiffs and Miss Davis, and for an injunction to restrain Miss Davis from acting under some other management in breach of the contract. The plaintiffs allege that Miss Davis intended to appear in a film with a Mr. Toeplitz. Miss Davis pleads, inter tlin. that in breach of the terrns of the contract the plaintiffs iri 1935 had required her to play unsuitable parts, and had frequently required her to work for excessive periods in the day, such periods con- stantly exceeding 14 hours; and that they had further required her to make an unreasonably large number of films in 1935. She alleges that the plaintiffs had broken and repudiated the contract and that she was free to tender her services to persons other than the plaintiffs. She contends that the plaintiffs are not in law entitled to the injunction prayed for. Sir Patrick Hastings, K.C.. Mr. Norman Birkett, K.C., and Mr. Frank Gahan appeared for the plaintiffs; Sir William Jowitt, K.C., Mr. J. D. Cassels, K.C., and Mr. 1. L. S. Hale for Mliss Davis; and Mr. Gerald Gardiner and Mr. Harold S. Brown held watclh- ing briefs for Toeplitz Productions, Limited. "OF GREAT IMPORTANCE" SIR PATRICK HASTINGS, in opening the case for the plaintiffs, said that he thought it right to make it plain that the case was of very great importance for the film industry, because the contract, although no doubt it varied in some minor points from other contracts in the industry, was in substance the common form. It was in the form in which most big tilnt companies in America engaged most big film stars. What the defendant was seeking to do, con- tinued counsel, was in effect to tear up her contract and to say, whether she was right or wrong, that the Court would not grant an injunction against her. Damages were abso- lutely valueless as a remedy, because to get damages from an artist was an impossible positionl. There was a series of defences put forward by Miss Bette Davis of this sort: " Oh, you broke your contract; you wanted me to play more than six hours a day; you either gave me too many films or too few films." With re- gard to those matters, said counsel, if some of them were gone into they would afford some slight degree of amusement. One of the reasons which, Miss Davis said, entitled her to act as she had was that she says that she was required to attend a dinner which the Presi- dent of the United States attended. Shc was invited as the honoured guest because she had received a very favourable review of her film. She attended, and she now said that the plain- tiffs required her to do so and that that was a breach of the contract entitling her to act for someone else. This form of contract, continued counsel, which was very stringent, had been before the Courts on previous occasions, and the argu- ment which had been used was that the con- tract was slavery-someone had pointed out that it was slavery with a golden lining, because the slave. was apparently fairly well remunerated. Mr. Justice Porter had decided that there was nothing against public policy in such a contract as this. But in the present case there was no allegation that the contract was bad in any shape or form. There was no suggestion that there was anything unfair or unreasonable in it or anything to invali- date it. All that Miss Davis said was: " You cannot get an injunction," and he (counsel) was satisfied that that was what his Lordship would have to decide. It was a point of con- siderable difficulty, having regard to the multi- tude of authorities on the question of service agreements. Miss Bette Davis, continued Sir Patrick Hastings, went to Warner Bros. in 1931 and she had a contract with them which was more or less in the same form as the present. She was then getting a salary of some S400 a week which was about ?100 a week. The contracts were generally for one year, as in the present case, but contained a provision under which the management might, if they desired, exer- cise an option at the end of the year for a further year, and so on for a limited number of years specified in the contract. The salary at the end of the contract would be 53,000 a week, which, taking the dollar at 4s., was ?600 a week. " If anyone wants to put me in a state of perpetual servitude at that remuneration," said counsel, amid laughter, " I am prepared to consider an offer on those lines." Some managements, he continued, would go to an artist-like Miss Davis and say: " I think you are getting S2,000 or $3,000 a week; I will give you S50,000 for one picture." There was a man named Toeplitz,and he (counsel) thought that they would find that the cause of the quiarrel was that Miss Davis had been bribed, because she had been offered for one film a very large sum of money by Mr. Toeplitz, and she had been unwise enough to say that she would take it. Miss Davis's salary with Warner Brothers went on increasing tintil December, 1934, when the present contract was entered into, dated December 27, 1934. THE VITAL CLAUSE Clause 9 of the agreement was the vital clause:- The artist agrecs that she will, during thc tcrm hercof, render such services solely and exclusively. to and for the vroducer, and that she will not. during such timc. render any services for or in any other phonographic, stage, or motion Picture production or prodictions, art. or businffs of any other person, firm, or corporation, or make any Public or Private apparances in any way connected with dramatic, theatrical. or motion picture productions or shows or phonographic recordations. or engase in any other occupation without the writtcn consent of the Producer being first had and obtaincd It was vital in this case, where an injunc- tion was sottght, that there should be a nega- tive stipulation, and clause 9 was that on which he relied. He would stimmarize the contract by saying that his Lordship would appreciate that in a business of that sort strict rules and regulations had to be observed. It was essential that pro- vision should be inserted as to the obligation of the artist to attend when she was required and not to leave before it was time to go. It was perfectly obvious that when there was a picture costing 5100,000 or morc to produce one artist could ruin it if she got a little tem- peramental, and it was necessary therefole that the terms arid regulations should be strict. This contract with Miss Davis was made with her lawyer; there was no suggestion that she was not fully aware Of and advised as to it. It was a perfectly good and binding con- tract and one against whichi no word was to be said. It was a contract for a year, and all he could ask for was an injunction within the terms of the contract. Referring to the pleadings, counsel dealt with the agreement and said that it was pleaded that on May 21, 1936, the plaintiffs orally in- formed Miss Davis that they would require her to appear in a photoplay then in preparation called God's Couitry aid tihe Woman, and by letter dated Juine 18, 1936, required her to report at their studio on Jtine 19, 1936. In breach of the contract, the pleadings con- tinued, the defendant failed to appear at the studio as directed, and by telegram, dated June 18, 1936, refused to appear in the photo- play without a change of contract. By letter dated September 8, 1936, it was said, the defendant wrongfully purported to repudiate the contract and claimed that it was not a binding or enforceable one. The defendant, in her pleadings, admitted that she did not appear at the studio as alleged but, as stated above, she contended that the agreement had been broken and repudiated by the plaintiffs. Until Miss Davis entered into her prospec- tive agreement with Mr. Toeplitz, he (counsel) thought that he was right in saying that Mr. I Jack Warner never heard a suggestion that the plays were unsuitable, or that she was working long hours, or that she played in too many films, or any complaint of any sort or kind whatsoever. He (counsel) was told that it was on the rarest occasions that she worked over six or seven hours a day. A DINNER IN AMERICA Referring to the dinner which the President of the United States attended, Sir Patrick Hastings said that, in addition to Miss Davis, who was the guest of honour, there were present five Governors, four United States Seniators, three Cabinet offcers, and many other notables. It was a dinner celebrating the anniversary of the birth of Thomas Jeffer- son, and was given by the Democratic Party. Nobody, he continued, thought that it was a breach of contract to suggest to Mliss Davis that she should accept the invitation. He could not help thinking, he added, that Miss Davis was letting her imagination run away witlh her. He was not able to say how. or why Miss Davis came to England, con- tinued counsel, but the solicitors for ;he plaintiffs saw in August in a newspaper that she was under contract to appear in a film called I'll Take the Low Road-or some- thing like that-with Mr. Toeptitz. It was said in the paper that she was going to appear witl him, and they (the plaintiffs) had little doubt that it would be found that some arrangement was made, dependent on this hearing, under which she was to appear w.ith Mr. Toeplitz. And it was the very thing which in the view of Mr. Warner-he (counsel) did not in the least object ro saying it quite openly-was not the thing which responsible people in that business did. If it were the fact that Miss Davis had allowed herself to be persuaded to do some- thing of that sort, it might be that Mr. Toeplitz had not done her a very good service, but all they were concerned with here was trying to arrive at the facts to see whether the defence was of any value at all. Turning to the position in law, counsel said that over and over again the Courts had said that they would not decree specific perform- ance of a contract of service. But that had been regarded for a long time with the limitation that, if a person with a particular qualification or engaged in a particular class ot personal service entered into a contract which contained a clause prohibiting that person from working for anyone else, that negative clause would be enforced. The cases in which the Court did not grant an injunction were cases in which they said that damages were the proper remedy, and in the present case he submitted that damages would be no remedy at all. It was quite impossible for the plaintiffs now to give any evidence of damage. If during the next seven years they lost the services of Miss Davis, and she was competing against them, how could he (counsel) ask the Court to assess damages ? All the plaintiffs wanted to do was to ensure that a competitor of theirs did not take their personal servant whom they had brought up and use her in competition with them. Mr. Jack Leonard Warner, vice-president of Warner Bros. Pictures, Incorporated, giving evidence, said that when Miss Davis came to the company in 1931 she was not to his know- ledge a star. Her weekly salary was then S400. " IMPOSSIBLE TO ESTIMATE " Asked whether he could estimate the damage in money which the plaintiffs would suffer if Miss Davis " walked out," Mr. Warner said that that was impossible. The plaintiffs had, however, built Miss Davis up almost from oblivion to what the company thought was now a very great height. An idea of the loss whlich Warner Brothers would suffer if Miss Davis left them could be obtained from the fact that any film of theirs in which she appeared would be worth to them $600,000 or $700,000 gross in the world. The first occasion on which he (Mr. Warner) had received any complaint from Miss Davis was once in 1935, when she said that a part which she was playing was not so big as previous parts which she had been given. After giving further evidence in support of the opening statement, Mr. Warner concluded by saying that he was now, and had always been, perfectly wiling to carry out the contract with Miss Davis. Miss Davis, he said, played in 1935 in Dangerous, produced by him, and she was awarded the prize for the best performance in a film in Hollywood that year. SIR WILLIAMI Jowtrr, cross-examining.- That is perhaps the highest honour the industry has to givc ?-Within the industry, yes. The witness agreed that as at present advised, and if things remained the same, it was the intention of the plaintiffs to exercise their option under the contract to retain Miss Davis's services, and the right to get Miss Davis at the salary she was at present receiving was of value to Messrs. Warner Brothers. He agreed that Miss Davis was ambitious to become a great actress and that she was very nitich interested in her profession. Do you agree that film-making calls for great qualities ? It calls for unique qualities. Asked whether it must not be heartbreaking for an actress to act in a part which she felt to be unsuitable for her, Mr. Warner said that, knowing how difficult it was to get film scripts, he himself, speaking as an actor. would be will- ing to give and take with the producer in the matter of parts. In the case of the film called The Petrified Forest Messrs. Warner Brothers had seen that there would be a fine part for Miss Davis, and had paid $110,000 for the film rights. That, the witness added. was one of the highest prices ever paid for film rights. Asked whether, on Miss Davis's recent marriage, the witness's brother, Mr. Harry Warner, had requested her to sign an under- taking that she would not divorce her husband for three years, the witness said that he had never heard of that and that he was sure that his brother had never done such a thing. " That would not be publicity, it would be bad taste," the witness added. Mr. Warner's evidence having been con- cluded, the hearing was adjourned. Solicitors.-Messrs. Denton, Hall and Burgin; Messrs. Munton, Morris, King and Co.; Messrs. J. D. Langton and Passmore. HIGH COURT OF JUSTICE KING'S BENCH DIVISION FILM CONTRACT: ACTION AGAINST MISS BETTE DAVIS WARNER BROS. PICTURES, INCOR- PORATED v. NELSON