
    BROADWAY THEATRE, Inc., v. VITAGRAPH, Inc., et al.
    No. 8475.
    Circuit Court of Appeals, Fifth Circuit.
    Oct. 28, 1937.
    Augustine Sams, of Atlanta, Ga., and Pat Whitaker, of Tampa, Fla., for appellant.
    Robert S. Sams, Dan MacDougald, and Cam D. Dorsey, all -of Atlanta, Ga., for appellees.
    Before FOSTER, ° SIBLEY, and HOLMES, Circuit Judges.
   SIBLEY, Circuit Judge.

The bill was brought by Broadway Theatre, Inc., under the federal antitrust laws for injunctive relief against discriminatory conduct by the defendants, Vita-graph, Inc., and others, who are leading distributors in interstate commerce of moving picture films, alleged to be in consequence of a conspiracy with certain competing theater owners to force complainant out of business. This appeal is from the refusal of a preliminary injunction. The hearing was on the pleadings, affidavits, depositions, and documentary evidence. The judge thus expressed the ground on which he refused the injunction: “Whether there was in fact a conspiracy can be better determined on final hearing and with the evidence much more complete than it is now. It is sufficient to say the evidence in its present form does not sufficiently establish the alleged conspiracy.” The conspiracy is denied, and the evidence of it is wholly circumstantial and not conclusive, and is on many points in serious conflict. The jurisdiction of the court is not the issue and there is no controlling question of law to be settled. The District Judge did not abuse his discretion in refusing to interfere before the contested fact issues are finally tried out. Rice & Adams Corp. v. Lathrop, 278 U.S. 509, 49 S.Ct. 220, 73 L.Ed. 480; United Fuel Gas Co. v. Public Service Commission, 278 U.S. 322, 49 S.Ct. 157, 73 L.Ed. 402; Alabama v. United States, 279 U.S. 229, 49 S.Ct. 266, 73 L.Ed. 675.

Affirmed.  