A TEXAS WONDER
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| HALL v. UNITED STATES | |
UNITED STATES v. 60 DOZEN BOTTLES
OF "A TEXAS WONDER "
(District Court, N.D. Texas, July
2, 1918)
N.J. No. 6337
Libel
under section 10 of the Food and Drugs Act. Jury trial. Verdict in favor of the
United States.
The
following charge was delivered to the jury:
MEEK,
District Judge. Gentlemen of the jury: The United States procured what is termed
in law a libel against 60 dozen bottles, more or less, of Texas Wonder, and took
such bottles of Texas Wonder into its possession, charging that the statement on
the package containing that liquid. which is denominated Texas Wonder, is false
and fraudulent. Thereafter a claimant appeared in court, that is, E. W. Hall,
claiming this liquid, put up in cartons, and known as Texas Wonder, denying the
allegations made by the United States in its libel proceeding to the effect that
the allegations or statements on the cartons were false and fraudulent. The
issue now on trial before you, and to be determined by the, evidence adduced
before you from the lips of the witnesses and from the written testimony, in the
light of the law applicable to the case, and which is now given you; the issues
to be decided by you, first, the evidence and the facts and circumstances in
evidence; and, second, the law applicable to that evidence, and to those facts
and circumstances in evidence.In the libel it is alleged as follows:
It
is further stated that the said property (having reference to the Texas Wonder)
is branded and labeled " Texas Wonder, Hall's Great Discovery,
contains 43 percent alcohol before diluted, 5 percent after dilution," and
" Texas Wonder, Hall's Great Discovery for kidney and bladder troubles,
diabetes, weak and lame back, rheumatism, dissolves gravel, regulates bladder
trouble in children; one small bottle is two months' treatment, seldom fails to
cure any case above mentioned. Dr. E. W. Hall, sole manufacturer, St. Louis,
Missouri."
It
is further alleged that on the circular it reads:
For
kidney and bladder trouble, rheumatism, kidney diseases; Texas Wonder, Hall's
Great Discovery has been employed successfully in rheumatism, diabetes, kidney
and bladder troubles, cases of gravel and other kidney diseases appears from the
following sworn testimony and evidence.
-The
claimant of the 60 dozen bottles, more or less, of Texas Wonder alleges that the
medicine will in fact do exactly what is represented that it will do, and that
it is in no sense misbranded as in said libel charged, and as proof whereof he
offers sworn testimony of parties who have taken the same and benefited thereby
as to its claim in its brand of which the Government complains.
These,
gentlemen, are the issues made by the pleadings in this case, and it is upon
these issues which you have heard testimony from the witness stand, and it is
from such testimony and evidence and facts and circumstances in evidence that
you will reach your conclusion, as I have indicated, being guided and controlled
as to the law of the case by the charge of the court. Section 8 of the Pure
Food and Drugs Act, as amended by the act of August 23, 1912, reads in part
as follows:
That
the term " misbranded," as used herein, shall apply to all drugs or
articles of food, or articles which enter into the composition of food, the
package or label of which shall bear any statement, design, or device regarding
such article, or the ingredients or substances contained therein which shall he
false or misleading in any particular. * * *That for the purposes of this Act an
article shall also be deemed to be misbranded:
In
the case of drugs:
Third.
If its package or label shall bear or contain any statement, design, or device
regarding the curative or therapeutic effect of such article or any of the
ingredients or substances contained therein, which is false and fraudulent.
That
is, the article shall be deemed misbranded under the terms of this law if its
package or label shall bear or contain any statement, design, or device
regarding the curative or therapeutic effect of such article or any of the
ingredients or substances therein, which is false and fraudulent.
You
have heard the evidence in this case, gentlemen; I need not review it before ou.
You have heard the argument pro and. con upon this suit. I will be of what
assistance I may in construing this statute and giving it application to the
facts as they have been presented to you from the lips of the witnesses on the
witness stand. You have heard the witnesses testify as to certain ailments, and
to the fact that they have, among other remedies, secured and availed themselves
of what is designated as Hall's Great Discovery, Texas Wonder. On the wrapper or
carton containing the bottle, which is the customary method of getting the
medicine to the public, is the following:
The
Texas Wonder, Hall's Great Discovery for kidney and bladder troubles, diabetes,
weak and lame back. rheumatism, dissolves gravel, regulates bladder trouble in
children; one small bottle is two months' treatment and seldom fails to cure any
case above mentioned.
You
have heard from the physicians who have testified before you tinder oath the
various diseases that are met with and commonly affect the kidneys and the
bladder; you have heard them testify in regard to weak and lame backs, and it is
in the light of their testimony, as well as the testimony of the defendant and
the various witnesses introduced by the defendant, that you will determine
whether or not the statement which I have read to you from the label is in any
particular false and fraudulent; whether or not any part of this I label in the
light of the facts adduced from the lips of the witnesses, is in any particular
either false or fraudulent.
It
is not difficult to grasp the object of our lawmakers in placing this law or
enactment upon the statute books. It is f or the protection of our citizens, to
prevent medicine, through false statements made f or the purpose of gain on the
part of the person making them, and by which the individual citizen will be
mulcted and defrauded by the purchase of goods which are misrepresented to him
or to her. At the same time,, the law is placed there on the statute books for
the benefit and the protection of those who have remedies which they wish to
submit to the citizenship of the country through the various channels of trade,
and at the same time receive the protection of the law for their candid, true,
and straightforward statements with regard to the result to be expected from the
use or taking or the application of the medicine, or whatever pursuit it may be.
The
evidence before you-I say this, I think, having considered it carefully and
deliberately-is not, on the part of either party to this action, of the most
convincing nature. It is not of a nature which is calculated to carry conviction
to one who is reaching a conclusion on such evidence and facts and circumstances
in evidence, about the correctness of which there can be no question whatever.
The question is whether or not it is true in each and every particular thereon,
every statement thereof. Witnesses have taken the stand and testified that they
had weak backs, or testified that they had trouble with their liver or with,
their kidneys, and that they were benefited thereby. I believe some said that
they were cured thereby, but the question is whether or not this treatment, as
stated in the advertisement, seldom fails to cure any case above mentioned,
which includes a number of cases, and I have reviewed them to you two or more
times. The owner is not upon trial for a violation of the law in a criminal
sense, but we are here to determine whether or not the original owner, the one
who shipped out these cartons, is entitled to their return from the United
States; they having been libeled by the United States, because he has been
wrong, and because no such misstatement as it is claimed by the United States
occurs in this advertising-that is the question. Is there a, false and
fraudulent misstatement made in the advertisement which I have read to you, and
which you have been considering for days, which justifies and warrants the
United States in taking hold of and appropriating this dozen bottles of Texas
Wonder? Is there such false and fraudulent misrepresentation here as justifies
the jury in saying these bottles should be appropriated and set aside, put
aside, should not be returned to the owner thereof, who is here in court before
you gentlemen claiming them i That is the function which you are to perform,
sitting as Judges of the facts.
Now,
if you believe from the evidence, by a greater weight and preponderance thereof,
that the advertisement contained in the paragraphs which I have read to you, is,
and the statement contained in such advertisement regarding the curative and
therapeutic effect of such article-that is, these bottles of Texas Wonder, or
any of the ingredients or substances contained therein, are false and
fraudulent-then in that event you will deny the application of the intervener to
have these 60 dozen bottles, or thereabouts, returned to him. On the other hand,
if you ~do. not] believe-if you do not find from the evidence and f acts and
circumstances in evidence, by a preponderance of the evidence-that the statement
concerning the therapeutic and curative effect of this remedy was false or
misbranded false and misbranded-then and in that event your verdict will be in
favor of the claimant.
There
must be in the advertisement or statement concerning drugs contained in the
carton a statement made which in its nature is false and which is fraudulently
made. Now, then, did it seldom f ail to cure any of the ailments stated in the f
ace of the statement, concerning which-concerning the drug, did it or did it
not? That is for you, gentlemen, to decide. If it did fail, was the statement
falsely placed there?
You
gentlemen are the exclusive judges of the witnesses and of the facts proved by
the testimony given in evidence. If there is anything about the testimony of a
witness that you hesitate about believing, you may take that into consideration.
Does he testify -fully and frankly, or does he exhibit a desire to see one side
rather than be perfectly fair? You gentlemen, not the court, are the exclusive
judges of the credibility of the witnesses and the weight to be given to their
evidence, and of the facts proved by their evidence.
I
believe I have covered in sort of a desultory and rambling way all the issues in
this case. You gentlemen will take the case, and if you find against the
claimant Hall you will simply say, "We, the jury, find for the United
States." If you find for the claimant, your verdict will be, "We, the
jury, find claimant entitled to the sixty dozen bottles " ' or whatever the
portion is, " of the Texas Wonder."
Are
there any suggestions?
Mr.
ATWELL. NO suggestions except the
formal exception to the refusal of these special charges.
The
COURT. I think I have given you this,
although I will read it. You are instructed that inasmuch as the Government
charged the medicine was falsely and fraudulently branded, it is necessary to
prove this allegation, and if you do not find that proven by a preponderance of
the testimony, you will find for the claimant.
Now,
then, gentlemen, I feel that I should say that evidence pertaining to that is
not only-is almost entirely circumstantial evidence, and circumstances which
tend, either tend to or do not tend to prove-what were the ingredients of the
medicine; what is the testimony as to whether or not they would cure the
different ailments set forth and described in the writing or printing on the
carton. Are these true? If not true, why was it put there? Is it false? If you
should say, " Yes ", then was it fraudulently done? What inspired .the
fraud, if, perchance, there was fraud? tam simply making these suggestions in
order that you may have the views and mind of the court to assist you upon your
deliberations. You will retire to your room, gentlemen, select your own foreman,
and try to let your verdict reflect the truth of the transaction.
PART TWO
DECISIONS OF COURTS-FEDERAL FOOD
AND DRUGS ACT
UNITED STATES v. ONE GROSS
PACKAGES OF "A TEXAS WONDER"
(District Court, S.D. Georgia,
Jan. 11, 1919)
N.J. No. 7657
Libel
under section 10 of the Food and Drugs Act. Jury trial, Verdict in favor of the
United States.
The
following charge was delivered to the jury:
EVANS,
District Judge. This is a proceeding instituted under what is known as the Pure
Food and Drugs Act. Congress enacted a statute the purpose of which is to
protect from imposition people and the public, against people who wanted to take
advantage of the public by imposing upon them deteriorated or misbranded goods.
This
proceeding is what is known as a libel in rem, upon information of the district
attorney, wherein it is alleged that a certain product, or medicine, known as
"A Texas Wonder ", in the jurisdiction of this court, had been
transported in interstate commerce from the city of St. Louis, Mo., to the city
of Macon, Ga., and that this product was misbranded; that the carton, the box in
which the product was contained, bore the statement: "A Texas Wonder,
Hall's Great Discovery. Contains 43% alcohol, before diluted; 5% after diluted.
The Texas Wonder, Hall's Great Discovery, for Kidney and Bladder Troubles,
Diabetes, Weak and Lame Backs, Rheumatism, Dissolves Gravel, Regulates Bladder
Troubles in Children." The libel alleges that that constituted a
misbranding, in that this compound did not have the therapeutic effects that it
is represented to have, and that the statement on the carton that it did have
such therapeutic effect was false and fraudulent. Now, under this libel, certain
quantities of this product were seized; and the originator or manufacturer of
the compound has filed a claim. In that claim he traverses the allegations of
the Government, and contends that no false statements were contained in the
carton. Now that is the issue for you to try.
There
is a stipulation between the district attorney and counsel for the claimant,
which relieves you of passing upon some questions in the case. It is agreed that
the product described in the libel, as amended, was shipped in interstate
commerce as set forth in the libel, and that the said product was secured from
the consignee as described in said libel by an inspector of the Bureau of
Chemistry of the United States Department of Agriculture, and that it was scaled
and delivered to an analyst, Nathan K. Nelson, in the identical condition in
which it was collected by the inspector.
The
issue thus left from the pleadings for you to determine is whether or not the
statements on the carton are false and fraudulent. You are instructed that it is
necessary for the Government to prove that such statements are false and
fraudulent, the burden is upon the Government; and if you do not believe the
Government has proved this by a preponderance of the testimony you will find
for the claimant.
In
passing upon that issue you are the judges of the evidence and the credibility
of the witnesses. In determining the credibility of any witness you may consider
his appearance and demeanor upon the stand, his interest or want of interest in
the case, his prejudice or bias, if any appears, his means and opportunity of
knowing the facts to which he testifies, the reasonableness or unreasonableness
of the testimony. All of these matters may be considered by you in determining
whether any witness has sworn truly or falsely. You should impute perjury to no
witness. If you find there is any conflict in the testimony, determine whether
the conflict is real or apparent; if the conflicts are only apparent, it would
be your duty to reconcile them; if they are real and irreconcilable, ascertain
the truth of the case, and there base your verdict.
The
contention of the Government is that this statement is false,
and it becomes necessary, in that connection, for me to construe for you the meaning of this statement. the branding on this
carton. "A Texas Wonder, Hall's Great Discovery for Kidney and
Bladder Troubles, Diabetes, Weak and Lame Backs, Rheumatism " ,
is not a statement that it is a specific for the cure of those diseases,
but it is a statement that it is recommended that it would have a
therapeutic or curative effect in the treatment of those diseases. The
further statement, that it dissolves gravel, is a statement of fact; it
is an assertion, an affirmative assertion of the originator of this
compound, that it will have the effect, if taken according to directions,
of dissolving gravel in the human body; and also that it will
have the effect of regulating bladder trouble in children. That is the statement upon this carton. It is recommended that it
will have a therapeutic effect in
the treatment of kidney and bladder troubles, diabetes, weak and lame backs, and
rheumatism; it is a statement of fact
that it dissolves gravel and regulates bladder trouble in children.
Now,
the first question for you to determine is whether or not that statement is
false. The Government has introduced as a witness the chemist, and, according to
my recollection of his testimony, he says that this compound or concoction
consists of three main ingredients that is, that he found pine oil and alcohol,
and I believe copiba and found rhubarb and colchicum in combination. That is
simply my recollection; if you differ with me, of course your recollection
controls. The chemist says that these are in the proportion that he testified,
consisting of a very large percent of alcohol and some water, less than 50
percent of the medicinal ingredients. On that question the claimant joins issue
with the Government. He
In
passing upon the question as to the alleged falsity dimity of the statement you
may consider the testimony of the doctors, the medical
men, brought forward by the Government, as to whether or not a concoction
containing the ingredients described by the chemist has
any therapeutic effect for the treatment of the diseases named on this
carton. The doctors testify that they have no really curative effect. They say,
further, as to some diseases, they are structural and not functional, and that
they are incurable by any medicine known to the pharmacopoeia; they contend, and
they swear, that such diseases as chronic Bright's, or tuberculosis of the
kidney or bladder, are incurable by any known medicinal aid. The claimant in
this case joins issue with these gentlemen. You are to pass upon that
question-as to whether or not those diseases are curable, and whether or not any
of them would be remedied or relieved by the use of this medicine. If you
believe that the Government has established that it had no curative or
therapeutic effect, then that would be a false statement; and then you would go
to another phase of the case, which I will charge you further on.
Now,
the defendant produces a number of nonprofessional witnesses, who testify that
they had on various occasions various disorders, and that they took this
compound with beneficial results; and that it had not been misbranded, because
in their own experience it had distinctly beneficial therapeutic effects. The
Government contends that that testimony is not to be accepted in lieu of the
testimony of doctors, professional men, for the reason that these witnesses are
non-experts, and are not supposed to know the anatomy and physiology of the human
system; that they are not prepared to say whether the disease was idiopathic, or
organic, or whether it was simply a symptom of some diseased condition. For
instance, take the disease commonly called dropsy; it is frequently referred to
as an independent disease, when it is known that dropsy is one of the symptoms
of Bright's disease, and in the last stages of cirrhosis of the liver; and when
a man says he has dropsy he would not say whether he had cirrhosis of the liver
or Bright's disease. On the other hand, it is contended by the claimant that
these witnesses had serious disorders, and that they were manifested by certain
symptoms; and that irrespective of their diagnosis, professional diagnosis, that
they were suffering from these diseases, and that they were relieved.
You
take all this into consideration and determine whether this particular compound
has a therapeutic effect in the treatment of these diseases for which it is
recommended.
With
reference to one of these diseases, it is a statement of fact that it will have
the effect of dissolving gravel. The Government contends that that is a false
statement-that there is no formula, no medicine, taken into the human system
that will have the effect of dissolving gravel but what would also destroy the
tissues of the body, and that that statement is absurd. The claimant denies that
contention. That is one of the questions for you to consider, that is, whether
that is a false statement. If this compound will not dissolve gravel, then that
is a false statement. On the other hand, if it will dissolve gravel, it is not a
false statement.
The
Government does not charge that colchicum cannot be used as a remedial agency,
under certain circumstances; neither does it insist but what rhubarb may have
its use in the medical pharmacopoeia, but the Government contends that the union
of these various ingredients into this product, of the character
established-that although they may have a use for some particular purpose, when
brought together, as in this compound, they have no therapeutic effect, as
recommended in this label.
If
you reach the conclusion on this question that that is a false statement, the
next question you would consider is whether or not it was a fraudulent
statement.
The
word fraudulent means guilty intent; that is, that the claimant intended to
defraud those who should buy Hall's Great Discovery, Texas Wonder. If he
honestly believed that Texas Wonder would do what he claimed it would do, then
it was not fraudulently misbranded, within the terms of the law, and you should
find for the claimant. If you should find that it is a false statement, then in
passing upon the question as to whether it was also fraudulent, you may take
into consideration the chemical contents of the concoction as proven. You may
consider also the therapeutic skill and knowledge of the originator of the
concoction. The claimant admits that in his early life he was deprived of
educational advantages, except in the common school; that he did not attend a
medical college; that he is not a doctor. He contends that he stayed with
doctors, went around the country with them, rode with them, and associated with
them. He contends that he was afflicted with certain disorders of the nature
that he recognized this compound to be a beneficial medical agent for; and that
experimenting upon himself and upon others he discovered that this union of the
ingredients would be beneficial in the treatment of the diseases named on this
carton; and that in that way he derived a good technical and medical knowledge
of them. You take into consideration the fact as to whether a man without
chemical knowledge, without laboratory experience, can medicinally understand
the remedial effects of such drugs as this concoction is shown to have had in
it; and determine whether or not that testimony is to be relied upon and
accepted in preference to the chemist's who made the laboratory test, the
chemical analysis.
There
is another element that enters into the question of fraudulent intent, and
perhaps the controlling element-as to whether or not this claimant honestly
believed that this concoction was a cure
Other
matters may be considered by you in determining as to the fraudulent intent; one
matter as to the wording of the statement on the carton. It seems that the
claimant has been engaged ill the manufacture of this compound for several
years, and that, Perhaps, there has lately been some change in the carton; at
one time he having on the carton " Dr. E. W. Hall." The Government
contends that that is a circumstance going to show that he was undertaking to
impress people with the fact that he was a doctor; and it seems that that
has been taken off. The Government contends further that the marking, "
Hall's Great Discovery "-I believe has been taken off. The claimant
contends that the reason he did that was that he wanted to comply with the
demands of one of the Bureaus of Agriculture; and that more recently he has
taken off that part of the label which says it will dissolve gravel, although he
still firmly believes that it will dissolve gravel; that he removed that from
the more recent cartons. You may take all the circumstances, and determine
whether or not there was any fraudulent intent, or whether he was putting it out
in the honest belief that it would have all the therapeutic effects it is
recommended to have.
Now,
it is not necessarily a question as to whether this compound would have a
harmful or a harmless effect on people who took it. It may be that those
ingredients would have no effect at all; or they may have a harmless effect.
That is for you to determine; but the main issue is whether or not they would
have the therapeutic effect, that is, whether it was a beneficial formula, a
medicinal aid, as recommended on this carton-whether or not that is false, and
whether or not it was made with the intent to defraud.
There has been some allusion to two former trials, one in St. Louis, Mo., and the other one in Texas. The trial in St. Louis was a criminal case, and in that case the defendant was acquitted under instructions from the court. The trial in Texas was a condemnation proceeding, similar to that engaging the attention of the court at present. In the Dallas, Tex., case the jury condemned this medicine as being contained in a carton, which had on it a, false and, fraudulent statement. That trial occurred some time in July Now this shipment which is before you, under investigation, was some months after that, I believe the 24th of August You may consider that testimony, and the information or knowledge given to the claimant in that case what he derived from the trial of that case as to the Government's contention as to the actual contents, and if you find the Government's contention true about it, that they had no therapeutic effect for the diseases recommended, then. if after that trial be continued to put it upon the market. you can consider that circumstance as hearing on the question as to -whether there was any intent to defraud the people by putting the article on the market.
THE VERDICT
TEXAS WONDER:
An article labeled "A Texas Wonder" held misbranded in that the label and package contained statements regarding the curative or therapeutic effect of the article with respect to certain diseases and ailments, which were false and fraudulent. United States v. 60 Dozen Bottles of "A Texas Wonder --------------------------------- 888 United States v. One Gross Packages of "A Texas Wonder"----- 910 United States V. 141 Bottles of Drug Products ----------------- 931
PART FOUR THE APPEAL
(Circuit Court of Appeals, Fifth Circuit,
July 16, 1920)
267 Fed. 795; N.J. No. 8360
In error to the District Court for the
Southern District of Texas. Judgment of condemnation affirmed.
Before WALKER, Circuit Judge, and FOSTER
and CALL, District Judges.
WALKER, Circuit Judge.
This was a libel by the United States praying that 141
bottles, more or less, of described drug products or 'Medicine be seized for
condemnation, and be condemned and sold or destroyed. The libel contained
allegations to the following effect: Each bottle mentioned was encased by a
carton with the following printing or label thereon, to wit:
A Texas Wonder, Hall's Great
Discovery, Contains 43% alcohol before diluted. 5% after diluted. The Texas
Wonder! Hall's Great Discovery, for Kidney and Bladder Trouble, Diabetes, Weak
and Lame Backs, Rheumatism, Gravel, Regulates Bladder Trouble in Children. One
single bottle is 2 months' treatment. Price $1.25 per bottle. E. W. Hall, Sole
Manufacturer, St. Louis, Mo.
There was enclosed in each of the cartons a circular
containing the following:
Louis A. Portner testified he began using the Texas Wonder for
That said label and the said carton, and the
circular contained in each of said cartons, regarding the curative or
therapeutic effect of the said drug or medicine are false and fraudulent, in
that the said drug or medicine contains no, ingredient or combination of
ingredients capable of producing the curative or therapeutic effects claimed for
it as set forth by the printed matter on said carton, and thereby the said
products are misbranded in violation of paragraph 3 of section 8 of the Food and
Drugs Act of June 30, 1906, and the amendments thereof. Said bottles were
shipped in interstate commerce in a way described, and, as a result of such
shipment, were, at the time of the filing of the libel, in the possession of a
named party in the district in which the proceeding was instituted. The
plaintiff in error intervened, claimed the bottles proceeded against, and by
answer put in issue material averments of the libel. Pursuant to a stipulation
of the parties waiving a trial by jury, the case was tried by the court without
the intervention of a jury. The, court made findings of fact to the effect that
the articles libeled were transported in interstate commerce in cartons labeled
as alleged, that every claim made for the medicine on the cartons was false, and
that the medicine as compounded has not and could not have the curative
properties claimed for it; that the defendant-intervener made the claims shown
on the carton recklessly and without a sincere belief in their truth, and that
he had actual knowledge that the claims as made were false; and that, in so far
as, the question of false and fraudulent misbranding is a question of fact, the
medicine as distributed was misbranded falsely and fraudulently. Based upon such
findings of fact the court concluded, as a matter of law, that the bottles of
medicine libeled were falsely and fraudulently misbranded within the meaning of
the statute, and because thereof were subject to forfeiting and condemnation.
There was a judgment in pursuance of such findings of fact and conclusion of
law. The case is here on exceptions to the last-mentioned action of the court,
and to rulings on objections to evidence in the course of trial.
Counsel for plaintiff in error in argument made
objection to the consideration of the part of the opinion rendered in the case
by the district judge which was quoted in the brief filed by the counsel for the
defendant in error. This objection is based, not on a claim that there was any
inaccuracy in the quotation, but on the ground that the opinion of the trial
judge is not properly a part of the record to be considered by this court. If a
provision of a rule of this court (rule 14) had been complied with, a copy of
that opinion would have been a part of the record before us. The objection on
the ground stated is without merit. Certainly it is not an obstacle to a proper
consideration of a case by an appellate court, for it to be authentically
informed by an opinion of the trial judge of the manner in which the evidence
adduced was considered by him and of the reasons relied on to support the
conclusions he reached.
Language used in the label is to be given the
meaning ordinarily conveyed by it to those to, whom it was addressed. When so
read and construed it amounted to an assertion that the article referred to, if
used as directed, might be expected to have a curative or alleviating effect on
the classes of ailments mentioned. There was no indication of an intention to
except any ailment embraced in those classes. Evidence adduced showed what were
the ingredients of the article called "A Texas Wonder,"
and that those ingredients could not, singly or in combination, have any
remedial or. beneficial effect on any ailment of the kinds mentioned in the
label. The plaintiff in error, the claimant below, the manufacturer and
distributor of the article, was a witness in his own behalf. Admissions made by
him showed that he was fully aware that his product did not, and could not, have
any remedial effect on certain well-known kinds of kidney trouble. Evidence
disclosed that it was bought and used as a remedy for ailments as to which
admittedly it was wholly ineffective. It cannot with any plausibility be
contended that there was an absence of evidence to support a finding that the
plaintiff in error put the articles in question into the channels of interstate
trade, labeled as a cure or remedy for stated classes of ailments, when lie knew
that it was ineffective as to an ailment or ailments embraced in those classes,
and that this was done with actual intent to deceive buyers and users of the
article. Such a finding was enough to support the further conclusion that the
alleged label contained a statement as to the curative or therapeutic effect of
the article referred to which was false and fraudulent within the meaning of the
statute. 37 Stat. 416; Seven Cases v. United States, 239 U.S. 510.
It is urged in argument that there should be a
reversal because of the overruling of objections to the following questions
propounded by the court to a physician who was a witness for the claimant:
I will ask you whether or not
such a combination as has been read to you as contained in this bottle is
recognized by the medical profession generally, of any portion of it, as a
specific for either kidney or bladder troubles, diabetes', weak and lame back,
rheumatism or gravel?
I will ask you whether any
physician that you know of would advise, and I am not speaking with reference to
any particular person, but whether the medical opinion crystallized by
discussion and exchange of views, would recommend for treatment to a person
afflicted with kidney trouble, as a great discovery or solvent of that trouble,
this thing?
Would it be considered good or
bad practice for a physician to give it to a man from the standpoint of
protecting a man's health?
The asking of the first-quoted question was
justifiable by the circumstance that the witness, at a preceding stage of his
examination, had made a statement to the effect that the combination of
ingredients which evidence had showed constituted the article in question would
have a definite and specific effect on the various organs of the body. Certainly
it was not improper for the court to seek to ascertain from the witness what he
meant by that statement. The negative answer given by the witness to the
question made it plain that he was not to be understood as assorting that the
combination iii question was regarded as a specific for the class of ailments
for
The action of the court in overruling objections to the
other questions above set out was treated in argument in behalf of the plaintiff
in error as showing or indicating that the case was tried on the erroneous
theory that condemnation of the articles proceeded against could be based on
opinions of physicians that those articles did not possess the remedial
qualities claimed for them. That the court in asking the questions and in
overruling objections to them was not influenced by any such erroneous theory is
made plain by the opinion rendered. That opinion discloses that it was
recognized that the condemnation sought could not be adjudged unless the
evidence adduced proved (1) that the label's statement in regard to curative or
therapeutic effect was false; and (2) that such statement was fraudulently made.
Falsity in the label's statement of remedial effect being one of the elements
required to be proved, it was not improper to admit expert evidence on that
issue. On such an issue, the opinions of persons whose occupation, training, and
experience are such as to make them acquainted with the qualities of the
ingredients of the article in question is admissible. And it is permissible to
prove that these comprising such a class generally regard the ingredients of an
article in question as ineffective, singly or in combination, in the treatment
of ailments mentioned, and would in practice refrain from using it in such
treatment because of the recognized futility of doing so. It may be assumed that
if the issues of fact had been tried by a jury the objections to one or more of
the questions asked might properly have been sustained as a means of keeping the
jury from being confused or misled into basing their verdict on legally
insufficient evidence. But when the issues were tried by the court without a
jury, and there was evidence tending to prove all that was required to be proved
to support the judgment rendered, and findings were made in pursuance of such
evidence, and it is disclosed that the court correctly apprehended what was
required to be found to support its judgment, that judgment is not to be
disturbed in the absence of the record clearly showing erroneous action
prejudicially affecting the substantial rights of the party seeking a reversal.
The conclusion is that the record does not show any
reversible error. The judgment is affirmed.