Lapas attēli
PDF
ePub

tion that this liquid is a preparation "from a simple sugar cane like plant grown near the equator," of remarkable value as a food for the nervous system, and as a cure for paralysis and other serious diseases, it would, in my opinion, depart from the ordinary rules which require allegation and proof. While fraud is not presumed, the truth of a mere allegation is ordinarily not to be presumed, but must be established by sworn evidencé.

Courts of equity have frequently extended to the proprietors of patent medicines and like preparations privileges not extended to other litigants. They have assumed the truth of incredible or doubtful statements made by patent medicine vendors, without requiring them to make allegations to the court substantially similar to those made to the public, and have protected businesses which were neither presumptively nor in fact entitled to protection. Instances may be found where a complainant. has received protection from a court of equity while making most incredible and preposterous statements to the public as the basis of his business. Is there any reason why a court of equity should act upon the presumption that a patent medicine vendor, or the vendor of a preparation offered to the public with statements as to wonderful ingredients and marvelous curative properties, states the truth upon his bottles and labels? Eminent jurists have acted upon the contrary presumption. In Williams v. Williams, 3 Merivale, 157, 15 Jurist, 794, Lord Eldon said: "Upon general principles, I do not think the court. ought to struggle to protect this sort of secrets in medicine." Other cases to the same general effect are referred to in the opinion in Worden v. California Fig Syrup Co., 187 U. S. 527, 23 Sup. Ct. 161, 47 L. Ed. 282.

While this may be an extreme position, it is no more extreme than the cynical view that, despite extravagant and apparently unfounded statements, patent medicines should prima facie be regarded as property entitled to protection. In Worden v. California Fig Syrup Co., 187 U. S. 530, 23 Sup. Ct. 165, 47 L. Ed. 282, is cited with apparent approval the remark of Lord Chancellor Westbury:

"That he could not receive it as a rule, either of morality or equity, that a plaintiff is not answerable for a falsehood, because it may be so gross and palpable as that no one is likely to be deceived by it," etc.

But why, in dealing with patent medicines, should a court of equity proceed upon general presumptions? A court of equity, when invoked to protect a business, cannot avoid a fair examination of the character of the business. Of the truth or untruth of certain representations or statements a court may take judicial notice. The ordinary rules as to judicial notice undoubtedly could be properly applied to preparations whose statements were on their face too preposterous or incredible. In many cases, however, the truth or untruth of representations cannot be determined upon the principles of judicial notice. A court should not, of course, take judicial notice that all patent medicines or secret preparations are fraudulent and lack merit, and refuse relief on this ground. It by no means follows, however, that it is required to presume that representations to the public are prima facie true. Ordinarily, those things of which a court does not take judicial notice must be proved.

152 F.-32

In the present case, I find in the complainant's proof no sufficient reason for belief that this article is in fact what it is represented to be, either as to ingredients or curative value. I think that I cannot take judicial notice that the representations are untrue. The statements seem to be improbable. They cannot be ignored. And should relief. be extended to the complainant, it would be with decided misgivings whether the court was not protecting a business of selling root beer under false representations that it contains an ingredient which is a cure for nervous disorders and serious diseases.

To apply the rule that a complainant must allege fairly and fully what his business is, and produce proof substantially supporting his allegations, should not require of the complainant the allegation and proof of the minute particulars of his business; but it should, I think, require a complainant who asserts that he has an article which is good as a beverage, and is also good as a cure or medicine because of certain ingredients, to make proof substantially to the extent of his general representations to the public. The proprietor of a secret preparation may justly claim protection of a trade secret, but to the extent of his representations to the public secrecy is waived; and there is no hardship in requiring a complainant who has stated certain things to the public as truths in order to promote the sale of his goods to state the same things as truths to the court, and prove them as truths, in order to secure equitable relief. The right to preserve a trade secret does not carry with it a general right to have one's bare word or unsworn statement accepted in a court of equity, or excuse a failure to prove the truth of what is published to the public. To the extent that a manufacturer of goods chooses to reveal their character and composition to the public to that extent he waives the right of secrecy in a court of equity.

If it is not incumbent upon a complainant to prove something more than that he is representing his goods to the public in a certain way under a certain trade-mark, a court of equity, by ingenuously assuming the truth of what vendors tell the public about their goods, particularly goods of the patent medicine class, will indulge in a presumption not entertained by ordinary persons of intelligence, and which is contrary to that public experience which has resulted in the enactment by Congress of laws for the protection of the public against unscrupulous statements in relation to a very large number of articles in whose preparation there is an opportunity for adulteration, substitution, or secret fraud.

A presumption in favor of a complainant may be grounded on general experience, probability of any kind, or merely on policy and convenience. It is very doubtful if a presumption in favor of this complainant can rest on either of these grounds. I see no reason why, in the absence of averment and proof, this court should assume that Moxie is a preparation from a sugar cane like plant which has remarkable properties as a nerve food.

A complainant must by allegations and proof show that he is entitled to relief. Knox v. Smith, 4 How. (U. S.) 298, 317, 11 L. Ed. 983. The allegata and the probata must reciprocally meet and conform to each other. Harrison v. Nixon, 9 Pet. (U. S.) 503, 9 L. Ed. 201.

It seems to have been assumed in the argument that the burden rests upon the defendants to show with a high degree of certainty that the complainant's preparation is not what it purports to be. The record in this case well illustrates the practical inexpediency of supporting a complainant's case by a presumption of the truth of what he has not alleged to be true. If, as a fact, the complainant is selling root beer as a medicine for paralysis, etc., and can rely upon an artificial presumption that it is not, it can continue to do so with the assistance of a court of equity, and enjoin all defendants who have not the financial means to secure evidence in the very difficult task of proving a negative. If it be the fact, this complainant can easily prove that its liquid does contain the important ingredient which gives it remarkable qualities as a nerve food, and it can prove what it alleges to the public without fear that a court of equity will require it to disclose what it has chosen to keep secret. This court has so decided upon an interlocutory application in this case.

The question, where rests the burden of proof that Moxie is a preparation of a plant of remarkable virtue in nervous disorders? is one of great importance in this case. If the complainant does not offer affirmative proof, it runs what Mr. Wigmore terms "the risk of nonpersuasion" of the court. If it may rely upon a presumption that it is not guilty of fraud, it should not rely upon a presumption that the court will assume its numerous statements to be true.

From the nature of this case, as well as of all cases involving a trade-mark upon goods, whose exact character can be known only to the manufacturer, but which are put forth with specific statements to induce the public to purchase them, the burden of proof as to the truth of the statements should rest upon the manufacturer. A chancellor should not be required to assume on the bench what he would not believe without proof when off the bench. Proof should be required. from that person within whose knowledge the fact rests. Selma, Rome, etc., Railroad v. United States, 139 U. S. 560, 567, 568, 11 Sup. Ct. 638, 35 L. Ed. 266. There should be no such technical application of rules concerning presumptions or the burden of proof as to relieve a complainant from the obvious duty of satisfying the court that his goods are what they purport to be and what he represents them to be.

The complainant's attitude on the argument is substantially this: It is true that we represent this article as a preparation of a plant which has remarkable virtues in nervous disorders, but we do not propose to prove that it is what we represent it to be. We are entitled to the protection of a court of equity unless the defendants can prove that it is not, and the burden of proof is obviously altogether too heavy for the defendants to sustain.

The natural contempt of the chancellor for a fraudulent imitator who sets up the defense that he is imitating only a fraud apparently has often led the courts to treat with leniency a complainant who seeks protection for a valuable business built largely upon misrepresentation. It is quite true that the defense of unclean hands comes with ill grace from a rival manufacturer who is a fraudulent imitator whose hands are equally unclean. Siegert v. Gandolfi (C. C. A., 2d Circuit, De

cember, 1906), 149 Fed. 100. But this, as it seems to me, is entirely aside from the merits of such a defense. It is not a question of grace. The validity of such a defense is well established. Worden v. California Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161, 47 L. Ed. 282. As the courts should not, in such cases, take into consideration the attitude of the defendant (187 U. S. 529, 23 Sup. Ct. 164 [47 L. Ed. 282]), so they should not take it into consideration when discussing the question of the burden of proof.

"It is a clear rule, laid down by courts of equity, not to extend their protection to persons whose case is not founded in truth." 187 U. S. 529, 530, 23 Sup. Ct. 165 (47 L. Ed. 282).

But how determine if a complainant's case is founded in truth? The rule is simple. Let the complainant state fully the real case, and support it by proof. The representation upon the label of a package is a material part of the vendor's business, and no undue hardship or inconvenience will result to an honest vendor if he is required to prove the truth of his label as he is required to prove the truth of any other material fact. This rule, I am aware, may prove exceedingly embarrassing to many vendors of patent medicines, but only to those who are guilty of misrepresentation and deceit. It need not prove embarrassing to one who wishes to keep a trade secret, for he need only forbear publishing what he does not care to prove.

In Worden v. California Fig Syrup Co., 187 U. S. 527, 23 Sup. Ct. 164 (47 L. Ed. 282), it was said that, in the absence of legislation. "courts cannot declare dealing in such preparations to be illegal, nor the articles themselves to be not entitled, as property, to the protection of the law."

I find in this opinion, however, no authority for relieving patent medicine vendors from the ordinary requirement that a complainant must affirmatively make out his right to relief, or for extending to them a presumption that what they have stated to the public is to be accepted as true by a court of equity without the support of sworn testimony.

I am of the opinion that this complainant has not made out a case for equitable relief, for the reason that it has failed to show the substantial truth of the representations made upon its labels and wrappers as to the ingredients and curative powers of Moxie in nervous disorders.

If it is wrong to refuse to extend to the complainant a presumption that its representations are true, it is yet very clear that a presumption of this class, if allowed to supply the place of fact, cannot stand against established facts. Fresh v. Gilson, 16 Pet. 327, 10 L. Ed. 982; Lincoln v. French, 105 U, S. 614, 26 L. Ed. 1189. The defendants' evidence is more than sufficient to overcome any mere presumption of the truth of the complainant's representations. This evidence will, however, be considered in connection with the defendants' contention that they have affirmatively established the defense of unclean hands, and of fraudulent representations to the public.

The complainant's representations to the public, which seem important on the issue of fraud, relate to the origin, ingredients, and curative powers of Moxie. The label states:

"It is prepared from a simple sugar cane like plant grown near the equator. It was lately discovered by Lieut. Moxie, who placed his discovery in the hands of Dr. Augustin Thompson who has demonstrated its value as a food for the nervous system."

The wrapper says:

"A little insignificant weed revolutionizing the habits of the world.

"We hereby agree to give any person $10,000, if they can show their preparations contains any Moxie, or if they can produce any of the plant, or its beneficial results.

"Moxie is compounded from well-known flavors, and the richest predigested nerve food ever discovered, by one of the most successful old physicians in New England."

"No representations can be more material than that of the ingredients of a compound which is recommended and sold as a medicine. There is none that is so likely to induce confidence in the application and use of the compound, and none that, when false, will more probably be attended with injurious and perhaps fatal consequences.' Fetridge v. Wells, 13 How. Pr. 385, quoted in Worden v. California Fig Syrup Co., 187 U. S. 531, 23 Sup. Ct. 165, 47 L. Ed. 282. See, also, Perry v. Truefitt, 6 Beav. 66.

The defendants have offered in evidence advertisements inserted in the Lowell Morning Times by Dr. Augustin Thompson in February, 1885, in part as follows:

"From South America.

*

*

*

"On the Pacific side, in South America, the Indians grow a plant something like our rhubarb from which they make a decoction like our tea and coffee. This is their national drink. From its use they are able to undergo great fatiguing exertions without the ordinary result. It seems to be a nerve food instead of a medicine, as its use leaves no reaction or nervousness. One of our prominent physicians is about to introduce it here and it will soon be on sale by the grocers and apothecaries, cheap enough that all may use it. * * * It will be called the 'Bolivian Nerve Food,' or 'Moxie Appetizer.' It builds an appetite by building the nervous system, which governs the functions of the body. Will be ready by March 3d."

The next advertisement, in March 1885, was in part as follows:

"South America Again to the Front.

"Last week we called your attention to that plant from South America lately introduced by Lieut. Moxie as a nerve food. His attention was first called to it from its general use by the natives, and singular action on the nervous system, while he was traveling in Bolivia. Through information obtained from him, it has been brought to Lowell and thoroughly tested for three months."

Medical and chemical experts say that these descriptions are suggestive in part of coca-“erythroxylon coca”- described by one witness as a stimulating substance not unlike the extract of tea.

In the bulletins of the Bureau of American Republics (printed by the government) appears, in the handbook on Bolivia, Vol. 4, p. 42, a reference to "coca," "erythroxylon coca❞—

"the dry leaves of which are a highly stimulating narcotic, and are chewed by the Bolivian and Peruvian Indians, by travelers in the Upper Andes, and by the Bolivian soldiers, when in the field, just as betel is used by the inhabitants of the East Indies."

The complainant's statement that the preparation contains not a drop of stimulant, as well as other statements, and the results of chem

« iepriekšējāTurpināt »