Majority
p. 184RICHARDS against JUDD. Supreme Court, First Department, First District; General Term, January, 1874.
Headnote
Examination of Party.—Refusal • to Answer.— Striking out Complaint.—Libel.If a party, attending to testify on his examination as a witness before trial at the instance of the adverse party, refuses to answer a material and proper question, his pleading may be stricken out.
Plaintiff, the vendor of a medicine which he advertised as compounded of powerful ingredients and having great virtues, brought an action for libel against defendants, who had denounced him as-a quack and his medicine as a humbug; and the defendants, in their answer, justified by alleging the worthless and deceptive character of his medicines. Held, that plaintiff, on examination at the instance of defendants before the trial, under sections 391 -394 of the Code, was bound to answer specifically a question as-to what ingredients his medicine was composed of.
David Richards sued Orange Judd and others for libel, and the cause now came before the court on appeal from ah order of the special term, striking out the complaint, and dismissing the same with costs, for plaintiff’s refusal to answer certain questions propounded to him as a witness, pursuant to the order of the court.
The plaintiff alleged in his complaint, in substance, that he is and has for many years been the sole pro- • prietor, owner and manufacturer of articles of medicine and merchandise, generally and publicly known as Dr. Richau’s Golden Remedies; which he has for ten years last past manufactured and put up, and offered for sale and sold ; and that, by means of extensive advertising and the good qualities of such Golden Remedies, he has secured large sales and profits.
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He also alleged, that the defendants are publishers of a monthly magazine, known as the American Agriculturist., and having a circulation monthly of two hundred and fifty thousand' copies ; that in November, 1872, the defendants published in their said magazine a certain libelous article, in the following words: “ Sundbx Humbugs.—Our newer readers keep inquiring about the trustworthiness of this, that and the other doctor for varioxis diseases. We answer, that every so-called physician, every medical institute, or college or association that advertises medicine or medical advice, by circular or otherwise, is a quack ; in short, a swindle. The whole tribe of those who advertise ‘ marriage guides,’ ‘ female medicines,’ ‘ advice to the young,’ ‘errors of youth,’ ‘eye doctors,’ ‘ear doctors,’ ‘consumption curers,’ ‘ cancer doctors or medicines,’ &c., &c., are positively quacks and impostors, to whom it is unsafe to address even a letter of inquiry; also, the ‘ Golden Remedies,’ inquired about by several, are nonsensical quackery. We have not room for a lot more of humbugs on hand, but will renew the war upon them in the next volume ; and, as hitherto, we expect to shield at least all our readers from swindlers, and, through them, many other people.”
The plaintiff alleged also, that the defendants, by means of these words, published as hereinbefore set forth, insinuated, and meant to be understood by those to whom it was published, and to the public at large, as charging the plaintiff with being a quack, impostor and swindler, and that the said “ Golden Remedies,” manufactured solely by the plaintiff, were wholly valueless and useless, and possessing no medical qualities whatever, and that by means of the publication the plaintiff has been injured in his reputation and in his business, and been deprived of custom and trade, and lost the sale of goods and profits, which he would
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-otherwise have made, to his damage twenty-five thousand dollars.
The defendants in their answer admit, in substance, that they are publishers of the American Agriculturist, and that, in December, 1872, they published the article under the caption of “ Sundry Humbugs,” above set forth. They allege also, that the publication is substantially true, and was published with good motives and for j ustifiable ends. They also set out, in extenso, the circulars sent forth by the defendant with his “Golden Remedies,” in which the plaintiff describes himself as a physician who has had a general practice in all parts of the world ; and they aver various facts tending to show that the alleged medicines -of plaintiff are valueless as remedies for disease, being ■compounds costing but a few cents per bottle, and selling at several dollars, which the public would shun if the constituent parts were known.
The defendants propose in their answer to give evidence of all the various facts alleged, both in justification and in mitigation of damages.[1]
Issue being joined, the defendants upon affidavit procured an order and summons for the examination -of plaintiff as a witness on their behalf, before the trial.
On such examination, the plaintiff testified that a bottle marked “Dr. Richau’s Golden Remedies, Ho. 2,” was one of the medicines he advertises and vends to the public. He was then asked of what balsam Ho. 3 was composed ? He refused to answer the question, on the ground that it was irrelevant, immaterial, and a secret in his trade. The judge directed the plaintiff to answer the question. He then answered: “It is a secret compound, composed of various ingredients,
p. 187Insisted that the constituents of the medicines were not in issue (Greenl. on Ev., § 51); and even were they revealed, the only question would be, will the medicines cure ? (Murch v. Davidson, 9 Paige, 580; Swift v. Dickerman, 31 Conn., 285 ). The court cannot compel specific articles to be produced by the party (Anson v. Tuska, 19 Abb. Pr., 391 ). A defendant in libel cannot call on plaintiff to help him prove his defense by revealing the constituents of the goods (Day v. Tucket, 1 Bail. Ct., 203; Met. Saloon Co. v. Hawkin, 4 Hulst. & M., 146; Townshend on Slander & L., 366). The secret of the manufacture of the remedies is plaintiff’s property,.a
which possess great medicinal properties;” and refused to state the names of the ingredients.
He then gave evidence showing that he was not a •doctor of medicine, and had never received a diploma, and had not been engaged in a general practice of medicine in any part of the United States.
He then testified that he advertised “ Doctor Rieham s Grolden Elixir de Amour, or Elixir of Love and being asked, “of what is it composed?” here-fused to answer.
The court at special term, after argument, ruled that the plaintiff must answer the question which had been propounded; and on the question being repeated to him, he answered: “It is a secret compound of various ingredients which possess great medicinal properties ;” and refused absolutely to give any other answer.
The court at special term, on presentation of these facts, held that the answer was evasive ; and the plaintiff, under the advice of his counsel, refusing to give any other answer, the court ordered his complaint to be stricken out and dismissed, with costs.
Plaintiff appealed.
John S. Walker, for plaintiff, appellant,
p. 188subject- of sale, and cannot be taken without due process of law (Jarvis v. Peck, 10 P. Wms., 118, and cases cited; Const. of N. Y., art. 1, § 6). Cited,, besides the cases in the opinion, Fetridge v. Wells, 4 Abb. Pr., 194 ; S. C., 13 How. Pr., 396 ; Pidings v. How, 8 Sim., 479; Perry v. Trufitt, 6 Beav., 66; Halloway v. Hooway, 13 Id., 213; Burnett v. Phalon, 11 Abb. Pr., 157 ; S. C., 19 How. Pr., 530 ; Bull v. Lovelace, 10 Dick., 9.
Amos G. Hull, for defendants, respondents,
By the allegations of his complaint the plaintiff had invited an issue as to the medicinal qualities and value of the “Golden Remedies.”
The statement of the alleged libel, so far as it pointed directly to the plaintiff or his remedies, was to the effect that his “Golden Remedies” are “nonsensical quackery ;” and it is chiefly of this statement that the plaintiff complains.
The defendants undertake by their answer to show that this statement is true.
No one can read the circulars of the plaintiff, as proved by himself on his examination, without observing the importance of the investigation sought to be made.
It was competent to disprove the assertions of the 'circulars and of the complaint, by ascertaining the ingredients of the several compounds, for the purpose of showing that they possess no such medicinal virtues as are claimed by plaintiff.
For instance, he asserts in his circular that his “Elixir of Love” is composed of the most powerful ingredients of the vegetable kingdom, “harmless, but
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speedy in restoring healthy action ;” and. again: “It is the fountain of youth to old. age; the rejuvenator of pristine vigor in the young ; to the barren women of our land it is a special blessing.” Indeed, it is impossible to read the vulgar, and in many respects shameful assertions and instructions that accompany the compounds of plaintiff, without being struck with the vileness of the impostures. That he can bring an action of libel for injury alleged to be done to his trade in his medicines, by denouncing them as arrant quackery, and at the same time protect himself against exposure by claiming them to be valuable secrets, is a proposition that cannot be maintained (Byrn v. Judd, 11 Abb. Pr. N. S., 390; and see 11 N. Y. [1 Kern.], 347).
' In the laudable exposure of such "humbugs ” as the pretended medicine of plaintiff and others, the defendants take upon themselves great risks, and subject themselves to the annoyance of suits ; but I think they are not exposed to any danger that courts will interpose any shield for the protection of parties guilty of fraud and deception of the public.
If the plaintiff did not choose to try the question of the true character of his ‘‘Golden Remedies,” he should have kept out of a court of justice.
The order of the court below was correct, and should be affirmed, with ten dollars costs and dis-" bursements.
Daniels and Donohue, JJ., concurred.
Order accordingly.
Footnotes
- * Present, Davis, P. J., and Donohue and Daniels, JJ.