Majority
p. 787(119 App. Div. 794) W. T. HANSON CO. v. COLLIER et al. (Supreme Court, Appellate Division, Third Department. May 24, 1907.)
Headnote
1. Libel—Pleading—Answer—Relevancy.Where, in an action for libel, matter relevant as a partial defense was not so pleaded, it would be deemed intended as a complete defense^ and demurrable for insufficiency.
2. Pleading—Separate Answer—Irrelevancy—Motion to Strike.
A separate answer, which is subject to demurrer, cannot be stricken out in its entirety as irrelevant or redundant, under Code Civ. Proe. § 545, providing for the striking of irrelevant, redundant, and scandalous matter.
3. Same—Scandalous Matter.
Where scandalous matter has been inserted in an answer solely to insult the plaintiff, and not to protect defendant, plaintiff does not admit the scandalous allegation by demurring; but such answer, though alleged as a separate defense, may be stricken as scandalous.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 1084.]
4. Libel—Pleading—Mitigation oe Damages.
In an action for libel with reference to a patent medicine, an allegation in the answer that the medicine was falsely represented to cure a large number of incurable diseases, and that defendant, after obtaining certain of the medicine, procured a chemical analysis thereof which disclosed the fraud, etc., stated a partial defense, and was relevant in mitigation of damages.
5. Pleading—Demurrer—Motion to Strike.
Whether matters stated in an answer in an action for libel constituted a justification or not should be determined on demurrer or on the trial, and not by motion to strike.
p. 788
6. LibeIg-Pleading—Amendment.
Where, in an action for libel, matter pleaded in justification was not sufficient, and the answer was demurred to, defendant might be permitted to amend, and either allege the matter as a partial defense, or so amplify it as to make it a justification.
7. Pleading—Motion to Strike—Demurrer.
A motion to strike out an answer as irrelevant is not concurrent with a right to demur for insufficiency, or the right to question the sufficiency of the pleading at the trial.
Appeal from Special Term, Schenectady County.
Action by the W. T. Hanson Company against Peter F. Collier and another. From an order of the Schenectady county Special Term ( 101 N. Y. Supp. 690 ), granting a motion to strike paragraphs 11, 12, and 13 of defendants’ answer as irrelevant and redundant, defendants appeal.
Reversed, and motion denied.
The following are the paragraphs stricken:
Eleventh. The above-named defendants, further answering said complaint, and for a second further answer and. defense, allege: That they are pro-
prietors and publishers of “Collier’s The National AVeeldy,’’ and that in the issue of said weekly under date of January 13, 1906, the said defendants published the article written by one Samuel Hopkins Adams, entitled “The Great American B’raud.” That said article was published by these defendants for the public’s good and in the interest of mankind, and to expose certain alleged medical compounds or so-called patent medicines, which claim to cure certain diseases which cannot be cured by said medical compound or patent medicine, or by any other medicine, and which said article was published after a medical analysis had been made by a practical and expert chemist who was employed by these defendants for the purpose of making an analysis of the said Dr. Williams’ Pink Pills for Pale People, and other medical compounds, and which said medical compound was purchased in the open market for the purpose of said analysis and was relied on by these defendants, who believed it to have been truly and correctly made as set forth in the article published in the said weekly.
Twelfth. That in and by an advertisement published to induce the sale among the public of said Dr. Williams’ Pink Pills for Pale People by this plaintiff it was advertised as follows:
“Dr. Williams’ Pink Pills for Pale People, Trade Mark Registered. The great blood builder and nerve tonic cures Anaemia, all nerve diseases, loco-motor ataxy, paralysis, rheumatism, sciatica, headache, all female weaknesses, suppressions of periods, pale and sallow complexions, all diseases arising from mental worry, overwork, excess, early decay, etc. See inside wrapper.
“For directions read circular around the box.
“Price fifty cents.
“Six boxes for $2.50.
“The' Dr. Williams’ Medicine Co.”
And also advertised as follows:
“DIRECTIONS FOR USING.
“Dr. Williams’ Pink Pills for Pale People.
“Trade-mark registered.
“For men and women, young and old.
“An unfailing blood builder and nerve tonic.
“Cure all diseases arising from a poor and watery condition of the blood, such as Pale and Sallow complexion, general muscular weakness, loss of appetite, Depression of spirits, lack of ambition, anaemia, chlorosis or green sickness, palpitation of the heart, shortness of breath on slight exertion, coldness of hands or feet, swelling of the feet and limbs, pain in the back, nervous headache, dizziness, loss of memory, feebleness of will, ringing in the ears, early decay, all forms of female weakness, leuchorrhea, tardy or Irregular
p. 789
periods, suppression of the menses, hysteria, &c.; locomotor ataxy, partial paralysis, sciatica, rheumatism, neuralgia, &e.
“Cure also all diseases depending on the vitiated humors in the blood, causing scrofula, swelled gland, fever sores, rickets, hip joint diseases, hunchback, acquired deformities, decayed bones, chronic erysipelas, consumption of the bowels and lungs.
“Dr. Williams’ Pink Pills also invigorate the blood and system, when broken down by over work, worry, disease, excesses and indiscretions of living. Assist recovery from acute diseases, such as fevers, &e., and cure the loss of vital powers by spermatorrhea.
“These pills are not a purgative medicine. They are not a cure-all. They contain nothing that would injure the most delicate system, but act upon the diseases dependent upon poor and watery blood or a cachetic state of that fluid. They act directly upon the blood. They supply to the blood its live giving qualities, by assisting it to absorb oxygen, the great supporter of all organic life. In this way the blood becoming ‘built up’ and being supplied with its lacking constitutents, becomes rich and red, nourishes the various organs, stimulating them to activity in the performance of their functions, and thus eliminates disease from the system.
“Improvement follows a few days use of these pills; while permanent benefit and cure can only reasonably be expected, when sufficient have been taken thoroughly enrich the blood.
“GENERAL DIRECTIONS.—Before beginning to take these pills, cause the bowels to be freely opened by laxative medicine. It is best to begin with one Dr. Williams’ Pill after each meal, commencing the use of the medicine after a mid-day meal. Being stimulating, it is not best to take them on an empty stomach. After taking a few days the number may be increased to two pills at a dose, while in extreme cases three may safely be taken at one time. Take a sufficient quantity of good, wholesome, nutritious food; avoiding, on the one hand, undue greasiness and indigestibility, and, on the other a watery or sloppy diet. Avoid soups, broths, porriges, pickles, new or warm bread, unripe fruits, and an excess of tea or coffee. Go out of doors as much as possible. Bathe the body frequently, and rub the skin well with a rough towel. Keep the bowels regular. A nutritious diet may be chosen from among the following: —Fresh meats (except pork) fresh fish, fowls, eggs, vegetables (well cooked.) bread and butter, milk, rice, com-flour, and sago puddings.
“SPECIAL DIRECTIONS.—The general directions suffice for the great majority of cases, but for others, especially in women, other directions are necessary, read them:
“SUPPRESSION OF THE MENSES from cold or other causes, as fright, &c., demand the taking of the pills in the larger dose, and the nightly use of the hip bath with mustard; also the taking of a large cupful of some hot, stimulating beverage, such as ginger tea, pennyroyal, or any such herb tea, each night at bed-time.
“PREGNANT WOMEN must be careful not to take these pills until they have passed the fourth month. After that time they will obtain much benefit from their use in the smaller dose. By invigorating the system of the expectant mother, the healthy development of the offspring is ensured, and the woman herself placed in the best possible condition to pass safely through her hour of trial without undue sufferings.
“LEUCHORROEA or WHITES.—This general complaint is very weakening, and consists of a milky, glairy, or purulent discharge, usually worse just before or after the monthly periods. Directions:—Take the pills according to general directions. Dissolve four teaspoonfuls of powdered borax in a half gallon of hot water. Then introduce the nozzle of a syringe as far as possible without causing pain, slowly injecting the whole of the water, as hot as can be borne. Do this twice a day. Pain in the backs, inflammation of the womb, and unusual irritations may be treated in the same way.
“DELATED DEVELOPMENT OF GIRLS when arriving at the proper age may be remedied by the simple administration of the pills, with an occasional hip bath of hot water and mustard.
“TARDT PERIODS may be treated in the same way.
“CHLOROSIS or green sickness is characterized by a sallow, greenish tint
p. 790
of the skin, and depends upon a deficiency of the red portions of thé blood. Directions—take the pills in large doses, according to directions above, and bathe the stomach and abdomen each morning with salt and water—a tablespoonful to the quart—followed by energetic friction with a coarse towel.
“ANJEMIA—literally bloodlessness—is caused by an actual deficiency of the blood and a watery and depraved state of that fluid. It is but an aggravation of chlorosis. It is characterized by a pale complexion, pale lips, dull eyes, tongue and gums bloodless; shortness of breath on slight exertion—especially upon going up stairs; palpitation of the heart, feeling of impending death; weakness, loss of appetite and ambition, irregular and pale monthly periods. If left to itself is apt to result in decline and death, or persistent pernicious anaemia—one of the most hopeless of diseases. Directions Dr. Williams’ Pills taken in increasing doses will never fail to effect a cure if used persistently for a reasonable length of time. Good food, fresh air, and sunlight, agreeable society, warm clothing, and moderate exercise will materially aid the cure. If the digestion is very weak it would be well to drink half a pint of some claret wine at the principal meal each day. This, by stimulating the system and assisting in the rapid formation of blood gives the pills more to work upon and hastens the cure. Claret is not an intoxicant if used in any reasonable quantity, but it is of great use in helping to make blood.
“LOCOMOTOR ATAXY.—Take the pills in gradually increasing doses, until the larger dose is reached. This disease prior to the discovery of Dr. Williams’ Pink Pills was held by the highest medical authority to be incurable but the fact has been demonstrated that these pills will cure this disease if the treatment is persisted in. While taking the pills bathe the body daily with cold water and follow by brisk rubbing with a coarse towel.
“FOR MEN.—For men these pills stand unrivalled. They build up the system shattered by excesses or disease, and cure the various ills caused thereby, viz: spermatorrhoea, impotence, nervous despondency, loss of memory, confusion of ideas, irritability of temper, pain in the back and perinseum, and draining of the prostatic fluid. Directions:—Stop any practice that may have caused the trouble. This is imperative, else the cure cannot be looked for. Take the pills regularly for two or three months first one after each meal, gradually increasing the dose to three pills thrice daily. Bathe the body each morning in cold water using vigorous friction of the skin with a turkish towel. Each night bathe the private parts and buttocks in ice-cold water. Eat good wholesome food avoiding an excess of meat. Avoid stimulants entirely including tea and coffee. Go to bed early and rise early. Sleep on a hard bed with a light cover. Take a large amount of out door exercise. Live a pure and manly life. Engage heartily in some health occupation. Follow the foregoing directions and a cure will be sure to follow.
“CONSUMPTION OF THE LUNGS can be cured but it is much better to prevent it by keeping the blood and the system up, thus resisting the onset of this and other wasting diseases. Take Dr. Williams’ Pink Pills for Pale people for this purpose.
“FOR CHILDREN. Dr. Williams’ Pills have no equal as a strengthening medicine. Scrofula, rickets, swelled glands, St. Vitus’ dance disease of the bones and etc., are all benefitted by the use of the pills. For children four to six years .of age give one third of a pill after each; and from six to twelve years of age one half pill after each meal; divide the pill with a pen-knife daily as given.
“INFLUENZA. The after effects of this disease may be thoroughly eradicated by four to six pills daily, in doses of three pills after meals according to directions.
“The thousands of testimonials voluntarily given the proprietors of Dr. Williams’ Pink Pills prove that they accomplish all that is claimed for them. It should be borne in mind, however, that the longer the standing of the disease the longer will it be necessary to use the remedy. Do not expect a single box to perform miracles, but give the pills a fair trial, faithfully following the directions and the cure is certain.
“N. B.—These pills some times become discolored by having been kept in a damp place, but this does not in any way affect their medical virtues.
p. 791
“DR. WILLIAMS’ PINK PILLS FOR PALE PEOPLE, the great blood purifier and nerve restorer for men and women young and old.
“This wonderful remedy is offered the public with a full confidence that there is no disease arising from a watery or impoverished condition of the blood, or shattered nervous forces which it will not cure if the directions are faithfully followed and the treatment persisted in. Dr. Williams’ Pink Pills for pale people are not a patent medicine, but are a thoroughly scientific preparation, the result of years of careful study. The merit of Dr. Williams’ Pink Pills is attested by the hundred of marvelous cures they have wrought. These pills are not a purgative medicine. They have an especial action (through the blood) upon the sexual organs of both men and women. It is a well recognized fact that upon the healthy activity of the sexual apparatus depends the mental and physical well being of every person come to adult years. It is that which gives the rosy blush to the cheek, and the soft light to the eye of the maiden. The elastic step, the ringing laugh and the strong right arm of youth own this same mainspring. How soon do irregularities rob the face of color, the eye of brightness? the blood becomes impoverished, the victim pale. This palor of the skin is often the only outward mark of the trouble within. Then Dr. Williams’ Pink Pills for pale people step into the breach and hold the fort. The impoverished blood is enriched. Vigor returns! Youth is recalled! Decay routed! The bloom of youth again mantels the faded cheek!
“DR. WILLIAMS’ PINK PILLS FOR FEMALE TROUBLES.
“Pure blood is the secret of health and beauty. The features may be regu- • lar, the form perfect, but no woman can be beautiful in the sense of the word while suffering from any of the peculiar ailments of her sex. Disease destroys the complexion, is productive of wrinkles and premature old age. The regular monthly uterine action is necessary to every woman’s health and if this function of life is checked disease a pale and sallow complexion and a feeling of exhaustion are the result. The monthly secretion must continue from puberty to the turn of life without unnatural obstruction. Any breach of this law of nature will result in the distressing symptoms which make the lives of seven-tenths of the women of this country miserable. Almost invariably a few of these symptoms are severe headaches, loss of appetite, pale or sallow complexion, palpitation of the heart, swolen ankles or legs, nervousness, offensive breath, &c. &c. The sufferer may exhibit one or more of these symptoms or may have all. They simply indicate the ravages disease has made upon the system, and the more of these symptoms the patient shows the greater the necessity for prompt and persistent treatment until they have been banished, and the bloom of health is restored. To accomplish this end Dr. Williams’ Pink Pills for Pale people are the only unfailing remedy. They positively cure all suppressions and irregularities which if neglected inevitably entail sickness and trouble. By taking these pills for a week or ten days before the expected return of each period regularity is assured. For suppression the pills must be taken steadily until the reappearance takes place—generally in a months time, some times less. Follow the directions about each box. Nursing women will find their milk improved in quality and quantity by taking these pills; and also obtain relief from pain in the back and general dragged out feeling. All displacements from weakness of the uterine ligaments are speedily relieved and ultimately cured by the faithful use of these pills. Leucorrhoea bearing down weight in the pelvis and all female weakness finds speedily relief and cure in the administrations of Dr. Williams’ Pink Pills for Pale People.
“NOTE.—Pregnant women are cautioned not to take these pills until after the fourth month. See directions.
“PALE AND SALLOW GIRLS.
“What can be more distressing than to see a girl drooping and fading in the spring-time of youth! Instead of bright looks, glowing rosy cheeks, and' an elastic step there are dull eyes, pale, sallow or greenish complexion, and a languidness of step that bespeaks disease and an early death if proper treatment is not promptly resorted to and persisted in until the impoverished blood is enriched and the functions of life become regular. Upon parents rests a
p. 792Argued before SMITH, P. J„ and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
great responsibility at the time their daughters are budding into woman-hood. If your daughter is pale, complains of weakness, is ‘played out’ upon the slightest exertion; if she is troubled with headache or backache, pain in the side; if her temper is fitful and her appetite poor, she is in a condition of extreme peril, a fit subject for the development of that most dreaded of all diseases—consumption. If you notice any of the above symptoms lose no time in procuring Dr. Williams’ Pink Pills. They will assist the patient to develope properly and regularly; they will enrich the blood and restore, health’s roses to the cheeks, bright eyes and a lightness of step, will surely follow their use, and all danger of consumption and a premature death will be averted. We have numerous testimonials from those who have experienced the greatest benefit from taking Dr. Williams’ Pink Pills for Pale People.
“Beware of imitations. Dr. Williams’ Pink Pills for Pale People are never sold in bulk or by the dozen or hundred, but always in sealed packages, the wrapper around which bears the trade mark. If your dealer does not keep them they will be sent cost paid on receipt of price fifty cents per box or six boxes for $2.50 by addressing THE
“DR. WILLIAMS MEDICINE COMPANY,
“Schenectady, N. Y.
“Branch offices,
“Rockville, Out, London, Eng., Paris, France, Sidney, N. S. W., Cape Town, South Africa, Bombay, India, Rio Janeiro, Brazil, Mexico City, ilex.”
Thirteenth. That it was the intention and purpose of these defendants relying on the information derived from such chemical analysis above mentioned, and from other medical searches, to show to the public that said alleged patent medicine, called “Dr. Williams’ Pink Pills for Pale People,” does not cure the diseases set forth in the above-mentioned advertisement, and especially paralysis, and that, in claiming that such so-called medical compound did cure such diseases, and especially paralysis, that the plaintiff or any other person selling said chemical compound committed a “great American fraud” and a fraud upon the public who purchased the same, and that in so doing purchasers wasted their money and threw away their only chance of cure by delaying proper treatment until it is too late.
John T. Eenlon (John V. Judge, on the brief), for appellant.
James A. Van Voast (Edward W. Hatch, on the brief, and Eranlc B. Church, of counsel), for respondent.
The action is for libel in publishing certain articles derogatory to the plaintiff’s “Pink Pills for Pale People.” The tenth paragraph of the answer is a. denial of the allegations not admitted. The 11th paragraph begins: “The above-named defendants, further answering said complaint, and for a second further answer and defense, alleges”; and the eleventh, twelfth, and thirteenth paragraphs are evidently intended as one answer and defense. This answer alleges facts which, if stated as a partial defense, would be held relevant and proper for that purpose. But, not being stated as a partial defense, it must be deemed as intended for a complete defense, and is therefore clearly demurrable for insufficiency. A separate answer, which is subject to demurrer, cannot be stricken out in its entirety as irrelevant or redundant under section 545 of the Code of Civil Procedure. Goodman v. Robb, 41 Hun, 605 ; Armstrong v. Phillips, 60 Hun, 243 , 14 N. Y. Supp. 582 ; Walter v. Fowler, 85 N. Y. 621 ; 1 Nichols, Pr. 1066.
p. 793
Where scandalous matter has been inserted in an answer solely to insult the plaintiff, and not to protect the defendant, the plaintiff is not required to admit the scandalous allegations by demurrer; but such answer, although alleged as a separate defense, may be stricken out as scandalous. The necessity of the case makes this exception to the rule. Armstrong v. Phillips, supra; Persch v. Weideman, 106 App. Div. 553 , 94 N. Y. Supp. 800 . Uggla v. Brokaw, 77 App. Div. 310 , 79 N. Y. Supp. 244 , decided by a divided court, does not impair the authority of the above cases. There certain answers were demurred to for insufficiency, and the demurrers were overruled, for the reason that the answers did not allege new matter, but merely recited allegations pertinent to the issue, but which might be shown under the general denial, and were therefore redundant, and the court thought there should be a remedy by striking out the redundant matter. The question now under consideration was not squarely before the court.
We cannot say whether the pleader intended the matter stricken out to be used by way of mitigation or justification. If properly alleged as a partial defense, it was clearly relevant in mitigation of damages. The pleader may have intended it as a justification. It is unnecessary upon this motion to determine whether the facts alleged are sufficient to constitute a justification or not. That matter should be determined upon demurrer, or in a proper way upon the trial. If demurrer is resorted to, and the defendant fails to sustain the answer, he may be allowed to amend, and allege the matter as a partial defense, or to amplify it, so as to make it a justification. Much of the matter stricken out would be proper in a plea of justification, and the answer may be said to foreshadow an attempt to make that plea, as well as a plea of matter in mitigation. If the question is raised upon the trial, the court may allow the defendants to amplify and correct the allegations, so as to allege in form what they have attempted to allege in substance. The matter alleged relates to the charge made, against the defendants, and is material to be shown to protect their rights. Whether it is alleged in form and substance sufficient to form a defense cannot be determined by motion, but may properly be considered upon a demurrer. A motion to strike out an answer as irrelevant is not concurrent with the right to demur for insufficiency, or the right to question the sufficiency of the pleading at the trial. Walter v. Fowler, 85 N. Y. 621 .
The argument of counsel has been directed to sustaining or overthrowing the order as an entirety. The court does not, therefore, feel called upon to determine whether certain parts of the matter stricken out might properly be stricken out as irrelevant to the issue attempted to be raised by the answer.
The order appealed from is therefore reversed, with costs, and the motion is denied, with costs. All concur.
Cases cited
- Walter v. Fowler 85 N. Y. 621 p. 792, p. 793
- Uggla v. Brokaw 77 App. Div. 310 p. 793