A TEXAS WONDER
|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.
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 copaiba 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 testifies that it contains certain other ingredients, the nature of which he did not disclose; that under the Pure Food and Drugs Act is improper on the part of the Government to require a disclosure of the contents of his formula. That is one of the questions for you to decide-whether or not that product has been analyzed chemical whether or not the analysis given by the chemist conflicts substantially, the medicinal ingredients alleged, or whether he has omitted some important drug which the claimant contends in it. That is the first question.
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 not a specific-but would have a remedial, a therapeutic effect upon the persons suffering with the diseases named on the carton. If he believed that, if you find that it was an honest transaction in that respect, then he would not be guilty of fraudulent intent. In passing upon that question you take into consideration all the facts of the case; determine as to whether his knowledge is that of a person who understands the effect of it, or whether or not it is the statement of a mere faker or charlatan who desires to impose upon the Public a formula for sale for the making of money.
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.
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 stone in the kidneys and tuberculosis of the kidneys as diagnosed by his physician * * *. He was still using the medicine with wonderful results, and his weight had increased.
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 which the label suggested its use; in other words, that it was specially adapted to have a beneficial effect with reference to such ailments.
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.